Kelly-Springfield Tire Company

National Labor Relations Board - Board Decisions

Mar 30, 1983

266 N.L.R.B. 587 (N.L.R.B. 1983)

KELLY-SPRINGFIELD TIRE COMPANY
Kelly-Springfield Tire Company and Local No. 26,
United Rubber, Cork, Linoleum and Plastic
Workers of America. Case 5-CA-12107
March 30, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On November 30, 1981, Administrative Law
Judge Thomas E. Bracken issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed an-
swering briefs and motions to strike.
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 and to adopt his recommended Order, as
modified below.'
1. In January 1980 Respondent informed the
Union, which has represented Respondent's em-
ployees for more than 40 years, that it had certain
volumes containing information about chemical
materials used in the plant, including a listing of
chemicals and sheets setting forth precautions con-
cerning the handling of chemical substances in the
plant. Shortly thereafter the Union requested the
list of chemicals and copies of the handling precau-
tion sheets. Respondent refused to furnish the
Union the information requested.
We agree with the Administrative Law Judge
that the information, which relates to the health
and safety of employees and to implementation of
provisions of the bargaining contract, is relevant to
the Union's function as bargaining representative.
We also agree with his rejection of Respondent's
defenses based upon in-plant access it afforded indi-
vidual employees to the information, upon Re-
spondent's supplying the Union the information
later, in November 1980, and upon the availability
of information through other proceedings. We dis-
agree, however, with his rejection of Respondent's
defense based upon its alleged proprietary interest
in the material requested and the need to keep
I We grant the motions of the General Counsel and the Charging
Party to strike an affidavit attached to Respondent's brief in support of
exceptions. The evidence presented in the affidavit was available at the
time of the hearing in this case.
We deny the Charging Party's request that we impose costs and attor-
ney's fees upon Respondent, as we do not consider Respondent's defenses
patently frivolous See Heck's Inc.. 215 NLRB 765 (1974).
266 NLRB No. 102
them secret from competitors. We think Respond-
ent has asserted a legitimate defense, which on its
face could possibly privilege nondisclosure of the
information or require only conditional disclosure. 2
Therefore, in view of Respondent's contention that
disclosure of the requested information might com-
promise its proprietary interests, we shall modify
the Administrative Law Judge's findings and rec-
ommended order.
The possibility that some of the information that
the Union requested may be subject to a propri-
etary defense does not excuse Respondent from
furnishing information as to which no adequate de-
fense is raised.3 Accordingly, we conclude that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by failing to supply the Union with the list of
chemicals and the handling precaution sheets re-
quested to the extent the information does not con-
stitute proprietary secrets.
2. In November 1980, some 8 months after the
Union had requested the information, Respondent
supplied the Union with the list of chemicals used
in the plant and copies of the handling precaution
sheets. The Administrative Law Judge recommend-
ed, as remedy for the 8(a)(5) violation based upon
Respondent's earlier refusal to furnish the informa-
tion, that Respondent be required further to identi-
fy the materials on the list of chemicals and on the
sheets, 4 and to cross-reference the names on the list
of chemicals to the substances covered by the han-
dling sheets. We adopt this recommended remedy
although the 8(a)(5) violation found is not based
upon Respondent's failure to furnish these identify-
ing materials.5 As the Administrative Law Judge
pointed out, some names on the list of chemicals
were descriptive words from which the actual
chemical could not be determined; the names on
the handling sheets were code names for the sub-
stances described by the sheets and may not reveal
2 See Plough. Inc., 262 NLRB 1095 (1982); Minnesota .ining & Mfg.,
261 NLRB 27 (1982).
Member Hunter agrees with the result here for the reasons stated in his
concurrence in Minnesota Mining & Mfg.
3 Respondent contended that the matenal, in general, is proprietary
and did not specify the particular items it considered proprietary
4 The Administrative Law Judge recommended that Respondent fur-
nish the Union with the generic names of all chemicals on the list that
were described by an expert witness (Dr. Wagoner) as insufficiently iden-
tified, and the generic names of substances referred to on handling sheets
by code names.
s The Union did not specifically refer to these matters when it request-
ed the list and the handling sheets by letter dated March 3. 1980. but the
letter made clear that the Union requested the material "so that we may
know what hazards we are exposed to in the plant, the degree of hazard.
the exposure effects, and what we can do to help protect our own health
and life" Respondent had previously indicated the futility of requesting a
cross-reference in its letter of January 10, 1980, when it stated: "The
chemicals are not cross-referenced to the code names shown on the han-
dling sheets and there is no intention of giving this information even if
known. This is considered proprietary."
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the chemicals in the substances; and cross-referenc-
ing is a necessary link between the chemicals listed
and the substances covered by the handling sheets.
Without the generic names of the chemicals used in
the plant and without cross-referencing, or some
further description of the substances covered by
the handling sheets, the Union cannot identify the
specific chemicals to which employees are exposed
in the workplace or determine the hazards in-
volved in handling particular substances and the
protection needed by employees. Consequently, we
consider the Administrative Law Judge's recom-
mended Order to be an appropriate remedy for the
violation found since the Order simply requires Re-
spondent to furnish the information requested with
the decoding and identification necessary for the
Union to understand it and to make practical use of
it in the bargaining process. 6
Respondent contends, however, at least with re-
spect to the cross-reference, that disclosure of the
additional materials would substantially impinge on
its proprietary interests. Therefore, with respect to
that part of the material which Respondent con-
tends is proprietary we shall follow the policy we
adopted in recent cases. 7 We shall give the parties
an opportunity to reach an agreement through col-
lective bargaining concerning conditions under
which the information may be furnished the Union
with appropriate safeguards to Respondent's pro-
prietary interests. If the parties are unable to reach
an accommodation of their respective interests,
they may be before the Board again, and if the
issue of whether they have bargained in good faith
is presented, we will determine the question on the
totality of circumstances. s If necessary then, we
shall undertake the task of balancing the Union's
right to the relevant data with Respondent's ex-
pressed concerns over the proprietary nature of the
materials. At this time we shall order Respondent
to bargain in good faith about providing the mate-
rials it asserts are proprietary.
AMENDED CONCLUSIONS OF LAW
We adopt the Administrative Law Judge's Con-
clusions of Law, with the substitution of the fol-
lowing paragraph for Conclusion of Law 4:
"4. By refusing on or about March 3, 1980, and
continuing to refuse until November 1980, to fur-
nish the Union with a listing of all chemicals used
I We do not agree with the Administrative Law Judge that it would
be appropriate to require Respondent to furnish the names of additional
chemicals that were used in the plant before January 1980, as such a
remedy in our view is not suitably related to the violation found.
7 Minnesota Mining & Mfg. supra: Borden Chemical, 261 NLRB 64
(1982); Colgate-Palmolive, 261 NLRB 90 (1982).
8 Substantiation of various positions asserted by the parties would be
an important element of such an evaluation.
in the plant and copies of the handling precaution
sheets-except those chemicals and sheets which
constitute proprietary trade secrets-Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act."
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 and set out in full below, and hereby orders
that the Respondent, Kelly-Springfield Tire Com-
pany, Cumberland, Maryland, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with Local No. 26, United Rubber, Cork, Lino-
leum and Plastic Workers of America, as the exclu-
sive bargaining representative of its employees
found to be an appropriate unit, by refusing to fur-
nish in a timely manner a listing of all chemical
materials used in the plant and copies of the han-
dling precaution sheets, except those materials and
sheets which constitute proprietary trade secrets.
(b) In any like or related manner refusing to bar-
gain collectively or interfering with, restraining, or
coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) To the extent that the information does not
constitute the Respondent's proprietary trade se-
crets, upon request:
(I) Furnish the Union with the generic name of
each chemical set forth in the handling precaution
sheets where only a code name is set forth.
(2) Furnish the Union with the generic names of
all chemicals contained on the "Revised List of
Chemicals" that were described by Dr. Wagoner as
insufficiently identified or questionable.
(3) Furnish the Union with a cross-reference of
names contained on the Revised List of Chemicals
with code names set forth on the handling precau-
tion sheets.
(b) To the extent that the information does con-
stitute the Respondent's proprietary trade secrets,
upon request bargain collectively in good faith
with Local No. 26, United Rubber, Cork, Lino-
leum and Plastic Workers of America, concerning
furnishing the Union with (1) the generic name of
each chemical set forth in the handling precaution
sheets where only a code name is set forth; (2) the
generic names of all chemicals contained on the
Revised List of Chemicals that were described by
Dr. Wagoner as insufficiently identified or ques-
588
KELLY-SPRINGFIELD TIRE COMPANY
tionable; (3) a cross-reference of names contained
on the Revised List of Chemicals with code names
set forth on the handling precaution sheets; and
thereafter comply with the terms of any agreement
reached through such bargaining.
(c) Post at its plant in Cumberland, Maryland,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
with Local No. 26, United Rubber, Cork, Li-
noleum and Plastic Workers of America, by
refusing to furnish it with a listing of all
chemical materials used in the plant and copies
of the handling precaution sheets, except those
materials and sheets which constitute propri-
etary trade secrets.
WE WILL NOT in any like or related manner
refuse to bargain collectively with the Union
or interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL, upon request, furnish the Union
the following information to the extent it does
not constitute proprietary trade secrets: (1) the
generic name of each chemical set forth in the
handling precaution sheets where only a code
name is set forth; (2) the generic names of all
chemicals contained on the Revised List of
Chemicals that were described by Dr. Wagon-
er as insufficiently identified or questionable;
(3) a cross-reference of names contained on the
Revised List of Chemicals with code names set
forth on the handling precaution sheets.
WE WILL, upon request, bargain in good
faith with the Union about furnishing the in-
formation listed above, to the extent it does
constitute proprietary trade secrets, and
comply with the terms of any agreement
reached through bargaining.
KELLY-SPRINGFIELD TIRE COMPANY
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge:
This case was heard at Cumberland, Maryland, on De-
cember 19, 1 98 0,' and in Baltimore, Maryland, on Janu-
ary 23, 1981. The charge was filed by Local No. 26,
United Rubber, Cork, Linoleum and Plastic Workers of
America (hereafter the Union or Local 26), on April 14.
On May 28, a complaint was issued, amended June 12,
alleging a violation by Kelly-Springfield Tire Company
(Respondent) of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended. The issue set forth in
the complaint was whether Respondent violated Section
8(a)(5) and (I) of the Act by failing and refusing to fur-
nish the Union with a listing of all chemical materials
used in the plant and copies of handling precaution
sheets.
Respondent's answer to the complaint was duly filed,
and denies the commission of any unfair labor practices.
Respondent further denied that the Union had requested
the listing and the handling sheets in order to carry out
properly its representation responsibilities under the col-
lective-bargaining agreement, but alleged it was done to
assist certain of its members in preparing for a personal
injury suit.
During the course of the hearing, the testimony dis-
closed that Respondent had, subsequent to the filing of
its answer, supplied the Union with a list of chemical
names and with the handling precaution sheets that ap-
plied to chemicals used in the plant of Respondent in
1979 and 1980. The General Counsel and counsel for the
Charging Party both contend that the listing of chemical
materials and the handling precaution sheets so supplied
do not contain generic chemical names which sufficiently
identify the chemicals involved, and that Respondent, in
order to bargain properly, must supply a generic name
that identifies the chemical referred to. The Charging
Party further argues that Respondent must furnish it
with a list, not only of those chemicals currently in use,
but also of all chemicals previously used in the plant.
All dates are in 1980, unless otherwise indicated.
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record,2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the oral argument of the General Counsel, and
the briefs filed by the Company and the Union, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Maryland corporation, manufactures
automobile tires at its plant in Cumberland, Maryland,
where, during the preceding 12 months, it purchased and
received materials and supplies valued in excess of
$50,000 from points located outside of the State. The
Company admits, and I find, that it is an employer en-
gaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and Local 26 have had collective-bargain-
ing agreements extending over a period of 44 years. 3
The current collective-bargaining agreement (G.C. Exh.
10) is for the period of June 11, 1979, to June 8, 1982,
and covers approximately 1,700 employees. Set forth
therein is the following bargaining unit:
The term "employees" for the purpose of this
Agreement includes: hourly rated and piecework
production, and maintenance employees at the
Company's plant in Cumberland, Maryland, exclud-
ing those employees working in the capacity of
office, clerical, supervisory employees, watchmen
and guards, and all other supervisory employees
with authority to hire, promote, discharge, disci-
pline or otherwise effect changes in the status of
employees or effectively recommend such action.
The bargaining agreement also contains several other
provisions that are relevant to this case:
Article X
Sec. 3. The Company shall continue to make rea-
sonable provisions for the safety and health of its
employees during their work hours by providing
competent Plant Dispensary Personnel. The Com-
pany and the Union agree to cooperate in practicing
and carrying out safety rules.
2 Resp. Exh. 3 was not included in the exhibit files forwarded to me at
the conclusion of the hearing. Respondent's counsel was so notified and
requested to supply the exhibit if he wished it included in the record. No
reply having been received from Respondent, Resp. Exh. 3 is rejected.
3 Respondent is, and has been since 1946, a wholly owned subsidiary
of Goodyear Tire and Rubber Company of Akron, Ohio. The record
does not indicate, nor is there any claim, that Local 26 ever had any col-
lective-bargaining agreement with Goodyear Tire and Rubber Company.
Article XI
Section 2: Safety Committee
(a) A sub-committee of not more than three em-
ployees representing the Company and not more
than three employees representing the Union will be
appointed to serve as a Safety Committee to en-
courage the promotion of safe working practices
and/or sanitary and healthy working conditions
within the plant. A minimum of one Company rep-
resentative and one Union representative will be
chosen from the regular members of the Labor-
Management Committee.
(b) The Safety Committee will meet as often as
deemed necessary, but not less than once a month
for the purpose of discussing safety problems and
will tour the plant periodically to observe the prog-
ress of its recommendations. Members of the Safety
Committee may, with the approval of their immedi-
ate Supervisor, leave their job when requested for
the purpose of investigating a safety problem pro-
vided it will not interfere with production. The
Company will provide distinguishing insignia for all
members of the Safety Committee to wear on plant
tours.
The Company and the Union are also parties to a
"Pension, Insurance, and Service Award Agreement."
This agreement was originally entered into in 1950, and
the current version thereof is for the period of July 16,
1979, until June 8, 1982. (G.C. Exh. 9.) This Agreement
provides for four different type pensions, with one of
them being a "Disability Retirement Pension." This dis-
ability pension enables a permanently incapacitated em-
ployee to receive a pension under much less stringent eli-
gibility rules than those required to receive the other
type pensions.
B. Sequence of Events
The facts and the chronology in this case are essential-
ly undisputed, so that the disposition of the case princi-
pally depends upon the resolution of questions of law.
In January 1979, company officials called a meeting of
the safety committee, and informed its members of "all
that was known about Tardax." Paul Heinrich, an em-
ployee of the Company for 22 years, and the chairman of
its safety committee for 13 years, testified credibly that
they were informed that Goodyear had tested a com-
pound called Tardax, and the tests revealed it caused
bladder cancer in rats. When the committee questioned
the chief chemist as to long-term effects of Tardax on
the employees, they were told that the only way that
any of the employees could get cancer from it was to eat
the compound. The Union thereafter contacted the
Maryland Occupational Safety and Health Board
(MOSHA), whose hygienists thereafter reviewed the
plant. The record does not disclose that MOSHA re-
quired Respondent to take any action as to its safety and
health practices.
On January 10, Respondent convened a meeting in its
grievance room with the president of the Union, B. J.
590
KELLY-SPRINGFIELD TIRE COMPANY
Carter, and several members of the safety committee.
Personnel Manager R. F. Schoch proceeded to give
copies of a 1-1/2-page letter to each person present.4
(G.C. Exh. 2.) Schoch then read the letter, which was
addressed to the president of the Union, aloud. The first
four paragraphs read as follows:
There are two volumes of "Handling Precaution"
sheets in Junior Brelsford's office. Each sheet
covers a chemical code used in production.
The information in these volumes are available to
be seen upon request to any employee in this plant.
However, because of its proprietary nature duplica-
tion or making copies will not be permitted. If an
employee wishes to personally make notes, he or
she may do so.
These volumes will be available only in Mr.
Brelsford's office when either he or the Industrial
Hygienist technician, John Mace, or the Safety
Manager, Pat Harness, are available. The hours will
be from 7:30 a.m. to 4:00 p.m.
Each employee will be requested to read the in-
troduction page so that he understands the inten-
tions of the volumes.
The letter then went on to describe some of the infor-
mation that would be found in these "handling sheets," 5
such as "An assessment of the Degree of Hazards and Ex-
posure Effects involved in the handling of each specific
material," and "Recommendations on precautionary han-
dling measures and protective equipment." The letter
concluded by stating that any employe who wanted to
view these books would do so on his own time.
On February 11 Safety Committeeman Joseph Taylor,
pursuant to the instruction of Safety Committee Chair-
man Heinrich, telephoned Brelsford and asked permis-
sion to copy the material handling sheets. Brelsford re-
fused to do so. By letter dated February 18, Personnel
Manager Schoch wrote to the union president, in refer-
ence to the Union's request to have its safety committee
members copy the chemical code information in the han-
dling sheets. The Company refused the Union's request,
and again offered to let individual employees read sheets
that pertained to the chemicals that employees worked
with or around. (G.C. Exh. 3.)
Around this same time, Heinrich went to Brelsford's
office to look at the Tardax handling sheet. Heinrich was
particularly interested in Tardax, as he recalled that in
the fifties, when he was an operator, Tardax would be
kept in open drums. Then, in recent time, the employee
who works with Tardax wears goggles, a mask, and a
disposable uniform. When the employee finishes weigh-
ing the Tardax he needs, he has to take a shower, put the
uniform in a plastic bag, and discard it, before he can
return to work. Brelsford allowed Heinrich to review
the Tardax handling precaution sheet, but refused to
allow him to copy it.
4Safety Committee Chairman Heinrich swas unable to be present, but
he subsequently received his copy of the letter
s The actual sheets, G C. Exhs. 6, 7, and 12, were captioned "Handling
Precautions." Witnesses, and letters received into evidence referred to
these as chemical handling sheets, material handling sheets, and handling
sheets.
By a lengthy letter dated March 3, the Union, by
Heinrich, wrote to Respondent advising that it had been
trying to obtain from the Company information "about
the hazardous chemicals our members work with at the
plant." The Union then requested that it receive "an
entire copy of the handling precaution sheets, including
the section listing all of the chemical materials used in
the plant." The Union concluded its letter by calling
upon the Respondent:
. . . to release all of this information to us that we
may know what hazards we are exposed to in the
plant, the degree of hazard, the exposure effects,
and what we can do to help protect our own health
and life.
The Company denied the Union's request by letter
dated March 6, and restated its position that it would
allow "affected employees" to view the books containing
the chemical handling sheets, and take "personal notes."
On March 13, the Company placed on its bulletin
boards, a "NOTICE TO ALL EMPLOYEES" who
worked in the millroom, receiving, stores, cement house,
and physical test lab, advising that "handling precaution
sheets for each chemical used in this plant are available
for your viewing in Junior Brelsford's office." These
sheets had to be read on the employees' own time, and
while the employee could take personal notes, the sheets
could not be copied in their entirety, nor would copies
be made for any employee. (G.C. Exh. 8.)
On April 14 the Union, by Heinrich as chairman of the
safety committee, filed a charge with the Board against
Respondent, alleging that since January 10 the Company
had refused to furnish it with "copies of Chemical Han-
dling Sheets," "and a complete list of chemicals to which
workers are exposed by chemical families and formula
rather than just by a code name or number." On May 28,
the Board issued the complaint herein, with the key
paragraph thereof reading as follows:
6. On various occasions since January 1980, and
by letter dated March 3, 1980, the Union, in order
that it properly carry out its representation respon-
sibilities under the collective-bargaining agreement,
has requested that Respondent furnish it with a list-
ing of all chemical materials used in the plant and a
copy of the handling precaution sheets.
As previously set forth in the answer filed by Re-
spondent on August 14 to the complaint, Respondent ad-
mitted that the Union had requested listings of chemical
materials and handling precaution sheets, but denied that
it had made those requests in order to properly carry out
its representation responsibilities but had done so "in
order to assist certain of its members and their counsel in
preparing for a personal injury suit." Respondent further
averred that the information sought had, since January
1980, "been available to the Union and all of its members
[and] is now available to counsel of record for this pro-
ceeding through discovery procedures in a lawsuit now
pending in Federal District Court in Baltimore, and is
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject of an OSHA regulation which becomes effec-
tive in the near future."
The record discloses that on July 29, 26 personal
injury suits were filed in the United States District Court
for the District of Maryland by present employees or
personal representatives of former employees against the
Goodyear Tire and Rubber Company, alleging negligent
exposure to chemicals during the course of their employ-
ment at Respondent's Cumberland plant. The plaintifs in
the lead case are Paul F. Heinrich and his wife, 6 and
they were asking for $110 million in damages. The re-
maining cases also sought substantial damages. While
Kelly-Springfield was not named as a defendant in the
district court case, it was constantly referred to in the
pleadings as the employer of Heinrich and the other
plaintiffs. The suits were filed by the same law firm
which represents the Union in the instant proceeding.
The same law firm represents Kelly-Springfield in the
district court case as represents it in this Board proceed-
ing.
Also, on October 7, a complaint was filed with the
Occupational Safety and Health Administration (OSHA)
on behalf of 19 present or former employees of Kelly-
Springfield against that Employer, alleging that the Em-
ployer had failed to furnish these employees with expo-
sure and medical records. This OSHA complaint was
filed by the same law firm that represents the Union in
this Board proceeding.
C. Documents Furnished by Respondent
After the filing of the OSHA complaint, numerous let-
ters were exchanged in October, November, and Decem-
ber between Respondent's counsel and counsel for the
Union concerning chemical records. However, the sub-
ject matter of these letters was not restricted to issues
arising out of the Board's complaint, but was intermixed
with discovery matters pertaining to the district court
case, and the OSHA case, just as if there was one legal
matter between the parties.
On November 4, the Union did receive from Respond-
ent's counsel a 6-page list captioned "Revised List of
Chemical Names" and a large packet of handling precau-
tion sheets. (G.C. Exh. 11 and 12.) After Heinrich and
other employees reviewed the sheets, they determined
that handling sheets for 12 chemicals were not included,
and the Union, then by letter dated November 11 re-
quested copies of the sheets. On November 25, Respond-
ent supplied these additional handling sheets. On Decem-
ber 8, Respondent forwarded 61 more chemical handling
sheets to the Union advising that they were for chemi-
cals no longer in use in the plant, but had been in use
from time-to-time from 1972 and possibly earlier.
D. Analysis and Conclusion
The basic law applicable to the facts of this case was
stated by Administrative Law Judge Robert E. Mullin in
Minnesota Mining & Mfg., 261 NLRB 27 (1982): 7
6 Heinrich was the same chairman of the safety committee who has
been previously referred to in this case.
7 Administrative Law Judge Mullin, in the above-cited case, ordered
that company to furnish the union with various items of health informa-
It has long been settled that the employees' ex-
clusive bargaining agent is entitled to such informa-
tion from the employer as is relevant and necessary
to the fulfillment of its obligation to fairly and prop-
erly represent the employees in the bargaining unit.
N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149
(1956); N.L.R.B. v. Acme Industrial Co., 385 U.S.
432 (1967). Moreover, the union's right to such in-
formation extends not only to the period when it is
negotiating a contract, but also during the life of the
agreement for the purpose of administering or effec-
tuating its terms, as well as preparing for future or
prospective negotiations. The A.S. Abell Company,
230 NLRB 1112 (1977); Western Massachusetts Elec-
tric Company, 234 NLRB 118 (1978).
Information that bears directly on the negotiation
or administration of a bargaining agreement is pre-
sumptively relevant. The standard for ascertaining
the need for such information is a showing of
"probability that the desired information was rele-
vant, and that it would be of use to the union in
carrying out its statutory duties and responsibil-
ities." N.L.R.B. v. Acme Industrial Co., supra; Gen-
eral Electric Company, 199 NLRB 286, 288-289
(1972); Brooklyn Union Gas Company, 220 NLRB
189, 191-192 (1975); Globe Stores Inc., et al., 227
NLRB 1251, 1254 (1977); Temple-Eastex, Incorporat-
ed; etc., 228 NLRB 203, 204 (1977). In effect the
employer's responsibilities in this regard are predi-
cated on the union's need for such information in
the fulfillment of its obligations to the employees in
the unit. [261 NLRB at 37, 38.]
Respondent in its brief recognizes these legal princi-
ples and cites in support of its position many of the same
cases that were cited by the General Counsel in his oral
argument, and by the Union in its brief. NLRB v. Truitt
Mfg., 351 U.S. 149 (1956); NLRB v. Acme Industrial Co.,
358 U.S. 432 (1967); Detroit Edison v. NLRB, 440 U.S.
301 (1979). Respondent also properly recognizes in its
brief that the duty to supply information under Section
8(a)(1) turns upon "the circumstances of the particular
case," and cites Detroit Edison, and Truitt Mfg., just as
the General Counsel and the Union cited them.
However, at this point, Respondent parts company
with the other parties. Respondent does not contend that
the handling precaution sheets and the list of chemicals
are not relevant to the performance of the Union's
duties; it simply contends that it has fulfilled its duty of
furnishing information to the Union due to its supplying
the handling sheets on November 4 and 25, and due to
its supplying a listing of all chemicals being used in the
plant on November 4.
tion that the union had requested, including the generic names of all
chemicals and substances used or produced in the respondent's plant. Col-
gate-Palmolive, 261 NLRB 90 (1982), also involved a request by a union
for various items of chemical information, and Administrative Law Judge
Gerald A. Wacknov's Decision ordered the company to supply the re-
quested information to the union. Borden Chemical, 261 NLRB 64 (1982),
likewise involved the request of a union for information about chemicals
used by that company. Administrative Law Judge Maunce M. Miller or-
dered the company to furnish the requested information to the union.
592
KELLY-SPRINGFIELD TIRE COMPANY
Both the General Counsel and the Union argue that
the handling precaution sheets as furnished are inad-
equate in the information contained therein, as each sheet
only identifies the chemical by a code name, and not by
a generic chemical name that would be commonly
known and understood by the Union and its representa-
tives. The General Counsel further contends that because
of this lack of information the Union does not know
what chemicals the employees are working with, and
therefore cannot bargain intelligently as to what hazards
these chemicals constitute in the workplace. In like
manner, the Union is unable to bargain about their effect
on the employees, or about safety precautions that it
would wish to institute, or about appropriate future
medical, disability, and pension benefits.
The General Counsel and the Union also argue that
the "Revised List of Chemical Names" does not set forth
sufficient identification to allow the Union to know intel-
ligently what the chemical is that an employee works
with.
In support of this position, the Union had Dr. Joseph
K. Wagoner, an admitted expert in the field of plant
workers health and safety, testify. Dr. Wagoner testified
that he had reviewed the Revised List of Chemical
Names and found only a few names that could be identi-
fied by a generic term. He also found that some names
were just general consumer names, such as fuel oil, and
some were descriptive words from which the actual
chemical could not be determined. Dr. Wagoner did sub-
sequently review this list of chemicals, and set forth in
General Counsel Exhibit I IA that 144 chemicals were
sufficiently identified, 73 were not, and 8 were question-
able. I credit Dr. Wagoner's uncontradicted testimony.
Respondent set forth in its brief that on January 16,
1981, it filed a consolidated response in the district court.
This response was an affidavit of its employee Terry
Phillips8 which identified by chemical name, all of the
chemicals described by Dr. Wagoner as being insuffi-
ciently described, and further supplemented generic
names on Respondent's previous listing. It is Respond-
ent's position that the issue of sufficiency of identification
has been "substantially neutralized, if not cured, by the
information provided to counsel for the Union in the affi-
davit of Mr. Terry Phillips." Respondent also argues in
its brief it does not have to supply a cross-reference of
the generic names of the chemicals contained in the Re-
vised List of Chemical Names, as the issue was not set
out in the complaint, and only arose on December 19,
the first day of the hearing.
The circumstances of this particular case call strongly
for a full and fair disclosure by the Employer of the in-
formation requested by the Union. From that day in Jan-
uary 1979, when the Company disclosed to the safety
committee that a compound, long used in the shop,
Tardax, caused cancer in rats, the Union's safety commit-
tee became attentive to the matter of what chemicals its
members were using in the plant, and if they were being
used safely, by proceeding to explore the matter with
MOSHA. Then, when they received Respondent's letter
of January 10, informing them of the existence of the
I Heinrich identified Phillips as Respondent's chief chemist.
two volumes of handling precautions, with its limited
right to examine these sheets, clearly the Union had a
further right to be concerned about the safety and health
of its members. Later, when Taylor and Heinrich exam-
ined the Tardax handling precaution sheet in February,
they had to be impressed by its grim and terse cautions,
some of which were, avoid breathing its dust and vapor,
avoid skin contact, wash immediately if skin contact
occurs, wear gloves, use chemical goggles and a respira-
tor, do not wear work clothes from company premises.
Since they were only allowed to examine about six
sheets, the contents of several hundred other sheets were
unknown to them, and clearly they had a statutory duty
to request these handling sheets from the Company, and
learn what hazards or dangers that these chemicals rep-
resented to their members. The spectre of cancer has few
equals in casting fear into the minds of American work-
ers, and certainly the Union had not only the right, hut
the duty to seek out all chemicals that could be potential
dangers to the health and well being of its members. By
learning what potential risks and hazards the employees
faced in the plant, the Union would then be in a position
to bargain intelligently for protective measures to elimi-
nate or reduce such hazards. In like manner, the Union
could bargain for better medical facilities in the plant
that would be geared to meet these hazards, for greater
medical and surgical benefits, and for more relaxed eligi-
bility rules for the securing of disability pensions.
Respondent's defense that it has not violated the Act
because it subsequently furnished the Union with a list-
ing of all chemical materials and a copy of the handling
precaution sheets is without merit. Respondent took 8
months before it complied in the main with the Union's
request for information. Such a delay evinces a failure to
bargain in good faith within the meaning of Section
8(a)(5) of the Act. Montgomery Ward, 234 NLRB 588,
590 (1978) (3 months' delay); Colonial Press, 204 NLRB
852, 861 (1973) (2 months' delay). Accordingly, for the
reasons stated herein, I find that Respondent unlawfully
failed and refused to bargain with the Union in good
faith in February and March 1980, when it refused the
Union's requests for a listing of all chemical materials
used in the plant, and copies of the handling precaution
sheets.
I turn now to the General Counsel's and the Union's
position that the handling precaution sheets are inad-
equate as they only identify the chemical by a code
name, known only to Respondent. The code name is as
meaningless to the Union as if it were in sanskrit. For the
Union to be able to intelligently know and evaluate what
chemical is being referred to, it is obvious that the Com-
pany must decode the name so that it will be meaningful.
As for the list of chemical materials, Respondent does
not contest Dr. Wagoner's testimony which found that
73 of the listed chemicals were not sufficiently identified,
and 8 were questionable. Rather, Respondent maintains
that it has provided counsel for the Union with a copy
of an affidavit it filed in the district court case, which
supplies the generic name for those chemicals stated by
Dr. Wagoner as being insufficiently identified. I do not
find that Respondent has met its burden to bargain in
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith by such a side-door presentation. The Union
is the exclusive bargaining representative of the employ-
ees, and it is entitled to receive relevant and necessary
information from the Employer on its own merits and
not as an ancillary to other proceedings in other forums.
As to the General Counsel's and the Union's request
that the Company be required to cross-reference the
names contained on the Revised List of Chemical Names
with the code names contained on the handling precau-
tion sheets, Respondent correctly argues that the issue
was not included in the complaint. However, this does
not preclude such a remedy from being contained in this
Decision. As stated by the Supreme Court in Carpenters,
Local 60 v. NLRB, 365 U.S. 651, 655 (1961), the Board
"has broad discretion to adopt its remedies to the needs
of particular situations" in order to effectuate the policies
of the Act. I find that the needs of this situation require
that Respondent supply such a cross-reference to the
Union. As stated in Minnesota Mining & Mfg., supra, "on
issues as vital to the employees as their health and safety,
the bargaining agent is entitled to the fullest possible
range of information so that it will be able to discuss and
negotiate on these matters, in a meaningful fashion, on
behalf of those whom it represents."
There is one point where the General Counsel and the
Charging Party diverge, and that is on the matter of
what period of time must Respondent supply the Union
with a list of chemicals. Counsel for the General Counsel
stated on the record that he sought the list of the chemi-
cals in existence in 1980 when the Union made its writ-
ten demand. Counsel for Respondent, agreeing on this
point with the General Counsel, argues that the com-
plaint does not specify the period of time, but infers, as
did the Union's letter of March 3, that it was seeking a
list of chemicals used in the plant at that time.
The Union, on the other hand, seeks the names of all
chemicals currently and formerly used in the plant, back
to its commencement of manufacturing tires. In support
of its position, the Union points to Dr. Wagoner's testi-
mony, who testified about chemicals previously used at a
plant, stating "as important as-is knowledge of the cur-
rent chemicals that a worker is exposed to in his work
environment, equally and more important are the chemi-
cals that he has been exposed to in the past." He ex-
plained that cancer and other chronic diseases have long
latency periods, and, therefore, information concerning
chemicals which may have exposed employees to dan-
gers many years ago is important today so as to be able
to deal with the employee's current medical problem.
It is clear that Respondent was not violating the Act
when it did not furnish the Union with a list of the
chemicals formerly used in the plant, as the Union has
not requested this information from the Employer. How-
ever, in keeping with the tenets of Carpenters, Local 60,
supra, I find that the needs of this situation require as
part of the remedy, that Respondent supply the Union
with a list of chemicals by their generic names that were
used in the plant since it commenced making tires. The
Union is not simply asking for past wage information, or
other routine matters that are helpful in carrying out its
duties to represent the employees in the bargaining unit,
but is seeking information vital to the present and future
health of the employees its represents. While the record
does not disclose how many of the 1700 employees rep-
resented by the Union were employed prior to 1980, it is
a reasonable inference to draw that a substantial number
were so employed. The two witnesses who testified for
the General Counsel, Heinrich and Taylor, had been em-
ployed since 1958 and 1967, respectively.
Respondent in its brief argues that it has a "significant
and substantial interest in the confidentiality" of the list-
ing of chemicals being used in the plant and a copy of
the handling precaution sheets which it previously pro-
vided the Union, as well as in any information that it is
subsequently directed to provide in this Board case. Re-
spondent further contends that if the listing of chemicals
and copies of the handling precaution sheets, as well as
any information which it would be subsequently ordered
to provide the Union, should fall into the hands of a
business competitor, Respondent's competitive position
could be prejudiced as it has "a significant and substan-
tial interest in the confidentiality of that information."
Respondent then goes on to state:
Therefore, minimal protective use restrictions limit-
ing the Union's ability to use the generic names of
the chemicals to the performance of the Union's le-
gitimate duties as a bargaining representative are
warranted under the facts and circumstances of this
case.
Detroit Edison, supra, establishes that an employer who
wishes certain data to remain secret must demonstrate a
reasonable basis for its concern over keeping the data
secret. Respondent produced no witnesses or evidence to
sustain its bare assertion, and therefore has not met its
burden. The Union has been the collective-bargaining
representative of Respondent's employees for 44 years,
and there is nothing in the record to indicate that the
Union does not want to remain the collective-bargaining
agent for the next 44 years. The Union's duty of fair rep-
resentation runs to the 1700 employees in the bargaining
unit, not the 26 employees who are involved in personal
injury suits against the parent company. Certainly, it is to
the Union's best interest that it only use the generic
names solely for pursuing its statutory representation re-
sponsibilities under the collective-bargaining agreement,
and not to disseminate any information that would aid a
competitor. No respectable union would wish to inflict a
self-destructing wound on itself by supplying a competi-
tor with confidential information. I can foresee no less
responsible handling of sensitive data by union officials
than by Respondent. Ingalls Shipbuilding Corp., 143
NLRB 712, 718 (1963). Under these circumstances, the
Union is directed to use the generic names of the chemi-
cals solely in the performance of carrying out its duties
as the bargaining representative of the plant's 1,700 em-
ployees.
As the final argument in its brief, Respondent con-
tends:
[t]he N.L.R.B. should defer its decision in this case
until the identical issues involved herein are decided
by the United States District Court for the District
594
KELLY-SPRINGFIELD TIRE COMPANY
of of Maryland in the discovery process being pur-
sued against Respondent in the civil actions pending
therein, or by O.S.H.A. in the proceeding pending
against Respondent before it.
I do not find any merit in this contention of Respond-
ent. The purpose of the National Labor Relations Act is
for the vindication of the public interest, not private
rights. The parties are not the same, as neither the Board
nor the General Counsel are parties to the district court
or OSHA cases. Also, the Union is not a party to these
two proceedings, as both matters were instituted by pri-
vate individuals. Again, the remedies are not the same in
any of the three cases. In the district court case the indi-
viduals seek money damages for alleged personal inju-
ries. In the OSHA case, the individuals seek their expo-
sure and medical records. The Congress of the United
States placed the primary authority of carrying out the
provisions of the National Labor Relations Act on the
Board and its processes. Since the earliest days of the
Act, as in S. L. Allen & Co., I NLRB 714 (1936), the
Board has held that an employer has the statutory duty
to provide relevant information requested by the collec-
tive-bargaining representative of its employees. The in-
stant case clearly calls for a Board decision and remedy
to fit the purposes of the Act, and there will be no defer-
ral to the district court or to OSHA.9
CONCLUSIONS OF LAW
1. Kelly-Springfield Tire Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local No. 26, United Rubber, Cork, Linoleum and
Plastic Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
9 See Brown & Root, 246 NLRB 33 (1979), in which the Board refused
to defer to OSHA.
3. All hourly rated and piecework production, and
maintenance employees at the Company's plant in Cum-
berland, Maryland, excluding those employees working
in the capacity of office, clerical, supervisory employees,
watchmen and guards, and all other supervisory employ-
ees with authority to hire, promote, discharge, discipline
or otherwise effect changes in the status of employees or
effectively recommend such action, constitute a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. By refusing on or about March 3, 1980, and continu-
ing to refuse until November 1980, to furnish the Union
with a listing of all chemical materials used in the plant
and copies of the handling precaution sheets, Respondent
has engaged in unfair labor practices in violation of Sec-
tion 8(a)(5) and (1) of the Act.
5. The unfair labor practice specified affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend
that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act. It is recommended as to the handling
precaution sheets that where any sheet only contains a
code name Respondent shall furnish its generic name. It
is further recommended that Respondent furnish the
Union with the generic names of all chemicals contained
on the Revised List of Chemicals, that were described by
Dr.Wagoner as insufficiently identified or questionable.
In addition, Respondent should be ordered to furnish a
list that cross-references the names contained on the Re-
vised List of Chemicals with the code names appearing
on the handling precaution sheets. Also, Respondent
should be ordered to furnish a list of the chemicals for-
merly used in the plant by such chemicals' generic
names.
[Recommended Order omitted from publication.]
595