Metropolitan Edison Company

National Labor Relations Board - Board Decisions

Nov 26, 1999

330 N.L.R.B. 107 (N.L.R.B. 1999)

METROPOLITAN EDISON CO. 107
Metropolitan Edison Company and Electrical Work-
ers System Council U-9, Local 563, AFL–CIO.
Case 4–CA–21398–1
November 26, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
BRAME
On January 26, 1995, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a brief in support of the judge’s decision
and an answering brief. The Charging Party filed a brief
in opposition to the exceptions. The Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, as
modified below, and to adopt the recommended Order, as
modified.
This case raises an issue concerning the extent of the
Respondent’s obligation to disclose relevant, but assert-
edly confidential, information requested by the Union in
order to carry out its duties as a collective-bargaining
representative. The judge found that the Respondent vio-
lated Section 8(a)(5) of the Act by refusing the Union’s
request for the names of two informants who provided
information to the Respondent that ultimately led to the
discharge of employee Ned Eppinger. We agree with the
judge that the Respondent violated Section 8(a)(5), but
only for the following reasons.
Ned Eppinger was an employee of the Respondent and
served as chairman of the Union’s safety committee. On
December 11, 1992, the Respondent received a tip from
one informant (“John Doe I”) that another informant
(“John Doe II”) had alleged that Eppinger was stealing
food from the plant cafeteria. The Respondent placed
Eppinger under surveillance. It subsequently discharged
him after confirming the substance of the informants’ tip.
The Union grieved Eppinger’s discharge. In processing
the grievance, the Union requested the real names of both
John Does. The Respondent refused the request on
grounds of confidentiality, claiming that the information
“could only result in retaliation, coercion and intimida-
tion of individuals who have been willing to come for-
ward.” The Respondent provided other requested infor-
mation relevant to Eppinger’s grievance, but did not of-
fer any alternatives to satisfy the Union’s request for the
informants’ names.
The judge found that the informants’ names were rele-
vant and necessary to the Union’s processing of Ep-
pinger’s grievance. He further found that the Respon-
dent had failed to prove a sufficient confidentiality de-
fense to justify declining to provide the informants’
names under the balancing-of-interests test set forth in
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). In
this regard, the judge reasoned that the asserted confiden-
tiality interest here was distinguishable from the confi-
dentiality interest at issue in Pennsylvania Power, 301
NLRB 1104 (1991). The Board there found that the re-
spondent employer (as here, an operator of a nuclear
power generating plant) proved a legitimate and substan-
tial confidentiality defense justifying its refusal to pro-
vide the names of informants who provided information
about suspected employee drug use. The judge found
that the serious public and employee safety considera-
tions involved in Pennsylvania Power were not involved
in this case, which involves theft rather than drug use.
Accordingly, the judge found that the Respondent vio-
lated Section 8(a)(5) by failing to provide the Union with
the names of the informants.
We agree with the judge that the identities of the in-
formants were relevant and necessary for processing Ep-
pinger’s grievance.1 However, we do not agree with the
judge that a confidentiality claim is not legitimate or sub-
stantial when it involves informants about workplace
theft rather than drug use or other conduct impacting
public or employee safety. Nevertheless, assuming that
the Respondent has asserted a legitimate and substantial
confidentiality interest here, we find that the confidenti-
ality interest was not so substantial as to justify the Re-
spondent’s blanket refusal to provide any information in
response to the request for informants’ names. In the
circumstances here, we find that the Respondent had an
obligation to come forward with some offer to accom-
modate both its concerns and the Union’s legitimate
needs for relevant information. In this regard,
it has long been established that an employer has the
burden of seeking to accommodate the union’s request
for relevant information consistent with other interests
rightfully to be protected. An employer is not relieved
of its obligation to turn over relevant information sim-
ply by invoking concerns about confidentiality, but
must offer to accommodate both its concerns and its
bargaining obligations, as is often done by making an
offer to release information conditionally or by placing
restrictions on the use of that information. [Citations
omitted.]
U.S. Testing Co. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir.
1998). The “rationale for this placement of the burden de-
rives from the interest in allowing the parties to work out
through an informal process how their corresponding duties
and responsibilities can be met.” Id. at 20.

1 In affirming the judge’s finding that the requested information was
relevant to the Union’s representative duties, we rely solely on evi-
dence that the Union had reason to believe that the Respondent selec-
tively targeted Eppinger for investigation because of his protected
union activities.
330 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
Here, the Respondent made no effort to bargain to ac-
commodate the Union’s interest in seeking relevant in-
formation. Instead, it flatly rejected the request for the
informants’ names. It thereby violated Section 8(a)(5).
Our dissenting colleague contends that the finding of a
violation here conflicts with the Board’s reasoning in
Pennsylvania Power, supra, and Mobil Oil Corp., 303
NLRB 780 (1991). We disagree. In both of those cases,
the unions requested the names and addresses of infor-
mants while pursuing grievances of discipline imposed
as the result of drug-testing. The employers had relied
on the informants’ reports as the “reasonable cause” for
mandating the drug tests. The Board held that the em-
ployers did not violate Section 8(a)(5) by refusing to
provide the names and addresses of informants, but they
did violate Section 8(a)(5) by failing to provide any in-
formation in response to the unions’ legitimate need. In
each instance, the Board directed the employer to provide
a summary of the statements provided by the informants.
Initially, it is important to emphasize that neither of the
cases cited by the dissent support our colleague’s posi-
tion that there should be a blanket exemption from bar-
gaining about the disclosure of the names and addresses
of informants. The dissent’s position conflicts directly
with the Detroit Edison case-by-case balancing test that
the Board applied in Pennsylvania Power and Mobil Oil.
After balancing the respective interests, the Board found
that the particular circumstances of those two cases war-
ranted giving “unusually great weight”2 to the employ-
ers’ interests in protecting the identities of the infor-
mants. The Board expressed specific concern that its
implementation of national labor policy not conflict ei-
ther with employer efforts to control possible drug-
related impairment of employee job performance or with
a national policy seeking to curb drug use in the work-
place and in society at large. In neither case did the
Board create a blanket exemption from bargaining over
an accommodation.
As we have found above, an employer can assert a le-
gitimate and substantial confidentiality interest in pro-
tecting the identities of informants about workplace theft.
This does not mean that the interest asserted automati-
cally carries the same “unusually great weight” as the
interest asserted in Pennsylvania Power and Mobil Oil.
“The confidentiality interest of the employer . . . is not
fixed; it may vary with the nature of the industry or the
circumstances of a particular case.” Resorts Interna-
tional v. NLRB, 966 F.2d 1553, 1556 (3d Cir. 1993). In
our view, concerns about petty cafeteria theft, which
poses no apparent threat to employee or public safety, do
not carry the same “unusually great weight” as the inter-
ests that were found to be present in Pennsylvania Power
and Mobil Oil. This does not mean that an employer
must countenance this or any other kind of criminal ac-

2 Pennsylvania Power, 301 NLRB at 1107.
tivity on its premises, but it does mean that the Board
may insist on greater accommodation of employee rights
and the collective-bargaining process when balancing the
employer’s interests against the union’s legitimate inter-
ests in obtaining the requested information.
Here, unlike the unions in either Pennsylvania Power
or Mobil Oil, the Union has a specific concern about dis-
crimination against a union steward. The dissent cor-
rectly states that the Union already knows what the in-
formants said, and what the investigation triggered by
those statements revealed, but there remains a question
about why they said anything. Were they acting pursuant
to a genuine concern (whether theirs or the Respon-
dent’s) about criminal activity or, as the Union had cause
to suspect, were they on the lookout for any incident that
might give the Respondent cause to rid itself of a union
steward? In this regard, the Union’s legitimate represen-
tational interests implicate both contractual3 and national
labor policy concerns about antiunion discrimination.
Thus, the record indicates that the Union has a legitimate
and substantial need for the requested information.
There remains the Respondent’s expressed concern
that disclosure of informants’ names would expose them
to harassment or physical retaliation. Like our dissenting
colleague, we find acts of physical violence committed in
professed support of either party in a labor dispute to be
inexcusable. Further, we would be naïve to deny any
latent possibility of retaliation against informants whose
information leads to an investigation and discharge of an
employee, whether for petty theft or other conduct. But
this case presents no more than just that—a possibility.
There is nothing in this record to indicate a likelihood or
real risk of retaliation or violence. There is no evidence
of past violence and no reason to believe that the Union
sought the informants’ names in order to harass or physi-
cally retaliate against them.4 Thus, any possibility of
retaliation is purely speculative in this case.5
3 Art. 2.2 of the parties’ collective-bargaining agreement provides
that the Respondent and its agents will not discriminate in any manner
whatsoever against any member of the Union because of membership
and activity in the Union.
4 As set forth by the judge, Union President O’Donnell testified that
the Union was concerned that Eppinger had been singled out for being
a staunch safety man and union officer, that it wanted to question the
informants about whether Eppinger had been singled out because of his
safety and union activities, and that it wanted to “clear people’s names”
and “get to who the informants were, and get back to work and work
safely, instead of worrying about who the informants were.” The judge
did not find, nor do we, anything in this testimony that indicates an
intention by the Union to harass or otherwise physically retaliate
against the informants. While it appears from the testimony that the
Union’s members were concerned about who the informants were, this
is far from a desire to harass or retaliate against the informants.
5 Cf. Transport of New Jersey, 233 NLRB 694 (1977) (Board or-
dered employer to provide union with names of witnesses to bus acci-
dent, finding “speculative” the employer’s stated concern that disclo-
sure would expose them to unnecessary harassment); and Page Litho,
Inc., 311 NLRB 881, 882–883 (1993) (Board ordered employer to
provide union with names and payroll information of striker replace-
METROPOLITAN EDISON CO. 109
In sum, we find that the Respondent’s asserted confi-
dentiality claim, although presumed legitimate, is not
entitled to the same “unusually great weight” as the
claims asserted in Pennsylvania Power and Mobil Oil.
We have further found that the Union has a legitimate
and substantial need for the requested information. Fi-
nally, we have found that while a possibility of retalia-
tion against informants exists, the likelihood of such re-
taliation in this case is purely speculative. In these cir-
cumstances, we find that the Respondent was not privi-
leged to flatly reject the Union’s request for the infor-
mants’ names, but was obligated to bargain with the Un-
ion to seek an accommodation. By failing to do so, the
Respondent violated Section 8(a)(5).6
We emphasize that the violation found is the failure to
bargain over an accommodation (i.e., an alternative
means of satisfying the Union’s need), not the failure to
provide the names themselves. We recognize merit both
in the Union’s asserted interest and in the Respondent’s
confidentiality concerns. The appropriate remedy in
these circumstances is to give the parties an opportunity
to bargain regarding the conditions under which the Un-
ion’s need for relevant information could be satisfied
with appropriate safeguards protective of the Respon-
dent’s confidentiality concerns.7 We do not now decide
the particular content of accommodation bargaining that
must occur, except to direct that the parties should thor-
oughly explore any and all reasonable alternatives to
direct disclosure of the informants’ names.
The Board’s cumulative experience has shown that
“there should be, and almost always is, a way that the
parties can effectively bargain” for an accommodation
that will satisfy both the union’s needs and the em-
ployer’s protective concerns. Exxon Co. USA, 321
NLRB 896, 899 (1996). See, for example, GTE Califor-
nia, Inc., 324 NLRB 424, 427 (1997), where “GTE pro-
posed, the parties bargained over, and the Union ulti-
mately accepted an accommodation between the Union’s
information interests and GTE’s confidentiality interests
that succeeded in furthering both parties’ interests.” In-
deed, to our knowledge, none of the cases in which the
Board has employed this approach have ever returned to
the Board, because the parties were unable or unwilling

ments, finding no clear and present danger that the Union would use the
names to harass the replacements).
6 Notwithstanding settlement of the particular grievance that gave
rise to the information request, we agree with the judge that the request
for informants’ names or alternatives thereto remain potentially rele-
vant to the Union’s administration of the nondiscrimination provision
of the parties’ contract and that the issue, therefore, is not moot.
7 See, e.g., Minnesota Mining & Mfg., 261 NLRB 27, 32 (1982),
enfd. sub nom. Oil Workers v. NLRB, 711 F.2d 348 (D.C. Cir. 1983);
and General Dynamics Corp., 268 NLRB 1432, 1433 (1984). Al-
though the Board in Pennsylvania Power found it appropriate to make
the accommodation itself because of “the peculiar circumstances of this
case and the strong interest in fostering efforts to create safe and drug-
free workplaces,” it recognized that it was deviating from the usual
remedy employed here. 301 NLRB at 1108 fn. 18.
to arrive at a mutually acceptable accommodation of
their respective interests.
Our dissenting colleague’s position is that subjecting a
dispute over the identity of informers to the collective-
bargaining process will likely lead to violence. Our dis-
senting colleague’s argument is inconsistent with the
Act’s basic premise that promoting the practice and pro-
cedure of collective bargaining will tend to eliminate
industrial strife.8 In any event, we have more confidence
than he that the Respondent will take all steps necessary
to ensure that any accommodation reached as a result of
bargaining will not place the informants at risk of retalia-
tion and harassment.9
Finally, we recognize that if the Respondent and the
Union are unable to reach an agreement on a method
whereby their respective interests would be satisfactorily
protected, they may be before us again. If the issue of
whether the parties have bargained in good faith is pre-
sented to us, we shall decide that question then. If neces-
sary, we shall also undertake the task of balancing the
8 See Sec. 1 of the Act, as amended. “The theory of the Act is that
free opportunity for negotiation with accredited representatives of
employees is likely to promote industrial peace and may bring about
the adjustments and agreements which the Act in itself does not attempt
to compel.” NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 45
(1937). Over the many years since Jones & Laughlin, experience has
shown that candid discussion of complex problems by labor and man-
agement frequently results in their peaceful resolution with attendant
benefits to both sides. E.g., NLRB v. Longshoremen, 473 U.S. 61
(1985). As Professor Archibald Cox stated in his classic article, The
Duty to Bargain in Good Faith: “Participation in [collective bargain-
ing] often produces changes in a seemingly fixed position either be-
cause new facts are brought to light or because the strengths and weak-
nesses of the several arguments become apparent. Sometimes the par-
ties hit upon some novel compromise of an issue which has been
thrashed over and over. Much is gained even by giving each side a
better picture of the strength of the other's convictions.” 71 Harv. L.
Rev. 1401, 1402 (1958).
Our dissenting colleague’s position thus fails to recognize the risk of
violence in failing to submit disputes between employers and unions to
the collective-bargaining process. See Philip Taft and Philip Ross,
American Labor Violence: Its Causes, Character, and Outcome, in The
History of Violence in America, a Report to the National Commission
on the Causes and Prevention of Violence 281 (1969). This study found
that historically acts of labor violence were caused by the “attitudes
taken by labor and management in response to unresolved disputes” (id.
at 380–381), but that the incidence and severity of violence had been
sharply reduced as a result of the passage of the National Labor Rela-
tions Act. “A fundamental purpose of the national labor policy, first
enunciated by the Wagner Act and confirmed by its subsequent
amendments in the Taft-Hartley and Landrum-Griffin Acts, was the
substitution of orderly procedures for trials of combat. . . . Because
employer refusal to meet and deal with unions was the major cause of
past violent labor strikes, the effective enforcement of the Wagner Act
reduced sharply the number of such encounters. This diminution of
labor violence was not a temporary phenomenon but endured the strains
of major and minor wars, a number of business cycles, and substantial
changes in national and local political administrations.” Id. at 378–379.
The authors concluded that, “the sharp decline in the level of industrial
violence is one of the great achievements of the National Labor Rela-
tions Board.” Id. at 385.
9 We also have no basis for assuming that the Union would do oth-
erwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
Union’s right to the information it requested with the
Respondent’s expressed confidentiality concerns in ac-
cord with the Detroit Edison test and in light of proposals
made during bargaining, and we shall make a final de-
termination whether the Respondent has fulfilled its
statutory obligation. We believe, however, that first al-
lowing the parties an opportunity to adjust their differ-
ences best effectuates the Act’s policy of encouraging the
resolution of disputes between employees and employers
through collective bargaining.
ORDER
The National Labor Relations Board orders that the
Respondent, Metropolitan Edison Company, Middle-
town, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Union in
an attempt to reach an accommodation of interests in
response to the Union’s request for relevant information
that the Respondent considers confidential.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain in good faith with the Union regarding its
request for the names of informants, which information
is relevant to the Union’s administration of the nondis-
crimination provision of the parties’ contract, and there-
after comply with any agreement reached through such
bargaining.
(b) Within 14 days after service by the Region, post at
its facility at the Three Mile Island Nuclear Generating
Station in Middletown, Pennsylvania, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 28,
1993.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER BRAME, dissenting.
Today the Board sets a new and unfortunate precedent
by requiring an employer to bargain with a union to
achieve an “accommodation” over its refusal to reveal
the names of informants who provided information about
employee misconduct under a pledge of confidentiality.
My colleagues do this even though the employer did not
rely on the information supplied in discharging an em-
ployee for theft, but instead used independent evidence
gathered during a subsequent investigation. They do this
even though the Respondent furnished the Union both all
the information assembled in its security investigation
resulting in the discharge, and the statement given by its
only direct informant, withholding as promised only his
or her identity.1 More important, they do this even
though, when an employer has previously refused to turn
over informants’ names to a union, the Board has found a
violation of Section 8(a)(5) and (1) only to the extent the
employer failed to provide a “summary” of the infor-
mants’ report without revealing anything that would be-
tray informants’ identities.2 By today’s ill-considered
decision, the majority has upset another settled area of
law, forcing employers to guess at required accommoda-
tion and to choose between employee safety and accept-
ing leads regarding illegal in-plant activity. I dissent.
I.
The Respondent operates the Three-Mile Island Nu-
clear Generating Station where the Union represents
about 385 production, maintenance, and distribution em-
ployees. On or about December 11, 1992, an employee,
“John Doe I,” told one of the Respondent’s security
agents that another individual, “John Doe II,” had alleged
that employee Ned Eppinger was removing food from
the Respondent’s cafeteria without paying for it. John
Doe I asked the agent to conceal the identity of both John
Does and the agent replied that he would do so “if at all
possible.”3
In response to this tip, the Respondent’s security
agents conducted surveillance of Eppinger for 8 days in
1 In addition, the Respondent provided, at the Union’s request, cop-
ies of all records relating to discipline for theft both by employees in
the bargaining unit and by those outside. The record thus utterly belies
the majority’s statement that, “the Respondent made no effort to bar-
gain to accommodate the Union’s interest in seeking relevant informa-
tion.”
2 See Pennsylvania Power Co., 301 NLRB 1104, 1107–1108 (1991);
Mobil Oil Corp., 303 NLRB 780, 781 (1991).
3 The Respondent’s security agent in charge of the Eppinger investi-
gation, Brian Frantz, credibly testified that the Company’s practice is to
grant requests for anonymity by informants unless they are to be called
as witnesses.
METROPOLITAN EDISON CO. 111
December. During this time, as reflected in the com-
pany’s investigation report, the Respondent’s agent or
agents observed Eppinger taking food from the cafeteria
without paying for it. As a result of these observations,
the Respondent suspended Eppinger on December 29,
1992, and terminated him on January 4, 1993.4 At the
time of his discharge, Eppinger was a member of the
union executive board and chairman of the union safety
committee.
On about January 5, the Union filed a grievance over
Eppinger’s discharge. The grievance stated that the Re-
spondent was in violation of article 9 of the collective-
bargaining agreement and “any other [article] pertinent to
this grievance.” Article 9 provides for a grievance pro-
cedure and arbitration. It defines a grievance as “a viola-
tion of the law governing [the] employer-employee rela-
tionship, or a violation of the terms of this agreement, or
any type of supervisory conduct which unjustly causes
any employee to lose his/her job or any benefits arising
out of his/her job.” Article 2, entitled “Employer-
Employee Relationship,” provides that the Respondent
will not discriminate against union members, and that the
Respondent may discipline and discharge employees for
“proper cause.”
Union President John O’Donnell made written and oral
requests to Richard Kulp, Respondent’s administrator of
human resources, for a copy of the security investigation
report used to terminate Eppinger, and subsequently
made an oral request for the names of the informants.
The written request stated that the Union required the
report in order to determine whether or not to pursue the
grievance under article 9 and “to further police” the
agreement. In reply, the Respondent provided the Union
with a copy of the investigation report, which did not
reveal the identities of the informants but contained all of
the information submitted by John Doe I, as well as the
observations of the Respondent’s security agents who
conducted the surveillance and the transcript of an inter-
view of Eppinger by management representatives. On
May 21, the Union made an additional request for infor-
mation relating to the Eppinger grievance, including cop-
ies of all records involving disciplinary actions for theft
by bargaining unit and nonbargaining unit employees.
The Respondent provided the Union with this informa-
tion.
In the third-step grievance meeting, O’Donnell re-
peated his request for the names of the informants and
stated that “innocent people are being blamed for turning
[the information] in.”5 Employee Relations Manager
Edmund Zubey replied that the Respondent does not re-
lease the names of informants. O’Donnell asserted that

4 All dates hereafter are in 1993 unless otherwise noted.
5 According to the Union’s minutes of the meeting, O’Donnell de-
clared he wanted the informants’ names because “[p]eople all over the
Island are being blamed for turning Ned in.”
theft of food was widespread in the Company, that Ep-
pinger should have received graduated discipline, and
that he had been “set up.” O’Donnell added that a man-
agement representative had told him that the Respondent
fully intended to watch Eppinger in an attempt to get
something on him.6 The parties settled the grievance
prior to arbitration and converted Eppinger’s termination
to a resignation.
At the unfair labor practice hearing, O’Donnell testi-
fied that he needed the names of the informants, because
the Union believed that Eppinger was singled out for his
union activities and, on cross-examination, added that he
asked for the information to “clear people’s names” and
that employees were distracted from work because of the
issue. O’Donnell stated:

Our need was to clear individuals and get to who
the informants were, and get back to work and work
safely, instead of worrying about who the informants
were.
My mind was on safety and employee safety and
not on running around and blaming each other for
turning this individual in.
II.
The judge found that the informants’ names could be
relevant to the Union’s concern that the Respondent may
have discriminatorily engaged in surveillance of Ep-
pinger because of his union activity. The judge noted,
however, that in Pennsylvania Power & Light Co., supra,
the Board found that the Employer’s claim of confidenti-
ality outweighed the union’s interest in the names of in-
formants. In that case, which I discuss in detail below,
informants provided information that prompted the em-
ployer to conduct drug tests of some employees and to
discharge some of those who tested positive. The judge
found that, under Pennsylvania Power, the identity of
informants, even though relevant, may be kept secret
when the matter about which they are informing poses a
threat to safety in the workplace or to the public, and
revealing their identity would deter them from informing
and potentially subject them to harassment. But he rea-
soned that releasing the names of informants providing
tips about workplace theft does not involve the same
serious public and employee safety considerations as
releasing the names of informants providing tips about
illegal drug use.
The judge further observed that the Board has held that
an employer has the duty to disclose the identity of wit-
nesses to an incident for which an employee was disci-
plined, and that it may be required to reveal their identi-
ties prior to a grievance hearing, when “the potential to
6 O’Donnell also asserted that several years before, two senior com-
pany officials had assured him that surveillance or investigations would
not be conducted based on tips provided by informants without estab-
lishing the informant’s credibility beforehand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
sabotage the process is then at its zenith.”7 He reasoned
that, as an employer is required to provide the names of
such witnesses to an event prior to a grievance hearing
despite the possibility of intimidation, then a union
should have access to the names of informants whose
testimony the employer will not need but “whose identity
may prove useful to the union for other purposes.” Ac-
cordingly, the judge found unlawful the Respondent’s
refusal to furnish the names of its informants to the Un-
ion, and ordered it to do so.
III.
My colleagues agree with the judge that the identities
of the informants were relevant and necessary for proc-
essing Eppinger’s grievance. The majority, however,
explicitly disavows the judge’s finding that the Respon-
dent’s confidentiality claim is not legitimate or substan-
tial, because, rather than drug use or other conduct im-
pacting public or employee safety, this case involves
furnishing of information about workplace theft. Indeed,
they assume that, “the Respondent has asserted a legiti-
mate and substantial confidentiality interest here.” Nev-
ertheless, they further find that, “the confidentiality inter-
est was not so substantial as to justify the Respondent’s
blanket refusal to provide any information in response to
the request for informants’ names.” They conclude that,
under the circumstances of this case, the Respondent has
“an obligation to come forward with some offer to ac-
commodate both its concerns and the Union’s legitimate
needs for relevant information,” citing U.S. Testing Co.,
Inc. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998).
More particularly, my colleagues reason that there nei-
ther is nor should be a “blanket exemption from bargain-
ing over an accommodation” to protect informants’
names from disclosure; that, although the employer has a
“legitimate and substantial confidentiality interest in pro-
tecting the identities of informants about workplace
theft,” the interest does not carry “the same ‘unusually
great weight’ as the interests that were found to be pre-
sent in Pennsylvania Power and Mobil Oil,” and thus that
a greater accommodation of employer and employee
rights is dictated here; that there is a “latent possibility of
retaliation against informants whose information leads to
the investigation and discharge of an employee,” but that
this is indeed only a “possibility,” unsupported by the
record, and that there is “a specific concern about dis-
crimination against a union steward.”8
IV.
As part of the duty to bargain in good faith imposed by
Section 8(a)(5), an employer must, on request, provide a
union with information that is potentially relevant to its

7 See fn. 19, infra, distinguishing cases the judge relied on.
8 In this connection, the majority argues that, unlike in Pennsylvania
Power or Mobil, the issue is not so much the substance of the inform-
ers’ statements but the reason “why” they offered information at all,
suggesting pretext for discrimination may be the real issue.
duty of representation, including information related to
grievances. NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967).9 A union’s right to relevant information,
however, is not unlimited and must be balanced against
competing employer interests, including legitimate con-
fidentiality interests. In Detroit Edison Co. v. NLRB, 440
U.S. 301, 315 (1979), remanded and enf. denied in rele-
vant part 595 F.2d 365 (6th Cir. 1979), a union sought
information to support a grievance challenging personnel
decisions based on employment aptitude tests. The
Court held that an employer did not violate the duty to
bargain in good faith by refusing to disclose to the union
the identities of individual employees matched with
scores received on the tests. In so finding, the Court
noted that “[t]he sensitivity of any human being to dis-
closure of information that may be taken to bear on his or
her basic competence is sufficiently well known to be an
appropriate subject of judicial notice.”10 Id. at 318.
The Board also has specifically found that confidenti-
ality concerns may prevail and recognized that the re-
lease of the names and addresses of informants, though
relevant, may lead to their harassment and have a chilling
effect on future informants. In Pennsylvania Power,
supra, the employer implemented a rule providing that an
employee could be sent to a physician for blood and
urine testing if there was a “suspicion” of illegal drug
use. Prompted by informants’ tips, the employer ordered
tests for 16 employees and discharged 5 who tested posi-
tive. In connection with grievance proceedings on behalf
of the dischargees, the union requested the informants’
names and addresses to discover whether there was a
legitimate basis for the suspicion that triggered the tests
and the discharges. The employer responded that it had
promised the informants that it would keep their names
confidential. The Board found the information relevant,
as tests might have been ordered based on tips motivated
by “personal animus” or other “specious motivation.” Id.
at 1106. Nevertheless, the Board held that

in investigations of this kind of criminal activity, a po-
tential for harassment of informants, with a concomi-
9 The standard for relevancy is a liberal “discovery-type” standard.
Id. An employer must provide information relevant to the “evaluation
or processing of a grievance,” NLRB v. U.S. Postal Service, 888 F.2d
1568, 1570 (11th Cir. 1989), and “requested information should be
deemed relevant if it is likely to be of material assistance in evaluating
strategies that may be open to the union as part of its struggle to mini-
mize the adverse effects of the employer’s decisionmaking process on
persons within the bargaining unit.” Providence Hospital v. NLRB, 93
F.3d 1012, 1017 (1st Cir. 1996). Information concerning employees
within the bargaining unit is presumptively relevant. NLRB v. U.S.
Postal Service, supra at 1570 (citing NLRB v. Rockwell-Standard
Corp., 410 F.2d 953 (6th Cir. 1969).
10 The Court also found that the employer was not required to pro-
vide copies of the test battery and answer sheets. It found that the
strong public policy against disclosure of employment aptitude tests
and the employer’s interest in preserving employee confidence in the
testing program outweighed the union’s interest in the information. Id.
at 312–317.
METROPOLITAN EDISON CO. 113
tant chilling effect on future informants, it is suffi-
ciently likely that the Respondent has a legitimate in-
terest in keeping the informants’ identities confidential
and that this confidentiality interest outweighs the Un-
ion’s need for the informants’ names and addresses.

Id. at 1107.11 Accordingly, the Board ordered that the Re-
spondent provide summaries of the informants’ statements
but not the statements themselves or the informants’ names
and addresses.
Likewise, in Mobil Oil Corp., 303 NLRB 780, supra,
the Board found that the employer’s confidentiality in-
terest prevailed in similar circumstances. There, the
Board considered whether, in the context of a grievance
proceeding, the employer unlawfully refused the union’s
request for the identity of the person who provided in-
formation that led to the mandatory drug screening of
three employees. The Union asserted that the infor-
mant’s name was necessary to determine whether “rea-
sonable cause” existed to institute the screening proce-
dure, and the Board acknowledged the relevance of the
request. As in Pennsylvania Power, however, the Board
found that the employer lawfully refused to disclose the
name of the person who reported drug use by the em-
ployees but unlawfully failed to provide a summary of
the informant’s report. The Board found that the em-
ployer was not required to show evidence of past retalia-
tion against employees who reported misconduct and that
the employer’s pledge of confidentiality to its informant
was “reasonable in light of the general potential for re-
taliation against informants in the investigation of crimi-
nal drug use.”12
Consistent with Pennsylvania Power and Mobil Oil, I
would find that the Union’s request for the informants’
names satisfies the test for determining potential rele-
vance, as one reason offered to support the request was
that Eppinger had been “set up” or “singled out,” based
on union activity.13 But I also find that the Respondent
has advanced a legitimate and substantial interest in
maintaining the confidentiality of the informants’ names.
I disagree with my colleagues that, unlike in Pennsyl-
vania Power, the Respondent’s confidentiality interest in
the names of informants providing tips is not so substan-
tial as to justify a blanket refusal to provide the informa-
tion. I conclude that the Court’s decision in Detroit Edi-

11 See also Roger J. Au & Son v. NLRB, 538 F.2d 80, 83 (3d Cir.
1976) (in labor litigation, informants “are especially likely to be inhib-
ited by fear of the employer’s or—in some cases—the union’s capacity
for reprisal and harassment”), cited favorably by the Board in Pennsyl-
vania Power, 301 NLRB at 1107.
12 Id. at 781. See also U.S. Postal Service, 305 NLRB 997 (1991)
(employer lawfully refused to provide noneyewitness opinions, com-
ments, and recommendations contained in investigatory file, notwith-
standing union request for information for use in connection with em-
ployee surveillance).
13 I note, however, that the Union failed to file an NLRB charge on
this basis.
son and the Board’s decisions in Pennsylvania Power
and Mobil Oil support a finding that an employer’s inter-
est in preventing theft in the workplace and in maintain-
ing confidentiality to avoid the potential for retaliation
against or harassment of informants outweighs a union’s
interest in obtaining their identities, or in forcing an em-
ployer to bargain over an “accommodation” that may
have the effect of disclosure.
The confidentiality interest here is at least as strong, if
not stronger, than that found in Detroit Edison. In that
case, the confidentiality interest concerned the protection
of employees from “embarrassment” resulting from the
release of individual aptitude test scores14 and the protec-
tion of the integrity of the employer’s aptitude testing
program from compromise that might ensue from releas-
ing test battery and answer sheets. In this case, the con-
fidentiality interest is to protect the identity and safety of
the informants, as well as the employer’s access to in-
formation about employees’ unlawful workplace conduct
and his right to investigate and, if necessary, discipline or
discharge an employee for subsequent misbehavior.
Protecting the confidentiality of the informants’ names
conforms to Board precedent, as exemplified in Pennsyl-
vania Power and Mobil Oil. In both cases, the Board
found that confidentiality concerns prevailed and that the
employers were not required to provide the names of
informants. In both cases, the Board ordered that the
Respondent provide summaries of the informants’ state-
ments. Here, the Respondent provided the Union with a
copy of the security agents’ report, which included all the
information submitted by John Doe I and the security
agents’ subsequent observations of lunchroom conduct,
and the transcript of an interview with Eppinger. It also
supplied copies of all records involving disciplinary ac-
tions for theft by bargaining unit and nonbargaining unit
employees. Thus, the Respondent has provided as much
or more information than the Board required the employ-
ers to provide in Pennsylvania Power and Mobil Oil.15
14 The Court also noted that, “the Company presented evidence that
disclosure of individual scores had in the past resulted in the harass-
ment of some lower scoring employees who had, as a result, left the
Company.” 440 U.S. at 319.
15 Moreover, the request for information apparently is moot because
the parties settled Eppinger’s grievance, which appeared to encompass
the allegation that the Respondent retaliated against Eppinger because
of his union activity as well as the allegation that it discharged him
without cause. The grievance alleged that the Respondent violated art.
9 and “any other” article of the collective-bargaining agreement. Art. 2
provides that the Respondent will not discriminate against union mem-
bers but may discipline and discharge them for proper cause. Thus, the
settlement appears to have covered both allegations. Contrary to the
judge, I find that Westinghouse Electric Corp., 304 NLRB 703, 708–
709 (1991), and U.S. Postal Service, 307 NLRB 429 fn. 2 (1992), do
not support the conclusion that the request for the informants’ names in
this case should not be considered moot. In Westinghouse Electric
Corp., the judge did not include in the remedy an order that the em-
ployer provide the information requested because the information had
“no current relevancy” to the purpose motivating the union’s request,
i.e., processing the grievance. The judge noted that an arbitrator had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
To order further accommodation would serve no purpose
other than to risk compromise of the informants’ identi-
ties.
That those cases involved drug use should not change
the result in this case. In both drug cases and nondrug
cases, the employer has disciplined or discharged an em-
ployee for illegal workplace conduct at issue and, thus, in
both, the informant faces the danger of retaliation and
harassment. My colleagues state that they “do not agree
with the judge that a confidentiality claim is not legiti-
mate or substantial when it involves informants about
workplace theft rather than drug use or other conduct
impacting public or employee safety.” Rather, they as-
sume that the Respondent “has asserted a legitimate and
substantial confidentiality interest here.”
Nonetheless, my colleagues aver that accommodation
bargaining is necessary because “concerns about petty
cafeteria theft” do not “pose[] [an] apparent threat to
employee or public safety” and do not implicate national
drug control policy. The fact is that engaging in any ac-
tivity that is contrary to law, such as theft, bears on an
employee’s character and fitness for continued service.
It would take the wisdom of Solomon and the time of the
ages for the Board, on a case-by-case basis, to attempt to
grade and classify all potential forms of employee mis-
conduct and to determine how the gravity of the offense
ranks in the majority’s subjective scale of various legiti-
mate interests. Moreover, there is no correlation between
the majority’s perceptions of the nature of the miscon-
duct and the potential peril to an informer. When the
informant gives up information that results in an em-
ployee’s dismissal, it does not matter if the discharge is
because of workplace theft or drug use. The employee’s
job is lost just the same and the resentment of fellow
employees toward the informer is likely to be just as
great. Yet my colleagues insist that retaliation is a mere
“possibility,” and that the record is not strong enough to
suggest its likelihood. Not only is it reasonable to take
administrative or judicial notice of the serious potential
for harassment, intimidation, and retaliation,16 as the De-

issued a grievance award and that the arbitrator was without the power
to reopen the grievance. In U.S. Postal Service, the Board found that,
unlike in Westinghouse Electric Corp., the employer had not shown
that the “only possible relevance of the information was in connection
with a proceeding to reopen the arbitration, and the arbitrator then was
completely without authority to reopen such record.” Id. at fn. 2. I
agree with the judge in Westinghouse Electric Corp. that the Board
should not order a party to provide information that has no current
relevancy to the purpose of the information request. The Board’s deci-
sion in U.S. Postal Service may be distinguished because there is suffi-
cient evidence in this case to support the conclusion that the informa-
tion requested is not currently relevant based on the grievance settle-
ment.
16 Unfortunately, labor violence is a fact of life. A recent study
documents this fact. Armand J. Thieblot, et al., Union Violence: The
Record and the Response by Courts, Legislatures, and the NLRB
(1999). The study largely focuses on violence occurring in the context
of strike situations. The parallel, however, is obvious, since much
troit Edison Court did with regard to the likelihood of
employees’ embarrassment if job aptitude test results
were made known, but the record here contains ample
affirmative evidence of such danger.
In the third-step grievance meeting, Union President
O’Donnell stated that “innocent people are being blamed
for turning [the information] in.” At the hearing,
O’Donnell testified that he asked for the informants’
names to “clear people’s names,” and because employees
were distracted from work because of the issue.
O’Donnell further testified of the Union’s “need” to “get
to who the informants were” so that employees could
resume safe work practices and stop “running around
and blaming each other for turning this individual in.”
[Emphasis added.] If feelings were running so high in
the facility against the informants that, according to the
Union, work was disrupted and work safety jeopardized,
the peril to the informants if their identities became
known is palpable.
An incident at the James River papermill in Green
Bay, Wisconsin, in November 199217 discloses the poten-
tial danger with which employers must deal, given the
new and unnecessary uncertainty injected by the major-
ity. There an informer reported to the local police a pat-
tern of industrial theft of extension cords. The police
passed the tip to the employer, who, thus armed, appre-
hended the thief in a subsequent event. A freedom-of-
information request to the police obtained the tape of the
telephone call, a fellow worker identified the caller from
his voice, and the caller’s body was later found in the
plant’s pulping vat, bound with weights. Members of the
union plant committee were indicted and convicted of
murdering the informant.18
Even without record evidence of risk to informers’
safety, such as that present here, it makes no sense to
adopt a rule that requires litigating how “likely” retalia-
tion may be on the plant floor. Obviously, individuals
and organizations planning to commit harassment or vio-
lence will often be close-mouthed about their intentions,
and actions taken pursuant to such intentions may be-
come known only too late—when the informer’s body is
found. Instead, as stated, resentment against an informer
and the likelihood of harassment or reprisal is a fit sub-
ject for administrative notice based on common sense.
The interest in maintaining the confidentiality of in-
formants’ names is a strong one, and the danger of re-

strike and picket line misconduct stems from the resentment that work-
ers will be deprived of employment by replacements. Similar resent-
ment may arise where the conduct of one employee leads to another’s
loss of his livelihood.
17 Anne Klemm, 2 Convicted Claim Wiener Killed Monfils, Green
Bay Press Gazette, Feb. 8, 1997; Mill Workers Sentenced in Green Bay
Murder, Papermaker, March 1996.
18 It is little less than ludicrous for my colleagues to suggest that this
testimony shows “the Union’s members were concerned about who the
informants were,” but that “this is far from a desire to harass or retaliate
against the informants.”
METROPOLITAN EDISON CO. 115
taliation and harassment substantial. The Board should
properly hold that the duty to provide information does
not include a duty to provide the names of informants
when the employer does not rely on their information in
imposing discipline, and that no further accommodation
is required when the employer furnishes at least a sum-
mary of the information provided.19 This conclusion is
consistent with Pennsylvania Power and Mobil Oil, in
which the Board found that the employers had the duty to
provide summaries of informants’ statements but not
informants’ names and addresses.20
By holding that an employer must negotiate with the
union regarding the identity of an informer, whom the
employer both promised to protect from disclosure and
did in fact attempt to do so by declining to use the re-
ported incident as grounds for discipline, the majority
risks putting the cautious employer in the position of
ignoring confidential reports of even criminal activity as
the cost of protecting the identity and safety of the in-
formant. My colleagues also claim that an accommoda-
tion is necessary here, unlike in Pennsylvania Power and
Mobil Oil, because “the Union has a specific concern
about discrimination against a union steward,” an interest
implicating the contract and national labor policy. In
Pennsylvania Power, however, as noted, the Board ac-
knowledged that informants’ tips relating to individual
employees behavior could be based on “personal animus
or other specious motivation,” but refused to order dis-
closure of the informants’ identities or “accommodation
bargaining.” Moreover, as a factual matter, the best evi-
dence of the truth of the Union’s assertion lay within its
own grasp. Since O’Donnell stated that a “management
representative” had told him the company was going to
watch Eppinger to get something on him, O’Donnell

19 Witnesses to the event for which discipline is imposed can rea-
sonably expect to be called on to tell what they observed and to have
their identities made known. Informants, on the other hand, do not
have the same expectation, because they merely provide information
that will serve as the basis for an investigation. Any action taken will
depend on facts arising thereafter and witnessed by others. Thus, the
judge here erroneously relied on cases that are distinguishable because
they involved witnesses to the events for which discipline was imposed.
See New England Telephone Co., 309 NLRB 196 (1992) (names of
witnesses to incident for which employee was discharged); Resorts
International Hotel, 307 NLRB 1437, 1438 (1992), enfd. 996 F.2d
1553 (3d Cir. 1993) (names of guests whose complaints served as basis
of discharge); Anheuser-Busch, Inc., 237 NLRB 982, 984 fn. 2 (1978)
(holding that witness statements need not be provided but noting that
witness names must be); and Transport of New Jersey, 233 NLRB 694,
695 (1977) (names of witnesses to accident).
20 Contrary to the majority, a blanket protection for informers is not
inconsistent with the principle that the presence of a duty to supply
information pivots on “’the circumstances of the particular case,’”
Detroit Edison, supra, 440 U.S. at 314, quoting NLRB v. Truitt Mfg.
Co., 351 U.S.149, 153 (1956). Rather, it is a recognition of a recurring
factual pattern that should give rise to the same result in each case in
which it appears. It is no different from holding in a future case that,
under Detroit Edison, the names and associated scores of employment
aptitude test takers should not be released where a test is involved that
is different from that at issue in Detroit Edison itself.
could have testified to that as fact in an arbitration pro-
ceeding and the Union could have subpoenaed the indi-
vidual in question.
An employee contemplating whether to provide confi-
dential information should not be required to attempt to
predict how the Board will apply its subjective balancing
test relating to disclosure of information, under which the
party advancing a confidentiality defense bears the bur-
den of proof,21 nor what result negotiations over “ac-
commodation” will deliver. Such a rule will have a chill-
ing effect on informants and employees. An employer,
recognizing that informants generally will want assur-
ances of confidentiality and protection, should be able to
protect the names of informants who will not be called to
testify regarding the misconduct for which discipline has
been imposed. It cannot do so if the Board determines
after the fact that unspecified further accommodation is
required,22 accommodation that may inadvertently pro-
vide clues that could reveal the informant’s identity and
jeopardize his or her safety. Similarly, a union should
not be required to provide the employer with information
that could lead to the identification of informants against
an employer. Accordingly, I strongly dissent.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain in good faith with the
Electrical Workers System Council U-9, Local 563,
AFL–CIO, in an attempt to reach an accommodation of
interests in response to the Union’s request for relevant
information that we consider confidential.
21 E.g., Mary Thompson Hospital v. NLRB, 943 F.2d 741, 747 (7th
Cir. 1991) (burden on party asserting confidentiality defense).
22 My colleagues state that they have more confidence than I that
“the Respondent will take all steps necessary to ensure that any ac-
commodation reached as a result of bargaining will not place the in-
formants at risk of retaliation and harassment.” The fact is the majority
has already deprived the Respondent of the unilateral ability to take
such steps, and left it without guidance as to how much further it must
go to satisfy the Union and the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union regard-
ing its request for the names of informants, which infor-
mation is relevant to the Union’s administration of the
nondiscrimination provision of the parties’ contract, and
WE WILL comply with any agreement reached through
such bargaining.

METROPOLITAN EDISON COMPANY

Linda Carlozzi, Esq., for the General Counsel.
Larry J. Rappoport, Esq. (Stevens & Lee), of Wayne, Pennsyl-
vania, for the Respondent.
Charles T. Joyce, Esq. (Spear, Wilderman, Borish, Endy, Spear
& Runckel), of Philadelphia, Pennsylvania, for the Charging
Party.
DECISION
BERNARD RIES, Administrative Law Judge. This case was
tried on July 13, 1994, in Philadelphia, Pennsylvania. The
issue presented is whether Respondent violated Section 8(a)(5)
of the Act by refusing to identify the informants whose infor-
mation ultimately led to the discharge of an employee. Re-
spondent’s answer to the complaint denies the material allega-
tions, but does not question the assertion of Board jurisdiction
in this case or the claim that the Charging Party (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
Briefs were filed by the General Counsel, the Charging
Party, and the Respondent on or about September 20, 1994.1
Having reviewed the record and the briefs, and taking into ac-
count my recollection of the demeanor of the witnesses, I make
the following findings of fact,2 conclusions of law, and recom-
mendations.
I. THE RELEVANT FACTS
The Union represents some 385 Metropolitan Edison em-
ployees who work at the Three Mile Island Nuclear Generating
Station in Middletown, Pennsylvania. At the hearing, the par-
ties entered into the following stipulation:

1. On or about December 11, 1992, an employee iden-
tified as “John Doe I” told officials of the Respondent’s
Security Department that another informant, known as
“John Doe II,” had alleged that employee Ned Eppinger
was removing food items from the Respondent’s Three
Mile Island North Office Building Cafeteria without pay-
ing for them.
2. On the afternoon of December 11, 1992, in response
to this tip, two security investigators of the Respondent es-
tablished a surveillance of Eppinger in the Cafeteria.
3. The Employer conducted its surveillance during 8
days in December 1992, during which time, according to
the Respondent’s Investigation Report, Eppinger was ob-

1 At the same time, Respondent filed a motion to reopen the record,
and the General Counsel and the Charging Party filed oppositions
thereto. On September 29, I issued an order denying the motion.
2 By motion dated September 20, 1994, the parties jointly moved to
correct the transcript in certain respects. The motion is granted, and
certain errors in the transcript are noted and corrected.
served taking approximately $5.00 worth of food items
from the fast food service line without paying for them.
On December 29, 1992, as a result of these observations,
Respondent suspended Ned Eppinger and on January 4,
1993, Eppinger was terminated by Respondent. The Re-
spondent established this surveillance based upon the in-
formation received from the informant(s).
4. On or about January 5, 1993, the Union filed a
grievance regarding Eppinger’s discharge. Union Presi-
dent John O’Donnell made a written and oral request to
Richard Kulp, Administrator of Human Resources, for a
copy of the “complete unexpurgated security investigation
report” used to terminate Eppinger, and subsequently
made an oral request for the names of informants relied
upon by the Respondent to conduct the surveillance inves-
tigation of Eppinger.
5. The Company provided the Union with a copy of
the security investigation report that did not reveal the
identities of either informant John Doe I or John Doe II.
The security investigation report contains the observations
of Respondent’s Security Agents who conducted the sur-
veillance of Eppinger and the transcript of an interview
conducted with Eppinger by Security Agent Brian Frantz,
Site Protection Supervisor Richard Richard [sic] Goodrich,
Plant Material Director Richard Harper and Human Re-
sources Administrator Richard Kulp.
6. The Union does not independently know the identity
of John Doe I or John Doe II.
7. On May 21, 1993, the Union through the Chairman
of its System Council, Joseph W. Parks, made an addi-
tional request for information relating to the Eppinger
grievance and specifically copies of all records of discipli-
nary action for theft by bargaining unit and non-bargaining
unit employees. The information requested was furnished
by the Respondent.
8. The collective bargaining agreement between the
parties relevant to the instant case was effective from May
1, 1991, until April 30, 1994, pursuant to which Respon-
dent has recognized the Union as the exclusive bargaining
representative of the Respondent’s production and mainte-
nance employees employed at the Three Mile Island Nu-
clear Generating Station, the facility involved in this case.
9. The Agreement provides at Article 9.2 for final and
binding arbitration. A grievance is defined as a violation
of the law governing employer-employee relationship
[sic], or a violation of the terms of this agreement, or any
type of supervisory conduct which unjustly causes any
employee to lose his/her job or benefits arising out of
his/her job.
10. The Agreement provides at Article 2.1 that the Re-
spondent can discipline and discharge employees for
“proper cause.” Article 2.2 of the Agreement provides
that Respondent and its agents will not discriminate in any
manner whatsoever against any member of the Union be-
cause of membership and activity in the Union.
11. Nothing in this stipulation shall preclude the par-
ties from adding to or supplementing the evidence pre-
sented herein.

Having grieved Eppinger’s termination, the Union processed
the grievance to arbitration, which was scheduled for December
7, 1993. According to the Union, however, because Eppinger
METROPOLITAN EDISON CO. 117
had been unable to secure employment after his termination, a
settlement of the grievance was reached in October which con-
verted Eppinger’s termination to a resignation.
Eppinger served as a member of the union executive board
and also was chairman of the union safety committee, both for
a 4-year period probably preceding his termination. His safety
committee role was to see that violations were corrected. In
doing so, Union President O’Donnell testified, Eppinger would
speak to supervisors and the safety director about questionable
situations, and once told a foreman to “stop a job” in inclement
weather. O’Donnell further testified that “approximately
within one year” of Eppinger’s termination, Supervisor Natale
asked O’Donnell to talk to Eppinger “about how he conducted
himself as Safety Chairman.”
At the instant hearing, Union President O’Donnell first testi-
fied that he needed the names of the Eppinger informants be-
cause the Union believed from the beginning that Eppinger
“was singled out for his Union activities, and that the names of
the individuals John Doe I and John Doe II were very relevant
in order for us to prove our case that he was singled out for
being a staunch safety man and a union officer.” He said that
he envisioned questioning the informants about the circum-
stances leading to the surveillance of Eppinger, and about
whether they had identified to management other alleged
thieves who, unlike Eppinger, were not made the subject of
surveillance.3
On cross-examination, however, O’Donnell testified that he
had asked for the information “to clear people’s names,” men-
tioning that workers’ safety and public safety were “a major
concern” (the employees’ minds “were turned to who turned in
Eppinger”). “Our need,” he stated, “was to clear individuals
and get to who the informants were, and get back to work and
work safely, instead of worrying about who the informants
were.” Four transcript pages later, however, O’Donnell re-
verted to saying that “part of the reason” for wanting the infor-
mation was to determine whether Eppinger had been singled
out because of his union activities.
The record contains copies of notes made by a company rep-
resentative (G.C. Exh. 10) and a union representative (G.C.
Exh. 11) at the third-step grievance meeting. The General
Counsel Exhibit 10, a more comprehensive set of notes than
General Counsel 11, shows that O’Donnell, in adverting to his
outstanding request for the names of the informants, had the
following exchange with Employee Relations Manager Zubey:

O’DONNELL: I asked you for a copy of the names as-
sociated referred to [sic] in the report as John Doe I and
John Doe II, and you did not produce that. We are in the
process of following up on that request. What is occurring
because you will not release those names is innocent peo-
ple are being blamed for turning that [sic] in.
ZUBEY: How can people come to you to clear their
names? O’Donnell: Accusations are being made. Since I
don’t know the identity of John Doe I and John Doe II, I
can’t clear their names.
ZUBEY: This Company has never released the names
of informants, and we are not about to start doing so.
O’DONNELL: We will see about that. The severity of
this discipline is much too severe. I understand the need

3 The Union did not file an unfair labor practice charge regarding
Eppinger’s discharge.
to do something. I told you before I have seen people eat
french fries while they are waiting in line.

Subsequently, O’Donnell said at the meeting that Respon-
dent had “set [Eppinger] up,” and Union Representative Leahy
argued, “By not stopping him after that first time, you were
really condoning this. You knew he was stealing, but you did
nothing to stop him. That doesn’t make any sense.” O’Donnell
thereafter went on to say that the Company had a long history
of “not terminating people with clean records for minor theft.”
The parties disputed two such cases mentioned by O’Donnell.
O’Donnell then asserted that the theft of food was widespread
in the Company and that Eppinger should have received gradu-
ated discipline; further, “Ned was set up. Ned made a mistake.
I never said that he did not deserve discipline. . . . A manage-
ment person came to me and said that the Company fully in-
tended to watch Mr. Eppinger in an attempt to get something on
him. I think I know who John Doe I and John Doe II are. It
could be a bargaining unit person and a supervisor who are
related. It could be the same person who told the management
person I spoke to to try and get something on Ned.” Additional
colloquy followed.
O’Donnell testified that in 1986, he had a conversation with
Hukill (then a “Vice President Director” at Three-Mile Island;
now retired) in which Hukill assured him that “based on infor-
mants, or anonymous tips alone, that the Company would not
conduct surveillances or investigations, and that the informant
itself [sic] would have to be credible before an investigation or
a surveillance would be made.” O’Donnell also said that sev-
eral months later, he had a similar conversation with then-
Labor Relations Manager Charles Rippon.
Brian Frantz, the security agent who oversaw the investiga-
tion of Eppinger, testified that the Company has a practice of
honoring requests for anonymity by informants unless the in-
formant is needed as a witness. When John Doe I asked him to
conceal the identify of both John Does, Frantz said that he
would so “if at all possible.” John Doe I told him about Ep-
pinger’s thefts before requesting, and being granted, anonym-
ity.
O’Donnell testified as to two informants who had been iden-
tified to him is the past by Respondent. He said that in the case
of the 1991 termination of employee Nyes, there were two sec-
retaries who might have informed on Nyes, and he had asked
Human Resources Staff Administrator Richard Kulp to name
the guilty one. Kulp allegedly told him it was Becky Siebler.
In subsequent testimony, however, O’Donnell could not “re-
call” whether he had specifically requested this information, but
said that he had been given Siebler’s name by Kulp. Kulp testi-
fied that he did not tell O’Donnell that Siebler had reported on
Nyes, and he believed that the Respondent’s information about
Nyes had come from management or from a supply clerk who
asked management why Nyes was ordering certain goods.4
As for the case of Bob Stone, O’Donnell first said that Re-
spondent had given him the name of the informant upon re-
4 Kulp struck me as a more reliable witness than O’Donnell, and I
would credit him on this conflict. I note that when O’Donnell was
asked at the hearing why he did not refer to the Nyes case when, at the
third step meeting, Zubey stated flatly that the Respondent had never
named informants, O’Donnell was unable to explain his failure to do
so; he also did not mention the alleged precedent in his pretrial affida-
vit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
quest, but ultimately conceded that Respondent had done so
only by mistake.5
II. ANALYSIS OF THE 8(a)(5) ALLEGATION
Included within an employer’s 8(a)(5) bargaining obligation
is the requirement to furnish potentially relevant and useful
information to a collective-bargaining representative; that re-
quirement encompasses supplying information which may be of
use to the union in the arbitral process. NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (7th Cir. 1967). In the latter case, the
Supreme Court described the “discovery-type standard” appli-
cable to grievance information requests: that the Board was
“acting upon the probability that the desired information was
relevant, and that it would be of use to the union in carrying out
its statutory duties and responsibilities.” Id. at 437.6
In a subsequent case, however, the Supreme Court recog-
nized that even though the requested information may be rele-
vant, an employer’s legitimate interest in preserving the confi-
dentiality of that information must be given respect. Detroit
Edison Co. v. NLRB, 440 U.S. 301 (6th Cir. 1979).
Thereafter, in Pennsylvania Power Co., 301 NLRB 1104
(1991), the Board synthesized the two Supreme Court opinions
in a case dealing with a request by a union for the names of,
and information furnished by, informants whose accusations
had led to the drug testing of several employees. The Board
stated (id. at 1105–1106; footnotes omitted):

It is clear from the foregoing that in dealing with union
requests for relevant, but assertedly confidential, informa-
tion, the Board is required to balance a union’s need for
the information against any “legitimate and substantial”
confidentiality interests established by the employer. The
appropriate accommodation necessarily depends on the
particular circumstances of each case. The party asserting
confidentiality has the burden of proof. Legitimate and
substantial confidentiality and privacy claims will be up-
held, but blanket claims of confidentiality will not. Fur-
ther, a party refusing to supply information on confidenti-
ality grounds has a duty to seek an accommodation. Thus,
when a union is entitled to information concerning which
an employer can legitimately claim a partial confidential-
ity interest, the employer must bargain toward an accom-
modation between the union’s information needs and the
employer’s justified interests.

In the present case, in its answer to the complaint, Respon-
dent asserted what clearly amounts to a confidentiality defense
(“The information [requested] could only result in retaliation,
coercion and intimidation of individuals who have been willing
to come forward.”) At the hearing, on cross-examination and
direct examination, Respondent pursued the notion of a confi-
dentiality defense (e.g., Tr. 53, 113). But curiously, near the

5 Further evidence of O’Donnell’s unreliability appears in his testi-
mony at Tr. 63 that in other cases where the Company had refused to
name informants, it had advised him that a promise of confidentiality
had been provided, whereas at Tr. 67, O’Donnell said that there had
been no “other instances where the Company has not provided [him]
with information because they promised to make this information con-
fidential.”
6 The Court cited 4 Moore Federal Practice sec. 26.16[1], 1175–1176
(2d ed.): “Since the matters in dispute between the parties are not as
well determined at discovery examinations as at the trial, courts of
necessity must follow a more liberal standard as to relevancy.”
end of the hearing, counsel for Respondent seemed to agree that
the confidentiality issue was not grounded upon concern about
harassment of the informants, should they be identified (which
would appear to be the only sound basis for asserting a claim of
confidentiality) (Tr. 128–129):

MS. CARLOZZI: [I]s it in fact true that Mr. O’Donnell
did not make any threats toward anybody?
MR. RAPPOPORT: Objection. The posture that threats
by Mr. O’Donnell is [not] the reason this information
wasn’t given. It’s not a defense.
JUDGE RIES: Objection is sustained.
BY MS. CARLOZZI: Mr. Kulp, at that meeting, or at
any other time, you did not have any information that there
was in fact any intimidation, or a threat of intimidation, by
the Union?
MR. RAPPOPORT: Objection.
MS. CARLOZZI: Your Honor, in cross-examination, I’m
entitled to go into this area. If Respondent wants to say—
JUDGE RIES: Respondent is saying on the record that it
is [not] proffering that as a reason for not giving the in-
formation.
MR. JOYCE: Your Honor, just so I’m clear. I thought—
JUDGE RIES: That there was any concern about intimi-
dation.
MR. JOYCE: That’s Respondent’s proffer, and thats
fine.
MS. CARLOZZI: Respondent is saying—
JUDGE RIES: That’s what I heard from the objection,
and he just made it. They are not postulating their defense
on any claim of intimidation, or fear of intimidation.

Although this colloquy began as an objection by Respondent
to questions about actual threatened intimidation of informants
by the Union, it evolved into seeming acquiescence by Respon-
dent in the theory that it was not basing a defense on “concern
about intimidation” or “fear of intimidation.” On brief, counsel
for the General Counsel runs with this apparent concession (Br.
15), while at the same time contending that there is, in any
event, no warrant in the record for a confidentiality defense (Br.
15–17). Respondent’s brief, on the other hand, argues fear of
intimidation in total disregard of the quoted exchange.
I am strongly inclined to believe that counsel for Respondent
did not consciously intend to agree that he was waiving his
confidentiality defense based on “fear of intimidation.” The
discussion quoted above began with an inquiry as to whether
there had been an actual threat by President O’Donnell, which
counsel for Respondent said that he was not alleging, and then,
closely read, took a turn which counsel evidently did not notice.
I shall therefore assume that Respondent continues to proffer
fear of intimidation and reprisal as the reason that it sought to
keep confidential the names of the informants.7
7 Apparently in anticipation of such a position, counsel for the Gen-
eral Counsel notes on brief that she “was precluded from cross-
examination of Respondent’s witnesses regarding this issue based upon
the Judge’s assertion that Respondent was not postulating their [sic]
defense on any claim of intimidation or fear of intimidation. Accord-
ingly, absent such evidence, any argument by Respondent of harass-
ment or intimidation must now be rejected. Fairmount Hotel, 304
NLRB 746.” But counsel’s initial question was addressed to whether
O’Donnell had in fact made any threats against the informants. I shall
assume that Kulp not only would have conceded that O’Donnell had
not done so, but also that no one had actually threatened the informants,
METROPOLITAN EDISON CO. 119
In Pennsylvania Power & Light, supra, a case rather similar
to this one, the Board held that the identities of informants
whose tips had led to drug testing (and discharge) of several
employees were relevant. The sole basis given for concluding
that the names of the informants were potentially “relevant”
was the existence of a policy pursuant to which employees
could be tested only if there was a “suspicion” that he or she
was under the influence of drugs. The administrative law
judge’s decision in Pennsylvania Power wrote that the test
derived from an “announced procedure” by the employer based
on “reason to believe that an employee may be under the influ-
ence of drugs.” 301 NLRB at 1109. The Board, however,
while at first saying that the Respondent “implemented the
policy” and that the record was silent as to whether it was uni-
laterally imposed (id. at 1104 fn. 3), later stated that the Re-
spondent had the burden of establishing “that it had reasonable
suspicion, as specified in the contract, for testing the griev-
ants.” (Id. at 1107 fn. 16; emphasis added.) I shall assume that
the Board erred in referring to a contractual provision. It was
on the basis of this policy that the Board found the information
to be relevant (301 NLRB at 1106):

Although “suspicion” is a minimal standard, it is none-
theless one to which the Respondent has committed itself,
and, moreover, one that permits a conclusion that the stan-
dard has been violated. For all the Union knows, the Re-
spondent might have acted on tips that were based not on
behavior indicating drug use or other specious [sic] moti-
vation. Information about what led the Respondent to or-
der the employees tested would lend support to union ar-
guments that the Respondent had no ground for its ‘suspi-
cion’ and thus no reason to test employees. Conversely,
such information might well indicate to the Union that fur-
ther pursuit of the grievances would be fruitless.

The General Counsel and the Charging Party find in the pre-
sent case an analogy to the “suspicion” standard in Pennsyl-
vania Power. They ground the analogy on the testimony of
O’Donnell that in 1986, the Union was told by former Vice
President Hukill that “based on informants, or anonymous tips
alone, that the Company would not conduct surveillance’s or
investigations, and that the informant itself [sic] would have to
be credible before an investigation or a surveillance would be
made”; and that 6–8 months later, O’Donnell had been reas-
sured by former Labor Relations Manager Charles Rippon that
a tip from an informant “would have to have merit before an
investigation or surveillance would take place.”
I was not overly impressed by the testimony of O’Donnell,
but it was not contradicted on this point. While Hukill has
since retired and the record does not disclose his whereabouts,
O’Donnell testified that Rippon is currently employed by GPU
Nuclear Corp., which operates the Three-Mile Island station.
Since the record gives no indication of Hukill’s or Rippon’s
unavailability, I feel constrained to credit O’Donnell’s testi-
mony.
It is not clear whether Rippon’s oral 6-year-old assurance
that information would have to have “merit” in order to trigger
an investigation established the sort of binding “standard” that
the Board found in the term “suspicion” in Pennsylvania
Power. It seems to be a meaningless assurance; if the informa-

which is as far as the General Counsel could have gone with this line of
questioning.
tion must be found to have “merit” ab inito, there would be no
need to institute an investigation. If this assurance is to be ac-
cepted as an enforceable promise, “merit” would have to be
understood to mean something like “probable cause.”
However, relevance of the identity of the informants could
perhaps also be established in another way. As in Pennsylvania
Power, it would be relevant in an arbitration if the Union could
use it to show that the surveillance was based on the union
activism of Eppinger or was otherwise invidiously selective.
301 NLRB at 1106. As we have seen, at the third-step meeting,
O’Donnell first stated that he needed the names of the infor-
mants in order to “clear the names” of persons who were being
falsely accused of informing. In later discussion, he specifi-
cally charged the Respondent with “setting up” Eppinger and
related that a member of management had told him that the
Respondent “fully intended to watch Mr. Eppinger in an at-
tempt to get something on him,” and he immediately thereafter
said that John Doe I or II “could be the same person who told
the management person I spoke to to try and get something on
Ned.” It does not seem unreasonable to say that by expressly
making this connection, O’Donnell conveyed to Respondent a
legitimate basis for wanting the identity of the two John Does.
In Pennsylvania Power, the employer did not ask, and the un-
ion did not explain, the basis for the request; it was the Board
which supplied the rationale for holding the information to be
potentially relevant. See also Brazos Electric Power, 241
NLRB 1016, 1018 (1979). Furthermore, here, as in Pennsyl-
vania Power, the employers showed no interest in the unions’
reason for wanting the names of the informants; in both cases,
the employers were committed to nondisclosure in the name of
confidentiality.
While, in Pennsylvania Power, the Board concluded that the
evidence sought by the union was relevant, it further found, in
striking the balance required by Detroit Edison, supra, that the
respondent’s claim of confidentiality carried the day. The
reach of the rationale is debatable. Stress is placed equally on
safety, the nuclear plant, the character of the activity, and the
need for unimpeded access to drug tips (301 NLRB at 1107):

The connection of confidentiality to the safety of the
public and other employees and to job performance is
plain here. The Respondent’s workplace includes both
nuclear and fossil power production plants as well as other
inherently dangerous work settings that make the need for
a drug-free environment both obvious and necessary. The
Respondent contends that if it is not able to maintain strict
confidentiality in its drug program, informants will be de-
terred from coming forward with information regarding
drug use by other employees. The Respondent further
claims that identifying informants potentially subjects
them to harassment. We find these arguments persuasive.
Like the employer in Detroit Edison, supra, the Respon-
dent has demonstrated the strength of its concerns, and we
find no national labor policy warranting a remedy that
would “unnecessarily disserve” the legitimate interest in
confidentiality here. Detroit Edison, supra, 440 U.S. at
341.

The heart of the foregoing rationale seems to be that the
identity of informants may be kept secret when the matter about
which they are informing poses a threat to safety in the work-
place and/or to the public, and a practice of revealing their
identity to a union would deter them from informing and poten-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
tially subject them to harassment.8 If Pennsylvania Power is
really a “narrow exception,” as contended by the General
Counsel and the Charging Party, to the otherwise liberal access-
to-information rule, it would mean that in the present case, the
Union would be entitled to the information sought, since no
threat to safety in general was involved here.
It is worth noting that in a case decided shortly after Penn-
sylvania Power, a Board panel (former Member Devaney dis-
senting) adopted the decision of an administrative law judge
which held that the union was not entitled to the names of per-
sons who had complained about the inattentive driving of a
forklift driver. Boyertown Packaging Corp., 303 NLRB 441
(1991). The administrative law judge made no reference to
Pennsylvania Power or to safety considerations. He reached
back, instead, to Anheuser-Busch, Inc., 237 NLRB 982 (1978),
in which a grieving union sought witness statements in the
possession of the employer. The Board refused to order the
release of the statements on the principal ground that efforts
might be made to “coerce or intimidate employees and others
who have given statements, in an effort to make them change
their testimony or not testify at all.” It might be supposed that
the same concern would apply to release of the names of wit-
nesses known to the employer, but in Anheuser-Busch the
Board also stated, “An employer does have a duty to furnish a
union, upon request, the names of witnesses to an incident for
which an employee was disciplined.” 237 NLRB at 984 fn. 5.
It seems essentially impossible to distinguish between the dis-
closure of witness statements and witness identities where the
issue is potential intimidation of those witnesses.
Nonetheless, the Anheuser-Busch case, as reaffirmed in
Boyertown Packaging, does signify that the identity of wit-
nesses can be revealed to an opposing party prior to a grievance
hearing, even though the potential to sabotage the process is
then at its zenith.9 If this is so, it would seem to follow that the
names of informants, whose testimony is not directly important
to the employer’s case, but whose involvement is potentially
useful to the union’s grievance, should, a fortiori, be made
available to the union on request. I.e., if the Board is willing to
expose the names of the witnesses to an event prior to the hear-
ing, despite the possibility of intimidation which could choke
off their evidence, then there is seemingly little basis for argu-
ing that a union should not have access to names of persons
whose testimony the employer will not need, but whose identity
may prove useful to the union for other purposes. Thus it
would appear to me, as long as the second prong of Anheuser-
Busch is still in effect, that the confidentiality honored by the
Board in Pennsylvania Power10 must have been due to the par-

8 The latter two consequences, while separately articulated by the
Board, appear to be sides of the same coin: i.e., employees will likely
not inform because they would thereby invite harassment if revealed.
9 See also Transport of New Jersey, 233 NLRB 694 (1977); Fair-
mont Hotel, 304 NLRB 746 (1991); Resorts International Hotel, 307
NLRB 1437 (1992); and New England Telephone Co., 309 NLRB 196
(1992), all of which involved actual witnesses to incidents for which
employees were disciplined.
10 The Board has said that the employer has its “own interest” in
maintaining a pledge of confidentiality, which is “reasonable in light of
the general potential for retaliation against informants in the investiga-
tion of criminal drug use.” Mobil Oil Corp., 303 NLRB 780, 781. In
some cases, the Board has stressed the failure of witnesses to request
anonymity as a reason for dismissing a claim of confidentiality. Fair-
mont Hotel, 304 NLRB at fn. 3; Resorts International Hotel, 307
ticular circumstances found compelling by the Board in that
case––serious public and employee safety considerations. It
could, of course, be argued that informants about theft or any
other conduct adversely affecting the safe, efficient, and eco-
nomical operation of the employing facility should similarly be
protected from disclosure, lest they be deterred from promoting
a social good, but, as discussed, I cannot conclude that the
Board has thus far taken that tack.
I therefore conclude that the Respondent violated Section
8(a)(5) and (1) by refusing to provide to the Union the names of
the persons whose information led to the surveillance of Ep-
pinger.
CONCLUSIONS OF LAW
1. Metropolitan Edison Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Electrical Workers System Council U-9, Local 563, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
3. By failing and refusing, in and after January 1993, to pro-
vide the Union with the names of the informants against Ned
Eppinger, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated the Act, the tradi-
tional remedies, including a cease-and-desist order and the
posting of a notice, are in order.
There seems to be no real dispute that entry of a cease-and-
desist order would be appropriate here. See Westinghouse
Electric Corp., 304 NLRB 703, 708–709 (1991). However,
Respondent argues that in view of the settlement of Eppinger’s
grievance, the request for the names of the informants should
be considered moot. It cites cases (Valley Oil Co., 210 NLRB
370 (1974); Southwick Group, 306 NLRB 893 (1992)) which
have held that requested information may become irrelevant.11
The standard set forth in Westinghouse is whether there has
been a showing of continued “demonstrated relevance” of the
requested information. 304 NLRB at 703 fn. 1. In Postal Ser-
vice, 307 NLRB 429 (1992), the Board clearly placed the bur-
den of proof on the respondent, stating (at fn. 2; emphasis
added):

In Westinghouse, no exception was taken to the
judge’s findings that the only possible relevance of the in-
formation was in connection with a proceeding to reopen
the arbitration, and the arbitrator was completely without
authority to reopen such record. In the instant case, no
such showing has been made by the Respondent and, ac-
cordingly, we agree with the judge that an affirmative
remedy is warranted.

The General Counsel and the Charging Party point out that
the collective-bargaining agreement establishes no time limits

NLRB at 1438. That seems to be somewhat at odds with the quoted
Mobil language. In the present case, as noted, John Doe I did not ask
for confidentiality until after telling Frantz about Eppinger. The part
this fact should play is unclear.
11 In Valley Oil, the administrative law judge so held, and the Gen-
eral Counsel filed no exception.
METROPOLITAN EDISON CO. 121
for filing a grievance, and contend that article II, 2.2 of the
agreement, which prohibits discrimination because of union
activity, could arguably be invoked in a new grievance pro-
ceeding. While this seems fanciful, I cannot reject it out of
hand. It is, I suppose, possible that an arbitrator could hold that
the unlawful refusal of an employer to furnish a union with
information relevant to a grieved discharge is a basis for disre-
garding a settlement of the earlier grievance. It might also be
that an arbitrator could distinguish between a discharge and
unlawful “discrimination,” and, while giving full weight to a
settlement of the former, agree to issue a separate limited deci-
sion as to the latter, perhaps requiring the posting of a notice or
some similar remedy. However debatable these possibilities
might be, I cannot say that a “showing has been made by the
Respondent” (a very difficult standard to meet) that they could
not be realized. Accordingly, I shall recommend that Respon-
dent be required to make the names of informants John Doe I
and II available to the Union.12 See Operating Engineers Local
513 (Various Employers), 308 NLRB 1300 fn. 1 (1992).
[Recommended Order omitted from publication.]

12 The Charging Party also argues that, armed with incriminating in-
formation, it could file an 8(a)(3) charge on Eppinger’s behalf. It rec-
ognizes that a 10(b) defense would be raised, but relies on the line of
cases which tolls the statute of limitations when a respondent has
“fraudulently conceal[ed] its unlawful conduct.” Pacific Intercom Co.,
255 NLRB 184 (1981). The basic notion behind this doctrine has to do
with the concealment of “conduct”; although the Board has not always
kept this principle clearly in focus, see Brown & Sharpe Mfg. Co., 312
NLRB 444 (1993), it seems obvious that Sec. 10(b) cannot be circum-
vented by the argument that the employer concealed evidence of a
discriminatory motive. To so hold would nullify Sec. 10(b), at least as
far as Sec. 8(a)(3) is concerned.