Howard Industries, Inc.

National Labor Relations Board - Board Decisions

May 13, 2014

360 N.L.R.B. 891 (N.L.R.B. 2014)

HOWARD INDUSTRIES 891
360 NLRB No. 111
Howard Industries, Inc. and International Brother-
hood of Electrical Workers, Local 1317. Cases
15–CA–070830, 15–CA–081543, and 15–CA–
085642
May 13, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On June 13, 2013, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order as modified and set
forth in full below.1
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to fur-
nish the Union with requested information, including
time studies, that related to the setting of production
standards and that was relevant and necessary for the
representation of bargaining unit employees in the griev-
ance and arbitration process. For the reasons set forth
below, we reject the Respondent’s arguments and adopt
the judge’s finding of a violation.
Facts
The Respondent maintains a facility in Laurel, Missis-
sippi, that produces coils for its manufacture of electrical
transformers. For each custom designed coil, the Re-
spondent sets production standards detailing the steps
necessary to manufacture each coil to specification and
the corresponding time required for an employee to com-
plete each step. Employees are evaluated on their effi-
ciency and are written up if they fall below 90 percent
efficiency. They face demotion or termination after a
third write up in 6 months.
After determining that unit employees were greatly ex-
ceeding their efficiency ratings, the Respondent conclud-
ed that the production standards were outdated and re-
quired revision. In July 2010, the Respondent issued a

1 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language for the violations found. We
shall substitute a new notice to conform to the Order as modified and
with Durham School Services, 360 NLRB 694 (2014).
memo to employees advising them that, as of October 1,
2010, coil winding standards would change. Upon being
informed of the impending change in standards, the Un-
ion requested information related to the new and original
standards and how they were set. Over the next 2 years,
the Union continued to request information concerning
the standards against which employees would be evalu-
ated. In its correspondence to the Union, the Respondent
maintained that the requested information involved the
steps and times required to wind each coil and refused to
provide the information on the grounds that it was pro-
prietary and constituted trade secrets. It instead offered
the Union the opportunity to visit the facility and view
the coil winding process. The Union refused this offer
and the Respondent failed to supply any of the requested
information.
Judge’s Decision
The judge first found that the requested information
was presumptively relevant because the production
standards were used as a basis for disciplining employ-
ees, and the Union needed to be able to challenge their
reasonableness, if appropriate, in representing employees
in grievance/arbitration proceedings. General Motors
Corp., 257 NLRB 1068 (1981), enfd. 700 F.2d 1083 (6th
Cir. 1983). Analyzing the case under Northern Indiana
Public Service Co., 347 NLRB 210 (2006), the judge
concluded that the Respondent did not demonstrate that it
had a legitimate and substantial interest in keeping this
relevant information confidential. He rejected the Re-
spondent’s claim that records showing the steps of the
manufacturing process and the amount of time needed to
complete each step reveal a unique manufacturing pro-
cess that allows it to wind more than one coil at a time
and thus constitutes a trade secret. He further found that
the Respondent did not demonstrate that it otherwise
departs from the general practices in the industry. In
addition, the judge found that, even assuming the Re-
spondent had established a confidentiality interest, that
interest was insufficient to outweigh the Union’s need for
the information because: (1) the Respondent does not use
technology unknown in the transformer industry; (2) the
Respondent does not use a secret method to assemble
transformers that differs from other manufacturers;2 (3)
the record did not establish that disclosure would place
the Respondent at a significant competitive disadvantage;
and (4) employees were already aware of the steps in
assembling a particular transformer. Finally, the judge

2 The judge occasionally refers to transformers where the product at
issue is the coils, which are a component of the transformers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD892
found that even if the Respondent had a strong interest in
confidentiality, it had an obligation to seek an accommo-
dation and failed to do so.
Analysis
It is well established that a union has a right to infor-
mation that is relevant and necessary for the purposes of
negotiating and administering a collective-bargaining
agreement. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). When a union requests relevant but assertedly
confidential information,3 the Board balances the union’s
need for the information against any “legitimate and sub-
stantial confidentiality interests established by the em-
ployer.” Detroit Edison v. NLRB, 440 U.S. 301, 315,
318–320 (1979). The party asserting confidentiality has
the burden of proving that it has a legitimate and substan-
tial confidentiality interest in the information sought, and
that such interest outweighs its bargaining partner’s need
for the information. Washington Gas Light Co., 273
NLRB 116, 116 (1984); Northern Indiana Public Service
Co., supra at 211. When a party is unable to establish
confidentiality, no balancing of interests is required and
it must disclose the information in full to the requesting
party. Detroit Newspaper Agency, 317 NLRB 1071
(1995); Lasher Service Corp., 332 NLRB 834, 834
(2000). See generally Bud Antle, 359 NLRB 1257, 1265
(2013) (union grieving subcontracting of unit work enti-
tled to requested information on contracts, production,
and locations where work performed, etc., where em-
ployer failed to substantiate claim that information was
trade secret and proprietary); Ironworkers Local 207
(Steel Erecting Contractors), 319 NLRB 87, 91 (1995)
(union that failed to establish that requested information
on apprentices’ wages and dues was proprietary was or-
dered to disclose information).
Conversely, where a claim of confidentiality is ade-
quately established, it may be a valid basis for declining
to fully produce the requested information. However, the
party asserting this confidentiality claim cannot simply
refuse to furnish the information. Rather, it has a duty to
come forward with an offer to accommodate the request
and engage in bargaining to seek a resolution that ad-
dresses both parties’ needs. See Tritac Corp., 286 NLRB

3 Confidential information is limited to a few general categories, in-
cluding information which would reveal substantial proprietary infor-
mation, such as trade secrets. Southern New England Telephone Co.,
356 NLRB 338, 344 (2010). Trade secrets include “formulas, devices,
or compilations of data, reasonably calculated to provide their posses-
sor with some business advantage over competitors[.]” Borden Chemi-
cal, 261 NLRB 64, 82 (1982), enfd. sub nom. Oil Workers Local 6–418
v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).
522, 522 (1987); Pennsylvania Power Co., 301 NLRB
1104, 1105–1106 (1991).
In accordance with these principles, the Respondent
had the burden of demonstrating a legitimate and sub-
stantial confidentiality interest in the requested docu-
ments. The judge found that it failed to satisfy that bur-
den. The Respondent argues that the judge placed too
much emphasis on the testimony of Vice President of
Human Resources Loren Koski, who responded to the
Union’s information requests, and not enough on the
testimony of Vice President of the Single-Phase Pad Di-
vision Jack Delk, who is an engineer. We find that, even
duly considering Delk’s testimony, the Respondent failed
to demonstrate how the records showing the steps of the
manufacturing process and the amount of time it should
take to complete each step would reveal confidential or
proprietary information.4 Delk testified that the process
by which the coil is manufactured matters in terms of
cost efficiency and the quality of the product, and that if
competitors obtained the time studies, they would be able
to discover and duplicate its process for certain coils by
“[working] backwards and [building the] coil.” Howev-
er, the Respondent failed to demonstrate through Delk’s
testimony that competitors do not follow the same steps
when creating similar coils or that its coils actually differ
in nature from those of its competitors. Instead, the Re-
spondent relies on its assertion that it holds 40 percent of
the market as evidence that it manufactures coils differ-
ently from its competitors. In sum, the Respondent
failed to make a particularized demonstration of why the
time studies would “trigger specific confidentiality con-
cerns.” Mission Foods, 345 NLRB 788, 792 (2005).
Accordingly, we agree with the judge that the Respond-
ent failed to demonstrate a legitimate and substantial
confidentiality interest in the time studies and therefore

4 In addition to the time studies, the Respondent argues that its
software, which it alleges designs optimal custom coils, is also proprie-
tary. The Respondent asserts that if competitors obtain the time studies
for a sufficient number of coils, they could, through reverse engineer-
ing, replicate the software and undercut the Respondent’s market ad-
vantage. As with the time studies, the Respondent failed to establish a
substantial and legitimate confidentiality interest in the software, stat-
ing only that the Respondent designed it and asserting that it enables
the Respondent to produce optimal coils for efficient transformers at
the lowest cost. Further, the Respondent has failed to demonstrate how
the time studies would allow a competitor to duplicate the software and
thus the Respondent’s design process. Contrary to our colleague, we
find that the Respondent’s general assertions, supported only by vague
testimony, are insufficient to establish a substantial and legitimate
confidentiality interest in the software or the time studies. Detroit
Newspaper Agency, supra at 1073–1074.
HOWARD INDUSTRIES 893
violated Section 8(a)(5) and (1) by withholding them
from the Union.5
Further, even if the Respondent had demonstrated that
the information was confidential, it was nevertheless
obligated to seek an accommodation of the Union’s need
for the information through bargaining. The Respond-
ent’s argument that it satisfied this obligation by offering
the Union a tour of the facility fails. The offer was not
reasonable, as it was neither responsive to the Union’s
request for information related to the formulation of pro-
duction standards nor an adequate means of conveying
that information. Accordingly, even assuming arguendo
that the requested information was confidential, the Re-
spondent violated Section 8(a)(5) and (1) because it
failed to seek an accommodation as required under the
Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Howard Industries, Inc., Laurel, Mississip-
pi, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish information request-
ed by the Union which is relevant to and necessary for
the performance of the Union’s duties as exclusive repre-
sentative of the Respondent’s bargaining unit employees.
(b) In any like or related manner interfering with, re-
straining, 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) Furnish to the Union, in a timely manner, the in-
formation which the Union requested on August 3 and
18, 2010, pertaining to Respondent’s setting of produc-
tion standards and quotas for bargaining unit employees.
(b) Within 14 days after service by the Region, post at
its Laurel, Mississippi facility copies of the attached no-

5 Because we adopt the judge’s finding that the Respondent has not
demonstrated a legitimate and substantial confidentiality interest in the
requested information, we do not reach the subsequent analytical step
of weighing that interest against the Union’s need for the information.
Therefore, we need not rely on: (1) the judge’s implication that em-
ployee knowledge of an allegedly confidential process weakens an
employer’s confidentiality claim; or (2) his suggestion that in order to
show a high interest in confidentiality, the Respondent had a burden to
establish that the disclosure of the time studies would place it at a sig-
nificant competitive disadvantage.
As the General Counsel asserts, the Respondent failed to turn over
any information in response to the Union’s request. Accordingly, as
the judge found, the Respondent must furnish the Union with all re-
quested relevant and necessary information. See, e.g., Lasher Service
Corp., supra at 834 .
tice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 3, 2010.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
MEMBER JOHNSON, concurring and dissenting.
I dissent insofar as I find that the Respondent’s evi-
dence, while somewhat generalized in presentation, was
sufficient to establish that the Respondent had a legiti-
mate and substantial confidentiality interest in both the
individual time studies and the algorithm used by its
unique “software system” to determine its customized
coil builds generally. The evidence shows that the time
studies are information demonstrating a manufacturing
process involving multiple components and their se-
quencing, their disclosure to a competitor would be of
significant economic value because they would allow a
competitor to determine the most time efficient way to
build a particular coil, their contents are not generally
known or discoverable, and the Respondent has taken
reasonable efforts to maintain their secrecy. Moreover,
the algorithm that ultimately provides the competitive
advantage behind the Respondent’s manufacturing pro-
cess, and is of even greater value to the Respondent,
could be reverse engineered once a third party reviewed

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
enough time studies to deduce the overall logic used to
manufacture coils as efficiently as the Respondent appar-
ently does—efficiently enough to have garnered a 40-
percent share of the national market.
However, the Respondent failed to attempt to accom-
modate the Union’s indisputable need for the information
with the Respondent’s confidentiality interest other than
offering a plant tour that would not provide any particu-
lar time study information to the Union. Accordingly, I
concur in finding that the Respondent violated Section
8(a)(5) for the sole reason that it failed to seek an ac-
commodation of the Union’s legitimate need for the con-
fidential information in bargaining. To remedy this vio-
lation, I would direct the Respondent to engage in the
necessary accommodation bargaining. E.g., Exxon Co.,
USA, 321 NLRB 896, 899 (1996), enfd. mem. 116 F.3d
1476 (5th Cir. 1997).
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
with the International Brotherhood of Electrical Workers,
Local 1317 by failing and refusing to furnish it with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL furnish to the Union in a timely manner, the
information which the Union requested on August 3 and
18, 2010, pertaining to the Respondent’s setting of pro-
duction standards and quotas for our bargaining unit em-
ployees.
HOWARD INDUSTRIES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/15-CA-070830 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Caitlin E. Bergo, Esq. and Amiel J. Provosty, Esq., for the Gen-
eral Counsel.
Elmer E. White III, Esq. and Josh C. Harrison, Esq. (The Kull-
man Firm), of Birmingham, Alabama, for the Respondent.
Clarence Larkin, of Laurel, Mississippi, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on April 3 and 4, 2013, in Ellisville, Mississippi. After the
parties rested, I heard oral argument, and on May 3, 2013, is-
sued a bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1 The Conclusions of Law, Remedy, Order, and
notice provisions are set forth below.
Additional Analysis
This further analysis should begin with a clarification of a
paragraph in the bench decision. After noting that a union’s
waiver of the right to bargain about a particular subject does not
also waive the union’s right to receive information relevant to
and necessary to perform its duty as the employees’ representa-
tive, the decision continued, “even if an employer has a right to

1 The bench decision appears in uncorrected form at pp. 292 through
316 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as Appendix A to this certification.
For clarity, it may be noted that the case caption, above, does not in-
clude all of the docket numbers which have appeared in various plead-
ings. An April 1, 2013 Order by the Regional Director for Region 15
severed Case 15–CA–019935. After hearing opened, the parties
reached an agreement settling the allegations raised by the charges in
Cases 15–CA–082078 and 15–CA–089002, resulting in an order ap-
proving the settlement agreement, severing these two cases, and re-
manding them to the Regional Office for supervision of Respondent’s
compliance with the terms of the agreement.
HOWARD INDUSTRIES 895
make a change unilaterally, that right does not affect its duty to
provide information.” Taken by itself, this statement sweeps
too broadly.
Obviously, if a union has waived the right to bargain about a
particular subject, it does not need information about that same
matter for the purpose of bargaining. In this circumstance,
where a union requests information to assist it in negotiating
concerning a subject about which it no longer has the right to
bargain, an employer has no duty to provide the information.
See Kennametal, Inc., 358 NLRB 553 (2012).
However, in the present case, the Union did not request in-
formation about the production standard to assist it in bargain-
ing about the standard. Rather, it sought this information be-
cause management was using the production standard as a basis
for disciplining employees and the Union represented those
employees in grievance proceedings, including arbitrations.
The Union has an ongoing right, and duty, to represent employ-
ees in such grievance matters and therefore the requested in-
formation remains relevant and necessary for that purpose.
Further, the record leaves no doubt that the requested infor-
mation concerning the Respondent’s formulation of perfor-
mance standards was indeed both relevant and necessary for the
Union to represent employees disciplined for failure to meet the
standards. See General Motors Corp., 257 NLRB 1068 (1981)
(time studies which management used in setting production
standards were relevant to the union’s processing of grievances
arising from application of those standards).
Because the requested information pertained to bargaining
unit employees it was presumptively relevant, but even apart
from that presumption, the Union clearly needed it. As dis-
cussed in the bench decision, in a grievance arbitration, the
Union might well wish to argue that Respondent lacked “just
cause” to take the disciplinary action. If management had set a
production standard by whim or by pulling numbers out of a
hat, the Union might well wish to argue an absence of just
cause for the discipline.
Moreover, management changed the standard frequently be-
cause the work itself changed to meet the needs of particular
customers. When a customer requested transformers built to a
certain specification, the amount of time necessary to construct
the transformer depended on the details of the specification.
Because management set a new production quota based on
the particular requirements of each custom order, the reasona-
bleness of the standard remained a live issue. A production
standard for one job might indeed be reasonable, in which case
the Respondent would have just cause to discipline an employ-
ee who failed to meet the standard. However, that did not nec-
essarily mean that another production standard, set for another
order at a later time also would satisfy an arbitrator considering
a “just cause” issue.
For example, if the Respondent received a rush order, man-
agement might be tempted not to use its regular process for
setting the standard but instead might make up an arbitrary
quota. No issue concerning whether the Respondent took such
a “short cut” is before me, and I do not suggest that Respondent
ever did so. However, the Union has the right to explore this
question when it represents an employee disciplined for failing
to meet a standard. Only by receiving information about how
the Respondent set standards could the Union determine
whether it should make a “just cause” argument.
The Board has established a 3-stage process for analyzing a
claim of confidentiality made in response to a request for in-
formation. Northern Indiana Public Service Co., 347 NLRB
210 (2006). The same analysis applies whether the party re-
questing the information is the exclusive bargaining representa-
tive of the employees or the employer with which this union
has a bargaining relationship. Here, I will describe the steps as
they apply to the parties in this proceeding. In following this
framework, I note that the party asserting a confidentiality
claim, in this case the Respondent, bears the burden of proving
it. Lasher Service Corp., 332 NLRB 834 (2000).
Respondent has asserted that disclosure of the requested in-
formation would require revealing a trade secret. At the first
step, I must determine whether the Respondent has a legitimate
and substantial confidentiality interest in the information
sought. If the Respondent fails to make such a showing, the
analytical process stops at this first step. However, if the Re-
spondent does show the existence of such a confidentiality
interest, the analysis continues to the next stage.
At the second step, the Board must weigh the Respondent’s
interest in confidentiality against the Union’s need for the in-
formation. If the balance does not favor confidentiality, the
analysis stops at this point. However, if it does favor confiden-
tiality, the analysis then focuses on whether the Respondent has
sought an accommodation.
Following this analytical framework, I begin by asking
whether the Respondent has a legitimate and substantial confi-
dentiality interest in keeping the requested information confi-
dential. That inquiry must begin by asking (if somewhat un-
grammatically), “Exactly what information are we talking
about?”
The record indicates that Respondent was concerned that
disclosing records showing the steps of a manufacturing pro-
cess and how much time it should take to complete each step
would allow its competitors to reconstruct the process and du-
plicate it.
Although Respondent asserts that its manufacturing process
uniquely winds more than one coil at a time, this information
itself does not appear to be a trade secret. Additionally, Re-
spondent has not established that it otherwise departs from the
general practices in the industry. I cannot conclude that Re-
spondent has some distinctive proprietary process that it is try-
ing to shield from other manufacturers.
Therefore, I would conclude that Respondent has not demon-
strated a legitimate and substantial interest in keeping some
trade secret confidential. However, trade secrets are serious
matters and the protection of them warrants serious considera-
tion. Accordingly, to protect against the possibility that I am
simply being obtuse, I will assume that Respondent has satis-
fied the first stage of the analysis and will proceed to the sec-
ond.
At this step, I must weigh the Respondent’s interest in confi-
dentiality against the Union’s need for the information. Alt-
hough the Respondent states that its machines wind more than
one coil at a time, it has not contended that the machines use
technology unknown in the transformer industry or that bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
gaining unit employees use a secret method to assemble a trans-
former which differs significantly from the methods used by
other manufacturers.
Respondent introduced a document called a “bill of labor”
which bore the word “confidential” at the top. Using codes, it
listed the steps in building a particular transformer. The record
suggests that these codes are used as abbreviations rather than
for encryption, and that engineers familiar with transformer
design would be able to understand them.
During the cross-examination of Respondent’s vice presi-
dent, Jack Delk, the General Counsel asked whether the infor-
mation on such a record would allow a competitor to “reverse-
engineer” the Respondent’s coil-winding machinery. Belk
answered, “Well, they would know how long it took to make a
coil based on this, and if they had their own machines and they
thought, Hey, it’s taking me twice as long than [sic] this, then I
think I can improve my machine.”
Even if the exact amount of time the Respondent took to
manufacture a particular coil is secret, the record does not es-
tablish that disclosure of this information would place Re-
spondent at a significant competitive disadvantage. “Presuma-
bly, competitors already are trying to increase the speed of their
machinery.”
It is true that the records in question also show the sequence
of steps in assembling a particular transformer. However, bar-
gaining unit employees already are aware of these steps be-
cause they perform them. I conclude that the Respondent’s
interest in confidentiality of the requested information is not
particularly high.
On the other hand, the Union’s need for this information
weighs heavily. Absent this information, the Union has little or
no basis to argue to an arbitrator that the disciplinary action was
not for “just cause” because it was based on a failure to meet an
unrealistic standard. Therefore, I conclude that the Union’s
need for the information outweighs the Respondent’s interest in
confidentiality. Accordingly, Respondent has a duty to provide
the requested information.
Complaint paragraph 9 alleges that since about October 14,
2011, Respondent has failed to provide the Union with suffi-
cient information to bargain over its asserted confidentiality
concerns relating to the coil time report and time study. I do
not recommend that the Board find that this allegation consti-
tutes a separate violation of Section 8(a)(5).
Under well-established Board precedent, if a party has a duty
to furnish requested relevant information and asserts confiden-
tiality as a justification for noncompliance, it has a duty to seek
an accommodation. National Steel Corp., 335 NLRB 747
(2001). Thus, in the present case, the Respondent had an obli-
gation to come forward with an offer of accommodation.
However, the record does not establish that Respondent ever
made an offer responsive to the Union’s request and its stated
need for the information. For example, it did not propose that
union officials enter into an agreement to keep the information
confidential. It did not suggest an agreement to limit who
could see the requested documents, or to prohibit the making of
copies or to require their return. Respondent also did not offer
to furnish redacted copies of the documents.
Respondent did offer to let a union official view the produc-
tion process to see how employees wound coils and put trans-
formers together. It should have been obvious to Respondent
that such observations of employees at work would not give the
Union any information about how management set the produc-
tion quota. The patently nonresponsive and essentially irrele-
vant nature of this proposed “accommodation” and the absence
of any other proposal leads me to conclude that Respondent has
not satisfied its duty to seek an accommodation.
Complaint Paragraph 9 focuses on this duty. However, ra-
ther than treating the Respondent’s failure to propose a mean-
ingful accommodation as a separate violation of Section
8(a)(5), I believe it is better to consider it merely as one aspect
of Respondent’s overall failure to furnish the information re-
quested by the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix B [omitted from publica-
tion].
Additionally, it must, without any further delay, furnish the
Union with the requested relevant and necessary information,
as described in the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Howard Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party, International Brotherhood of Electri-
cal Workers, Local 1317, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all material times, the Charging Party is and has been
the exclusive representative, within the meaning of Section 9(a)
of the Act, of Respondent’s full-time and regular part-time
production and maintenance employees in a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the
Act.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to furnish to the Charging Party
information concerning the setting of production standards, as
described above, which the Charging Party had requested and
which was relevant to and necessary for the representation of
bargaining unit employees in the grievance and arbitration pro-
cess.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
This decision is issued pursuant to Section 102.35(a)(10) and
HOWARD INDUSTRIES 897
Section 102.45 of the Board’s Rules and Regulations. I find
that Respondent violated Section 8(a)(5) and (1) of the Act by
failing to furnish information requested by the Union which
was relevant to the Union’s duty to represent bargaining unit
employees and necessary for that purpose.
Procedural History
This case began on December 15, 2011, when the Interna-
tional Brotherhood of Electrical Workers, Local Union 1317
(which I will call the Union or the Charging Party) filed and
served an unfair labor practice charge against the Respondent,
Howard Industries, Inc. The National Labor Relations Board,
Region 15, docketed this charge as Case 15–CA–019935. The
Union amended this charge on February 26, 2011.
On December 15, 2011, the Union filed a charge against Re-
spondent in Case 15–CA–070830 and served it the next day.
The Union amended this charge on January 26, 2012, on Feb-
ruary 24, 2012, and again on April 26, 2012.
On May 22, 2012, the Union filed and served a charge
against Respondent in Case 15–CA–081543.
On May 30, 2012, the Union filed a charge against Respond-
ent in Case 15–CA–082078 and served it on Respondent the
next day. It amended this charge on June 5, 2012.
On July 19, 2012, the Union filed and served a charge
against Respondent in Case 15–CA–085642.
On September 5, 2012, the Union filed and served a charge
against Respondent in Case 15–CA–082078.
On September 11, 2012, the Union filed and served a charge
against Respondent in Case 15–CA–089002.
On September 27, 2012, the Acting General Counsel of the
Board, by the acting Regional Director for Region 15, issued a
consolidated complaint and notice of hearing in Cases 15–CA–
070830, 15–CA–081543 and 15–CA–085642. On October 19,
2012, the General Counsel, by the Acting Regional Director for
Region 15, issued an Order Further Consolidating Cases, con-
solidated complaint, and notice of hearing, which consolidated
Case 15–CA–082078 with the other three.
On December 17, 2012, the Acting General Counsel, by the
Acting Regional Director for Region 15, issued an Order Fur-
ther Consolidating Cases, consolidated complaint and notice of
APPENDIX A
hearing which consolidated Case 15–CA–089001 with the four
already-consolidated cases. On February 5, 2013, the Acting
General Counsel, by the Regional Director for Region 15,
issued an amendment to this consolidated complaint and notice
of hearing. For brevity, I will refer to this consolidated
complaint, as amended, simply as the “complaint.”
On March 19, 2013, the Acting General Counsel, by the Re-
gional Director for Region 15, issued an Order Severing Case
15–CA–019935 and reissuing complaint in that matter.
On March 20, 2013, the Acting General Counsel, by the Re-
gional Director for Region 15, issued an Order Consolidating
Cases in Cases 15–CA–019935, 15–CA–070830, 15–CA–
081543, 15–CA–082078, 15–CA–085642, and 15–CA–089002.
On April 1, 2013, the Acting General Counsel, by the Re-
gional Director for Region 15, issued an Order Severing Case
15–CA–019935 and withdrawing complaint in Case 15–CA–
019935.
On April 3, 2013, a hearing opened before me in Ellisville,
Mississippi. Thereafter, the parties reached an agreement
which settled the allegations raised by Cases 15–CA–082078
and 15–CA–089002. After reviewing that agreement, I con-
cluded that it was consistent with the provisions and policies of
the Act and stated on the record that I would issue an order
approving the settlement agreement and severing these two
cases from the consolidated proceeding. Such an order has
issued.
Because of the partial settlement agreement, the Acting Gen-
eral Counsel orally amended the complaint on the record during
the hearing. The effects of this amendment will be discussed
below.
The parties presented evidence on April 3 and 4, 2013. After
all sides had rested, I adjourned the hearing until May 2, 2013,
when it resumed by telephone conference call so that counsel
could present oral argument. After those arguments, I ad-
journed the hearing until today, May 3, 2013, and now issue a
bench decision.
Admitted Allegations
Respondent timely answered the complaint. Based on the
admissions in that answer, I find that the Acting General Coun-
sel has proven the allegations raised in complaint paragraphs 1,
2, 3, 4, 5, 6, 7(a), 8(a) and (b). Respondent’s answer also ad-
mitted the allegations raised by complaint subparagraph 8(c),
but after the hearing opened, the parties reached an agreement
to settle some of the allegations and, because of this settlement,
the Acting General Counsel amended the complaint to delete
subparagraph 8(c).
The partial settlement will be discussed further below.
However, for clarity, I first will summarize the findings result-
ing from the admissions in Respondent’s answer.
APPENDIX A
Specifically, I conclude that the government has proven the
filing and service of the unfair labor practice charges, as alleged
in complaint paragraph 1.
Additionally, I find that the Acting General Counsel has es-
tablished that Respondent is an employer engaged in commerce
within the meaning of the Act, that it is subject to the Board’s
jurisdiction and meets the Board’s standards for the exercise of
its jurisdiction, as alleged in complaint paragraphs 2, 3, and 4.
Further, I find that at all material times, Lauren Koski was
Respondent’s vice president of human resources and, in that
position, was Respondent’s supervisor and agent within the
meaning of Section 2(11) and (13) of the Act, as alleged in
complaint paragraph 6.
Additionally, I find that at all material times, the Union has
been and is a labor organization within the meaning of Section
2(5) of the Act, as alleged in complaint paragraph 5. Based on
Respondent’s answer and on a stipulation received at hearing, I
find that at all material times, the Union has been and is the
exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of the following unit of employees,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
which is an appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act:
Included: All full-time and regular part-time production
and maintenance employees.
Excluded: All other employees, guards, and supervi-
sors as defined by the Act.
Based on the admissions in Respondent’s answer, I find that
since about October 14, 2011, the Union has requested orally
and in writing that Respondent furnish the Union with the coil
time report and the time study report for coil winders, and that
since about October 14, 2011, the Union has requested orally
that Respondent furnish the Union with the information neces-
sary to interpret the coil time report.
Oral Amendment to Complaint
As already noted, because of the settlement agreement in
Cases 15–CA–082078 and 15–CA–089002, the Acting General
Counsel orally amended the complaint to delete the allegations
covered by the settlement. Specifically, this amendment with-
drew from the complaint the allegations in complaint subpara-
graph 8(c), and modified subparagraph 8(g) by deleting the
reference to subparagraph 8(c).
The amendment withdrew complaint paragraphs 10, 11, and
12 in their entirety. It also modified complaint paragraph 13 by
deleting references to these complaint paragraphs. As so modi-
fied, complaint paragraph 13 alleges only that Respondent, by
the conduct alleged in complaint paragraphs 8 and 9, has been
failing and refusing to bargain collectively and in good
APPENDIX A
faith with the exclusive collective-bargaining representative of
its employees in violation of Section 8(a)(1) and (5) of the Act.
Facts
Respondent makes a wide variety of electrical transformers,
and the manufacturing process requires winding many different
types of coils. For years, management used a set of production
standards to gauge the efficiency of the bargaining unit em-
ployees who wound the coils. Respondent’s vice president of
human resources testified that at one point, according to the
existing standards, the employees were working at 140-percent
efficient.
When Respondent’s managers saw the 140-percent efficien-
cy rating, they decided that the production standards were out
of date. Respondent places high importance on using cutting
edge technology, but the existing standards did not take into
account the increase in productivity resulting from this technol-
ogy but instead specified how quickly an employee should be
able to wind a coil using older machinery. Therefore, man-
agement decided to adopt new standards.
The standards did more than state the time required for an
employee to wind a complete coil. They also set the expecta-
tions for how long it should take to complete various steps in
the coil-winding process. By July 26, 2010 memo to the coil
winding employees, management announced the new stand-
ards:
In order to continue to meet our customer’s present and future
needs and to remain competitive we have to constantly work
towards improving the efficiency and quality of our work to
help achieve these goals the standards for coil winding have
changed. The quota percentage has not changed and will re-
main at 90%. You will have time to adjust to these new
standards for the next two months. Take this time to prepare
thoroughly for these changes. If during that time you need
extra training contact your supervisor and extra training will
be made available. On October 1, 2010, you will be expected
to meet quota using the new standards.
By August 3, 2010 letter, the Union requested that Respond-
ent furnish both the old standards and the new ones. Respond-
ent replied by fax with a one-paragraph letter dated August 17,
2010, which stated:
The standard for winding coils is to do 100% of the daily quo-
ta, but currently we refrain from doing discipline until an em-
ployee has fallen below 90% average over a period of time. It
has been this way before July 26th and is after July 26th.
Union President Clarence Larkin credibly testified that he
did not know what the daily quota was and had never been told
what the daily quota entailed. The next day, Larkin sent Re-
spondent a letter requesting a “copy of the method being used
to determine how many coils
APPENDIX A
that a coil winder is supposed to wind within a regular work
day of eight (8) hours as a regular work day is defined under
Article III, Section 3 and 10 of the collective bargaining
agreement.”
By September 2, 2010 letter, Human Resources Vice Presi-
dent Koski replied to the Union’s request. This letter stated as
follows:
The methods and standards are proprietary information that
we secure and can not have released to anyone as it ensures
competitive advantage in the market. These secrets are trade
secrets and must be protected. The Company would be will-
ing to review our standard of any individual coil and if we
find that it is out of line we will modify it to conform to our
standards. Upon determining if it is out of line we will then
inform the union or employee that the standard has been
changed. If we determine that it is in line then we will con-
tinue to use the standard and the employee will be expected to
produce the coils within the allotted time.
What gives us the right to make changes is the contract be-
tween Howard Industries, Inc and the IBEW specifically the
management rights article.
Here are some excerpts for your information, “Except as spe-
cifically abridged, delegated, granted, or modified by this
Agreement, or any supplementary agreements that may here-
after be made, all the rights, powers, and authority the Com-
pany possessed prior to the signing of this Agreement are re-
tained by the Company and remain exclusively and without
limitation within the Rights of management, nor does the ex-
HOWARD INDUSTRIES 899
ercise thereof require any prior discussion or negotiation with
the Union.” It goes on to say, “. . . Such rights of manage-
ment include, among other things, but are not necessarily lim-
ited to, the right to . . . determine methods of work measure-
ment and to establish standards of performance. . . .”
I hope that this has answered the questions you have posed as
well as clarified our position on coil production methods. As
for the standards the employees will still be expected to make
and maintain an average of 90% of their quota after the ad-
justment period has ended.
Before continuing with the chronology of events, it is appro-
priate to make the following observations about the Respond-
ent’s September 2, 2010 letter and its stated reason for refusing
to provide the requested information.
Respondent invoked an exception the Board and courts have
made to the general principle that an employer’s duty to bar-
gain in good faith with the exclusive representative of its em-
ployees includes a duty to furnish, at the union’s request, in-
formation relevant to the union’s representation duties and
necessary to perform that function. Under certain circumstanc-
es, this
APPENDIX A
narrow exception relieves an employer from the obligation to
furnish such information when it constitutes a “trade secret.”
Typically, when an employer asserts that certain requested
information is a trade secret which need not be disclosed, that
information concerns something a competitor would need to
know to duplicate the product or make its manufacture more
efficient. For example, a list of an employer’s customers may
be exempt from disclosure because this proprietary information
would be of great value to a competitor. Other typical trade
secrets pertain to some element of the manufacturing process
itself. However, in this instance, the Union did not request
information about the manufacturing process. Rather, the Un-
ion sought information about the method used to set the pro-
duction standards.
Stated another way, the Union did not say to Respondent,
“Tell us how you make coils.” If the Union had made such a
request, the Respondent’s claim of trade secret would be con-
sistent with the typical pattern. Respondent would be saying, in
effect, “if we tell you how we make coils and the information
falls into a competitor’s hands, the competitor might be able to
make its coils faster or more efficiently or more cheaply and
take business away from us.”
Instead of seeking information about making coils, the Union
requested information about another process, the process of
setting standards to judge employee performance. Respondent
had made it clear that it expected each bargaining unit employ-
ee to wind a specified number of coils in a specified period of
time and might well discipline any employee whose perfor-
mance fell below 90 percent of this standard. The Union was
asking, in effect, “tell us how you determine the number of
coils which you expect an employee to wind in an 8-hour day.”
In other words, the Union sought documents directly relevant
to how employees would be evaluated—a matter of particular
concern to the employees’ exclusive bargaining representa-
tive—and of less direct relevance to the manufacturing process.
Of course, the trade secret doctrine does not protect only pro-
prietary information related to manufacturing processes. If a
human resources department had a secret process for doing
personnel work and this process gave the employer a competi-
tive advantage, such an employer legitimately could raise a
confidentiality concern.
Moreover, in theory at least, information about the method
used to determine when an employee should be disciplined for
unsatisfactory production arguably might reveal proprietary
details of the manufacturing process itself. However, I cannot
simply assume that to be the case. Rather, the Respondent
bears the burden of demonstrating that the disclosure of infor-
mation relevant to the discipline of bargaining unit employees
would necessitate the revelation of a trade secret.
APPENDIX A
One other point about the Respondent’s September 2, 2010
letter should be noted. The letter asserts that the management
rights clause of the collective-bargaining agreement gives Re-
spondent the “right to make changes” in the production stand-
ards applied to employees. The letter goes on to quote that
clause. However, the right to make changes is not at issue here.
The complaint, as amended, does not allege that Respondent
made an unlawful unilateral change, but rather alleges that
Respondent failed and refused to furnish the Union with re-
quested information which was relevant to the Union’s perfor-
mance of its duties as exclusive bargaining representative and
necessary for that purpose. Even assuming that the Union had
waived its right to bargain about a change in working condi-
tions, such a waiver does not extend to the Union’s statutory
right to receive requested relevant and necessary information.
Thus, even if an employer has a right to make a change unilat-
erally, that right does not affect its duty to provide information.
The complaint doesn’t allege that Respondent breached its
duty to furnish requested information in 2010. However, the
Union persisted in requesting information about the production
standards and Respondent continued to assert that the requested
information was proprietary and a trade secret.
Respondent has admitted the allegation raised in complaint
paragraph 8(a), that since about October 14, 2011, the Union
has requested orally and in writing that Respondent furnish the
Union with the coil time report and the time study report for
coil winders. Respondent also has admitted the allegation in
complaint paragraph 8(b), that since about October 14, 2011,
the Union has requested orally that Respondent furnish the
Union with the information necessary to interpret the coil time
report.
Respondent has denied that since about May 10, 2012, the
Union has requested in writing that Respondent furnish the
Union with any and all information used to determine if em-
ployees are meeting production standards and any and all poli-
cies and/or procedures used by the Company from 2009 to
present to determine if an employee should be disciplined for
failure to meet production standards. However, the May 10,
2012 request is in evidence as a joint exhibit and I find that the
government has proven this allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
Similarly, the record establishes that since about June 28,
2012, the Union has requested in writing that Respondent fur-
nish the Union with all information necessary to interpret the
coil time report and time study, and any and all information
necessary to interpret the production standards, as alleged in
complaint paragraph 8(e), and I so find.
Respondent also denies that the requested information is rel-
evant to and necessary for the Union to perform its functions as
exclusive representative of bargaining unit employees, as al-
leged in complaint paragraph 8(f). However, the Union seeks
information directly related to the production standards applied
to those employees as they perform their jobs. Moreover, the
APPENDIX A
record amply documents disciplinary actions taken against
employees for failure to meet the standards. Therefore, I con-
clude both that the information is presumptively relevant and
that Respondent has failed to rebut the presumption of rele-
vance.
Although the Respondent denies that it has failed to
furnish the requested information, as alleged in complaint
paragraph 8(g), the record clearly establishes that Re-
spondent has not provided it and continues to assert that it
has no duty to do so because the requested information is
proprietary and a trade secret.
One difficulty with Respondent’s trade secret argu-
ment is that Respondent cannot readily identify the assert-
edly secret information with any particularity. For exam-
ple, I specifically asked Respondent’s Vice President Ko-
ski to identify the trade secret. He gave the following tes-
timony.
JUDGE LOCKE: Uh-huh. What I’m getting at is I’m trying to
get my mind around the trade secret or proprietary in-
formation assertion or defense. I’m trying to figure out
exactly what it is that Howard Industries is afraid will be
disclosed. Like, I guess, a trade secret could be a manu-
facturing process, or it could be a secret ingredient in
Coca-Cola or whatever. What is it exactly that you want
to protect in this case?
THE WITNESS: Well, it is—first of all, let me just again pref-
ace, I am not an engineer. I’m not an engineer. Now—
and I’m not intimately familiar with the factors. How-
ever, you know, this case is about discipline, and at Co-
ca-Cola, if ten people make Coca-Cola and one of them
makes it poor, then the one that made it poor, there’s a
reason. You don’t need the recipe to know that the Coke
didn’t pass the test. But—so that’s, you know, what
we’re looking at here. Now, as far as what I know that
would be proprietary is I know for a fact that because of
the fact that we’ve made our own machines, that they’re
different than ours, so the speed in which they operate is
different than ours. I know that where, you know—I’ve
been asked whether a scissors is an element, how just
cutting a piece of paper would be an element. Well, oth-
er companies don’t cut six pieces of paper. We do. We
have six. So the time is: How long does it take to cut the
paper? Well, we’re cutting for six coils. They’re cutting
for one. We’re using a certain millage paper. I don’t
know what millage paper they’re using, but I suspect
that ours is different, because theirs is—like I said, if
they’re cutting for one, they’re cutting for one. That’s a
APPENDIX A
period of time. We’re cutting for six. It’s different, be-
cause you have to factor in the time of picking up those
scissors, cutting the paper, putting down those scissors.
That’s the element. Well, if you’re picking it up and
you’re cutting six pieces of paper while you have it up,
you’ve eliminated the time of picking them up and put-
ting them down six times or five other times.
JUDGE LOCKE: Well, how—I guess what I’m getting at is I’m
trying to see the connection between withholding the in-
formation and the potential that the—some competitor
would learn about a process or a secret or something
they otherwise would not know that would give it an ad-
vantage. And the two aren’t connecting in my mind.
Perhaps you can help me.
THE WITNESS: Well, first of all, this case is about effectively,
in my opinion—I’m not a lawyer either. But in my
opinion, this case is about effectively representing em-
ployees that have been discharged. I don’t see how giv-
ing out our trade secrets over how long it takes to cut a
piece of paper is going to be beneficial to the union in
any way, being that it’s one of several hundred to thou-
sand elements. Then in the end, the employee, every
single day, gets a quota, and every single day they write
down their downtime, and every single day, they turn
that in. And that is entered, and that goes onto a report
that they get every week in which they can look at it, and
every four weeks they can be disciplined for it. But they
see the downtime on it. So if the union has the quota
that they were assigned, they have the downtime that
they received, they have the report that shows the out-
come, then they can effectively represent that employee.
Now, they can also look at a person who does well.
They don’t have to just request to look at an efficiency
report of somebody that does poorly. Let’s look at
somebody that does well, that does the same job, so now
we can look at it again and we can see that there hasn’t
been a selection of discipline on an employee. We don’t
selectively discipline employees. We have an efficien-
cy, and that’s what this is about, of course. But the other
factors, the downtime, the materials, missing materials,
getting materials, ordering materials, buffing materials,
all these other things, are just factors that add to those
times, so if this case is about us handing over what
makes Howard Industries, Howard Industries, because
keep in mind the
APPENDIX A
coil is the brain of the operation. The rest of what we do
is a steel box filled with oil. All right. So there’s a core
coil. So if we’re going to give away, to represent—he’s
never going to be able to use that information in a case.
HOWARD INDUSTRIES 901
It’s never going to be, you know, on that day, did you
pick up those scissors, and did you cut them. I mean, if
it ever gets to that point, arbitrations will take about a
year. It’s going to come down to the broader strokes,
and it always does. So 14 [sic] and I’ve been in plenty
of arbitrations, and I know that I could defend them on
the information I’ve seen on those forms. But anyway,
that’s where I’m at.
This testimony is too vague to be of much assistance. An-
other of Respondent’s vice presidents, Jack Delk, who is an
engineer, gave more precise testimony and from that testimony
I conclude that Respondent does not want to disclose its in-
structions to coil winders regarding how to assemble a coil
because Respondent fears a competitor could use this infor-
mation to “reverse engineer” Respondent’s manufacturing pro-
cess.
However, I found this claim to be quite unpersuasive. Even
though Delk was an engineer, he did not explain how a compet-
itor could infer the manufacturing process or the design of the
Respondent’s machinery from the times allotted to complete
various steps of the process.
Delk’s testimony boiled down to a claim that if a competitor
knew how quickly Respondent could build coils, it would real-
ize that it had to speed up its own operations. That is hardly a
trade secret so precious it outweighs the Union’s need for the
information to represent bargaining unit employees.
If Respondent really wished to protect a trade secret, it
would be able to describe it with some specificity. Of course, I
do not suggest that Respondent would have to provide so much
information about the claimed trade secret that it actually dis-
closed the secret. Such particularity is not necessary to show
that a real secret does, in fact, exist and that it would be of val-
ue to a competitor.
However, the frequent repetition of the phrase “trade secret”
does not conjure an actual secret into existence. The words,
after all, are not pixie dust which would, when scattered about,
make a space magical and beyond the usual principles of logic.
In addition to Respondent’s inability to identify a specific
secret which it seeks to protect, another consideration leads me
to reject that claim. The record suggests another reason for
Respondent’s refusal to furnish the requested information to the
Union. The evidence is consistent with the conclusion that
Respondent seeks to limit the scope of the Union’s arguments
in grievance arbitrations, which would reduce the Union’s like-
lihood of success.
APPENDIX A
On a number of occasions, the Respondent discharged or
otherwise disciplined employees because their performance
supposedly fell short of the production standards. The Union
wished to argue that management did not have “just cause,” as
required by the collective-bargaining agreement, to take these
actions. Indeed, in a September 2, 2010 letter to Respondent’s
human resources vice president, the Union explicitly cited the
“just cause” language as a reason for its information request:
I am aware of the management rights clause. I am also aware
of the company’s rights to set standards which employees are
responsible for meeting. Please be advised that standards are
work requirements set by management by which employees
will be disciplined for not meeting. Therefore, under the
same management rights clause it states that the company
shall “make and enforce reasonable rules for the maintenance
of discipline; suspend, discharge or otherwise discipline em-
ployees for just cause.” It is under this proviso that the union
is entitle[d] to copy of any standards which necessitates disci-
plinary action against employees to ensure that such standards
are “reasonable.”
In representing employees in arbitrations, the Union clearly
intended to litigate whether the Respondent’s standards were
reasonable. Labor relations professionals experienced in arbi-
trations appreciate that arbitrators would be willing to entertain
such an argument and at least some of them would be receptive
to it. Arbitrators who hear employment grievances tend to be
quite sensitive to issues involving fairness and the perception of
fairness. An arbitrator might well consider the contractual “just
cause” standard broad enough to justify inquiry into the basis
for the production standard: Was the standard arbitrary and
draconian, or was it grounded in the amount of production an
employee might reasonably be expected to achieve?
If the Union is allowed to raise and litigate such an issue be-
fore the arbitrator, it appreciably increases the Union’s likeli-
hood of success. On the other hand, if the only issue is whether
the grievant’s production met the standard set by management,
with the fairness of the standard going unchallenged, the Union
is more likely to lose. Thus, Respondent would gain a signifi-
cant advantage by assuring that the Union did not make the
fairness of the standard itself an issue during the arbitration.
One way to preclude that issue from arising was simply not to
provide any information about how Respondent, exercising its
authority under the management rights clause, determined what
the standard should be.
The testimony of Respondent’s human resources vice presi-
dent, Lauren Koski, is consistent with a conclusion that Re-
spondent believed that the Union merely should litigate wheth-
er the grievant met its standard. Rather than furnishing the
requested information about the coil winding standards, Koski
advocated that Union President Larkin watch employees wind-
ing coils. According to Koski, the knowledge gained from such
experience would allow the Union to represent employees in
grievance proceedings. Thus, Koski testified, in part, as fol-
lows:
APPENDIX A
I think I understand more than Mr. Larkin does, but I would
have loved to have gone over there, too. We would have
questioned supervision and employees together about their
understanding of how they get coils, how they get assigned
coils, what they learn—or what they wind, how they write
down their downtime, what happens with it. We could have
gone through the whole process. That offer was open then;
that offer’s open today. And if that occurred, then, Mr. Larkin
would, in my opinion, be able to effectively learn what he
needs to defend a coil winder when they’re terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
In this testimony, the human resources vice president admits
believing that he knows more about the coil winding process
than the union president, and the testimony also suggests that
he thought he knew better than the union president how to arbi-
trate a grievance. Koski’s further testimony makes clear how
Koski thought the Union should present a grievant’s case to an
arbitrator:
If what I think, in my opinion, would be the things he would
need, which are the daily coil-winding report, that is inclusive
of downtime, and then the cumulative, which is a report—the
weekly efficiency report is what it’s titled, and on that report,
it shows each week breakdown, and then a four week average,
a 12-week average, and so on, of the individuals’ coil-
winding efforts, including the downtime that was allowed.
You would be able to take those forms, look at the form, see
what was assigned to a person, see the downtime, and then
you could add those up. You could look at that form and de-
termine what was—what happened and what didn’t happen
with the weekly efficiency report. In addition to all of that,
you could pull a coil winder who is making production and
you could look at theirs, and you could see if theirs was dif-
ferent, but we didn’t get to explain or do any of these things,
because as Mr. Larkin has told me directly, it’s a trick that I
want him to go over there and learn coil winding. It is not a
trick. I expected him to go there to learn, so that he could rep-
resent people.
Koski’s testimony, considered together with Larkin’s Sep-
tember 2, 2010 letter to Respondent, leaves little doubt about
the nature of the conflict. The Union intended to argue that
management’s production standards were unfair, arbitrary, and
insufficient to establish “just cause” for disciplinary action.
Respondent, on the other hand, thought the Union should focus
on the grievant’s production statistics, comparing those num-
bers with management’s standard and also, perhaps, with the
production levels of other employees.
Koski made similar statements later in his testimony. How-
ever, the Respondent has no right to control its opponent’s liti-
gation strategy. Respondent certainly has no right to withhold
requested information simply because it did not want the Union
to use that information in grievance arbitrations.
APPENDIX A
Moreover, the record establishes that Respondent took no re-
al steps to achieve an accommodation, for example by negotiat-
ing a confidentiality agreement or seeking a way to redact the
records. Although it paid lip service to this duty, it took no
steps in that direction.
In sum, I conclude that the Acting General Counsel has
proven the allegations in the complaint, and that Respondent
violated Section 8(a)(5) and (1) of the Act, as alleged.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
certification also will include provisions relating to the findings
of fact, conclusions of law, remedy, order and notice. When
that certification is served upon the parties, the time period for
filing an appeal will begin to run.
Throughout this proceeding, all counsel have demonstrated
the highest levels of professionalism and civility, which are
truly appreciated. The hearing is closed.