Finn Industries

National Labor Relations Board - Board Decisions

Jul 28, 1994

314 N.L.R.B. 556 (N.L.R.B. 1994)

556
314 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise indicated.
2 This letter was sent approximately 12 days before the Union and
the Respondent began arbitration of the Union’s December 1991
grievance, discussed below.
3 In its initial correspondence to the Union, the Respondent had
also objected to the relevancy of the requested customer and supplier
information. However, in these Board proceedings, the Respondent
has not pursued this ground of objection. Thus, we find that the Re-
spondent does not dispute that the names and addresses of its cus-
tomers and suppliers are relevant to the Union’s grievance.
4 This letter was sent a month after the arbitration proceedings on
the Union’s grievance began.
5 The Respondent’s president did not present comparable evidence
about the development, handling, and treatment of its supplier list.
Finn Industries, Inc. and General Warehousemen’s
Local 598, International Brotherhood of Team-
sters, AFL–CIO. Case 21–CA–28732
July 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On December 14, 1993, Administrative Law Judge
Burton Litvack issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.
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 decision and the
record in light of the exceptions and the briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this De-
cision and Order.
The question presented is whether the Respondent
unlawfully refused to supply information requested by
the Union in the spring of 1992 that was relevant to
the Union’s pending contract grievance. We reverse
the judge and find that the Respondent’s refusal to
comply with the Union’s request prior to the com-
mencement of grievance arbitration proceedings vio-
lated Section 8(a)(5) and (1) of the Act as alleged by
the complaint.
I. FACTUAL BACKGROUND
Until December 27, 1991, the Respondent was en-
gaged in the manufacture of paper bags, boxes, and
cartons at its facility located in the City of Commerce,
California. Since at least 1988, General Ware-
housemen’s Local 598, International Brotherhood of
Teamsters, AFL–CIO had represented the Respond-
ent’s production, maintenance, and shipping and re-
ceiving employees at the Commerce plant. The parties’
most recent collective-bargaining agreement was effec-
tive June 1, 1988, through May 31, 1993.
On December 27, 1991, the Respondent ceased op-
erations at its Commerce plant and laid off all the unit
employees. At the same time, Lundin Kobe, Inc., d/b/a
Finn Industries, Inc. commenced similar operations at
a facility in Ontario, California. The Union imme-
diately filed a contract grievance against the Respond-
ent alleging, inter alia, an alter ego relationship be-
tween the Respondent and Lundin Kobe.
In its letters dated March 23 and April 29, 1992,1
the Union asked the Respondent to supply information,
including the identity of its suppliers and customers by
name and address. Not having obtained the requested
information by May 12, the Union filed a charge alleg-
ing that the Respondent’s failure to comply with the
request violated Section 8(a)(5) and (1) of the Act.
A month later, in its letter to the Union dated June
17,2 the Respondent replied that the names and ad-
dresses of its suppliers and customers would not be re-
vealed to the Union because they constituted confiden-
tial information.3 Thereafter, by letter dated July 28,4
the Respondent offered to use letter or number des-
ignations for its suppliers and customers instead of re-
vealing their identity. On July 31, the Union rejected
this proposal, but promised to keep the identity of the
Respondent’s suppliers and customers confidential. The
Union specifically pledged not to release this informa-
tion to the general public or to the Respondent’s com-
petitors.
The Respondent’s president testified that the Com-
pany has spent considerable time, effort, and money in
maintaining and accumulating customers since it began
keeping a secret customer list in 1943.5 The president
also claimed that the Company has never disclosed its
customer list to anyone other than its employees and
that its salespersons are required to sign a letter stating
that the names of the Respondent’s customers shall be
kept confidential and cannot leave the company prem-
ises. He further testified that the Company’s customer
list would be jeopardized if disclosed to the Union, de-
spite the latter’s pledge of confidentiality, because he
claimed that the Union represented employees who
worked for two competitors of the Respondent. The
Union denied that it represented any employees of the
Respondent’s competitors.
The Union, in its March 23 letter, advised the Re-
spondent that it needed the supplier and customer in-
formation to administer and enforce its contract with
the Respondent and to evaluate and process the griev-
ance pending since December 27, 1991. At the hearing
the Union specified two purposes for the information:
(1) to ascertain how the Respondent and Lundin Kobe
were holding themselves out to their respective sup-
pliers and customers and (2) to determine if the Re-
spondent and Lundin Kobe shared any suppliers and
customers.
The Union’s grievance was arbitrated over 5 days
during the period of June 29 through December 14,
557FINN INDUSTRIES
6 For purposes of this case, the Respondent relies on the informa-
tion that it revealed on June 29 and August 10 as a complete satis-
faction of the Union’s information request. We note that the Re-
spondent has never contended that the data supplied on those dates
was unavailable for distribution at any time before the arbitration
hearing began. In addition, the record does not indicate any such un-
availability. Therefore, we find that this data could have been fur-
nished to the Union within a reasonable period after the information
request was made and before June 29.
7 We note that the record does not reveal that the Respondent took
any special precaution to maintain the secrecy of these customers
when this disclosure was made. The Respondent also does not now
argue that restrictions were imposed on the Union. Thus, we find
that there were no conditions placed on the release of these customer
names to the Union.
8 Berkowitz, a stockholder of Lundin Kobe, was responsible for
the production operations at both the Commerce and Ontario plants.
9 This stipulation states, in relevant part:
[I]f the customer lists showing names and addresses of all cus-
tomers of [the purported alter ego] from August 1991 to the
present, and supplier lists showing names and addresses of all
suppliers of [the purported alter ego] from August 1991 to the
present, were supplied, that these lists would show that between
90 and 95 percent of the customers and suppliers so listed were
previously customers or suppliers of [the Respondent].
1992.6 At the June 29 session, the Union was given
the manufacturer’s representative agreement effective
January 1, that listed the names of 25 customers of the
Respondent.7 The Union admitted that it has never
contacted any of these customers to ascertain the Re-
spondent’s relationship with Lundin Kobe.
At this same session, Bob Berkowitz8 testified about
how the Respondent held itself out to its customers
and suppliers after operations had ceased at the Com-
merce facility. His testimony reveals that the customers
and suppliers were simply notified that the Respondent
was relocating from Commerce to Ontario. He indi-
cated that, as far as the customers and suppliers were
concerned, the Respondent did nothing to create sepa-
rate identities for the two locations. According to
Berkowitz, there was no change in the company adver-
tising (except for designation of the location), the an-
swering of the office telephone, the company logo, the
company trade name, and the product manufactured.
Berkowitz further testified that the customers were not
initially advised that there was any change in owner-
ship associated with the relocation to Ontario.
During the August 10 session, the Union and the
Respondent stipulated that between 90 and 95 percent
of the customers and suppliers of Lundin Kobe had
previously been the Respondent’s customers and sup-
pliers.9
In the meantime, on July 31, the General Counsel
issued a complaint alleging that the Respondent, by its
June 17 and July 28 letters to the Union, violated Sec-
tion 8(a)(5) and (1) when it failed and refused to iden-
tify its suppliers and customers as requested by the
Union’s March 23 and April 29 letters. The complaint
states that this information was relevant to, and nec-
essary for, the Union’s performance of its duties as the
exclusive representative of the Respondent’s employ-
ees.
Then, on August 3, 1993, the arbitrator ruled favor-
ably on the Union’s grievance. He found an alter ego
relationship between the Respondent and Lundin Kobe.
II. THE JUDGE’S DECISION
The judge initially observed that the Union’s request
and the Respondent’s refusal to provide the requested
material continued throughout the pendency of the
Union’s grievance, including arbitration. The judge
found that the Respondent has never provided the pre-
cise supplier and customer information requested by
the Union. He also found that, until August 10, the
supplier and customer information requested by the
Union was both relevant and necessary for the proc-
essing of the Union’s grievance.
According to the judge, the August 10 stipulation
submitted during arbitration showing a continuum of
suppliers and customers for the Respondent and
Lundin Kobe satisfied the Union’s need for its request
and obviated the disclosure of the actual names and
addresses of these businesses. The judge concluded
that the complaint should be dismissed in its entirety
because the Respondent’s delayed response to the
Union’s request had not been alleged. Finally, the
judge intimated that the case may be moot given the
arbitrator’s decision.
III. CONTENTIONS OF THE PARTIES
The General Counsel argues that the judge erred in
finding that the August 10 stipulation fully satisfied
the Union’s information request. The General Counsel
alternatively argues that, even assuming full satisfac-
tion on August 10, the judge erred in dismissing the
complaint because the Respondent’s 5-month delayed
response is encompassed within the broad 8(a)(5) alle-
gation of the complaint. Finally, the General Counsel
contends that the arbitrator’s August 1993 decision has
no bearing on whether the Respondent fulfilled its bar-
gaining obligation that arose in the spring of 1992.
The Respondent agrees with the judge’s analysis
that any purported delay in satisfying the Union’s re-
quest was not alleged and that, in any event, the case
is now moot. The Respondent also argues that, even if
the case is not moot, the material requested was no
longer needed by the Union by the close of the arbitra-
tion hearing.
In the alternative, the Respondent avers that the
Union asked for confidential information, an issue that
the judge did not address. According to the Respond-
ent, it has legitimate and substantial interests in keep-
ing secret the identity of its suppliers and customers
and that these concerns are paramount to the Union’s
claimed need for this material. For this reason, the Re-
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 See Resorts International Hotel, 307 NLRB 1437, 1438 (1992),
where the Board rejected the employer’s confidentiality defense. In
that case, the employer wanted to control the timing of the release
of the requested material. The union had requested, for purposes of
processing a pending grievance, the identity of the hotel guests
whose complaints were the basis for the imposition of employee dis-
cipline. The employer refused to disclose this information contending
that it was confidential. However, the employer indicated that the
complaining guests would be available to the union for cross-exam-
ination during the arbitration hearing.
11 Therefore, we find it unnecessary to decide whether the Re-
spondent’s customer and supplier lists constitute protected trade se-
crets and what the parameters of the Respondent’s bargaining obliga-
tion would be concerning that information had confidentiality been
established.
12 Finding a violation here on a delay theory is consistent with our
decision in Postal Service, 308 NLRB 547 (1992), in which the
complaint had alleged a general refusal to provide requested infor-
mation in violation of Sec. 8(a)(5) and (1) of the Act, and the Board
adopted the judge’s finding that the employer’s delay in furnishing
the requested information to the union was unlawful.
Contrary to the judge, we find Inner City Broadcasting Corp., 270
NLRB 1230 (1984), distinguishable from the instant situation. In that
case, the employer admitted that it had made late payments of pen-
sion and welfare contributions and then the union sought information
to verify the employer’s lateness in making these payments. The
Board found no violation based on the employer’s refusal to comply
with the union’s request because, in view of the employer’s admis-
sion that the payments were indeed late, the union did not need in-
formation to verify that the payments were late. In contrast, here the
Union sought the customer and supplier information to prove that
the Respondent and Lundin Kobe were alter egos, a relationship that
the Respondent denied existed.
13 The judge in essence found that the August 10 stipulation cured
the Respondent’s unlawful refusal to supply the requested informa-
tion prior to the start of the arbitration proceedings. Contrary to the
judge, an employer’s belated compliance with a union’s request for
relevant information does not retroactively cure an unlawful refusal
to supply requested information. See, e.g., Iron Workers Local 86,
308 NLRB 173 fn. 2 (1992); Consolidation Coal Co., 307 NLRB
69 (1992). Further, as the Board stated in Mary Thompson Hospital,
296 NLRB 1245, 1250 (1989), ‘‘[p]art of the duty to supply infor-
mation includes the duty to do so in a timely fashion.’’ This duty
exists even if the grievance is settled and is never arbitrated. See Re-
sorts International Hotel, supra. The union’s reasons for requesting
information and the employer’s refusal to comply with the request
are evaluated when the demand for information and subsequent re-
fusal were made. In the instant case, the pertinent time is the spring
spondent contends that it was not obligated to release
the material requested by the Union.
IV. DISCUSSION
We adopt the judge’s finding that the Union’s infor-
mation request continued throughout the pendency of
the December 1991 grievance. We also adopt his find-
ing that the Respondent never provided the specific
material requested before the arbitration proceedings
commenced. Until June 29, the Respondent resisted the
Union’s request by arguing that the material requested
was confidential.
In support of its argument, the Respondent sub-
mitted evidence pertaining to the development, han-
dling, and treatment of the Respondent’s customer list
only. The Respondent merely asserted, without any
supporting evidence, that it considers its supplier list to
be confidential. We find that this bare assertion is in-
sufficient to establish the confidentiality of the identity
of the Respondent’s suppliers.
Regarding the confidentiality claim for the Respond-
ent’s customers, we find that the Respondent has failed
to proffer a defense supported by a preponderance of
the evidence. Although professing to always keep its
customer list secret, the Respondent admittedly dis-
closed to the Union, without any restriction whatso-
ever, several customers’ names on June 29. Notwith-
standing that such action was inconsistent with com-
pany policy, the Respondent’s president provided no
explanation for this obvious deviation. The Respondent
thus has established no consistent policy that would
warrant deeming confidentiality concerns paramount
on the earlier occasions when the Union requested the
information.10 Therefore, we find that the Respondent
did not establish its confidentiality defense.11
Having rejected the Respondent’s confidentiality de-
fense, we agree with the General Counsel that the
judge erred in finding no violation here. First, we find,
contrary to the judge, that the complaint provided ade-
quate notice that the Respondent was charged with
having violated Section 8(a)(5) and (1) by virtue of the
responses it made to the information requests before
the date on which the judge found that the arbitral stip-
ulation ‘‘obviated’’ the need for the requested informa-
tion. Thus, the complaint alleged that the Union re-
quested information by letter on March 23 and April
29, 1992, that ‘‘since March 1992,’’ the Respondent
had refused the requests through letters dated June 17
and July 28, 1992, and that this conduct amounted to
a refusal to bargain within the meaning of Section
8(a)(1) and (5) of the Act. The fact that events after
the period in which the violation was alleged to have
occurred permit the conduct to be characterized as un-
lawful delay does not alter the fact that the Respondent
was on notice that its failure to provide the information
during the time frame established by the complaint al-
legations was alleged as unlawful.12
Second, we find that the evidence amply supports
the complaint allegations. For 5 months, the Respond-
ent continuously refused to reveal the requested rel-
evant information to the Union. It was not until arbi-
tration proceedings were well under way that the Re-
spondent made the disclosures on June 29 and August
10, discussed above. As shown in Resorts Inter-
national Hotel, supra, an employer is not entitled to
wait until arbitration proceedings have been instituted
before responding to the union’s request for relevant
information pertaining to a pending grievance. Thus,
we find that the Respondent failed to satisfy its bar-
gaining obligation and therefore violated Section
8(a)(5) and (1) of the Act.13
559FINN INDUSTRIES
and summer of 1992. Thus, we reject the Respondent’s mootness ar-
gument.
14 We do not pass on whether the identity of the Respondent’s
suppliers and customers, if requested by the Union, should be re-
vealed for any future grievances or for different purposes related to
the Union’s collective-bargaining representative role.
15 GHR Energy Corp., 294 NLRB 1011 fn. 5 (1989), enfd. mem.
924 F.2d 1055 (5th Cir. 1991).
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As part of the remedy, we do not require the Re-
spondent to now furnish the identity of its suppliers
and customers to the Union. As previously indicated,
during the arbitration proceedings, the Respondent stip-
ulated that it and Lundin Kobe shared a substantial
number of customers and suppliers. The Respondent
also submitted witness testimony showing that the Re-
spondent and Lundin Kobe held themselves out to the
public as the same entity. Thus, because this material
satisfied the two purposes specifically stated at the
hearing by the Union as underlying its need for the
identify of the suppliers and customers, as noted
above, we shall not require the Respondent to supply
anything further in response to the Union’s March 23
information request.14
In light of the record evidence that the Respondent
closed its City of Commerce, California facility on De-
cember 27, 1991, we shall require the mailing of cop-
ies of the notice to all unit employees employed at the
time of closing.15
ORDER
The National Labor Relations Board orders that the
Respondent, Finn Industries, Inc., City of Commerce,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with General
Warehousemen’s Local 598, International Brotherhood
of Teamsters, AFL–CIO by failing and refusing to fur-
nish it, in timely fashion, with requested relevant infor-
mation necessary for grievance processing.
(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
effectuate the policies of the Act.
(a) Post at its facility in City of Commerce, Cali-
fornia, copies of the attached notice marked ‘‘Appen-
dix’’16 to the last known address of all unit employees
as of the date of the 1991 closing of the Respondent’s
City of Commerce, California facility. Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s au-
thorized representative, shall be mailed immediately
upon receipt.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
General Warehousemen’s Local 598, International
Brotherhood of Teamsters, AFL–CIO by failing and
refusing to furnish it, in timely fashion, with requested
relevant information necessary for grievance proc-
essing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
FINN INDUSTRIES, INC.
Jean C. Libby, Esq., for the General Counsel.
Lee Smith, Esq. (Smith and Smith), of Beverly Hills, Cali-
fornia, for the Respondent.
Ralph M. Phillips, Esq. (Wohlner, Kaplon, Phillips, Vogel &
Young), of Encino, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On May 19,
1992, the unfair labor charge, in the above-captioned matter,
was filed by General Teamsters Local 598, International
Brotherhood of Teamsters, AFL–CIO (the Union). Based
upon the unfair labor practice charge, on July 31, 1992, the
Regional Director of Region 21 of the National Labor Rela-
tions Board (the Board) issued a complaint, alleging that
Finn Industries, Inc. (Respondent) engaged in, and is engag-
ing in, acts and conduct violative of Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act). Respondent
filed an answer, essentially denying the commission of any
of the alleged unfair labor practices. Based on a notice of
hearing, the matter came to trial before me in Los Angeles,
California, on February 19, 1993. At the hearing, all parties
were afforded the opportunity to examine and cross-examine
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The extent of the bargaining unit, represented by the Union, is
set forth in art. XXVII of the collective-bargaining agreement.
2 On or about January 8, 1992, the Union received, by mail a doc-
ument, dated December 15, 1991, and with Respondent’s name at
the top, announcing to the reader ‘‘WE HAVE MOVED’’ and set-
ting forth a new Ontario, California address and telephone number.
all witnesses, to offer into the record any relevant evidence,
to argue their legal positions orally, and to file posthearing
briefs. The documents were filed and each brief has been
carefully considered. Accordingly, based on the entire record
herein, including the posthearing briefs and my observation
of the testimonial demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times, until on or about December 27, 1991, Re-
spondent, a State of California corporation, maintained an of-
fice and place of business in the City of Commerce, Cali-
fornia, and was engaged in the manufacture of paper bags,
boxes, and cartons. In the normal course and conduct of the
business operations, during the calendar year ending Decem-
ber 31, 1991, Respondent sold and shipped goods and prod-
ucts, valued in excess of $50,000, directly to customers, who
are located outside the State of California. Respondent ad-
mits that, at all times material, it was engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. ISSUE
The complaint alleges that, since on or about March 23,
1992, the Union, as the collective-bargaining representative
of certain of Respondent’s employees, has requested that Re-
spondent provide it with information pertaining to the names
and addresses of Respondent’s suppliers and customers,
which information is necessary and relevant for the proc-
essing and arbitration of a grievance and that, by failing and
refusing to provide the information to the Union, Respondent
has engaged in conduct violative of Section 8(a)(1) and (5)
of the Act. Respondent denies the commission of any unfair
labor practices, arguing that the requested information is not
necessary for the Union’s stated purpose; that the informa-
tion entails trade secrets and is, therefore, confidential; and
that a balancing of the interests of the respective parties es-
tablishes that the information need not be provided to the
Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
There exists no dispute as to the events establishing the al-
leged unfair labor practices engaged in by Respondent. Thus,
the record establishes that Respondent, whose plant facility
is located in the City of Commerce, California, is engaged
in the manufacture and sale of paper bags, boxes, and car-
tons; that Respondent and the Union have had a collective-
bargaining relationship since, at least, 1988, with the Union
acting as the exclusive bargaining representative of a unit es-
sentially comprising Respondent’s production, maintenance,
and shipping and receiving employees; and that the most re-
cent collective-bargaining agreement, between the parties,
was effective, by its terms, from June 1, 1988, through May
31, 1993.1 The record further establishes that, in the summer
of 1991, Respondent informed the Union that it was ceasing
its business operations and closing its City of Commerce
plant and offered to bargain with the Union with regard to
the effects of the cessation of operations on the bargaining
unit employees. Later, in the summer of 1991, the Union
learned from bargaining unit employees that Respondent
planned, in the near future, to open a new facility in Ontario,
California; that Respondent would be engaged in the iden-
tical business operations at the Ontario facility as had been
performed at the City of Commerce plant; and that ‘‘virtually
the entire bargaining unit had been invited to work at the
new location.’’ Subsequently, in December 1991, with busi-
ness operations being conducted under Respondent’s name,
production commenced at the Ontario plant, and the Union
became convinced that, rather than closing its City of Com-
merce plant in order to cease business operations, Respond-
ent’s actual plan was to relocate its business to Ontario, Cali-
fornia.2 Thereafter, on December 27, Respondent, in fact,
ceased operations at its City of Commerce plant and laid off
all the bargaining unit employees. Pursuant to the contractual
grievance and arbitration procedure, the Union immediately
filed a grievance, alleging that, rather than ceasing business
operations, Respondent, in fact, had transferred business op-
erations to an alter ego company and laid off bargaining unit
personnel in violation of the existing collective-bargaining
agreement and requesting reinstatement of the employees and
application of the existing contract to work at the new On-
tario facility. Later, on January 29, 1992, the Union filed an
unfair labor practice charge, Case 21–CA–28489, with the
Board, asserting that, inasmuch as Lundin Kobe, Inc. d/b/a
Finn Industries, Inc. (Lundin Kobe), the name of the owner
of the business in Ontario, California, is, in fact, an alter ego
for Respondent, its layoff of the bargaining unit employees
at the City of Commerce facility, relocation without bar-
gaining with the Union, and failure to adhere to the terms
of the existing collective-bargaining agreement were violative
of the Act, and the Regional Director of Region 21 of the
Board, pursuant to the Board’s procedure in such matters, de-
ferred action on the charge pending arbitration of the above-
described contractual grievance.
On March 23, 1992, Ralph M. Phillips, counsel for the
Union sent a letter and an attached 74-question questionnaire,
to be answered under oath by Respondent, to Harold Brody,
counsel for the latter. Writing that the requested information
was generally necessary so that the Union could ‘‘fully
evaluate and process [the] grievance . . . and . . . admin-
ister and enforce its collective bargaining agreement . . . .’’
with Respondent, Phillips added that the enclosed question-
naire was specifically ‘‘designed to determine whether [Re-
spondent] has, in fact, ceased operations or whether the busi-
ness is continuing through a successor or alter ego.’’ With
regard to the information sought by the questionnaire itself,
question 22(a) asks Respondent to identify each of its sup-
pliers and question 32(a) asks Respondent to identify each of
its customers, including the address of each. At the trial, At-
561FINN INDUSTRIES
3 The March 23 request sought only the names of Respondent’s
suppliers and not their addresses.
4 In fact, subsequent to the time set for the filing of briefs, counsel
for Respondent sent a copy of the arbitrator’s decision, dated August
3, 1993, to me and argued that, inasmuch as the arbitrator ruled that
Lundin Kobe is an alter ego of Respondent, the allegations herein
are moot.
5 Stating that the customer list is worth what Respondent’s annual
sales are, Finn testified that, in 1991, the customer list was worth
a minimum of $11 million.
torney Phillips testified that the requested information is nec-
essary in alter ego cases inasmuch as the ‘‘an ongoing con-
tinuation of customers and suppliers’’ is ‘‘an element’’ of
proof and as ‘‘it’s necessary for [the union] . . . to show
how the Employer is holding itself out to its customers and
suppliers.’’ Replying by a letter dated April 30, Brody stated
several objections to the Union’s request for information, in-
cluding the misuse of a questionnaire, the demand that such
be answered under oath, and the ‘‘unduly burdensome and
oppressive and overbroad’’ nature of the request. Neverthe-
less, Brody did agree to provide unspecified information,
with regard to Respondent’s cessation of operations, to the
Union ‘‘in due course.’’
By a letter to Brody dated April 29, Phillips renewed the
March 23 information request, seeking full and complete in-
formation, which Respondent did not characterize as ‘‘unduly
burdensome or confidential,’’ and requesting, for any remain-
ing information, that Brody explain why such is either un-
duly burdensome or confidential. In a letter to Phillips dated
June 17, Respondent’s present attorney, Lee S. Smith, pro-
vided answers to most of the March 23 questionnaire but re-
fused to supply the requested information regarding Re-
spondent’s suppliers and customers, contending that such in-
volves ‘‘confidential, trade secret information and . . . infor-
mation which is irrelevant and immaterial.’’ By a letter to
Smith dated July 16, Phillips again renewed the Union’s re-
quest for the names and addresses of Respondent’s suppliers
and customers,3 stating that applicable Board law entitled the
Union to said information. Smith responded to Phillips by a
letter, dated July 28, in which he offered to provide the re-
quested supplier and customer information by ‘‘using des-
ignations for the companies such as by letter or number.’’ He
added that the ‘‘actual names’’ were neither relevant nor nec-
essary for the Union’s purposes at the arbitration of the
pending grievance. Also, in a letter to Phillips dated July 30,
Smith provided numerical answers to the questions regarding
suppliers and customers, stating that, of Respondent’s 206
suppliers during calendar year 1991, Lundin Kobe utilizes
136 of the suppliers and that, of Respondent’s 549 customers
during calendar year 1991, approximately 252 are customers
of Lundin Kobe. Replying to both letters in a letter to Smith
dated July 31, Attorney Phillips wrote that the supplier and
customer answers were unacceptable as not only did Re-
spondent fail to provide names and addresses but also ‘‘it is
impossible for [the Union] to determine whether Lundin
Kobe, Inc. has utilized any suppliers or has done business
with any customers [Respondent] did not use or do business
with’’ or to verify the information by contacting the cus-
tomers or suppliers. With regard to Respondent’s confiden-
tiality objection, Phillips pledged, on behalf of the Union, to
keep whatever supplier and customer information was pro-
vided as confidential. There is no dispute that, at no time
material herein, has Respondent provided the requested sup-
plier and customer information to the Union.
Commencing on June 29 and concluding on December 14,
1992, the arbitration hearing, before Arbitrator Joseph Gen-
tile, on the Union’s grievance continued for 5 days. During
the arbitration hearing, Respondent’s counsel offered into the
record an exhibit, entitled ‘‘Manufacturer’s Representative
Agreement,’’ which includes a listing of some of its cus-
tomers. Attorney Phillips, who represented the Union at the
arbitration, admitted that neither he nor the Union made any
effort to contact any of the listed companies in order to
verify that each was, in fact, a customer of Respondent or
to ascertain if any were customers of Lundin Kobe. Further,
at the arbitration hearing session on August 10, subject to the
‘‘possible need to verify [the] information,’’ Attorney Phil-
lips entered into a stipulation of fact, proposed by counsel
for Respondent and by counsel for Lundin Kobe, that, if lists
of the names of all the customers and of all the suppliers of
Lundin Kobe, for the time period August 1991 to the present,
were provided to the Union, ‘‘these lists would show that be-
tween 90 and 95 percent of the customers and suppliers so
listed were previously customers or suppliers of [Respond-
ent].’’ During cross-examination, Phillips agreed that the
Union had no need to verify if fewer than the stipulated
numbers of suppliers and customers of Respondent and of
Lundin Kobe were identical. Finally, with regard to the arbi-
tration, Phillips asserted that, while the hearing had con-
cluded prior to the instant trial, the record therein does not
officially close until the issuance of the arbitrator’s decision.4
As did Attorney Smith in his July 28 letter to Phillips, Re-
spondent contends that the requested names of its suppliers
and customers constitute confidential, trade secret informa-
tion. Thus, William Finn testified that, since 1969 when it
acquired a small customer list, Respondent has spent several
hundred thousand dollars in maintaining it and accumulating
new customers and that the customer list is Respondent’s
‘‘most important asset.’’5 In this regard, according to Finn,
Respondent’s salespersons are required to ‘‘sign a letter say-
ing that everything they had learned of the sales list, esti-
mating policies, production procedures was confidential in-
formation and could not leave the company premises.’’ Finn
added that he has never disclosed his customer list to anyone
other than Respondent’s employees and that, notwithstanding
being aware of Attorney Phillips’ pledge of confidentiality,
he fears disclosure to the Union inasmuch as it represents
employees of, at least, two competing paper products manu-
facturers. As to the latter point, Tom Lauer, the president and
business agent of the Union, denied that the Union represents
employees of any other paper products manufacturer.
B. Legal Analysis
As to whether Respondent’s refusal to provide the re-
quested supplier and customer information to the Union con-
stitutes a violation of Section 8(a)(1) and (5) of the Act,
there is no dispute as to the applicable legal principles. Thus,
it has long been established that, generally, an employer is
under a statutory obligation to, on request, provide a labor
organization, which is the collective-bargaining representative
of the employer’s employees, with information, which is nec-
essary and relevant for the proper performance of the labor
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In cases where a labor organization seeks information in order
to establish the existence of an alter ego relationship, it is not re-
quired to prove the existence of such in order to show relevancy.
Instead, the General Counsel need only establish that the labor orga-
nization had an objective factual basis for believing that one entity
is the alter ego of the other. Assn. of D.C. Liquor Wholesalers, 300
NLRB 224, 229 (1990); M. Scher & Sons, 286 NLRB 688 (1987).
7 An employer bears the burden of demonstrating that its refusal
to provide relevant and necessary information to a labor organization
is excusable because the requested data is privileged information.
McDonnell Douglas Corp., 224 NLRB 881 (1976).
organization’s duties in representing the bargaining unit em-
ployees. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967);
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Howard Uni-
versity, 290 NLRB 1006 (1988). This duty to provide infor-
mation encompasses not only material necessary and relevant
for the purpose of contract negotiations but also information
necessary for administration of a collective-bargaining agree-
ment, including information required by the labor organiza-
tion to process a grievance through arbitration. Acme Indus-
trial, supra; Jewish Federation Council of Greater Los Ange-
les, 306 NLRB 507 (1992); Bacardi Corp., 296 NLRB 1220
(1989); Howard University, supra. The standard for rel-
evancy is a ‘‘liberal discovery-type standard,’’ with the
sought-after evidence not having to be necessarily dispositive
of the issue between the parties but only of some bearing on
it and of probable use to the labor organization in carrying
out its statutory responsibilities. Bacardi Corp., supra; How-
ard University, supra; Pfizer, Inc., 268 NLRB 916 (1984).6
Necessity is not a guideline in itself but rather is directly re-
lated to relevancy, and only the probability that the requested
information will be of use to the labor organization need be
established. Bacardi Corp., supra. Moreover, information,
which concerns the terms and conditions of employment of
the bargaining unit employees, is deemed ‘‘so intrinsic to the
core of the employer-employee relationship’’ so as to be pre-
sumptively relevant. York International Corp., 290 NLRB
438 (1988), quoting Southwestern Bell Telephone Co., 173
NLRB 172 (1968); Buffalo Concrete, 276 NLRB 839 (1985).
While the foregoing constitutes a general statement of the ap-
plicable legal principles, in Detroit Edison Co. v. NLRB, 440
U.S. 301 (1983), the Supreme Court ‘‘recognized a limited
exception [to the duty to provide relevant information to a
bargaining representative] for information that is confidential
in nature.’’ New Jersey Bell Telephone Co. v. NLRB, 720
F.2d 789, 791 (3d Cir. 1983). In such circumstances, where
the employer has raised a ‘‘legitimate and substantial’’ claim
of confidentiality,7 ‘‘the Board is . . . required to balance
the [labor organization’s] need for the information against the
legitimate confidentiality interest established by the em-
ployer.’’ General Dynamics Corp., 268 NLRB 1432, 1433
(1984).
In order to properly evaluate the merits of the complaint
allegations herein, it is initially necessary to understand what
is not alleged. In this regard, the Union’s requests for sup-
plier and customer information and Respondent’s failure and
refusal to provide such to the Union continued throughout
the pendency of the instant grievance, including the arbitra-
tion proceeding. However, while ‘‘part of the duty to supply
relevant information includes the duty to do so in a timely
fashion’’ (Mary Thompson Hospital, 296 NLRB 1245, 1250
(1989)), and the failure to do so constitutes a violation of
Section 8(a)(1) and (5) of the Act (Teamsters Local 921 (San
Francisco Newspaper), 309 NLRB 901 (1992)), such is not
an allegation of the complaint herein. Rather, what is alleged
only concerns Respondent’s failure and refusal to provide the
requested information to the Union, and, on this point, while
not questioning the relevancy of the requested information to
the grievance, Respondent, instead, argues that, at the close
of the arbitration hearing, the requested information was no
longer ‘‘reasonably necessary’’ for the grievance. For the
foregoing reasons, I find merit in this aspect of Respondent’s
defense.
There can be no doubt that, until the August 10, 1992 ses-
sion of the arbitration hearing, the requested supplier and
customer information was both relevant and necessary for the
processing of the grievance, concerning the alter ego status
of Lundin Kobe, by the Union. Thus, in support of its griev-
ance, it was the Union’s burden of proof to establish an ‘‘on-
going continuation of customers and suppliers’’ initially uti-
lized by Respondent and then by its asserted alter ego,
Lundin Kobe; counsel for the Union explained that the
names of establish such a continuum; and, as Respondent
failed to provide the requested information by the com-
mencement of the arbitration proceeding, the Union had been
significantly impeded in its efforts to investigate and prop-
erly evaluate a consequential aspect of its grievance. How-
ever, at the conclusion of the August 10 arbitration session,
while the requested material retained its relevancy for the
Union’s grievance, the need for the information, by the
Union, became obviated; for, during the hearing that day, the
Union’s attorney, Phillips, agreed to a proposed stipulation of
fact that 90 to 95 percent of the suppliers and customers of
Lundin Kobe had previously been customers and suppliers of
Respondent. Accordingly, the exact ‘‘element’’ of proof,
which the Union hoped to demonstrate by investigating sup-
plier and customer information provided by Respondent, was
established by dint of stipulation. Similarly, in Inner City
Broadcasting Corp., 270 NLRB 1230 (1984), the complaint
alleged that the respondent had violated Section 8(a)(1) and
(5) of the Act by failing to furnish certain financial informa-
tion to a union. Therein, the employer was dilatory in mak-
ing required pension and welfare contributions, and the union
contended that the requested financial information was nec-
essary for it to decide whether the filing of a grievance was
warranted. In response, the employer explained that the pay-
ments had been late due to cash-flow problems, thereby, in
effect, admitting that the payments had been late. Citing
Acme Industrial Co., supra at 437, wherein the Supreme
Court noted that the information, at issue therein, ‘‘would be
of use to the union in carrying out its statutory duties and
responsibilities,’’ the Board, noting that, assuming lateness
was grievable, the union had no further need for any infor-
mation to enable it to decide whether to file a grievance,
concluded that the desired information was not ‘‘reasonably
necessary’’ to the Union and dismissed that allegation of the
complaint. Inner City Broadcasting, supra at 1230 fn. 1. The
same result must attain herein. Thus, assuming that a nec-
essary element of proof for the Union’s alter ego theory was
a continuum of suppliers and customers for Respondent and
for Lundin Kobe, the above-described stipulation of fact, en-
tered into during the arbitration proceeding, established said
element of proof, and clearly the Union possessed no further
demonstrable need for the requested names of Respondent’s
563FINN INDUSTRIES
8 Although not the basis for my decision, I cannot ignore the fact
that, while the instant matter has been pending before me, the arbi-
trator issued his decision, finding that Lundin Kobe is, in fact, the
alter ego of Respondent. While counsel for the Union asserts that
the arbitration hearing record is not closed, I cannot see any conceiv-
able reason why he would desire to reopen the record in order to
contest the arbitrator’s finding. In these circumstances, there exists
no need for the issuance of a remedial order herein, and, the instant
proceeding may indeed, be moot. Sinclair Refining Co., 145 NLRB
732, 733–734 (1963).
suppliers and customers. Accordingly, as the matter of delay
in supplying the requested information is not alleged as a
violation of the Act herein and as, at the conclusion of the
arbitration hearing, the names of Respondent’s suppliers and
customers became no longer ‘‘reasonably necessary’’ for the
Union’s purposes, I shall recommend dismissal of the com-
plaint allegation that Respondent violated Section 8(a)(1) and
(5) of the Act by failing and refusing to furnish the informa-
tion to the Union. Inner City Broadcasting, supra.8
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not engage in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]