Colorado Symphony Association

National Labor Relations Board - Board Decisions

Apr 13, 2018

366 NLRB No. 60 (N.L.R.B. 2018)

366 NLRB No. 60
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Colorado Symphony Association and Denver Musi-
cians Association, Local 20-623, American Fed-
eration of Musicians. Case 27–CA–195026
April 13, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND EMANUEL
On November 20, 2017, Administrative Law Judge
Jeffrey D. Wedekind issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Colorado Symphony Associ-
ation, Denver, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. April 13, 2018
______________________________________
Marvin E. Kaplan, Chairman

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing the Union’s request to furnish
copies of the individual overscale contracts of bargaining-unit musi-
cians in the symphony’s brass and woodwind sections, Chairman
Kaplan and Member Emanuel find it unnecessary to decide whether, in
the absence of alleged gender discrimination in pay, the Union would
have been entitled to the overscale contracts solely for the purpose of
helping employee Brook Ferguson or other employees in their individ-
ual negotiations. Member Pearce would find the overscale contracts
presumptively relevant even in the absence of a wage discrimination
concern. King Broadcasting Co., 324 NLRB 332, 336–337 (1997).
______________________________________
Mark Gaston Pearce, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Angie Berens, Esq., for the General Counsel.
Patrick R. Scully and Beth Ann Lennon, Esqs. (Sherman &
Howard LLC), for the Respondent Symphony.
Joseph M. Goldhammer, Esq. (Rosenblatt & Gosch, PLLC), for
the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. The
complaint in this case alleges that the Colorado Symphony has
unlawfully refused to provide Denver Musicians Local 20-623
with certain relevant and necessary information; specifically,
copies of the individual “overscale” contracts the Symphony
executed with its principal wind and brass players for the pre-
vious three seasons. The Symphony admits that it refused to
provide the information to the Union, but denies that the refusal
was unlawful. It asserts that the Union requested the overscale
contracts to assist the principal flutist with her personal EEOC
sex-discrimination/equal-pay case against the Symphony rather
than for any legitimate collective-bargaining purpose. It also
asserts various other defenses, including that the overscale con-
tracts are confidential.1
I. THE RELEVANT FACTS2
Local 20-623 has been the recognized collective-bargaining
representative of the Symphony’s musicians since at least 1990.
The Union and the Symphony have reached successive collec-
tive-bargaining agreements since that time, the most recent of
which was effective from July 1, 2013 through June 30, 2015.
Like the prior agreements, the 2013–2015 collective-bargaining
agreement (CBA) establishes a base weekly salary for the mu-
sicians and certain other terms and conditions of employment.
However, article 16 the CBA authorizes the Symphony and
individual musicians to negotiate and enter into “overscale”
contracts on an annual basis that provide a higher salary and
other more favorable terms and conditions of employment than
specified in the CBA. The Symphony has negotiated and exe-

1 There is no dispute, and the record establishes, that the Board has
jurisdiction.
2 Citations to the record are included to aid review, and are not nec-
essarily exclusive or exhaustive. In making credibility findings, all
relevant factors have been considered, including the interests and de-
meanor of the witnesses; whether their testimony is corroborated or
consistent with the documentary evidence and/or the established or
admitted facts; inherent probabilities; and reasonable inferences that
may be drawn from the record as a whole. See, e.g., Daikichi Corp.,
335 NLRB 622, 633 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003);
and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.),
cert. denied 522 U.S. 948 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cuted such individual overscale contracts with many of the
musicians, including every principal and second and third
chair.3
At no time prior to the relevant events here has the Union
participated in such individual overscale-contract negotiations.
Article 16 states that “[the Symphony] or the musician shall
give written notice to the other” by February 1 if changes in an
individual overscale contract are desired for the following con-
tract year, and “[the Symphony] and the musician shall meet
and negotiate in good faith in an effort to reach agreement.”
There is no mention in article 16 of the Union’s direct partici-
pation, and the Union has never sought to directly participate,
in the individual negotiations. Nor has the Union ever indirect-
ly participated. Although article 16 does not expressly prohibit
the Union from assisting a musician with his/her individual
negotiations, the Union has never done so.
The Union has also never filed or assisted with a grievance
under article 16 regarding the individual overscale contracts.
Article 16 indicates that only a tenured musician may file a
grievance regarding his/her individual contract, and only if the
Symphony’s offer is less favorable than the tenured musician’s
current contract. Although article 19 of the CBA (Grievance
and Arbitration) states that the Union must be involved in the
initial discussion of such a grievance, and that only the Union
may demand arbitration, no such grievance has apparently ever
been filed.
Nor has the Union ever filed or assisted with a grievance re-
lating to the overscale contracts under any other article of the
CBA. There is no provision in the CBA prohibiting the Sym-
phony from engaging in race and sex discrimination or requir-
ing it to comply with federal and state laws generally.
The Union also has not raised any issue regarding the indi-
vidual overscale contracts during the parties’ negotiations over
a new collective-bargaining agreement. Although the parties
have been engaged in such negotiations since 2015, neither side
has proposed any changes to article 16. Nor has the Union
proposed adding a nondiscrimination provision or any other
provision that might provide a basis for grieving inequities
between contracts.
Finally, the Union has never requested a copy of any indi-
vidual overscale contract prior to the relevant events here. And
there is no evidence that the Symphony has ever provided the
Union with a copy.
However, in November 2016, for the first time, one of the
musicians—Principal Flutist Brook Ferguson—complained to
the Union about her individual contract negotiations with the
Symphony. Ferguson believed that she was underpaid com-
pared to male musicians in similar positions, and had been try-
ing to negotiate a more favorable overscale contract with the
Symphony since late 2015. She had even retained her personal
attorney to assist in the negotiations. The attorney had written
several letters on her behalf to the Symphony’s personnel man-

3 Tr. 107, 122. A “principal position” is defined in art. 3.1.C(1) of
the CBA as “the first chair position in each of the following sections”:
“first violin, second violin, viola, cello, double bass, flute, oboe, clari-
net, bassoon, horn, trumpet, trombone, tuba, tympani, percussion, and
harp.”
ager or attorney between February and September 2016. The
letters asserted that Ferguson’s overscale had averaged 28 per-
cent less over the last six seasons than the overscale of her
principal male counterparts, including the principal French horn
and principal bassoonist (“only two of the many examples [she]
is prepared to evidence”); that the Symphony’s counteroffers to
Ferguson, the last of which “was less than the principal
oboe/horn and only mildly in line with the principal bassoon-
ist,” were therefore “unfair and discriminatory”; and that Fer-
guson would be “forced to pursue her remedies at law” if this
and other workplace issues she had raised with the Symphony
were not resolved. (R. Exhs. 2, 4, 5; and Tr. 118, 156.)
Ferguson informed the Union’s president, Michael Allen,
and its attorney, Joseph Goldhammer, of this history at a meet-
ing with them on November 14, 2016. The purpose of the
meeting was to discuss an unrelated workplace incident involv-
ing her and a male associate conductor. The Symphony had
asked Ferguson to meet with management a few days hence to
address it. Ferguson believed the incident reflected or evi-
denced the unfair and discriminatory treatment she had re-
ceived, and mentioned her unsuccessful individual contract
negotiations with the Symphony in that context. She did not go
into detail, but generally informed Allen and Goldhammer of
her offer and the Symphony’s counteroffer; her belief that the
Symphony’s counteroffer was unfair and discriminatory; and
that she was considering filing a charge against the Symphony
with the Equal Employment Opportunity Commission (EEOC).
She asked if the Union could help her. (Tr. 50, 65, 145–148,
153–154.)
Goldhammer replied that the Union could not represent her
with respect to any Title VII or other statutory discrimination
claims she might file with the EEOC. However, both he and
Allen indicated that the Union could look into whether she was
being treated unfairly or inequitably by the Symphony. Allen
said the union pension plan would provide some information
about what other musicians were being paid, but the infor-
mation would not be sufficient for various reasons. Gold-
hammer said if the Union did not have good data on whether
Ferguson was being treated unfairly or inequitably, it should
request the information from the Symphony. (Tr. 45–49, 51,
61.)
Approximately 7 weeks later, on January 4, 2017, Gold-
hammer emailed the subject information request to the Sym-
phony.4 Goldhammer requested that the Symphony provide the
Union with “copies of the individual contracts executed be-
tween [the Symphony] and all principal wind and brass players
for the 2014/15, 2015/16, and 2016/17 seasons” and that it do
so “within 20 days.” (Jt. Exh. 2.)
The Symphony’s attorney, Patrick Scully, emailed Gold-
hammer back a few hours later and asked him to explain the
relevance of the request. Scully reminded Goldhammer that the
Union had “agreed that [the Symphony] has the right to deal

4 The record contains no explanation for the 7-week delay. There is
no evidence of any further discussions about the matter between the
Union and Ferguson, or between the Union and the Symphony, be-
tween the November 2016 meeting and the January 2017 information
request.
COLORADO SYMPHONY ASSN. 3
directly with musicians and arrive at individual contracts.”
Shortly thereafter, Jerome Kern, the Symphony’s CEO and Co-
Chair of the Board of Trustees, likewise emailed Goldhammer
and asked him to also provide the legal basis for the Union’s
belief that it had the right to the information. (Jt. Exh. 3.)
Goldhammer emailed the following reply on January 9:
An employer’s obligation to bargain in good faith in-
cludes the duty to furnish relevant information upon re-
quest. NLRB v. Truitt Mfg. Co., 351 U.S.149, 156 (1956);
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967). The wages of bargaining unit employees con-
tained in the requested individual contracts are “presump-
tively relevant,” since they are data “bearing directly on a
mandatory bargaining subject.” Detroit News, 270 NLRB
380 (1984). In that case as in this one, the collective bar-
gaining agreement allowed the employer to negotiate with
employees rates of pay above the minimums set forth in
the contract. The Board required as a part of the employ-
er’s obligation to bargain in good faith that it disclose the
total wages of all bargaining unit employees to the union,
including those of one employee who objected to the reve-
lation of his overscale to the union.
Further, the Board in Detroit News pointed out that
wage information should be made available without regard
to its immediate relationship to the agreement or to its pre-
cise relevancy to particular bargaining issues. The Courts
have upheld NLRB orders requiring the production of
wage information based upon general grounds, such as
that the information is relevant to potential wage inequities
and the policing and administration of the contract. NLRB
v. Leland-Gifford Co., 200 F.2d 620 (1st Cir. 1952). Ac-
cordingly, in answer to your email of January 4, 2017, the
[Union’s] request of January 4, 2017, is relevant to poten-
tial wage inequities and the policing and administration of
the contract or those provisions which remain in effect af-
ter expiration at least until impasse.
The Board has followed its holding in Detroit News
and has never reversed it. See, e.g., King Broadcasting,
324 NLRB 332 (1997) (Employer must disclose to the un-
ion personal services contracts negotiated with individual
employees which contain more favorable terms for the
employee than those in the CBA, notwithstanding the fact
that the union does not participate in the negotiation of
overscale). Furthermore, the Board’s requirement that em-
ployers produce individual contracts containing more fa-
vorable terms than those required in the CBA has met with
affirmation in the Courts of Appeals. See, e.g., Retlaw
Broadcasting v. NLRB, 172 F.3d 660 (9th Cir. 1999). [Jt.
Exh. 4.]
Scully emailed the Symphony’s response a week later, on
January 16. He asserted that the Union had “waived all bar-
gaining rights” with respect to individual overscale contracts,
citing KFMB Stations, 343 NLRB 748, 752 (2004), a case
where the parties’ expired collective-bargaining agreement
likewise explicitly authorized the employer to directly negotiate
individual above-scale contracts with unit employees. Further,
he accused the Union of requesting the information “at the
behest of” Ferguson, who had “threatened to initiate litigation
against [the Symphony] via correspondence from her attorney.”
He asserted that it “appears beyond cavil that [Ferguson] seeks
the requested information solely for the purpose of pursuing
litigation against [the Symphony],” and that the Union was
seeking the requested information “solely to further [her] un-
substantiated claims against [the Symphony].” He stated that
this was “improper,” citing Unbelievable, Inc., 318 NLRB 857,
861, 877 (1995) (“even if the material would be producible for
collective-bargaining, it is not producible as a substitute for
discovery”); and Union-Tribune Publishing Co., 307 NLRB 25,
26 (1992) (if information is sought relating to a pending charge,
the Board will not find an 8(a)(5) violation if the employer
refuses to provide the information.). Accordingly, he advised
that the Symphony was “reject[ing]” the Union’s information
request “absent further information establishing a lawful basis
for [it].” (Jt. Exh. 5.)
Ferguson filed her initial charge against the Symphony with
the EEOC 2 days later, on January 18. She filed the charge on
her own, without the assistance of either her personal attorney
or the Union. She alleged that the Symphony had been paying
her less than her male colleagues on the principal woodwind
block since she started with the Symphony in 2010; that the
Symphony’s most-recent final offer in 2016 did not bring her
up to the level of her male peers and was conditioned on waiv-
ing her legal equal-pay claims; and that she believed the Sym-
phony was discriminating against her because of her sex in
violation of Title VII of the Civil Rights Act and the Equal Pay
Act. (R. Exh. 3; Tr. 51, 142–143, 154–155.)
The following month, on March 17, the Union filed the in-
stant unfair labor practice charge with the NLRB’s Denver
regional office. The charge alleged that, by refusing to provide
the requested individual overscale contracts to the Union, the
Symphony had violated its duty to bargain in good faith under
Section 8(a)(5) and (1) of the National Labor Relations Act
(GC Exh. 1(a)).
Approximately 2 months later, on May 15, Scully called
Goldhammer to discuss the matter. He informed Goldhammer
that Ferguson had, in fact, filed an EEOC charge against the
Symphony. He told Goldhammer that the charge was untrue;
that the Symphony was not discriminating against her based on
her gender or sex. Goldhammer responded that, while Fergu-
son was “the instigation of” the Union’s information request,
the request was for the benefit of all the unit musicians. He
said the Union had an interest in making sure all the musicians
were being treated equitably, even though they bargained their
overscale rates on an individual basis, and believed that all the
musicians should have access to such information when they
negotiate their individual contracts. He told Scully the Union
was therefore resolved to continue seeking the requested infor-
mation pursuant to its pending unfair labor practice charge.
(Tr. 59–60)
At some point around this time, Symphony CEO Kern also
contacted the Union’s Orchestra Committee about the Union’s
information request. The Orchestra Committee is a group of
five tenured contract musicians elected by Orchestra members
to serve as an agent of the Union in administering the CBA and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
a liaison between the musicians and the Union (Jt. Exh. 1, p.
27). The Committee subsequently advised Kern that the musi-
cians did not want the Symphony to disclose the individual
contracts to the Union.5
In the meantime, on June 27, Ferguson amended her initial
EEOC charge to additionally allege that the Symphony had
disciplined her in November 2016 in a manner inconsistent
with that of her male colleagues. She also specifically objected
in the amended charge to Kern contacting the Orchestra Com-
mittee about the Union’s information request. She asserted that
it was a “sensitive legal information request”; that Kern was
“fully aware that the information request had to do with [her]
allegations of discrimination”; and that Kern’s “inappropriate
disclosure resulted in the entire ensemble being notified of the
information request via email which created much unrest
among the musicians and imperiled [her] professional reputa-
tion and right to privacy.” (R. Exh. 1.)
About 3 weeks later, on July 17, the Regional Director is-
sued a formal complaint on the Union’s unfair labor practice
charge. A hearing on the complaint was held on September 19,
and each of the parties—the General Counsel, the Union, and
the Symphony—filed briefs on October 24.6
II. LEGAL ANALYSIS
As indicated in the Union’s January 9 response to the Sym-
phony, information regarding the wages of unit employees is
presumptively relevant and necessary for a union to perform its
statutory collective-bargaining duties. This includes overscale
wages that individual unit employees have negotiated directly
with the employer pursuant to provisions of the collective-
bargaining agreement authorizing such individual overscale
negotiations. Thus, overscale wage information must be fur-
nished to a union on request unless the employer presents evi-
dence of additional facts or circumstances sufficient to rebut the

5 See Tr. 117. The Symphony’s posthearing brief also cites emails
or letters from the Orchestra Committee to the Symphony and the Un-
ion in July and August 2017, which the Symphony attached to its Sep-
tember 14 opposition to the Union’s petition to revoke its subpoena
duces tecum in this proceeding (GC Exh. 1(o), attachments A, B).
However, the Symphony’s opposition, including the attached emails,
were submitted into evidence by the General Counsel as part of the
formal papers in the case, i.e. the charge, complaint, answer, motions,
etc. (Tr. 5–6). It is well established that such formal papers are offered
and received as merely procedural documents. See, e.g., Dyna-
tron/Bondo Corp., 324 NLRB 572 fn. 5 (1997), enfd. in part and denied
in part 176 F.3d 1310 (11th Cir. 1999). Thus, they generally do not
constitute substantive evidence unless they contain an admission. The
Symphony’s experienced counsel knew this, and therefore proposed a
stipulation that they could be cited as substantive evidence. However,
the proposed stipulation was rejected. (Tr. 18–19.) Further, a ruling
was specifically reserved on whether the emails could be admitted as
substantive evidence until they were offered by the Symphony as such
(Tr. 21). Yet, the Symphony never thereafter moved to admit the
emails as substantive evidence. See also Tr. 87–93. Accordingly, the
emails have not been considered as substantive evidence in support of
the Symphony’s arguments or defenses in this proceeding.
6 The General Counsel also filed an unopposed motion to correct the
transcript. The motion is granted. As noted in the Symphony’s brief,
there are also other instances, not listed in the General Counsel’s mo-
tion, where the transcript misidentifies the individual speaking.
presumption of relevance. Retlaw Broadcasting Co., 324
NLRB 138, 141 (1997), enfd. 172 F.3d 660 (9th Cir. 1999);
King Broadcasting Co., 324 NLRB 332, 336–337 (1997);
WXRK, 300 NLRB 633, 635–636 (1990); WCCO Radio, 282
NLRB 1199, 1204 (1987), enfd. 844 F.2d 511 (8th Cir.), cert.
denied 488 U.S. 824 (1988); Detroit News, 270 NLRB 380,
381–382 (1984), enfd. mem. 759 F.2d 959 (D.C. Cir. 1985);
and Radio Station WLOL, 181 NLRB 560, 561 (1970).7
The Symphony has failed to present any such facts or cir-
cumstances here. The Symphony argues that the evidence
“conclusively demonstrates” that the Union requested the indi-
vidual overscale contracts, not for any legitimate purpose relat-
ed to the Union’s collective-bargaining duties and responsibili-
ties, but solely to obtain evidence for Ferguson’s EEOC sex-
discrimination/equal-pay case against the Symphony. Howev-
er, there are several problems with this argument.
First, as indicated by the General Counsel and the Union,8 it
is well established that investigating possible employer race or
sex discrimination is a legitimate purpose related to a union’s
collective-bargaining duties and responsibilities. Indeed, a un-
ion has a duty to investigate and take action to eliminate such
discrimination. As the Board stated in Westinghouse Electric,
Regardless of the existence of an antidiscrimination clause in
a collective-bargaining agreement, the very nature of the col-
lective-bargaining representative’s status as representative of
all unit employees imposes on it a legal obligation to the em-
ployees it represents to represent them with due diligence.
This duty of fair representation requires it to represent fairly
and in good faith the interests of minorities within the unit.
The Board has stated that a union’s refusal to process griev-
ances against racial discrimination, in violation of that duty, is
an unfair labor practice. For breach of its duty of fair represen-
tation the union may be liable in a suit for damag-
es,https://1.next.westlaw.com/Document/I14e871a7fac511da
b3be92e40de4b42f/View/FullText.html?transitionType=Uniq
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=239+nlrb+106 - co_tablefootnoteblock_18 subject to injunc-
tion, or have its certification of representative revoked. Pas-
sive ignorance will not relieve a union of its duty (Vaca v.
Sipes, [386 U.S. 171 (1967)]), and, if a discriminatory scheme
exists, a union has been required to propose specific contrac-
tual provisions to prohibit racial discrimination in terms and
conditions of employment, and bargain in good faith to obtain
such provisions in a written contract. Since the cases have
plainly established that a union has a right to protect the em-

7 Thus, contrary to the Symphony’s brief (p. 7–8), it was not the Un-
ion’s burden to show the specific or precise relevance of the overscale
contracts to its collective-bargaining duties and responsibilities. See
also Columbia Memorial Hospital, 363 NLRB No. 4, slip op. at 8
(2015) (information concerning unit employees’ terms and conditions
of employment “is presumptively relevant and must be furnished on
request, without need by the [union] to establish specific relevance or
particular necessity”); and Matthews Readymix, Inc., 324 NLRB 1005,
1009 (1997) (“[A] union is not required to prove the precise relevance
of [presumptively relevant] information unless the [employer] submits
evidence sufficient to rebut the presumption of relevance.”), enf. denied
on other grounds 165 F.3d 74 (D.C. Cir. 1999).
8 See Tr. 28; GC Br. 11–12; and Union Br. 13.
COLORADO SYMPHONY ASSN. 5
ployees it represents from discriminatory treatment by an em-
ployer, it follows that a union needs information related to
race and sex in order to make proposals and then to take other
action to correct such discrimination.
239 NLRB 106, 108 (1978) (footnotes omitted), enfd. as modi-
fied sub nom. Electrical Workers v. NLRB, 648 F.2d 18 (D.C.
Cir. 1980), modified on rehearing per curiam 1981 WL 27197
(D.C. Cir. Jan. 22, 1981).
Here, as indicated above, the expired CBA does not contain
an antidiscrimination clause or any other provision that might
support a grievance against the Symphony for discriminating
against Ferguson on the basis of her sex. However, the Sym-
phony and the Union were engaged in ongoing negotiations for
a new collective-bargaining agreement at the time the Union
learned that the Symphony might be discriminating against
Ferguson. Thus, as indicated in Westinghouse Electric, if the
requested overscale contracts of the principal wind and brass
players supported Ferguson’s allegations, consistent with its
duty of fair representation the Union could have proposed that a
nondiscrimination provision be included in the new agreement.
Assuming the provision was agreed to, the Union could have
also filed a grievance to enforce that provision if there were
grounds to believe the Symphony was violating it.
Second, contrary to the Symphony’s contention, there is in-
sufficient evidence that the Union requested the overscale con-
tracts solely to provide Ferguson with evidence to support her
EEOC case. Ferguson had not even filed an EEOC charge at
the time of the Union’s information request. And while she
informed Goldhammer and Allen that she was considering
filing an EEOC charge, there is no evidence that she asked
them to request the individual contracts for her EEOC case or
that they offered to do so. Indeed, Goldhammer credibly testi-
fied that he told Ferguson the Union could not represent her
with respect to any such EEOC case, and that the Union did
not, in fact, help Ferguson with her case. Further, neither he
nor Allen ever advised the Symphony that the Union was re-
questing the information for Ferguson’s EEOC case. Gold-
hammer’s May 15 statement to Scully simply confirmed that
Ferguson was “the instigation of” the Union’s information re-
quest. Similarly, Ferguson’s subsequent June 27 amended
EEOC charge merely stated that the information request “had to
do with [her] allegations of discrimination.”
Thus, at most, the record evidence indicates that the Union
was aware that the requested information might also be used by
Ferguson to support an EEOC charge against the Symphony
(again, assuming it corroborated the information she already
had).9 This is clearly an insufficient basis to rebut the presump-
tion of relevance. See Westinghouse Electric 239 NLRB at
110–111 (“If information is relevant to collective bargaining, it
loses neither its relevance nor its availability merely because a
union additionally might or intends to use it to attempt to en-
force statutory and contractual rights before an arbitrator, the

9 It is unclear where Ferguson obtained the information described in
her attorney’s correspondence about what her male counterparts were
being paid. She may have simply been told by other musicians what
they were being paid. See CEO Kern’s testimony, Tr. 128–129 (the
musicians “all talk to each other” about what they are getting paid).
Board, or a court.”) Accord: Dover Hospitality Services, Inc.,
358 NLRB 710 (2012) (employer was obligated to provide
relevant financial information to the union during collective-
bargaining negotiations notwithstanding a pending lawsuit filed
by affiliated benefit funds against the employer), reaffd. 361
NLRB 682 (2014), enfd. 636 Fed. Appx. 826 (2d Cir. 2016).
See also Encino Hospital Medical Center, 364 NLRB No. 128,
slip op. at 14 (2016); Ralph’s Grocery Co., 352 NLRB 135
(2008), reaffd. 355 NLRB 1279 (2010); Country Ford Trucks,
Inc., 330 NLRB 328 fn. 6 (1999), enfd. 229 F.3d 1184, 1192
(D.C. Cir. 2000); AK Steel Corp., 324 NLRB 173, 184 (1997);
Central Manor Home for Adults, 320 NLRB 1009, 1011
(1996); and Associated General Contractors of California, 242
NLRB 891, 894 (1979), enfd. in relevant part 633 F.2d 766 (9th
Cir. 1980), cert. denied 101 S.Ct. 3049 (1981) and cases cited
there (employer must provide requested information that is
presumptively relevant or has been shown to be relevant to the
union’s collective-bargaining duties, even if the union also has
other reasons for requesting the information or the information
may be used for other purposes).
Third, the various “discovery device” cases cited by the
Symphony in support of its argument are clearly distinguisha-
ble. For example, in Southern California Gas Co, 342 NLRB
613 (2004), the primary case the Symphony relies on, the union
specifically advised the employer that it wanted the requested
work-order information for purposes of its pending safety com-
plaint before a state commission; the requested information was
not presumptively relevant to the union’s collective-bargaining
duties; and the union failed to show that it was relevant under
the particular circumstances. Here, as discussed above, the
Union never asserted that the overscale wage contracts were
being requested for an EEOC charge; the requested overscale
wage contracts were presumptively relevant; and the Union
therefore had no burden to show their specific or precise rele-
vance.10
Cases such as WXON-TV, Inc., 289 NLRB 615, 617–618
(1988), Union-Tribune Publishing Co., 307 NLRB 25, 26
(1992), and Unbelievable, Inc., 318 NLRB 857, 861, 877
(1995), are also inapposite. In those cases the unions requested
the subject information the very same day or after they filed
related unfair labor practice charges with the Board itself,
which does not permit prehearing discovery in unfair labor
practice proceedings. Nothing like that occurred here.
The Symphony’s various other arguments likewise lack mer-
it. For example, the Symphony argues that the Union never
stated that it needed the requested overscale contracts for pur-
poses of the ongoing collective-bargaining negotiations. How-
ever, as indicated above, a union is not required to specify why
it needs information that is presumptively relevant to collec-
tive-bargaining. Further, the Union never stated that it did not
want the requested information for purposes of the ongoing

10 See fn. 7 above. See also Kentile Floors, Inc., 242 NLRB 755,
756–757 (1979) (holding, based on Westinghouse Electric, supra, that
wage data to determine whether existing provisions in the collective-
bargaining agreement tend to perpetuate discrimination or frustrate
equal opportunity is presumptively relevant, and that a union is there-
fore entitled to such information without a specific demonstration of the
relationship of the information to the union’s bargaining function).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
collective-bargaining negotiations. Goldhammer’s January 9
response to the Symphony generally stated that the requested
information was “relevant to potential wage inequities and the
policing and administration of the contract,” citing NLRB v.
Leland-Gifford Co., 200 F.2d 620 (1st Cir. 1952). Like here,
Leland-Gifford is a case where the union requested wage in-
formation during the parties’ ongoing negotiations over a new
collective-bargaining agreement because of concerns about
possible wage “inequities.” Further, the Board’s decision,
which the court affirmed, specifically found that the infor-
mation “was relevant to that subject in connection with contract
negotiations as well as the policing of the administration of any
contract.” 95 NLRB 1306, 1310 (1951). Thus, Goldhammer’s
January 9 response cannot reasonably be construed as an ad-
mission that the requested information had no relevance to the
parties’ ongoing negotiations.11
Goldhammer’s subsequent May 15 conversation with Scully
likewise did not contain an admission that the information re-
quest had no relevance to the parties’ ongoing negotiations. As
indicated above, Goldhammer advised Scully that Ferguson
was “the instigation of” the Union’s information request, but
that the Union had an interest in making sure all the musicians
were being treated equitably, and believed that all the musi-
cians should have access to such information when they negoti-
ate their individual contracts. Goldhammer gave a similar ex-
planation for the Union’s information request at the September
19 hearing, testifying that the request was “driven in part” by
Ferguson; that the information was requested to investigate
whether there were wage inequities; that one of the motivations
for the information request was to help Ferguson with her indi-
vidual overscale negotiations, but that the Union represented all
of the members of the bargaining unit; and that any information
received from the Symphony would be made available to all of
them (Tr. 64, 71). Again, although these general explanations
do not explicitly state that the Union would use the information
to make antidiscrimination proposals at the bargaining table,
they cannot reasonably be construed as an admission that the
information would not be used for that purpose.
The Symphony also argues that the Union never actually
made any bargaining proposals related to the requested over-
scale information during the ongoing negotiations. However,
as the Union never received the requested overscale infor-
mation, it is neither surprising nor a defense that the Union did
not make any bargaining proposals related to it. See Retlaw
Broadcasting, 324 NLRB at 142 (“‘the union cannot decide
what role it will seek to play until it obtains concrete, adequate
information’”), quoting Florida Steel Corp. v. NLRB, 601 F.2d
125, 129 (4th Cir. 1979); and NLRB v. Postal Service, 18 F.3d
1089, 1100–1101 (3d Cir. 1994) (“a union may be entitled to
information [probative of discrimination] before it has made a
bargaining demand”). See also Bendix Corp., 242 NLRB 1005,
1008–1009 (1979).

11 Goldhammer testified that he does not himself participate in the
collective-bargaining sessions (Tr. 60), and that he used general terms
in describing the relevance of the Union’s information request “because
I normally try to keep strategy away from my opposing counsel if I can
make the legal request using more general terms” (Tr. 66).
The Symphony also argues that provisions such as article 16,
which authorize an employer to deal directly with individual
employees regarding overscale wages, are a nonmandatory
subject of bargaining,12 and that an employer has no duty to
provide a union with information concerning a nonmandatory
subject.13 However, as indicated above, the Board in Retlaw
Broadcasting and other similar cases has held that overscale
contracts are nevertheless presumptively relevant and that an
employer must therefore provide them to the union on request
notwithstanding that they were negotiated directly with em-
ployees pursuant to such provisions. The Board’s primary ra-
tionale for doing so is that wages “go to the core of the employ-
er-employee relationship,” and a union is therefore entitled to
know what the individual overscale wages are “without regard
to [their] immediate relationship to the negotiation or admin-
istration of the collective-bargaining agreement.” Retlaw
Broadcasting, 324 NLRB at 141.
Moreover, the Union never asserted that it wanted to bargain
over article 16. Rather, Goldhammer’s January 9 response to
the Symphony generally stated that the requested overscale
contracts of the principal wind and brass musicians were rele-
vant to “potential wage inequities”—by which the Union
meant, and which the Symphony understood to mean, that the
Union was investigating whether there was any validity to Fer-
guson’s allegations that the Symphony had offered her lower
overscale wages than her principal male counterparts because
of her sex. It is well-established that the elimination of race
and sex discrimination is a mandatory subject of bargaining.
See Southwestern Bell Telephone Co., 247 NLRB 171, 173
(1980); and Electrical Workers v. NLRB, 648 F.2d at 24 fn. 6,
and cases cited there. A union may therefore be entitled to
information that is relevant and necessary to determining
whether a particular employment action is discriminatory, even
if the employment action itself is not a mandatory subject. See
Star Tribune, 295 NLRB 543, 548–549 (1989) (holding that the
employer was required to provide the union with information
concerning preemployment drug testing, notwithstanding that
such testing is a nonmandatory subject of bargaining, because
the union requested the information pursuant to a pending
grievance alleging that the employer’s implementation of the
testing program violated the nondiscrimination provisions of
the collective-bargaining agreement), and cases cited there.
The Symphony also argues that the Union waived any right
to request the overscale information. However, a waiver of
collective-bargaining rights must be clear and unmistakable.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
By its terms, article 16 only waives the Union’s right to bargain
collectively with the Symphony regarding the individual over-
scale wages of the musicians. It says nothing about the Union’s
right, under Retlaw Broadcasting et al. and Westinghouse Elec-
tric, to be informed of the overscale wages of the musicians for
other purposes consistent with the Union’s statutory duties and
responsibilities relating to the negotiation, administration, and
enforcement of a collective-bargaining agreement. Nor is there

12 See Retlaw Broadcasting, 324 NLRB at 143–145. See also KFMB
Stations, 343 NLRB 748 (2004), and 349 NLRB 373 (2007).
13 See Pieper Electric, Inc., 339 NLRB 1232, 1235 (2003).
COLORADO SYMPHONY ASSN. 7
any other provision in the expired CBA addressing the Union’s
right to know the overscale wages of the musicians. Thus,
contrary to the Symphony’s contention, the CBA does not
waive the Union’s right to that information. See King Broad-
casting, 324 NLRB at 337 (“Silence in the collective-
bargaining agreement on the issue of whether [unredacted over-
scale contracts] shall be provided to the Union will not consti-
tute a clear and unmistakable waiver.”). See also WCCO Ra-
dio, 282 NLRB at 1204–1205; and Radio Station WLOL, 181
NLRB at 562.14
Waiver also cannot be inferred here from the parties’ history.
The Board does not lightly infer waiver based on past practice.
See Space Needle, LLC, 362 NLRB No. 11, slip op. at 4 fn. 9
(2015); and Owens-Corning Fiberglass, 282 NLRB 609 (1987).
See also General Motors Corp. v. NLRB, 700 F.2d 1083, 1089
(6th Cir. 1983) (“the fact that the Union has not historically
fully exercised its statutory right to information does not defeat
that right contemporarily nor does it constructively constitute a
waiver ad infinitum”). Thus, for example, in Radio Station
WLOL, the Board found no waiver even though in the previous
two contract negotiations the union had either not requested the
individual wage data or had abandoned its request after the
employer denied it. 181 NLRB at 561–562. Here, although
there is no evidence that the Union had ever requested or been
provided any overscale contracts before, there is no evidence it
ever had reason to request them or that the matter had ever been
discussed. Cf. Leonard B. Hebert, Jr., 259 NLRB 881 (1981)
(finding that the employer was required to provide the union
with information regarding whether the employer was running
a double-breasted operation, notwithstanding that the union had
never requested such information before, as the union had re-
cently learned of the possible existence of such an operation),
enfd. 696 F.2d 1120 (5th Cir), cert. denied 464 U.S. 817
(1983).
Finally, the Symphony argues that the overscale contracts are
confidential, citing the fact that the Orchestra Committee told
Symphony CEO Kern that the musicians did not want their
contracts disclosed to the Union. However, there are several
problems with this argument as well. First, the record indicates
that the Orchestra Committee did not tell Kern this until long
after the Symphony denied the Union’s request for the con-
tracts. Second, there is no evidence that the musicians were
promised confidentiality at the time they executed the contracts.
Third, the Board has repeatedly held that a union’s right to such
overscale wage information outweighs individual employee
confidentiality and privacy interests. See Retlaw Broadcasting,
324 NLRB at 138 n. 1, and cases cited there. Fourth, if the
Symphony was concerned about the confidentiality of the in-
formation, it was obligated to propose and bargain over a rea-

14 There are also two other arguable problems with the Symphony’s
waiver defense. First, as the Symphony acknowledges, article 16 is a
permissive subject of bargaining. Thus, the Union was free to unilater-
ally rescind or repudiate it. KFMB Stations, 343 NLRB at 752. Second
a waiver of bargaining rights under a management-rights clause does
not survive the expiration of the agreement, absent evidence that the
waiver was intended to survive. American National Red Cross, 364
NLRB No. 98, slip op. at 4 (2016). However, neither the General
Counsel nor the Union makes these arguments.
sonable accommodation, such as redacting the information
and/or restricting its use. See A-1 Door & Building Solutions,
356 NLRB 499, 500–501 (2011); and Borgess Medical Center,
342 NLRB 1105, 1106 (2004). See also U.S. Testing Co. v.
NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998), and cases cited
there. There is no evidence that it ever did so.
Accordingly, the Symphony’s refusal to provide the Union
with the requested individual overscale contracts of the princi-
pal wind and brass players violated Section 8(a)(5) and (1) of
the Act, as alleged.
ORDER15
The Respondent, Colorado Symphony Association, Denver,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish Denver Musicians Associ-
ation, Local 20-623, American Federation of Musicians with
requested information that is relevant and necessary to the Un-
ion’s performance of its functions as the exclusive collective-
bargaining representative of the Respondent’s unit employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish to the Union in a timely manner the requested in-
dividual overscale contracts executed by the Respondent and all
principal wind and brass players for the 2014/15, 2015/16, and
2016/17 seasons.
(b) Within 14 days after service by the Region, post at its
facility in Denver, Colorado copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of this proceeding, Respondent has
gone out of business or closed the facility involved in this pro-
ceeding, Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current and former employees
employed by Respondent at any time since January 16, 2017.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., November 20, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to furnish Denver Musicians As-
sociation Local 20-623, American Federation of Musicians,
with requested information that is relevant and necessary to the
Union’s performance of its functions as the exclusive collec-
tive-bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL furnish to the Union in a timely manner the re-
quested individual overscale contracts we executed with all
principal wind and brass players for the 2014/15, 2015/16, and
2016/17 seasons.
COLORADO SYMPHONY ASSOCIATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/27-CA-195026 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.