Johns-Manville Sales Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 368 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johns-Manville Sales Corporation and International
Chemical Workers Union and its Local 60,
AFL-CIO. Case 13-CA-17917
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 28, 1980, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge to the extent consistent herewith and to
adopt his recommended Order as modified herein.'
The Administrative Law Judge found that the
Respondent was required to provide the Union
with the names of approximately 34 employees
whose medical files the Respondent had "red-
tagged" because its doctors had diagnosed them as
being partially disabled by pneumoconiosis, a lung
disease. The Union's request for these names was
based on an expressed desire to develop a total
health program for employees and, more specifical-
ly, to permit it to prepare contract proposals de-
signed to protect red-tagged employees and to ad-
minister and police any agreement reached. Subse-
quent to the request, the parties reached an agree-
ment which gave red-tagged employees certain ad-
ditional seniority rights. This change in bargaining
status since the original request was made persuad-
ed the Administrative Law Judge to conclude that
the identity of the red-tagged employees is rele-
vant, and in fact essential, to the Union's effective
administration and policing of this provision of the
parties' contract.
In addition to questioning the relevance of this
information to the Union's collective-bargaining
function, the Respondent contends that the names
of the employees-as opposed to the number of
employees that have been "red-tagged"- consti-
tute confidential medical records. The Administra-
tive Law Judge rejected this defense, concluding
that the identities of the diagnosed employees are
The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
252 NLRB No. 56
not the equivalent of medical records and that the
Respondent has not shown that it would suffer any
harm if the identities were revealed to the Union.
In reaching that conclusion, however, the Ad-
ministrative Law Judge viewed and treated the
issues presented as simply (I) the existence of a le-
gitimate claim of relevance and (2) an "all or noth-
ing" question of confidentiality. However, where,
as here, there is substance to the position taken by
both parties, we are required to balance the
Union's need for the information against any legiti-
mate assertion of confidentiality by the employer.
See Detroit Edison Co. v. N.L.R.B., 440 U.S. 301,
314-320 (1979). The Union's principal asserted
need for the information is that, in order to protect
the interests of red-tagged employees, it must be
able to contact them. Whatever the advantage of
knowing the identities of the employees involved,
that information does not appear to be essential for
the specific purpose claimed or for any related pur-
pose. For the Union adequately could fulfill its re-
sponsibilities to these employees without that infor-
mation, i.e., by informing all unit employees of
their rights should they become "red-tagged" (a
status which is known to the affected employees),
and that the Union stands ready to assist them in
applying and enforcing these rights. Thus, although
the information may be relevant, we do not believe
that the Union's showing of need clearly outweighs
the confidentiality claimed.
The weight of the Respondent's assertion of con-
fidentiality is also, of course, subject to scrutiny.
As found by the Administrative Law Judge, the
names of the employees are distinguishable from
actual medical records. Moreover, it is arguable
that the Respondent itself has not treated the em-
ployees' identities in a strictly confidential manner
since it has revealed them to various persons in the
supervisory hierarchy. Nevertheless, there exists a
legitimate aura of confidentiality in the identities of
those individuals who have been identified as
having a certain medical disorder. The privilege in
question, of course, belongs to the employees and
not to the Respondent. We note that the Respond-
ent has demonstrated that its refusal to disclose
sensitive information privileged to those employees
was made in good faith, since it sought to accom-
modate the Union by submitting forms to a number
of red-tagged employees on which they indicated
whether or not they wished to be identified to the
Union as having pneumoconiosis, and has turned
over to the Union the names of those who consent-
ed. We find, therefore, contrary to the Administra-
tive Law Judge, that, on balance, and in the partic-
ular circumstances present, the Respondent has not
violated Section 8(a)(5) by refusing to furnish the
368
JOHNS-MANVILLE SALES CORPORATION
Union with the identitites of the red-tagged em-
ployees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Johns-Manville Sales Corporation, Waukegan, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph (a):
"(a) Refusing to bargain collectively with Inter-
national Chemical Workers Union and its Local 60,
AFL-CIO, by refusing to furnish to the Union cer-
tain information necessary and relevant to the
Union's performance of its collective-bargaining
functions. The appropriate bargaining unit is:
"All production, maintenance, quality control,
and plant clerical employees employed by Re-
spondent at its Waukegan, Illinois facility, but
excluding all office clerical employees, guards,
professional employees and supervisors as de-
fined in the Act."
2. Substitute the following for paragraph 2(a):
"(a) Furnish to the Union, upon request, the fol-
lowing: (1) Statistical data on sputum cytology, X-
rays, blood tests, and pulmonary function tests; and
(2) a listing of the diseases which were and are the
cause of unit employees' disability retirements
which could potentially be considered occupational
in nature."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Chemical Workers Union
and its Local 60, AFL-CIO, by refusing to
furnish said Union with information necessary
and relevant to the Union's performance of its
collective-bargaining functions. the appropriate
bargaining unit is:
All production, maintenance, quality control,
and plant clerical employees employed by us
at our Waukegan, Illinois facility, but exclud-
ing all office clerica employees, guards, profes-
sional employees and supervisors as defined in
the Act.
W. WILL. NOT in any like or related manner
intefere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
Wt. W.l., upon request, furnish to the
Union in a reasonably clear and understanda-
ble form:
1. Statistical data on sputum cytology, X-rays,
blood tests, and pulmonary function tests.
2. A listing of the diseases which were and are
the cause of unit employees' disability retire-
ments which could potentially be considered
occupational in nature.
JOHNS-MANVII.LE SAI.ES CORPORA-
TION
DECISION
SIATEMILN- OF I HF. CASE
DONAFLD R. HoI.I FY, Administrative Law Judge:
Upon a charge filed by International Chemical Workers
Union and its Local 60, AFL-CIO (herein called the
Union), the Acting Regional Director for Region 13 of
the National Labor Relations Board (herein called the
Board) issued a complaint on February 15, 1979, alleg-
ing, inter alia, that since April 17, 1978, Johns-Manville
Sales Corporation (herein called Respondent) has refused
to furnish the Union with requested information which is
relevant and necessary to its role as the exclusive bar-
gaining representative of certain of Respondent's em-
ployees in violation of Section 8(a)(l) and (5) of the Act.
Respondent filed timely answer denying that it had en-
gaged in the unfair labor practices alleged.
The case was heard before me in Chicago, Illinois, on
June 11 and 12, 1979. Counsel for the General Counsel,
Respondent, and the Union each filed post-hearing briefs.
Upon the entire record, the briefs of the parties, and
from my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, maintains an
office and place of business at Greenwood and Sand
Streets, Waukegan, Illinois, where it is engaged in the
manufacture of asbestos and other related products.
During the calendar year preceding issuance of the com-
plaint, in the course and conduct of its business, it
shipped goods valued at in excess of $50,00 directly to
points located outside the State of Illinois, and during the
same period it received goods valued in excess of
$50,000 at its Waukegan plant directly from points locat-
ed outside the State of Illinois. It is admitted, and I find,
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since November 19, 1937, the Union has been the ex-
clusive collective-bargaining agent of Respondent's em-
ployees in the following appropriate bargaining unit:
All production, maintenance, quality control, and
plant clerical employees employed by Respondent
at its Waukegan, Illinois facility, but excluding all
office clerical employees, guards, professional em-
ployees and supervisors as defined in the Act.
Respondent employs some 900 employees at its Wau-
kegan facility, where it produces, inter alia, asbestos
cement pipe, asbestos cement boards (mineral panels),
roofing paper and felt, insulating materials, and related
products. The various products are manufactured at dif-
ferent locations in the facility and the record reveals that
Respondent has several plant managers who oversee the
individual operations. The complaint alleges, Respondent
admits, and I find that the following individuals occupied
the positions indicated and were agents of Respondent
and supervisors within the meaning of Section 2(13) and
2(11) of the Act, respectively, at all times material
herein: Roy Winkworth, employee relations manager;
John W. Szcygielski, employee relations manager; Mi-
chael A. Tappin, vice president, labor relations; and J.
D. Anderson, labor relations manager.
Through the years, Respondent and the Union have
been parties to numerous collective-bargaining contracts.
The 1976-79 contract between the parties was placed in
evidence as General Counsel's Exhibit 2 and the current
agreement effective from April 9, 1979, to April 4, 1982,
is in the record as General Counsel's Exhibit 3.
B. Events which Precipitated the Instant Litigation
1. April 17, 1978, meeting
Prior to April 17, Respondent notified the Union by
correspondence that it intended to implement a no-smok-
ing rule at the Waukegan plant. The Union requested
bargaining on the subject and a meeting date on April 17
was agreed upon.
Numerous Respondent and union officials attended the
meeting. Roy Winkworth, then Respondent's employee
relations manager, and Eugene Rawhoof, an Internation-
al representative of the Union, acted as the chief spokes-
man for their respective groups. During the meeting, Re-
spondent made a slide presentation, which was followed
by remarks by doctors. The no-smoking ban was then
discussed. After the discussion, the Union requested a
caucus. When the meeting resumed, the Union orally
proposed that the parties negotiate a total in-plant health
program. In this connection, Rawhoof testified the Union
made a number of specific proposals, but he did not de-
scribe the proposals.' When making its proposals, the
Union requested that Respondent supply it with data on
employee disability retirements by length of service, age,
sex, and exposure time and statistical data on sputum cy-
tology tests, chest X-rays, and blood tests.
Speaking for Respondent, Winkworth advised the
Union that Respondent's attorney felt the Union's pro-
posals were not negotiable. There was little other discus-
sion regarding the Union's proposals and/or its request
for information.
2. April 27 meeting
The parties next met on April 27. At that time, John
Szcygielski announced that he was replacing Winkworth
as Respondent's employee relations manager. The Union
informed Szcygielski of its health proposals and informa-
tional requests, but no significant discussions occurred.
3. June 2 meeting
The record reveals that the Union's health and safety
proposals and its information requests were discussed ex-
tensively at the June 2 meeting. Szcygielski was the
Company spokesman and Rawhoof did most of the talk-
ing for the Union.
Rawhoof indicated that the parties discussed all of the
Union's proposals during the meeting. Szcygielski re-
called some of the proposals then under discussion and
testified they included: issuance of coveralls to certain
people working with asbestos; a voluntary no-smoking
rule; a procedure for placing partially disabled employ-
ees; prohibition of employees eating lunch on the floor;
and correction of some safety and environmental condi-
tions felt by the Union to be hazardous to employees in
the plant. 2
As the meeting progressed, the Union's information re-
quests were also discussed. Apparently the Union's origi-
nal request for information concluded with an etcetera.
Szcygielski asked what the Union intended to request by
using the etcetera and Rawhoof indicated they wanted
any other medical information the Company possessed
relating to in-plant exposure of employees. Thereupon,
Szcygielski indicated the only other test administered
was a pulmonary function test. The Union indicated it
sought the data regarding such tests.
At some point in the meeting, the parties discussed
partially disabled employees who had been diagnosed by
the Company doctor to have pneumoconiosis, a dust dis-
ease of the lungs. The Union was informed that when
the doctor determined that an employee had such a dis-
ease, or there was likelihood that he may have it, his
medical file was red-tagged to assure that his condition
would be closely observed in the future and to cause the
I General Counsel appears to contend in her brief that the Union's pro.
posals were those which are enumerated on G.C. Eh. 14, which was
given to Respondent at the commencement of contract negotiations in
February 1979. For reasons set forth hereinafter, I conclude such was
probably the case.
2 As each of the proposals appear in G.C. Exh. 14, it appears that the
proposals discussed during the period April-June 1978, were the same
proposals subsequently discussed during the February-April 1979, period.
370
JOHNS-MNANVILI.E SAIES CORPORATION
Company to see that the employee worked in an envi-
ronment which was as dust free as possible. Rawhoof
asked who knew the identities of the red-tagged employ-
ees and Szcygielski's reply was the doctor, the employee.
the plant manager over the division of the plant in which
the employee worked, the departmental superintendent,
and maybe the foreman. The Union requested the names
of the red-tagged employees and Szcygielski refused to
divulge them stating the information was confidential.
He did indicate, however, that there were then 34 red-
tagged employees at the plant.
During the session, Szcygielski asked at some point
why the Union sought the information requested. Ra-
whoof testified he replied they wanted the data as they
desired to develop a total health program for employees
in the plant rather than pursue the matter in piece meal
fashion, i.e., negotiate regarding Respondent's no-smok-
ing ban only.
At some point in the meeting, Szcygielski admittedly
informed the Union that Respondent would give them
the statistical data on sputum cytology, X-rays, blood
tests, and pulmonary function tests. The Company made
no commitment to furnish the retiree information and in-
dicated it was not legally obligated to bargain concern-
ing retired employees.
i Jul 5 meeting
Prior to the July 5 meeting, the Union notified Re-
spondent by letter that it was requesting data on retired
employee disabilities to permit it to bargain for its active
members in the bargaining unit.3
At this meeting, Respondent counterproposed that the
red-tagged employee situation be referred to the environ-
mental control committee, which was comprised of
Union and Company representatives, with instructions
that the committee develop a study of jobs in the plant
and prepare a list of jobs that individuals could work on
at reduced dust exposure and that the committee develop
a form of superseniority for red-tagged employees. Indi-
cating there were then 34 red-tagged employees in the
plant, Respondent continued to refuse to divulge their
names.
The Union rejected Respondent's proposal that the
red-tagged employee matter be referred to the environ-
mental control committee, and insisted upon the names
of the red-tagged employees.
At the conclusion of the meeting, Szcygielski indicated
the Company was having manpower problems concern-
ing accumulation of the other data requested by the
Union and would give that data to them at the end of
August. Szcygielski testified the agreement was that the
Company would furnish the statistical data on sputum
cytology, X-rays, blood tests, and data regarding the dis-
ability retirees by age, exposure, length of service, and
sex.
Prior to June 15, the Union had not indicated any time
frame which was to be applicable to its request for infor-
mation. At this meeting, Szcygielski indicated the Com-
pany doctor had informed him the sputum cytology data
would cover an 18-month period extending from January
3 See G.C. Exh 7
1, 1977, to July 1, 1978. Rawhoof objected and indicated
the Union wanted sputum cytology data from the time
such tests were first administered to employees some 2
years prior to January 1., 1977.
5. July 17 meeting
While the record reveals that Respondent and the
Union held a lengthy meeting regarding the no-smoking
ban and the Union's health and safety proposals on July
17, neither Szcygielski nor Rawhoof were able to relate
with any specificity what occurred during the meeting.
6. Filing of the charge
On August 10, the Union filed a charge alleging that
Respondent had violated Section 8(a)(1) and (5) of the
Act by refusing to bargain with it "in respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment."'
The record reveals that the Union requested no further
meetings in connection with its health program proposals
after filing the above-described charge. It likewise re-
veals that Respondent failed to forward the data prom-
ised to the Union by the end of August or at any time
thereafter.
7. The consent form
On August 9, 1978, Respondent's medical department
commenced to ask employees who were found to have
pneumoconiosis if they wanted to complete the following
form (G.C. Exh. 10(b)):
Date
Having been informed today by Dr. Culmer that I
have been identified as having pneumoconiosis (dust
disease of the lungs), I request that the Financial
Secretary of ICWU, Local 60 (be informed) (NOT
be informed) of this diagnosis.
/S/
Witness:
By letter dated August 29, the Union indicated it had
learned that such a form was being used and it requested
discussion as it viewed the use of the form as "a change
in employment conditions." s By letter dated August 30,
Szcygielski replied (G.C. Exh. 10(a)):
Dear Mr. Middleton:
As requested in your letter of August 29, 1978 and
per our discussion of today, the attached form has
been implemented in our Medical Department as of
August 9, 1978.
The purpose of this form is to provide the authori-
zation to release privileged/confidential medical in-
formation.
As I advised you today, I was ready to notify the
Union of this procedural change on August 8, 1978;
G.C. Exh (a)
GC Exh 9
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, a subsequent meeting was never estab-
lished related to the points brought up in our dis-
cussions of the No-Smoking Program.
Sincerely yours,
/S/ J. W. SZCYGIEI.SKI
Manager - Employee Relations
At the time of the hearing, Respondent's doctor had
asked some 16 employees who had been diagnosed as
having pneumoconiosis if they wanted to execute the
above-described consent form. Twelve (12) of sixteen
(16) authorized Respondent to notify the Union they had
pneumoconiosis. In each instance, Respondent's person-
nel department notified the Union by letter that the em-
ployees who had authorized disclosure had the disease.
8. February 14 or 15, 1979, meeting
In mid-February, when Rawhoof and other union rep-
resentatives were at the plant, Szcygielski asked what it
would take to settle the Board charges. Rawhoof testi-
fied the Union reiterated their request for information in
each of the three areas, i.e., retiree disability information;
sputum cytology, X-rays and blood tests, and; the names
of the red-tagged employees. He recalled that Szcy-
gielski indicated he would consider the request for re-
tiree disability information; he indicated Respondent had
the data on sputum cytology, X-rays and blood tests but
it was not in statistical form; and he indicated Respond-
ent would continue to refuse to furnish the names of red-
tagged employees on the basis of confidentiality.
9. Negotiation of new contract
During the period extending from February 26, 1979,
to April 12, 1979, Respondent and the Union engaged in
negotiations which culminated in the execution of the
current contractual agreement between the parties.
The proposals made by the Union during the contract
renewal negotiations which relate to health and safety
are, as previously indicated, in the record as General
Counsel's Exhibit 14. They are:
1. Data on employee disability by age, length of serv-
ice, exposure time and sex.
2. Company furnish union with all statistical data on
sputum cytology, X-rays, blood tests.
3. Union Industrial Hygenist to have the right to visit
plant at any time for inspection and/or to take samples
and look at company Industrial Hygenist records.
4. Company to furnish worker with 3 pair cloth cover-
alls per week who is exposed to asbestos, fiberglass, re-
factory felt, truck shop and service depts.
5. Company furnish a 2 locker arrangement for all ex-
posed workers for changing and separating home clothes
from work clothes.
6. Company to send booklet "What you should know
about asbestos & health" to the homes of employees.
This book is to be edited by company and Bargaining
Committee.
7. A voluntary stop smoking program with followup
programs working toward total abstinence.
8. A designated dust free area in each department for
employees who cannot quit smoking.
9. Improve and increase emphasis on employee health
& safety training and not allowing anyone to work alone
on a new job without I week or more training from
either salary or hourly trainee.
10. Allow employees time away from job to properly
wash up before eating and time away from the job to
eat. Article 15, para. 58, delete: "Permitting an employee
to eat his lunch while watching the operation of a ma-
chine."
I 11. Develop procedure to handle partially disabled em-
ployee cases.
12. Provide for automatic approval of disability JM
Retirement and life insurance disability for employees
when no suitable work is available in the plant.
13. Consider fiberglass exposure on the same basis as
asbestos.
14. Develop procedure for handling of "Red tagged"
employees, and a list of these people to the Union.
15. If at any time an unsafe operation or a health
hazard operation arises in any part of the plant, the oper-
ation will be shut down immediately. The E.V.C. Com-
mittee from the union and company will be called in im-
mediately to inspect the unsafe condition. It will be from
the decision reached after the inspection by the joint
committee as to whether the operation is started up again
until corrective measures are taken.
16. At any time an employee who is in the plant medi-
cal dept. and needs advice about his medical situation
that the president, financial secretary or the division
chairman be called about the situation, this does not per-
tain to emergencies.
Rawhoof participated in the 1979 contract negotia-
tions. During discussion of the Union's health and safety
proposals, the Company once again asked why the
Union needed the information it had requested. Rawhoof
testified he stated they needed it to negotiate a total
health program for all employees in the plant and to im-
plement procedures to protect the health of their people
inside the plant. At some point, Respondent's spokesman
indicated that the data on sputum cytology covered only
an 18-month period and was in raw form - just sheets
with the names of people blocked out. Rawhoof testified
that the Union responded they didn't feel it would be
sufficient to receive the information in that form because:
(1): the sputum cytology program in the plant had begun
some 2 years before January 1, 1977, and testing from
January 1, 1977, forward had been conducted among
select groups of employees while earlier tests had in-
volved all employees, and (2) the Union claimed the raw
material or data alone would not be sufficient, that they
needed statistical material.
Inspection of article 8, section 21 of the current con-
tract and a Memorandum of Agreement attached to the
contract reveals that some area of agreement was
reached by the parties on union proposals 4, 5, 11, and
14.6
6 Compare G.C. Exhs. 2 and 3. In sum. Respondent agreed to permit
all partially disabled employees to exercise plantwide seniority to obtain
Continued
372
JOHNS-MANVILLE SALES CORPORATION
By letter dated March 15, 1979, Szcygielski sought to
summarize his understanding of the Union's information-
al requests. His letter states (G.C. Exh. 15):
Mr. R. W. Kloth
President I.C.W.U.
203 Greenwood Avenue
Waukegan IL 60085
Dear Mr. Kloth:
We have had many discussions in our negotiations
of the information which you have demanded rela-
tive to certain health issues. Therefore, in order to
eliminate any misunderstanding or confusion and to
define precisely what the Union is asking, we are
herein summarizing the Union's request for informa-
tion made by Messers. Rawhoof, Middleton and
yourself at our meetings of February 26, 1979,
March 5, 1979, March 12, 1979 and March 14, 1979
and also through the NLRB Complaint.
i. Data on employee disability by age, length of
service, exposure time and sex.
This is information from our medical records
concerning Disability Retirees with service by
departments, job numbers and medical reason for
disability. Exposure time could be tied into job
numbers, and the Union wants any medical infor-
mation related to possible O.D. cases. This would
be a listing of the diseases which were and are
the cause of unit employees' disability retirements
by name which could potentially be considered
occupational in nature.
Your request wants this information as far back
as practical; possibly quite a few years back.
This request to include names of the individuals
involved.
2. Company furnish Union with all statistical data
on Sputum Cytology, X-rays, blood tests and
other medical tests.
This is medical information on employees since
the start of the Sputum Cytology Program and
since the start of using X-rays at the Plant Medi-
cal Department. This also includes any data or
notes related to these items noted in the employ-
ees' files.
These same comments also apply to any blood
tests given. This information to be given by
names, department and exposure time for items
and 2.
3. The third item requested is the names of the
"Red Tagged" employees and the procedure for
the placement of these people.
We trust that the foregoing is an accurate descrip-
tion of the information which you have requested.
jobs they could perform: it agreed to furnish two pairs of coveralls
weekly to certain employees exposed to asbestos; and it agreed to pro-
vide employees exposed to asbestos with double lockers
Therefore we ask that after you have reviewed this
letter that you sign it as indicated below and return
it to us within five days of your receipt. In the
event the description of the foregoing request is not
deemed accurate, we request that you advise us as
to any inaccuracies, in writing, within the above
mentioned five day period. If we do not hear from
you by March 23, 1979, we will assume that the
foregoing description of the information requested
is accurate. Thereafter, you will receive an appro-
priate response to your request.
Sincerely yours,
/S/ J. W. Szcygielski
Manager-Employee Relations
We acknowledge that the information detailed
above constitutes the Union Demand for data.
On March 20, 1979, the Union replied stating (G.C.
Exh. 16):
Mr. J.W. Szcygielski, Manager
Employee Relations
Johns Manville Sales Corporation
Waukegan, Illinois 60085
Re: Your letter dated 3/15/79.
Dear Mr. Szcygielski:
Your summary of our request for information is
correct with the following exceptions:
I. We don't see a need, at this time, for names
therefore names are not requested.
2. Same as , however, we may, at a later date,
request an outside medical review of any such
tests if found necessary.
Since we are currently bargaining over issues affect-
ed by this information we urge you to comply with
this request promptly. As you know we first re-
quested this information on April 17, 1978.
Very truly yours,
/S/ R. W. Kloth, President
By letter dated March 24, 1979, Respondent informed
the Union (G.C. Exh. 17):
Dear Mr. Kloth:
Thank you for your letter of March 20, 1979 in re-
sponse to my letter of March 15, 1979. We hereby
decline to furnish the information and data sought
by you for the following reasons:
First, there has been no showing as to the relevancy
of the data requested to your organization's role as
the employees' collective bargaining agent.
Second, much of the data sought particularly "sta-
tistical data" does not exist in the form requested
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its compilation and production would be exces-
sively burdensome and expensive.
Third, the request for a "a listing of the diseases
which were and are the cause of unit employees'
disability retirement" together with a listing of
those diseases "which could potentially be consid-
ered occupational in nature" is an improper request
for conclusions and admissions rather than for facts.
Fourth, the request for the names of "red tagged"
employees is improper because it calls for the dis-
closure of privileged and confidential medical infor-
mation.
Sincerely yours.
/S/
J.W. Szcygielski
Manager-Employee Relations
On April 12, 1979, the Union executed the current
agreement, having, on April 5, 1979, indicated it would
reach a settlement with Respondent but would not waive
any of its rights regarding health and safety matters and
its right to the information requested.
During the hearing, Respondent's counsel represented
that Respondent was willing to provide the Union with
the raw data it possessed concerning all information re-
quested with the exception of the names of red-tagged
employees. He further represented that thousands of
items are involved and it will take 12-14 months to
gather the material.
Analysis and Conclusions
A. The Issue
Summarized. paragraph VII of the complaint alleges
that Respondent has failed to bargain with the Union
since April 17, 1978, by failing since said date to furnish
the Union with relevant information necessary to its role
as the exclusive bargaining agent of certain of Respond-
ent's employees. The information requested is described
as "statistical data on sputum cytology, X-rays, blood
tests and other tests administered to unit employees [pul-
monary function tests], the identity of red-tagged em-
ployees, and a listing of the diseases which were and are
the cause of unit employees' disability retirements which
could potentially be considered occupational in nature."
Respondent contends in its post-hearing brief that the
only real issues before me for determination are (1):
whether it should be ordered to disclose the identity of
red-tagged employees without their authorization and (2)
whether the issuance of a bargaining order would effec-
tuate the purposes of the Act in view of the fact that Re-
spondent's counsel has indicated that Respondent will
furnish all information requested in raw rather than sta-
tistical form (excepting the identity of redtagged employ-
ees) within 12 to 14 months of the close of the hearing.
Noting that Respondent has denied the allegations set
forth in paragraph VII of the complaint, I conclude the
actual issues to be resolved are:
1. Has General Counsel shown that all the information
requested by the Union is relevant to its function as the
exclusive bargaining agent of certain of Respondent's
employees?
2. Were the Union's request for the informational items
sufficiently specific?
3. Assuming issues I and 2 are decided in General
Counsel's favor, must the information requested be pro-
vided in the form requested, i.e., statistically rather than
in raw form with names of employees deleted.
4. Should application of the confidentiality doctrine
excuse Respondent's failure to provide the Union with
the names of red-tagged employees?
5. Should a remedial order be issued in the circum-
stances prevailing in this case?
The delineated issues are discussed below.
B. Relevance of Information Requested
As indicated, supra, the Union made its requests for in-
formation in a context wherein Respondent had notified
the Union it intended to impose a no-smoking ban at the
plant and the Union counterproposed that the parties for-
mulate a total health and safety program to protect the
lives and welfare of unit employees. As the employees in
question work with asbestos, a substance known to be
detrimental to the health of persons, it is obvious that the
requests for statistical data on sputum (saliva tests admin-
istered to detect changes in cell structure), X-rays, blood
tests, and pulmonary function tests constituted a request
for relevant information. I so find.7
While the test data requested by the Union would be
presumptively relevant because such requested data per-
tains directly to workers within the bargaining unit, its
request for information regarding retired employees does
not stand on the same footing. See Curtis-Wright Corpo-
ration, Wright Aeronautical Division v. N.L.R.B., 347 F.2d
61, 68-69 (3d Cir. 1965); and Prudential Insurance Com-
pany of America v. N.L.R.B., 412 F.2d 77, 84 (2d Cir.
1969). As the information requested does not relate to
active employees, the Union was obligated to show some
special pertinence before Respondent would be obliged
to produce the information. In my view, the Union's
letter to Respondent explaining that such information
was requested to permit formulation of proposals which
would be applicable to unit employees constitutes the
requisite showing of special pertinence. Accordingly, I
find that the request for "a listing of the diseases which
were and are the cause of unit employees' disability re-
tirements which would possibly be considered occupa-
tional in nature" was a request for relevant information.
Remaining is the request for the identities of red-
tagged employees. As red-tagged employees are active in
the bargaining unit, and the Union indicated it desires the
information to protect their health, it is clear, and I find,
that the request for their names was a request for rele-
vant information.
I See N.L.R.B. v. Gulf Power Company, 384 F.2d 822 (5th Cir. 1967)
,where he court, in agreement with the Board, found that the phrase
"other terms and conditions of employment" contained in Section 8(d) of
the Act is sufficiently broad to include safety and health practices. As
employers are obligated to bargain concerning safety and health matters.
it necessarily follows that employers must honor requests for information
relevant to safety and health practices.
374
JOHNS-MANVIII.E SALES CORPORATION
In sum, I find that General Counsel has shown that all
of the information requested by the Union is relevant to
its duties and functions as the exclusive bargaining agent
of Respondent's employees. For reasons set forth herein-
after, I find that Respondent has violated Section 8(a)(1)
and (5) of the Act since June 2, 1978, by failing and re-
fusing to produce all items of information requested by
the Union.
C. Specificity of the Requests
The record reveals that the Union did not indicate a
time frame when it originally requested the information
under discussion during the period April 17 to June 2,
1978. Nevertheless, Respondent's spokesman indicated at
the June 2 meeting that the statistical data on X-rays,
blood tests and sputum cytology tests were then being
compiled and would be delivered to the Union by the
end of August. At that time, or at the June 17 meeting,
Respondent's spokesman indicated the data on sputum
cytology tests would cover only an 18-month period and
the data would be in raw, rather than statistical, form.
Rawhoof objected, indicating that the Union wanted the
data in statistical form and it wanted it from the time the
tests were first administered to employees.
Significantly, Respondent's employee relations man-
ager, Szcygielski, indicated in his letter to Union Presi-
dent Kloth on March 15, 1979, that Respondent then un-
derstood that the Union was requesting data on employ-
ee disability by age, length of service, exposure time, and
sex from "as far back as practical," and it then under-
stood the Union desired all statistical data on sputum cy-
tology, X-rays, blood tests, and other medical tests [pul-
monary function tests] "since the start of the Sputum Cy-
tology, X-rays, blood tests and other medical tests."
In sum, while the record fails to affirmatively indicate
that a time frame was specified when the Union request-
ed the various types of information here under considera-
tion, Respondent's agreement to furnish part of the infor-
mation requested (statistical data on X-rays and blood
tests) coupled with the Union's objection to only 18
months of sputum cytology test results and Respondent's
March 15, 1979, letter, which reveals it then was aware
the Union wanted information going back as far as possi-
ble, causes me to infer that Respondent was aware from
June 2, 1978, forward that the Union wanted information
covering as long a period as possible. 8 In the circum-
stances, I find that the Union's demand for information
was sufficiently specific.
D. Statistical vs. Raw Data
Well in advance of the hearing, General Counsel
served a subpoena duces tecum on Respondent to cause it
to produce records and information which would show,
inter alia, the nature, format, and use of data derived
from the medical tests administered to employees by the
Company doctor.9 Respondent refused to comply with
the subpoena, and General Counsel chose to refrain from
8 Rawhoof testified that at one point he as asked by Szcygielski if
going back 5 years on X-rays ,ould be sufficient is reply was they
thought it should go back as far as possible
I See G.C Exh 21
adducing secondary evidence which would have shown
what records Respondent maintains or their use. Conse-
quently, the record contains little evidence which relates
directly to the medical tests under discussion.
As revealed, supra, Szcygielski originally agreed that
Respondent would furnish the Union with statistical data
on sputum cytology tests, X-rays, blood tests and pul-
monary function tests. When asked what information he
had in mind when he agreed to furnish statistical data, he
replied:
THE WV'INESS: There were certain written com-
ments in our employees' files about their X-ray
readings that say negative or some indication of
change, and we've got a classification of early indi-
cation of dust disease problems. There were several
different sets of nomenclature on this, and what I
visualized is that X amount of people were reported
as having negative X-ray findings some,other
people would have a nomenclature as a P-1 or an
M-l which is a possibility that something may be
happening to the person. There was some data on
blood tests and particularly on lead levels on some
of our workers who were exposed to that product.
The sputum cytology, essentially, there's some
categories that are negative. There's a word used
called atypia where a cell is brought up and some
cellular change is seen, and that type of thing, I
don't remember all the categories of all things, but
it was basically that.
When Szcygielski indicated that the sputum cytology
test data would be delivered in raw form about the end
of August, the Union objected and insisted upon data in
statistical form. The parties did not thereafter discuss the
form of the data to be produced because Respondent
ceased all efforts to gather the material requested when
the Union filed its charge on August 10, 1978. In its
post-hearing brief, Respondent contends that all the
medical test data is in raw form and states it intends to
furnish such data to the Union in raw form in 12-14
months.
With the record in its present state, I am unable to find
that Respondent does or does not possess the requested
medical test data in statistical form. Szcygielski's descrip-
tion of what he had in mind when he agreed to furnish
statistical data suggests that Respondent has compiled
some statistical medical test data which could be given
to the Union. A similar problem was presented in Wes-
tinghouse Electric Corporation, 239 NLRB 106 (1978).
There the employer resisted a union request for certain
statistical information contending, inter alia, that the fur-
nishing of the information in the form requested would
place an undue burden on it. The Board rejected the
contention because the respondent had not made a legiti-
mate effort to substantiate its claim and ordered produc-
tion of the information stating (id. at 112-113):
Thus, although it appears that Respondent has the
requested statistical information in some form, we
are unable to state with certainty whether Respond-
ent has compiled all the information in the form re-
375
376 DECISIONS OF NATIONAL
quested. We shall order Respondent to provide the
information in a reasonably clear and understanda-
ble form. While we shall order the Respondent to
furnish the substance of all the information request-
ed in items 1 through 6, it shall be the responsibility
of the parties themselves, in the first instance, to
apply the knowledge which they have, and we do
not, about what might be involved in presenting this
information in a clear and understandable form.4"
As the Board has said, "If there are substantial costs
involved in compiling the information in the precise
form and at the intervals requested by the Union,
the parties must bargain in good faith as to who
shall bear such costs, and, if no agreement can be
reached, the Union is entitled in any event to access
to records from which it can reasonably compile
the information. If any dispute arises in applying
these guidelines, it will be treated in the compliance
stage of the proceeding." 4 2
41 Fd Employer Council. Inc., e al., 197 NLRB 651 (1972)
4 2 Ibid.
Thus, Respondent must make an effort to inform
the Union of the nature of the information compiled
by it, so that the Union may, if necessary, modify
its requests to conform to the available information.
If substantial costs would in fact be incurred, we
expect the parties to bargain as to the allocation of
those costs.
In my view, the procedure outlined in Westinghouse
Electric Corporation, supra, and Food Employer Council,
Inc., et al., supra, must be utilized in the instant case. It
may well be that Respondent possesses sufficient medical
test data to satisfy the Union's needs. If it does not, good
faith discussions by the parties should certainly enable
the parties to agree to a method of production which
will permit Respondent to present the requested medical
test data in a clear and understandable form. ° If the
agreed-upon method of production results in substantial
costs, I find the parties should bargain as to the alloca-
tion of those costs.
E. The Confidentiality Issue
The record in this case reveals that Respondent, upon
ascertaining through medical examination that an em-
ployee is partially disabled in the sense that he has, or
may possibly be contracting a disease of the lungs (pneu-
moconiosis), places a red tag on the employees' medical
file. The employee is then counselled by the doctor, and
key management personnel are notified the employee is a
red-tagged employee to permit them to assure that he is
exposed to asbestos dust as little as possible thereafter.
The current collective-bargaining contract between the
parties contains a clause at article 8, section 21 which
provides:
10 Respondent has not claimed it is unable to furnish the retiree disabil-
ity information in the form requested. I find it should be produced in the
form requested.
I G.C. Exh. 3.
LABOR RELATIONS BOARD
When it is determined by the Company based on
medical evaluation, that an employee, who is unable
to perform his normal job and such inability is ex-
pected to be permanent, he shall be allowed to exer-
cise his seniority to a job he is able to perform
based on the medical evaluation of his physical ca-
pabilities after review and approval of the Employ-
ee Relations Manager and the Union Bargaining
Committee. He shall attempt to exercise his senior-
ity within his department. If no job is available
within his physical capabilities and he has two (2)
years or more of continuous service, he shall at-
tempt to exercise his seniority plantwide.
On June 2, 1978, the Union requested that Respondent
furnish it with the names of red-tagged employees to
permit it to prepare contract proposals designed to pro-
tect those employees and to permit it to administer and
police any contractual agreement reached. Respondent
refused to provide such information, claiming it was con-
fidential. On August 9, 1978, Respondent unilaterally
commenced to ask employees whose medical files were
red-tagged if they desired to sign a form indicating that
the employee requests that the Union be informed he or
she has pneumoconiosis. As of the date of the hearing,
some 16 employees had been asked if they desired to sign
the form and 12 had signed. The Union was given the
identities of the 12 employees.
Citing United Aircraft Corporation,'2 and Detroit
Edison Co. v. N.L.R.B.,' 3 Respondent claims I should
not order it to divulge the identity of red-tagged employ-
ees to the Union because the information is confidential
and should not be disclosed without employee consent. I
find no merit in this contention.
At the outset, I note that Respondent has offered no
evidence in support of its confidentiality claim in this
case. In this connection, the Sixth Circuit, when consid-
ering the Board's petition for enforcement of the Detroit
Edison Company, 218 NLRB 1024 (1975),' stated:
The requirement that the bargaining representative
be furnished with relevant information necessary to
carry out its duties overcomes any claim of confi-
dentiality in the absence of a showing of a great
likelihood of harm flowing from the disclosure.
Shell Oil Company v. N.L.R.B., supra, 457 F.2d at
618-619; United Aircraft Corporation v. N.L.R.B.,
434 F.2d 1198, 1207 (2d Cir. 1970), cert. denied 401
U.S. 993 (1971).
As Respondent has failed to sustain its burden of proof
by failing to show "a great likelihood of harm flowing
from the disclosure" of the identities of red-tagged em-
ployees to the Union, this factor, standing alone, would
warrant rejection of the defense. However, my rejection
of the defense need not rest on such narrow ground as
the instant situation is readily distinguished from the fac-
12 192 NLRB 382 (1971)
'S 440 U.S. 301 (1979).
14 N.L.R.B. v. The Detroit Edison company. 560 F.2d 772, 726 (1977).
JOHNS-MANVILLE SALES CORPORATION
tual situations before the Board and the Supreme Court
in the cases cited.
In United Aircraft Corporation. supra at 390, the Board
stated:
In response to the Unions' request for copies of
the "Physical Demands Record" for each job, and
the "Functional Capacity Record" for every em-
ployee in the bargaining unit, Respondent refused to
make copies of the former at its expense, but offered
to make them available for copying by the Unions
at reasonable times. We find that, by this offer, Re-
spondent complied with its obligation under Section
8(a)(5). As to the "Functional Capacity Record"
which is a record of physical disabilities and infor-
mities of employees discovered by a physician in a
physical examination, Respondent's position was
that such records should not be publicized without
the employee's permission unless and until that indi-
vidual's physical capacities become relevant to some
particular problem. In view of the generally recog-
nized confidential nature of a physician's report, we
find that Respondent's position with respect to fur-
nishing copies of such reports was a reasonable one
and did not violate Section 8(a)(5) of the Act.
As revealed above, in United Aircraft the union sought
"Functional Capacity Records" for each employee in the
bargaining unit and the Board agreed with the employ-
er's position that such records should not be disclosed
until they became relevant to some particular problem.
In the instant case, the Union does not seek medical re-
cords; it seeks only the identities of employees who have,
in effect, been determined by Respondent's doctor to be
partially disabled within the meaning and intendment of
article 8, section 21 of the collective-bargaining agree-
ment. Moreover, the information requested by the Union
here relates to a specific problem-placement of the em-
ployees diagnosed as having an actual or potential dust
disease of the lungs problem. Patently, the United Air-
craft case is not supportive of Respondent's position.
Respondent's reliance upon Detroit Edison Co. v.
N.L.R.B.. supra, is similarly misplaced. There, the Su-
preme Court was faced with a situation wherein the
company had promised employees that their scores on an
aptitude examination would be kept confidential, and the
company's psychologists did not reveal the tests or
report actual test numerical scores to management or to
employee representatives. In finding that the Board erred
by requiring the employer to give the test scores to the
union which represented the employees, the Court
stated, inter alia (at 318-319):
There is nothing in this record to suggest that the
Company promised the examinees that their scores
would remain confidential in order to further paro-
chial concerns or to frustrate subsequent union at-
tempts to process employee grievances. And it has
not been suggested at any point in this proceeding
that the Company's unilateral promise of confiden-
tiality was in itself violative of the terms of the col-
lective-bargaining agreement. Indeed, the Company
presented evidence that disclosure of individual
scores had in the past resulted in the harassment of
some lower scoring examinees who had, as a result,
left the Company.
Under these circumstances, any possible impair-
ment of the function of the Union in processing the
grievances of employees is more than justified by
the interests served in conditioning the disclosure of
the test scores upon the consent of the very em-
ployees whose grievance is being processed. The
burden on the Union in this instance is minimal.
The Company's interest in preserving employee
confidence in the testing program is well founded.
As noted, in Detroit Edison the Court was dealing with
information which had been treated confidentially and it
determined that the union's reasons for obtaining the in-
formation were outweighed by the employer's reasons
for desiring that it remain confidential. Here, Respondent
has failed to show that its company doctor has kept the
identities of red-tagged employees confidential, and it has
adduced no evidence whatsoever to show that it would
suffer harm if the identities of such employees were dis-
closed to the Union.
In sum, I find that the Union has shown that it needs
to know the identities of red-tagged employees to permit
it to perform its statutory duty of representing Respond-
ent's employees in an appropriate bargaining unit. With-
out knowing the identity of such employees, the Union
has no effective way of administering and policing, inter
alia, article 8, section 21, of the current collective-bar-
gaining agreement. On the other hand, Respondent has
failed to show how it will be harmed by production of
the information requested. In these circumstances, its fail-
ure to make such a showing prompts me to find that it
has violated Section 8(a)(5) of the Act as alleged since
June 2, 1978, by refusing to divulge such information to
the Union. 5
F. The Remedial Order Contention
Respondent contends in its brief that a remedial Order
is not necessary because it intends to voluntarily furnish
the Union with all information requested except the iden-
tities of red-tagged employees. As observed by General
Counsel in her brief, the Board has held that an Order is
appropriate even when Respondent's counsel has stated
at a hearing that the Respondent is willing to turn over
the information, without evidence that it has in fact,
done so. Brazos Electric Power Cooperative Inc., 241
NLRB 1016 (1979). I find that issuance of a remedial
Order is necessary and proper in this case.
Remaining for discussion is General Counsel's request
that I reverse certain evidentiary rulings I made during
the hearing, and her motion to correct transcript, which
was attached to her brief. I hereby reaffirm the eviden-
tiary rulings made at the hearing. In the absence of op-
position to the motion to correct transcript, I grant such
motion.
16 Shell Oil Company v, N.L.R.B, 457 F.2d 615, 618-619 (9th Cir
1972); [,ied ircraff Corporation s. N.L.R.B., 434 F2d 1198. 1207 (2d
Cir 1971)). cert denied 401 S 993 (1971)
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ItEi I:FFl:ECT OF TIHt UNFAIR LABOR PRACTIICIES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCIUSIONS OF LAW
1. Johns-Manville Sales Corporation is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production, maintenance, quality control, and
plant clerical employees employed by Respondent at its
Waukegan, Illinois, facility, but excluding all office cleri-
cal employees, guards, professional employees and super-
visors as defined in the Act constitute a unit appropriate
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since November 19, 1937, and continuing to date,
the Union has been the exclusive bargaining representa-
tive of the employees in the above-described appropriate
bargair,:ng unit.
5. By iling and refusing to provide the Union with:
1. Statistical data on sputum cytology, x-rays, blood
tests, and pulmonary function tests; 2. The identity of
Respondent's red-tagged employees; and, 3. A listing of
the diseases which were and are the cause of unit em-
ployees' disability retirements which could potentially be
considered occupational in nature, Respondent has en-
gaged in, and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
TH Rii;i)Y
Since I have found that Respondent has committed
specific unfair labor practices which affect commerce, I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative action, includ-
ing the posting of appropriate notices designed to effec-
tuate the policies of the Act.
Having found that Respondent violated the statute
through its failure and refusal to furnish the Union with
certain requested information, it will be recommended
that Respondent supply the Union, upon request, with:
(I) Statistical data on sputum cytology, X-rays, blood
tests, and pulmonary function tests; (2). The identities of
red-tagged employees employed in the appropriate bar-
gaining unit; and (3) a listing of the diseases which were
and are the cause of unit employees' disability retire-
ments which could potentially be considered occupation-
al in nature. Such information shall be provided in a rea-
sonably clear and understandable form, and it shall be
the responsibility of the parties themselves, in the first in-
stance, to apply the knowledge which they have about
what might be involved in presenting this information in
a clear and understandable form.'6
As the Board has said, "If there are substantial costs
involved in compiling the information in the precise
form and at the intervals requested by the Union, the
parties must bargain in good faith as to who shall bear
such costs, and, if no agreement can be reached, the
Union is entitled in any event to access to records from
which it can reasonably compile the information. If any
dispute arises in applying these guidelines, it will be
treated in the compliance stage of the proceeding."
Thus, Respondent must make an effort to inform the
Union of the nature of the information compiled by it, so
that the Union may, if necessary, modify its requests to
conform to the available information. If substantial costs
would in fact be incurred, the parties are directed to bar-
gain as to the allocation of those costs.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I hereby issue-pursuant to
Section 10(c) of the Act, as amended-the following rec-
ommended:
ORDER 7
The Respondent, Johns-Manville Sales Corporation,
Waukegan, Illinois, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with International
Chemical Workers Union, and its Local 60, AFL-CIO,
as the exclusive bargaining representative of its employ-
ees, by refusing to furnish: 1. Statistical data on sputum
cytology, X-rays, blood tests, and pulmonary function
tests; 2. The identities of red-tagged employees employed
in the appropriate bargaining unit; and, 3. A listing of the
diseases which were and are the cause of unit employees'
disability retirements which could potentially be consid-
ered occupational in nature, to the Union.
(b) Interfering with, restraining, or coercing employ-
ees, in any like or related manner, with respect to their
exercise of rights which Section 7 of the Act guarantees.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Furnish to the Union, or its designated representa-
tives, upon request, the data and information described in
paragraph I(a) above.
(b) Post within its Waukegan, Illinois, facility, copies
of the notice attached to this decision as an appendix.'8
Copies of said notice, on forms to be furnished by the
Regional Director for Region 13, shall be posted by Re-
spondent immediately upon their receipt, after being duly
I t'etrnghoue E:Ilecrri Corporation. iupra. and /ood Employer Council,
Inc.. e al.. supru.
J In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as pros ided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived fir all purposes
' In the evrent the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "P'osted
by Order of the National Ltabor Relations Board" shall read "Posted Pur-
suainl to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
378
JOHNS-MANVILLE SALES CORPORATION
signed by Respondent's authorized representative. When
posted, they shall remain posted for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
these notices are not altered, defaced, or covered by any
other material.
(c) File with the Regional Director for Region 13,
within 20 days from the date of this Order, a written
statement setting forth the steps which Respondent has
taken to comply herewith.
379