F.A. Bartlett Tree Expert Co.

National Labor Relations Board - Board Decisions

Apr 21, 1995

316 N.L.R.B. 1312 (N.L.R.B. 1995)

1312
316 NLRB No. 199
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we affirm the judge’s findings that
the Respondent did not unlawfully threaten employees with job loss
and closure, make statements of futility, or issue warnings for late-
ness and a safety violation to employee Dickie Hutson.
2 All dates refer to 1993 unless otherwise indicated.
F. A. Bartlett Tree Expert Co., Inc. and Inter-
national Brotherhood of Electrical Workers,
Local Union 934. Cases 10–CA–26541 and 10–
CA–26901
April 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On June 30, 1994, Administrative Law Judge Robert
C. Batson issued the attached decision. Counsel for the
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the exceptions in light of
the record and briefs, and has decided to affirm the
judge’s rulings, findings,1 and conclusions for the rea-
sons stated below, and to adopt his recommended
Order.
In agreeing with the judge that the Respondent did
not violate Section 8(a)(5) and (1) of the Act by refus-
ing to furnish the Union with copies of all of its cus-
tomer contracts, as the Union requested, we find that
the Respondent’s bargaining position did not trigger an
obligation to provide them and that the General Coun-
sel has not otherwise shown their relevance.
The Respondent, a line-clearance contractor, is party
to five contracts with utility companies in the Bristol,
Virginia and Kingsport, Tennessee area and a contract
with the Virginia Department of Transportation, which
were secured through competitive bid. During negotia-
tions for an initial collective-bargaining agreement the
Respondent provided the Union with wage rate and
benefit data which revealed disparities ranging from 2
to 30 percent in wages among the highest paid unit
employees working in the same classifications under
the different line-clearance contracts. The Union pro-
posed a 40-percent increase in compensation and the
standardization of wages within each job classification
across contract lines. The Respondent took the position
that if it standardized wages, it may have to decrease
the wage rate of the highest paid employees. It coun-
tered with a smaller across-the-board increase, with ad-
ditional increases based on merit. In a letter dated July
1, 1993,2 the Union requested that the Respondent fur-
nish copies of its customer contracts claiming that the
Respondent had asserted an inability to pay the wages
it proposed, and that it was necessary to review the
contracts in order to evaluate the Respondent’s propos-
als and to formulate its own proposals on wages. By
letter of July 13, the Respondent denied taking an in-
ability to pay posture and refused to provide the con-
tracts. The Respondent stated in the letter that its posi-
tion was that it ‘‘will not remain competitive if it is
forced to increase wages for all employees up to the
level of the highest paid no matter whether the em-
ployee is working on, for example, Kingsport Power
Company property in Tennessee or Bristol Power
Company property in Virginia.’’ It asserted that ‘‘such
an increase would not reflect the reality of the [Re-
spondent’s] business because its customer contracts are
different, and an across-the-board increase to the high-
est wages paid under any contract would render the
[Respondent] non-competitive and erode its already
low profit margin with regard to all of its utility con-
tracts.’’ (Emphasis in original.) It is not disputed that
the customer contracts contain sensitive financial infor-
mation, including profits and rates that the Respondent
charges customers for trucks, saws, manpower, and ad-
ministrative costs.
In dismissing the complaint, the judge relied heavily
on Nielsen Lithographing Co., 305 NLRB 697 (1991),
enfd. sub nom. Graphic Communications Local 508 v.
NLRB, 977 F.2d 1168 (7th Cir. 1992), in which the
Board found that a claim of competitive disadvantage
does not compel an employer to open its financial
records to the Union. Although we agree, as stated
above, that the Respondent did not violate the Act, we
find that the instant case is not a Nielsen case. There,
the issue was the characterization of the employer’s
claims that it could not remain competitive absent sub-
stantial economic concessions from the union and
whether those claims were tantamount to ‘‘hardship’’
and ‘‘poverty’’ claims that make it incumbent on an
employer to open its books to the union upon request
as required by Truitt Mfg. Co., 351 U.S. 149 (1956).
In the instant matter, the complaint does not allege and
the General Counsel does not contend that the Re-
spondent’s statements constitute inability to pay claims
or that the Respondent has run afoul of Truitt Mfg. Co.
or Nielsen Lithographing. Rather, the General Coun-
sel’s position is that by basing rejection of the Union’s
proposal to increase and standardize wages on the fact
that its customer contracts vary, the Respondent has in-
curred an obligation to furnish those contracts to the
Union. Thus, although the nature of information con-
tained in the contracts and the parties’ statements in
their July 1 and 13 correspondence ostensibly give rise
to a Nielsen Lithographing analysis, that case does not
resolve the issue as the General Counsel has framed it.
The Board has long held that data concerning the
employees’ wages, hours, and terms and conditions of
employment is presumptively relevant and must be
provided to the employees’ collective-bargaining rep-
1313F. A. BARTLETT TREE EXPERT CO.
3 The General Counsel has not cited any case in which the Board
has required an employer to turn over its customer contracts, but we
emphasize that we are not suggesting any flat prohibition against
such a requirement. Whether an employer is required to provide such
information depends on what facts are shown in a given case con-
cerning the relationship of such contracts to representational func-
tions of the union. Thus, in Anchor Motor Freight, 296 NLRB 944
(1989), in which the complaint alleged a violation of Sec. 8(a)(5) on
the basis of refusals by two employers (subsidiaries of the same par-
ent) to supply certain customer contracts and bid documents in con-
nection with grievances filed by the union, the Board dismissed the
complaint only because the union had showed nothing beyond
‘‘mere suspicion’’ that the contracts might be relevant to the griev-
ance. Id. at 949.
In view of our disposition of the case, we find it unnecessary to
reach the judge’s discussion of the breadth of the information re-
quest and of the confidentiality issue.
1 Hereinafter the General Counsel.
2 All dates hereafter are 1993 unless otherwise indicated.
resentative. Whitin Machine Works, 108 NLRB 1537
(1954), enfd. 217 F.2d 593 (4th Cir. 1954), cert. de-
nied 349 U.S. 905 (1955). Information that does not
directly concern wages, hours, and terms and condi-
tions of employment does not enjoy a presumption of
relevance, and a specific need for it must be estab-
lished. Such information includes profit and financial
data. United Furniture Workers of America AFL–CIO
v. NLRB, 388 F.2d 880 (4th Cir. 1967), affg. White
Furniture Co., 161 NLRB 444 (1966). Further, an ar-
ticulation of general relevance is insufficient. E. I. Du-
pont de Nemours & Co. v. NLRB, 744 F.2d 536 (6th
Cir. 1984).
In the instant case, the Union seeks information that
is not presumptively relevant for collective bargaining.
The basis for the request, i.e., that the information con-
tained in the contracts is necessary to make a reason-
able wage proposal is nothing more than another way
of saying that it is needed ‘‘to bargain intelligently’’
and this general claim is simply insufficient to estab-
lish relevance. E. I. Dupont, supra. As for the General
Counsel’s contention that the contracts must be pro-
vided because the Respondent ‘‘made an issue of
them’’ in the bargaining process, we think the General
Counsel has misapprehended the significance of the
references to the contracts by the Respondent’s bar-
gaining representatives. The Respondent was making
the point that it obtained its revenues through individ-
ual contracts with individual customers secured
through bidding processes, and that, in its view, stand-
ardizing wage rates at the highest current level in each
job classification was not appropriate in such a system.
Given the nature of contract bidding procedures, the
General Counsel cannot plausibly claim that the Union
would need to examine the contracts in order to assure
itself that the customers were not all paying the Re-
spondent exactly the same amount on each contract.
The General Counsel has identified no other purpose
for seeing the contracts that does not amount to verify-
ing an inability to pay claim, and as noted above, the
General Counsel is not contending that the Respondent
raised such a claim. Hence, the General Counsel has
not established the relevance of the contracts to the
collective-bargaining negotiations or any other facet of
the Union’s representative functions. We accordingly
find that the Respondent has not violated Section
8(a)(5) and (1) of the Act as alleged.3
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
J. Howard Trimble, Esq., for the General Counsel.1
Gary L. Lieber, Esq. (Schmeltzer, Aptaker & Shepard, P.C.),
of Washington, D.C., for the Respondent.
John Ketron, IBEW Local 934, of Blountville, Tennessee,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. I heard
these consolidated cases in trial at Kingsport, Tennessee, on
January 24, 1994. An order consolidating cases, amended
consolidated complaint, and notice of hearing was issued by
the Regional Director for Region 10 of the National Labor
Relations Board (the Board) in Atlanta, Georgia, on Novem-
ber 12, 1993,2 the operative complaint here. The charge in
Case 10–CA–26541 was filed on February 4, amended on
March 18, and amended a second time on November 8. The
charge in Case 10–CA–26901 was filed on July 26 and
amended on November 8. All charges and amended charges
were filed by the International Brotherhood of Electrical
Workers, AFL–CIO, Local Union 934 and were timely
served on Respondent. The complaint alleges that Respond-
ent by its admitted statutory supervisor, James Mike (Bull)
Snodgrass, on or about November 11 and December 16,
1992, committed acts in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act) by threatening its em-
ployees with loss of jobs; that it would be futile to select the
Union as their collective-bargaining representative; and that
Respondent would abandon its contracts with various utility
companies and close its Kingsport, Tennessee facility if the
Union won the Board-conducted election. The complaint fur-
ther alleges that on December 18 and 31, 1992, Respondent
by its supervisor, Snodgrass, and Robert Lane, respectively,
committed acts in violation of Section 8(a)(3) and (1) of the
Act by issuing written warnings to its employee, Dickie
Hutson, in retaliation for his union membership and activi-
ties. Finally the Government alleges that Respondent’s failure
and refusal to provide the Union with copies of all its con-
tracts with various utility companies and the Virginia Depart-
ment of Transportation requested on July 1, which informa-
tion was relevant and necessary to the Union’s statutory per-
formance of its function as the exclusive representative of all
the employees in the appropriate unit, described below, is a
violation of Section 8(a)(5) and (1) of the Act.
The Respondent admits all the complaint allegations, ex-
cept that it has committed any unfair labor practices. The
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This estimate of the number of crews is based on the fact that
there are 70 to 75 employees in the unit and each crew consists of
only two unit employees.
4 Gillenwater and all crew chiefs or foreman were either stipulated
or found to be supervisors within the meaning of Sec. 2(11) of the
Act.
8(a)(1) and (3) allegations turn upon the credibility of the
single witness testifying with respect thereto. In defense of
the 8(a)(5) allegation, the Respondent contends that during
negotiations it never pleaded an inability to meet the Union’s
demands which might trigger a duty to furnish the requested
information under NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956), and its progeny, but rather it pleaded the necessity
to remain competitive in a very competitive field and thus
did not ignite the duty to provide the Union with the finan-
cial data it sought under the Board’s supplemental decision
and order in Nielsen Lithographing Co., 305 NLRB 697
(1991), and NLRB v. Harvstone Mfg. Co., 785 F.2d 570 (7th
Cir. 1986).
As further explicated below, I find the uncorroborated tes-
timony of the single witness, Dickie Huston, presented by
the counsel for the General Counsel in support of the 8(a)(1)
and (3) allegations to be entirely too unreliable to make out
a prima facie case that the Respondent engaged in the con-
duct alleged to discourage union activity. I further find that
positions taken by Respondent with respect to the Union’s
proposals in negotiations did not trigger a duty under Truitt
and its progeny to require the Respondent to provide the
Union with copies of all its contracts with all its clients,
which would disclose more than simply financial data. Ac-
cordingly, Respondent has not engaged in any conduct in
violation of the Act and I shall recommend that the com-
plaint be dismissed in its entirety.
On November 17, 1992, by secret-ballot election was con-
ducted under the supervision of the Regional Director for Re-
gion 10 in a unit of ‘‘All utility clearance employees em-
ployed by Respondent at its Kingsport, Tennessee district, in-
cluding climbers and ground employees, but excluding all
other employees, garage mechanics, office clerical employ-
ees, professional employees, guards, crew foreman and all
other supervisors as defined in the Act.’’ As a result of the
November 17, 1992 election, on November 25, 1992, the Re-
gional Director for Region 10 of the Board certified the
Union, the Charging Party, and the International Brotherhood
of Electrical Workers, Local Union 637, jointly, as the exclu-
sive collective-bargaining representative of all the employees
in the unit described above.
All parties were afforded the opportunity to call, to exam-
ine and cross-examine witnesses, and to present all relevant
evidence. I have considered the entire record, including briefs
filed by the General Counsel and the Respondent. I carefully
observed the demeanor of witnesses as they testified consid-
ering the reasonableness and probability of their testimony
and any self-interest which might be gained therefrom. Based
on the above and more particularly on the evidence and rea-
soning set forth below, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The employer is a connecticut corporation with a facility
called the ‘‘Kingsport District’’ located at Kingsport, Ten-
nessee, where it is engaged in the business of providing util-
ity line right-of-way clearance services in the Tennessee and
Virginia areas. During the 12 months preceding the issuance
of the complaint here, which is a representative period, the
Respondent provided services valued in excess of $50,000 to
customers located directly outside the State of Tennessee.
The complaint alleges, Respondent admits, the evidence es-
tablishes, and I find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, the parties admit, and the evidence
establishes that the Unions, International Brotherhood of
Electrical Workers, Local Unions 934 and 637, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business
The core, if not the totality of Respondent’s operation in
the Kingsport District, is grounded on its periodically nego-
tiated contracts with Appalachian Power Company; Bristol
Virginia Utilities; Kingsport Power Company; Elizabethton
Electric System; and the Virginia Department of Transpor-
tation. As indicated above, the Employer clears the right-of-
way for power lines. At the time of the trial the Employer
had 25 to 373 crews consisting of two employees each, a
crew foreman, admitted to be a statutory supervisor, a climb-
er, and a groundsman. There were two general foreman, at
times material here, they were Mike (Bull) Snodgrass and
Robert Lane. Their duties were to supervise the crews. Ac-
cording to Lane they tried to go to the site of each crew ev-
eryday, but were frequently not able to do so. The routine
for reporting to work at the time of the events here was to
report to the Kingsport district office where the crew chief
or foreman picked up a truck, in this case an aerial bucket
truck and a chipper or grinder which ground the limbs and
brush cut from trees to clear the right-of-way. However, it
was not uncommon for a climber or groundsman to tele-
phone the district office before the 7 a.m. reporting time and
request permission to report to the jobsite instead of the dis-
trict office.
B. The 8(a)(1) and (3) Allegations
The Government’s sole employee witness testifying to
these allegations was Dickie Hutson, a groundsman on the
crew of Glen Gillenwater.4 Jimmy Sanders was the climber
on that crew.
Hutson testified that at some point in time while working
in the Rock Springs area of Kingsport he told Gillenwater
that he was a supporter of the Union and if they elected him
he would be on the negotiating committee because he had
been with the Union previously in that capacity. At about the
same time, Hutson testified that he wore a ‘‘union sticker’’
on his ‘‘hard hat’’ which was furnished by the Company and
‘‘Glen told me that I might ought to take that off because
it would be defacing company property and that I shouldn’t
be doing that, and that I could get wrote up for it.’’ Upon
objection to this testimony by Respondent, the General
Counsel asserted that the testimony was offered merely to es-
tablish employer knowledge of Hutson’s union sympathies
and specifically disavowed offering the testimony to establish
1315F. A. BARTLETT TREE EXPERT CO.
5 A chipper is a machine used to grind the limbs and brush cut
from trees in clearing the right-of-way into small chips which are
blown into the truck.
a violation of the Act. (Tr. 21.) Accordingly, no finding to
that effect will be made.
Hutson further testified that in a conversation about the
Union with Snodgrass he told him he hoped the Union went
in and if it did it would benefit the people of Bartlett.
Snodgrass told Hutson that if the Union went in Bartlett
would just let the contracts run out and would not negotiate
with the Union and ‘‘We’d all lose our jobs.’’ (Tr. 22.)
Hutson believes that Gillenwater and Sanders were nearby.
Hutson could not place a timeframe on this alleged conversa-
tion except in response to leading questions as to a conversa-
tion he had with Snodgrass prior to the election.
Although the complaint alleges at least two conversations
in which Snodgrass allegedly threatened employees with loss
of jobs if they supported the Union, one on November 11,
1992, and the other on December 16, 1992, a threat of futil-
ity to select the Union and in the same or another conversa-
tion a threat to close the Kingsport facility, Hutson testified
to only one such conversation.
Snodgrass denied that at any time he made statements to
any employee to the effect that if the Union came in the
Company would let its contracts run out; would not negotiate
with the Union, or that they would all lose their jobs. He tes-
tified that on a Friday after the election while he was collect-
ing timecards from Gillenwater on Reservoir Road in Kings-
port, Hutson interrupted and asked what would happen if the
Union was voted in. Snodgrass replied that he did not know
‘‘we’ll have to wait and see.’’ (Tr. 137–139.)
As noted above, the totality of Hutson’s testimony, includ-
ing his demeanor and total inability to place any event in a
timeframe, make it unreliable. The election was on Novem-
ber 17, yet Hutson placed it around December 18 and then
December 5. He confused the election with the commence-
ment of negotiations, which was January 6, 1993. Hutson,
along with three other employees, was on the union negotiat-
ing committee, another factor affecting his reliability is his
susceptibility to suggestion as demonstrated throughout his
testimony in his response to leading questions. In short, I
find the evidence that Respondent violated Section 8(a)(1) as
alleged in the complaint insufficient to sustain the General
Counsel’s burden.
The testimony and evidence relating to the written warn-
ings given to Dickie Hutson by Snodgrass on December 18,
1992 (G.C. Exh. 1), for reporting late for work and a written
warning given him on December 31 (G.C. Exh. 3) by Super-
visor Robert Lane for using the limb and brush grinder with-
out wearing safety glasses is not in material dispute.
Hutson testified that on the morning of December 18 he
thought he was going to be late for work and telephoned
Snodgrass and so advised him and told him that he would
just meet Snodgrass and Sanders, the climber, at the jobsite.
Hutson said:
And, he told me that if I was late, that they was going
to write me up, and I told him that if, you know, if that
had to be, it had to be. I was going to drive out on the
job, and meet Glen and Jimmy on the job, because I
had some things I had to do that evening, anyhow. [Tr.
25.]
Hutson said he got to the job site, ‘‘I’d say about
four or five minutes after or till seven’’ and prior to
Gillenwater and Sanders arrival.
The common practice at that time was for all crew mem-
bers to meet at the Kingsport district office at 7 a.m. and
pick up the truck and grinder and then go to the jobsite.
However, it is not denied that if a crew member obtained
permission from the general foreman and gave an acceptable
reason, such as needing his own transportation after work, it
was not uncommon to permit him to do so.
Gillenwater testified that he and Sanders did not arrive at
the jobsite in the Rock Springs area until 7:30 or 7:45 and
that Hutson was not there at that time, but arrived a little
later.
Snodgrass testified that Hutson called him about 6:45 on
that day and told him he was going to be late because he
had overslept and that he would report to the jobsite.
Snodgrass told him that the next time he was late he was
going to have to write him up. Snodgrass said that he knew
where Hutson lived and it would take him 25 to 30 minutes
to get to the jobsite.
Snodgrass testified that although he had told Hutson he
would ‘‘give him a warning next time he was late’’ he de-
cided to give him the warning then in view of the fact that
Hutson had been late on several earlier occasions. Hutson
does not deny this. Later on the day of December 18
Snodgrass went to the jobsite and issued the warning to
Hutson. (G.C. Exh. 2.) Hutson testified that he concurred in
the warning only because Snodgrass told him if he didn’t he
would have to go to the office and talk to District Manager
Rob Lord and that he did not have time to do that.
I find contrary to Hutson’s denial that he was in fact late
reporting to the jobsite that day and that there were previous
occasions on which he had been late.
The second warning given to Hutson and alleged to be dis-
criminatory was given on December 31, 1992, by the other
general foreman, Robert Lane, for failing to wear safety
glasses while operating the grinder or chipper. Hutson’s co-
worker, Jimmy Sanders, was given an identical warning at
the same time. General Foreman Robert Lane testified that
on December 29, 1992, he went to the jobsite where
Gillenwater, Hutson, and Sanders were working to check the
new or newly sharpened blades that had just been installed
in the chipper they were using to see if they were grinding
properly. Gillenwater was in the truck and Hutson and Sand-
ers were operating the chipper.5 When Lane first observed
Hutson and Sanders he testified they had an arm load of
brush laying on the chipper chute and Hutson was behind the
chipper getting ready to shove it through while Sanders was
beside the chipper gathering up more brush. Lane testified
the brush laying on the chute was ‘‘pruner’’ size, 1 to 1-1/4
inches in diameter. He told them he should give them a writ-
ten warning for not wearing their safety glasses while operat-
ing the chipper. He testified that it was a safety violation and
much ‘‘more serious than missing a day’s work or something
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In brief Respondent cites 29 C.F.R. § 1910.133 (eye protection).
7 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981).
like that.’’ (Tr. 152.) He went back to the office and subse-
quently on December 31, signed the warning notices.
On December 31 Lane, accompanied by Snodgrass, went
to the jobsite and gave the warnings to Hutson and Sanders.
Both refused to sign, claiming that they had been observed
using the chipper without safety glasses before by the fore-
men and had not been warned. Lane told them if they had
anything to say they could talk to District Manager Rob
Lord. After work they talked with Lord’s assistant, Shannon
Barrett, who said he would discuss their objection with Lord
and give them an answer the following week. On January 5,
Lord approved the warnings.
The counsel for the General Counsel argues that it was
more than coincidence that Hutson had not received any dis-
ciplinary warnings in the year he had been employed until
the Employer became aware of his union support. Hutson
does not deny that he had been late for work on a number
of occasions prior to receiving the warning of December 18.
With respect to the safety glasses warning, Hutson stated that
it was only small brush they were grinding and that the gen-
eral foreman had seen them using the chipper without safety
glasses on other occasions without giving a warning. I credit
Lane that it was a serious matter and the Employer had to
enforce the safety rules or run the risk of being charged by
OSHA.6
Snodgrass testified that he was not aware of Hutson’s sup-
port for the Union until the December 18 warning when
Hutson told him he would sign the warning, ‘‘But I’m a
union steward.’’ Rob Lord testified he was not aware of
Hutson’s union sympathies until January 6, when he ap-
peared along with three other employees to be on the
Union’s negotiating team.
Assuming the Employer was aware of Hutson’s minimal
union activities prior to issuance of the written earnings, I
am persuaded that such knowledge played no role in the Em-
ployer’s actions toward Hutson. Even had the General Coun-
sel made out a prima facie case he has not established the
reason for the warnings was a sham or in the alternative, that
under the Wright Line standard7 that Hutson’s union activity
was a motivating factor. There is no evidence of antiunion
animus or that the discipline was pretextual. The Employer’s
actions in this regard would have been the same without
union activity. Accordingly, the 8(a)(1) and (3) allegations
are dismissed.
III. REFUSAL TO FURNISH UNION COPIES OF ALL
CONTRACTS WITH ALL CUSTOMERS
This allegation is what this case is all about. Prior to a dis-
cussion and analysis of the evidence and applicable law it
should be noted that the counsel for the General Counsel was
perhaps at a tremendous disadvantage in litigating this issue.
First, Albert Keisling, business manager for Local 934 and
the Union’s chief negotiator, doing 98 percent of the nego-
tiating, according to Dickie Hutson and David Johnson, busi-
ness manager for Local 637, was incapacitated and could not
appear at the trial. Secondly, although several members of
the Union’s negotiating team, including Keisling, made notes
during the 9 or 10 bargaining sessions, they had given all
their notes to Keisling who had either lost or misplaced
them. According to Hutson and Johnson, they had searched
everywhere and could not find them and Keisling had abso-
lutely no idea of their whereabouts. Thus, the General Coun-
sel had to rely on the rather sketchy testimony of Hutson and
Johnson as to what had occurred at the bargaining table. He
wound up relying primarily on 46 pages of notes of the 10
bargaining sessions taken by Attorney Gary Lieber, which
are almost as sketchy as the testimony of Hutson and John-
son. Fortunately, detailed testimony of what transpired be-
tween the parties during bargaining is not critical to a resolu-
tion of the issue here.
The complaint alleges that information requested by the
Union on July 1 is ‘‘necessary for, and relevant to, the
Union’s performance of its function as the exclusive rep-
resentative of the employees’’ particularly to allow the Union
to respond to certain contract proposals extended by Re-
spondent, which proposals were said to be limited or re-
stricted by contracts Respondent had with its various cus-
tomers.
Prior to the July 1, 1993 request by the Union for copies
of all contracts the Employer had with all of its clients or
customers, the parties had eight or nine negotiating sessions
between January 6 and May 21. A brief symposis of these
negotiations and the parties respective positions may be help-
ful in understanding the issue prompting the Union’s request
for this information. The Union requested and was furnished
information relating to the bargaining unit itself such as wage
rates, job classification, and fringe benefits, etc. This infor-
mation revealed to the Union that the Employer had a dif-
ferential in the lowest and the highest paid in each of the
classifications ranging up to 30 percent. In other words, the
highest paid climber and trimmer made about 30 percent
more than the lowest paid (Tr. 198.) The first contract pre-
sented by the Union called for a benefit package of about
$13 per hour for climbers which would have amounted to
about a 40-percent increase. In short, the Union’s proposals
amounted to a substantial across-the-board increase in wages
and standardization of wages within each job classification.
The Employer offered a smaller across-the-board increase,
but maintained if it standardized all employees’ wages those
in the top bracket might actually have to take a wage cut.
It wanted a smaller across-the-board increase with additional
increase based on merit. The Union would not agree. At the
time of the trial, the testimony was that the parties had made
substantial progress and was generally only 50 to 75 cents
apart on wages.
On July 1, 1993, Albert Keisling sent the following letter
to Respondent’s attorney, Gary Lieber:
This will serve as an information request regarding
all contracts Bartlett has with all utility companies, as
follows:
1. Bartlett’s contract with Appalachian Power Com-
pany.
2. Bartlett’s contract with Bristol, VA Utilities.
3. Bartlett’s contract with Kingsport Power Com-
pany.
4. Bartlett’s contract with Elizabethton Electric Sys-
tem.
5. Bartlett’s contract with Virginia Department of
Transportation.
1317F. A. BARTLETT TREE EXPERT CO.
6. Any other contracts Bartlett has with all utilities
within the Kingsport District Office’s geographical area.
This request does not limit you to documents not in
your immediate possession. This request is a result of
your contention that Bartlett cannot give standardized
wage increases to all bargaining unit employees, which
we define as discriminatory, because of Bartlett’s con-
tractual relationship with all the different power compa-
nies; Appalachian Power Company pays more money
than other power companies; that no one receives
stand-by pay on Appalachian Power property and dif-
ferent stand-by pay on other properties.
Also this will serve as a continuing request for the
explicitly aforestated information. We need this infor-
mation as soon as possible.
In response to your letter dated June 30, 1993, re-
garding allegations that we have admitted that we have
reached a deadlock, is a total aruse. The fact of the
matter is the only thing we have stated is that the Bart-
lett Company has proven by the unfair labor practice
complaint fully investigated and issued against Bartlett
that you are not negotiating in good faith. I think we
have a legal right to make that statement, wouldn’t you
agree?
As you know, both parties have made some move-
ment in the last proposal exchanges, and we are at this
time considering your last proposal. We have made nu-
merous requests to meet and bargain since May 21st,
and your allegation in your letter that we have been si-
lent is like your other letter regarding wage increases,
is simply another misrepresentation of the facts.
I am looking forward to hearing from you regarding
the information requested, and a date and time to meet
and continue bargaining.
Sincerely,
/s/Albert H. Keisling, Jr.
Albert H. Keisling, Jr.
Business Manager
Enclosure
pc: Dave Johnson, Local 637
Martin M. Arlook, NLRB Region 10
By letter dated July 13, 1993, Lieber responded by the fol-
lowing letter:
I have now completed my review of your request for
information contained in your letter dated July 1, 1993.
You have requested copies of all contracts Bartlett
has with its utility company customers and with the
Virginia Department of Transportation on the basis that
the Company has taken the position that it ‘‘cannot’’
give a standardized across-the-board wage increase to
all unit employees because of the different contractual
relationships Bartlett has with each of these customers.
To set the record straight, the Company has never stat-
ed that it ‘‘cannot’’ give a wage increase. What I have
repeatedly told you is that the Company is in an ex-
tremely competitive business and that it will not remain
competitive if it is forced to increase wages for all em-
ployees up to the level of the highest paid no matter
whether the employee is working on, for example,
Kingsport Power Company property in Tennessee or
Bristol Power Company property in Virginia. (See most
recently my letter to you of June 30, 1993.) I have ex-
plained to you that such a wage increase would not re-
flect the reality of the Company’s business because its
customer contracts are different, and an across-the-
board increase to the highest wages paid under any con-
tract would render the Company non-competitive and
erode its already low profit margin with regard to all
of its utility contracts. I explained this to you through-
out the negotiations and, at the same time, asked you
if the Union alternatively desired to negotiate across-
the-board rates that could result in a wage reduction for
some employees now at the high end. You indicated no
interest in this approach and, for that reason, the Com-
pany has consistently proposed minimum across-the-
board rates supplemented by merit increases.
Since the Company has never relied upon its cus-
tomer contracts to support any claim of inability to
meet the Union’s wage demands, the Union is not enti-
tled under the law to this information. Nielsen
Lithographing Co., 305 NLRB 697 (1991), enf’d sub
nom. GCIU Local 508 v. NLRB, 141 LRRM (BNA)
2546 (7th Cir. 1992); Concrete Pipe & Products Corp.,
305 NLRB 152, 138 LRRM (BNA) 1185 (1991), enf’d
sub nom. Steelworkers Local 14534 v. NLRB, 142
LRRM (BNA) 2177 (D.C. Cir. 1993). See also, Beverly
Enterprises, 310 NLRB 222, 142 LRRM (BNA) 1169,
1179–80 (1993). The Company’s obvious interest in
preserving the confidentiality of its customers contracts
precludes the Company from releasing those contracts
absent the legal obligation to do so. Accordingly, the
Company must decline to provide you with copies of
its customer contracts in response to your request for
information of July 1, 1993.
In addition, we note that your information request
has come very late in the bargaining process, after im-
passe has been reached and long after the Company’s
position on the structure of its wage proposals had been
communicated to you.
Your letter of July 1, 1993 also indicates that you
are waiting to hear from me regarding a new date to
resume negotiations. I have indicated that we are not
interested in meeting absent a constructive reason for
doing so. At the same time, you have indicated in your
letter that the Union is considering the Company’s pro-
posal. That proposal was made to you on June 10,
1993. There appears to be no basis to meet at this time
while the Union continues its month-long consideration
of the Company’s offer. The Company has reserved the
right to withdraw that proposal. It has not yet done so
in its desire to reach an agreement if possible. How-
ever, a reasonable time has expired and the Company
will soon reconsider that option. In the meantime, we
are willing to meet if you give the Company a concrete
basis for believing that such a meeting could break the
standoff.
Very truly yours,
/s/ Gary Lieber
Gary L. Lieber
cc: David Johnson (regular mail)
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 It appears the parties exchanged some proposals by mail during
this period of time.
The parties’ last bargaining session was May 21 prior to
Keisling’s request for copies of all the Employer’s contracts
with its customers on July 1, and Lieber’s refusal to furnish
on July 13. The next bargaining session was not until August
25, almost 6 weeks after the Employer’s refusal to furnish
the contracts. The record contains no explanation or reason
for the more than 3-month hiatus between sessions.8
A possible reason for the hiatus in bargaining might be
that the Union in May or June filed a charge in Case 10–
CA–62821 alleging that the Employer was engaging in bad-
faith bargaining in violation of Section 8(a)(5) and (1) of the
Act by certain conduct. On July 30, 1993, the Regional Di-
rector for the Region 10 refused to issue complaint. The per-
tinent portion of this letter indicates what the specific allega-
tions were and were found to be without merit. (R. Exh. 2.)
The allegations were:
As a result of the investigation, it does not appear
that further proceedings are warranted in this case. The
charge alleges that the Employer has engaged in bad
faith bargaining by refusing to make counterproposals
to the Union’s proposals, by negotiating directly with
employees, by refusing to negotiate over all the unit
employees, and, generally, by engaging in dilatory tac-
tics. The evidence disclosed that the parties, in addition
to meeting face to face, have exchanged contract pro-
posals and counterproposals through the mail. The evi-
dence failed to establish that the Employer engaged in
dilatory tactics or failed to make counterproposals. The
Employer’s proposal that employees working out of one
facility could be paid at a higher rate because of the
terms of the Employer’s bid under which those employ-
ees were working would not constitute a failure to bar-
gain over all the unit employees. The evidence failed
to establish that the Employer had attempted to bargain
directly with its employees. There were no allegations
of any independent violations of Section 8(a)(1) of the
Act. I am, therefore, refusing to issue complaint in this
matter.
On October 6, 1993, the General Counsel’s office of ap-
peals denied the Union’s appeal ‘‘substantially for the rea-
sons set forth in the Regional Director letter of July 30,
1993.’’ (R. Exh. 3.)
Based on Lieber’s notes of the August 25 session, Keisling
renewed the request for the customers contracts and was de-
nied. Lieber told Keisling he did not know how much longer
the Company’s proposals would stay on the table and ob-
served that the Union’s July 26 proposal submitted by mail
was a step backward given the lengthy hiatus between meet-
ings. The parties discussed several other proposals as set
forth in General Counsel’s Exhibit 7, pp. 45–46. At the
lunchbreak Keisling told Lieber he would be changing the
Union’s proposal and would submit it the following week.
The meeting apparently adjourned since this is the end of
Lieber’s notes.
Analysis of the Refusal to Furnish Contracts
The Act makes it an unfair labor practice for an employer
to refuse to bargain in good faith with the representative of
its employees. If an employer claims poverty or inability to
pay then, on request from the union, the employer is required
to produce or disclose financial data to support its claim of
poverty or inability to pay. NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956). All parties to this case have cited in their
briefs the Supreme Court’s landmark decision in Truitt Mfg.
Co., supra, and recognize its continued validity. All parties
also appear to concede, as they should, that if an employer
does not plead poverty or inability to pay, but rather states
that it is making money and simply does not want to pay any
more in the nature of wages or fringe benefits to its employ-
ees, then the employer need not disclose its financial records
or ‘‘open its books’’ on a union’s demand or request that the
employer do so.
The General Counsel appears to argue that based on the
testimony of Vice President of Human Resources Victor
Fleck the Respondent injected the contracts it had with its six
customers as a reason it was ‘‘unwilling’’ to meet the union
wage demands. In brief, he states ‘‘Fleck admitted that Re-
spondent was unwilling to agree to union wage rate propos-
als because of the contracts and the labor costs therein (Tr.
207–208). The above testimony and exhibits clearly indicate
that the contracts, labor costs, and wage rates were an issue
in negotiations and this issue was injected into the negotia-
tions by Respondent.’’ The exhibits referred to above are
Lieber’s notes taken during negotiations and received as
General Counsel’s Exhibit 7. He refers to pages 29, 36, 40,
42, and 43. Fleck’s testimony paraphrased by the General
Counsel was actually:
Q. (Mr. Trimble): All right. You didn’t accept and
agree with the Union’s wage proposal, correct?
A. Correct.
Q. And there was some discussion. Then the Com-
pany submitted wage proposals, correct?
A. Correct.
Q. And they were discussed?
A. Correct.
Q. Now, Mr. Lieber asked you if the Company ever
claimed that they were unable to pay these rates but
was there not some discussion of why the Company
couldn’t agree to the rates that the Union had asked
for?
A. Yes.
Q. And the reasons therefor?
A. The competitive market place that we were oper-
ating in made the Company unwilling to agree to the
rates that the Union was proposing.
Q. That had to do with your Contracts with your
customers is that correct, with the utilities and with the
Virginia Highway Department?
A. Correct.
The General Counsel apparently does not contend that Re-
spondent was pleading an ‘‘inability’’ to meet the Union’s
proposals rather than an ‘‘unwillingness’’ to do so, but ar-
gues that because Respondent injected its contracts with the
several utilities as a reason for its ‘‘unwillingness’’ it some-
1319F. A. BARTLETT TREE EXPERT CO.
how triggered a duty to furnish copies of all such contracts
to the Union on request.
He states he relies on the Board’s decisions in three cases:
A.M.F. Bowling Co., 303 NLRB 167 (1991); Circuit Wise,
Inc., 306 NLRB 766 (1992); and Bradford Coca-Cola Bot-
tling Co., 307 NLRB 647 (1992).
He argues, in this case, the Union is not seeking that Re-
spondent open its books and financial records to justify con-
cessions, but rather seeking information in Respondent’s pos-
session concerning wage rates and labor costs on its cus-
tomer contracts.
First, the cases relied on by the General Counsel are inap-
posite and are not precedent for the simple issue raised here.
In A.M.F., which was decided before the Board’s supple-
mental decision in Nielsen, the employer was asking for sub-
stantial concessions from the union. In A.M.F., the Board
said:
It is clear that throughout the negotiations the Re-
spondent was insisting that the Union accept significant
wage and benefit reductions for the unit employees.
Applying the principles set forth in Reichhold Chemi-
cals, 288 NLRB 69 (1988), enfd. in relevant part sub
nom. Teamsters Local 515 v. NLRB, 906 F.2d 719
(D.C. Cir. 1990). We will not scrutinize the Respond-
ent’s bargaining proposals to see if they are sufficiently
generous in the circumstances here. We will address,
however, the issue of whether the Respondent was re-
quired to provide the Union with substantiation for the
necessity of the economic reductions the Respondent
sought.
There, the employer had conducted wage surveys in the
area and relied on those surveys in formulating economic
proposals. The Board held that when the union requested any
substantiation or documentation for the respondent’s eco-
nomic proposals it had a duty to furnish such wage surveys
to the union. ‘‘We emphasize, in this regard; that the Board
has consistently required employers to provide any wage sur-
veys on which they have relied in the formulation of their
bargaining proposals when a union requests such informa-
tion.’’
It should be noted that the requirement to provide wage
surveys conducted by the respondent is totally different from
requiring it to provide its own financial records.
In Circuit Wise, Inc., the respondent proposed a profit-
sharing plan by paying 2 percent of its pretax profits. This
plan was offered in response to the union demand for a pen-
sion plan with a fixed level of contributions. The Union re-
quested documentation of respondent’s profits since 1985.
The respondent gave the union a one-page summary for the
years 1985 through 1987. The union requested more informa-
tion and proposed that the pension plan contribution be made
on gross profits rather than net profits. The respondent re-
jected this proposal. The union requested information de-
signed to determine how the employer determined its net
profits. The respondent declined to provide this information.
The Board concluded, ‘‘We find no logical or legal basis for
requiring a party to accept a proposal before being given a
chance to review information that is relevant and necessary
to its evaluation.’’ Here the information sought was merely
the method by which Respondent computed its net profits.
In Bradford Coca-Cola, the respondent proposed that its
drivers compensation be converted from an hourly wage to
a commission-on-sales basis. The union requested informa-
tion regarding the number of cases delivered by each unit
driver the previous year. The respondent declined citing At-
lanta Hilton & Tower, 271 NLRB 1600 (1984). The Board
held this information was relevant for a meaningful evalua-
tion of the Company’s proposal. This conclusion is self-evi-
dent. The union would need to know how the proposed com-
mission-on-sales would compare to the hourly wage rate to
ascertain whether the drivers would earn more or less based
on the same number of cases delivered. Again, this does not
seek profit data or other aspect of the employer’s financial
condition.
The Respondent argues this allegation should be dismissed
on three separate grounds:
1. It has no obligation to produce the requested informa-
tion, its customer contracts, which gives financial data and
the extent of its profits, in the absence of a showing that it
has asserted an inability to meet the unions proposals. In
support of this argument Respondent states:
Here, the General Counsel asserts that the customer
contracts that have at their core Company financial and
profitability data should be made available because, as
the Complaint asserts, it will ‘‘allow the Union to re-
spond’’ to certain contract proposals. This contention
has been flatly rejected. In Atlanta Hilton & Tower,
271 NLRB 1600 (1984), the Board dismissed a com-
plaint allegation that sought to have the employer
produce its financial records to a certified public ac-
countant. The Board stated:
Unions have a presumptive right to certain infor-
mation about unit employees, such as wage rates.
Whitin Machine Works, 108 NLRB 1537 (1954),
enfd. 217 F.2d 593 (4th Cir. 1954), cert. denied 349
U.S. 905 (1955). The rule, however, is different for
profit data or other aspects of an employer’s finan-
cial condition. The union must show a specific need
for the information in each particular case, profit
data will not be required merely because it would be
‘‘helpful’’ to the union. [Emphasis added.] See
United Furniture Workers of America (White Fur-
niture Co.) v. NLRB, 388 F.2d 880 (4th Cir. 1967).
An employer may, however, provide justification for
requiring profit data to be furnished by claiming fi-
nancial inability to meet the union’s demands. NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). [Id. at
1602.]
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the
Supreme Court held that a refusal to substantiate an in-
ability to pay constituted a refusal to bargain. For many
years, the Board treated a plea of noncompetitiveness as
‘‘the functional equivalent of a statement of an inability
to pay’’ under Truitt. The Board, however, reversed its
field following the Seventh Circuit’s decision in NLRB
v. Harvstone Mfg. Co., 785 F.2d 570 (7th Cir. 1986),
cert. denied 479 U.S. 821 (1986). Now, the Board treats
‘‘competitive disadvantage and inability to pay bar-
gaining statements as analytically distinct.’’ Steel-
workers v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993).
In a series of cases following the Seventh Circuit’s de-
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 ‘‘The Employer’s proposal that employees working out of one fa-
cility could be paid at a higher rate because of the terms of the Em-
ployer’s bid under which those employees were working does not
constitute a failure to bargain over all unit employees.’’
cision, the Board has dismissed allegations that asserted
that a refusal to provide financial data was unlawful
when the employer reason for rejecting union proposals
was the need to remain competitive. Neilsen
Lithographing Co., 305 NLRB 697, affd. sub nom.
Graphic Communications Workers Local 508 v. NLRB,
977 F.2d 1168 (7th Cir. 1992); Concrete Pipe & Prod-
ucts Corp., 305 NLRB 152 (1991); Beverly Enterprises,
310 NLRB 222 (1993); Georgia-Pacific Corp., 305
NLRB 112 (1991), enfd. sub nom. Paperworkers v.
NLRB, 981 F.2d 861 (6th Cir. 1992); see also pre-Neil-
sen Advertisers Mfg. Co., 275 NLRB 100 (1985).
In Neilsen Lithographing Co., 305 NLRB 697
(1991), the Board decided to follow the circuit courts
of appeal in holding that a claim in bargaining of com-
petitive disadvantage does not compel an employer to
open its books to the union. Moreover, the Board re-
jected the position that any economic claim that can be
‘‘objectively verifiable’’ triggers the duty to supply in-
formation. The Board stated:
There is a well-established distinction between
claims of inability to pay and claims of something
short of that. The dissent, however, wishes to draw
a new distinction between claims that are objectively
verifiable and those that are not. It is true that a
claim of present inability to pay may be objectively
verifiable. But that does not mean that all objectively
verifiable claims are subject to the duty to supply in-
formation. (We would entertain the converse.) Rath-
er, it is the fact that it is a claim of ‘‘can’t pay,’’
rather than a claim of ‘‘does not want to pay.’’ If it
is proven, the union will be faced with the reality
that the ‘‘well has run dry.’’ This is the essential
meaning of Truitt as we understand it. The distinc-
tion has always been between claims of ‘‘can not’’
and ‘‘will not.’’ We would not abandon that distinc-
tion in favor of a new distinction. [305 NLRB at
700.]
This argument has merit inasmuch as Respondent never
pleaded an inability to pay, but in order to remain competi-
tive it was unwilling to meet the union proposal that it raise
everyone’s wages to a level no lower than the highest paid
employee. The Respondent’s refusal to meet this demand has
already been disposed of upon the General Counsel’s refusal
to issue a complaint. (R. Exh. 2.)9
2. That the Union had failed to meet its burden of showing
that the financial information contained within its customer
contracts was relevant to its status as collective-bargaining
agent. As noted above, unions have a presumptive right for
information relating to the bargaining unit employees beyond
that the presumption of relevance is lost and the burden is
on the union to establish relevance without the benefit of any
presumption.
The Board and courts have required an initial showing of
relevance to prevent needless and expensive explorations by
unions into company records. Unions do not have carte
blanche to examine employer information merely because the
union can articulate some bargaining strategy that will render
the information pertinent in some peripheral or theoretical
fashion to the bargaining process. ‘‘[T]he union’s theory of
relevance must be reasonably specific; ‘general avowals of
relevance’ such as ‘to bargain intelligently’ and similar
boilerplate are insufficient.’’ See E. I. du Pont & Co. v.
NLRB, 744 F.2d 536 (6th Cir. 1984).
The request for all of Respondent’s contracts with all its
customers is the broadest possible information request the
Union could have made. Such information does not relate to
the bargaining unit employees and the Union must dem-
onstrate a specific need for such information which it has not
done, but merely asserts a ‘‘boilerplate’’ desire for the infor-
mation ‘‘to allow the Union to respond.’’ Moreover, the in-
formation sought would not only reveal Respondent’s profit
margin, but would disclose the financial emphasis it put on
the bidding such as far as our ‘‘rates for trucks, chain saws,
or manpower or administrative costs, things of this nature.’’
(Tr. 202.)
The General Counsel argues that Respondent could have
offered a ‘‘sanitized’’ version, but does not articulate how
the contracts could have been ‘‘sanitized’’ and still provide
the Union with the information it sought in order ‘‘to re-
spond to the employees’ proposals.’’ Accordingly, this alle-
gation would be dismissed on this ground alone.
3. This allegation should be dismissed on the Company’s
legitimate claim of confidentiality.
With respect to this contentions Respondent maintains that
the customer contracts, containing financial data, would re-
veal its profitability and pricing structure is not subject to
disclosure because of the confidential nature of the informa-
tion. Citing Detroit Edison v. NLRB, 440 U.S. 301 (1979),
the Supreme Court held that the Act requires a balancing of
the interests of the employer and perhaps his employees on
the one hand and the needs of the union on the other. Later,
the Board noted:
It is well settled that a union’s entitlement to relevant
information, under the general rule of law, may not al-
ways prevail over all competing situations, and that the
bargaining agent’s need for the information must be
weighed against the legitimate interests of the em-
ployer. A claim of confidentiality is one of those inter-
ests. [Emphasis added. E. W. Buschman Co., 277
NLRB 189, 191 (1985).]
The Respondent acknowledged that the party raising the
confidentiality defense has the burden to demonstrate its le-
gitimacy. See Washington Gas Light Co., 273 NLRB 116
(1984).
When Respondent raised the confidentiality concern in
Lieber’s July 13 letter denying the information sought and
again in the August 25 bargaining session, Keisling nor any
other union official addressed the concern such as promising
not to abuse the confidentiality of the documents if it ob-
tained them. In this case even if such promise had been
made, the Respondent would have been well justified in
doubting that the Union would keep the information con-
fidential in view of the union chief negotiator’s, Albert
Keisling, conduct during bargaining.
1321F. A. BARTLETT TREE EXPERT CO.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Neither the General Counsel nor the Union deny that
Keisling was rude, vulgar, and abusive during negotiations as
set forth in Lieber’s notes (G.C. Exh. 7), which gives the Re-
spondent ample reason to doubt his integrity. In brief, Re-
spondent states:
Mr. Keisling was a man whose conduct was completely
unpredictable. He was vulgar and insulting, as plainly
evidenced by the cold bargaining notes (G.C. Exh. 7,
p. 13 (Company proposal ‘‘a piece of shit’’ and
‘‘trash’’); p. 23 (referring to Company employee as
‘‘flkin’ labor law violator’’ and a ‘‘liar,’’ and to
Company as ‘‘worst piece of shlt’’); p. 24 (telling
Company employee ‘‘flk yourself’’ and ‘‘you are a
piece of shlt’’); pp. 29 & 30 (Keisling continually
calling contract ‘‘trash’’); p. 30 (Keisling stating,
‘‘We’ll cut your flkin’ heart out’’); p. 30 (Keisling
again stating, ‘‘go flk yourself’’)).
Fleck opined that he did not believe Keisling would
have kept the contracts confidential (Tr. 201–204).
More significant than his opinion, however, is the ref-
erence on page 43 of the bargaining notes that
‘‘Keisling says going to ‘flk’ with our customers.’’
Thus, here is an admission that the Union would do
whatever was necessary with third parties to achieve
‘‘victory’’ over the Company. This is in sharp contrast
to other cases where the Board considered controlling,
or at least a major significant factor, fact that the Union
promised not to abuse the confidentiality of the docu-
ments if it obtained them.
The Respondent’s contention with respect to confidential-
ity also has merit. Accordingly, I shall dismiss the complaint
in its entirety.
CONCLUSIONS OF LAW
1. Respondent F. A. Bartlett Tree Expert Co., Inc. is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent did not, as alleged, violate Section 8(a)(1),
(3), and (5) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The complaint is dismissed in its entirety.