Northern Indiana Public Service Co.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 210 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 17
210
Northern Indiana Public Service Company and Local
Union No. 12775, United Steelworkers of Amer-
ica, a/w United Steelworkers of America, AFL–
CIO–CLC. Case 25–CA–28040–1
May 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The issue presented in this case is whether an em-
ployer must comply with a union’s request for a copy of
notes of interviews conducted by the employer in inves-
tigating a bargaining unit employee’s complaint of
threatening conduct in the workplace. We find that in the
circumstances presented here the Respondent did not
violate the Act by refusing, on the basis of confidential-
ity, to furnish the Union with the interview notes at is-
sue.1
Facts
On August 27, 2001,2 Northern Indiana Public Service
Co. (NIPSCO or the Respondent) employee Randy
Chaplin complained to his union representative, James
Blythe, that Chaplin’s supervisor, Patrick Long, behaved
in a threatening manner toward Chaplin and other em-
ployees. In one incident on July 27, according to the
later-filed formal grievance, Long allegedly approached
Chaplin and stated, “Peace, love, and understanding, and
then you empty the clip,” while pointing his finger at
Chaplin as if it were a gun. Blythe informed NIPSCO
management of Chaplin’s concerns, and Chaplin and

1 On August 30, 2002, Administrative Law Judge William N. Cates
issued the attached bench decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an answering brief,
and 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 only to the extent consistent with this deci-
sion.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
The Respondent has also raised several procedural matters. We deny
the Respondent’s request for oral argument as the record, exceptions,
and briefs adequately present the issues and the positions of the parties.
We grant the Respondent’s unopposed motion to correct errors in the
transcript. Finally, we conclude that the judge correctly granted the
Union’s motion to quash the Respondent’s subpoena for notes of union
meetings regarding an employee’s allegations of supervisory miscon-
duct.
2 All dates are in 2001, unless otherwise indicated.
Blythe met that day with several management representa-
tives to discuss the matter. NIPSCO allowed Chaplin to
go home with pay for the remainder of that shift and then
changed his schedule to separate him from Long.
NIPSCO’s EEO manager and labor relations coordinator,
Barbara Sacha, was asked to discuss the matter with
Chaplin and Long, in order to assess the situation and
seek resolution. Sacha interviewed Chaplin on August
29, spoke to Operations Superintendent Mickey Bellard
regarding Long that same day,3 and met with Long on
September 5. Each individual spoke to Sacha voluntarily,
and she prefaced her interviews by assuring each of them
that she would keep their conversation confidential. Sa-
cha personally typed up her handwritten notes of these
interviews (the Sacha notes), protected them with a com-
puter password, and did not provide them to NIPSCO’s
other managers.
Based on Sacha’s recommendations after her investi-
gation, Long’s immediate supervisor, Lawrence Dora,
held a meeting on October 22 with Long, Chaplin, and
Union Representative Vern Beck,4 to discuss their con-
cerns and resolve the matter. At the meeting, Chaplin
explained his concerns about Long’s conduct. Long re-
sponded that he wished Chaplin had come to him to re-
solve the issue, but that he wanted to put the matter be-
hind him. Dora concluded the matter by instructing Long
to keep his conversations with Chaplin strictly work re-
lated.
The following day, Blythe filed a grievance on behalf
of Chaplin.5 The grievance stated that Long had “en-
gaged in a violent manner toward subordinate(s)” and
described the July 27 incident.6 The grievance cited arti-

3 Bellard was not a participant in the events Chaplin complained
about. After Sacha coincidentally encountered Bellard, whom she knew
from prior work together, she asked him about his opinion of Long, his
relationship with Long, and his knowledge of any complaints made
about Long. Bellard testified that he was unfamiliar with Chaplin’s
complaint when he spoke to Sacha.
4 We correct the judge’s inadvertent statement that Blythe attended
the October 22 meeting. The testimony establishes that Beck, not
Blythe, was summoned to the meeting when Chaplin requested that a
union representative be present.
5 Blythe testified that he spoke to both Chaplin and Beck after the
October 22 meeting, and he filed the grievance on Chaplin’s behalf the
next day, because “Chaplin was extremely unhappy with the outcome
of the meeting.” NIPSCO conversely contends that Chaplin was satis-
fied with the outcome. Chaplin did not testify at the unfair labor prac-
tice hearing or otherwise document his reaction to NIPSCO’s resolution
of his complaint.
6 Despite the grievance’s characterization of the July 27 incident as
the “most recent” one, a log compiled by Chaplin and admitted into
evidence at the hearing indicates otherwise. The log, which documents
Chaplin’s interactions with Long from July 27 through August 22,
demonstrates that the July 27 incident was only one in a continuing
series of events involving Long that troubled Chaplin. The log also
NORTHERN INDIANA PUBLIC SERVICE CO. 211
cle XVIII of the parties’ collective-bargaining agreement,
which requires NIPSCO to provide a safe workplace for
employees. The grievance was processed through steps
one and two of the grievance procedure and, at the time
of the unfair labor practice hearing in this case, was pro-
ceeding to arbitration, in accordance with the collective-
bargaining agreement.
Concurrent with his filing of the grievance, Blythe re-
quested information regarding NIPSCO’s investigation
of Chaplin’s complaint. In response, NIPSCO provided
the names of employees who were involved in or inter-
viewed in connection with Chaplin’s claims.7 Citing con-
fidentiality, however, NIPSCO refused to provide the
Sacha notes to the Union.
The complaint alleges that the Respondent violated
Section 8(a)(5) by refusing to provide the Union with
requested information. The parties agree that the Sacha
notes are the only information covered by the Union’s
request that NIPSCO has not provided.
Analysis
NIPSCO contends that it is not obligated to provide the
Sacha notes to the Union because the notes are not nec-
essary for the Union’s role as bargaining representative
and because they are confidential. The judge rejected
NIPSCO’s arguments. Contrary to the judge, we agree
with NIPSCO that the information requested by the Un-
ion is confidential and that NIPSCO’s interest in confi-
dentiality outweighs the Union’s need for the informa-
tion. We further find that NIPSCO did not fail to meet
its duty to offer an accommodation of the conflicting
interests.8
Under Board law, a party may refuse to furnish confi-
dential information to the other party in a collective-
bargaining relationship under certain conditions. Ini-
tially, the party must show that it has a legitimate and
substantial confidentiality interest in the information
sought. Pennsylvania Power Co., 301 NLRB 1104, 1105
(1991). If this showing is made, the Board must weigh
the party’s interest in confidentiality against the re-
quester’s need for the information, and the balance must
favor the party asserting confidentiality. Detroit Edison

states that Long repeatedly mentioned a pistol he owned and said,
“[D]eath means nothing to me.”
7 The list provided by the Respondent did not include Bellard. As
stated above, Bellard was not involved in the incident between Chaplin
and Long, though Sacha did discuss Long with him.
8 NIPSCO raises several arguments about the timeliness and validity
of the Union’s grievance under the parties’ collective-bargaining
agreement, as well as about the Union’s asserted reasons, other than its
processing of the Chaplin grievance, for requesting the information at
issue. Because we find the Sacha notes confidential, we, unlike our
dissenting colleague, need not reach these additional arguments (which
we construe as claims that this information is not relevant).
Co. v. NLRB, 440 U.S. 301 (1979); Detroit Newspaper
Agency, 317 NLRB 1071, 1074 (1995); Pennsylvania
Power, supra at 1105. Finally, even if these conditions
are met, the party may not simply refuse to provide the
requested information, but must seek an accommodation
that would allow the requester to obtain the information
it needs while protecting the party’s interest in confiden-
tiality. Borgess Medical Center, 342 NLRB 1105, 1106
(2004). We apply that standard here.
First, we find that NIPSCO has a legitimate and sub-
stantial confidentiality interest in the information re-
quested by the Union.9
We have previously identified some types of informa-
tion that give rise to such an interest, including:
that which would reveal, contrary to promises or rea-
sonable expectations, highly personal information, such
as individual medical records or psychological test re-
sults; that which would reveal substantial proprietary
information, such as trade secrets; that which could rea-
sonably be expected to lead to harassment or retalia-
tion, such as the identity of witnesses; and that which is
traditionally privileged, such as memoranda prepared
for pending lawsuits.
See Detroit Newspaper Agency, 317 NLRB at 1073. The
Board’s decisions following Detroit Newspaper demon-
strate that this list of types of information that may be confi-
dential is not exhaustive. For instance, we have recognized a
confidentiality interest in the names and unlisted phone
numbers of customers whose complaints led to an em-
ployee’s discharge. GTE California, Inc., 324 NLRB 424
(1997). We have also found that an employer demonstrated
a confidentiality interest in an investigative report concern-
ing an altercation between two employees. West Penn
Power Co., 339 NLRB 585 (2003), enfd. in part 394 F.3d
233 (4th Cir. 2005). In these decisions, the Board did not
attempt to classify the confidentiality concerns as falling
within the scope of the particular examples set out in Detroit
Newspaper, supra, but rather considered whether the infor-
mation was sensitive or confidential within the factual con-
text of each case.
We find that the Sacha notes, which comprise the re-
cord of NIPSCO’s investigation of alleged threats of
workplace violence and which were created under an
express promise of confidentiality, similarly give rise to
a legitimate and substantial confidentiality interest. Con-

9 NIPSCO contends that the Sacha notes share relevant characteris-
tics with witness statements that would be protected from disclosure
under Anheuser-Busch, Inc., 237 NLRB 982 (1978), but it does not
argue that these notes actually constitute witness statements. Thus, we
analyze them under the standards applicable to documents other than
witness statements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD212
trary to the dissent’s allegation that we alter Board law
by protecting the confidentiality of the Sacha notes, we
find that their protection is fully consistent with the pol-
icy underlying Detroit Newspaper.
Treating interview notes obtained in such circum-
stances as confidential serves two important purposes:
(1) encouraging witnesses to participate in investigations
of workplace misconduct and (2) protecting these wit-
nesses from retaliation because of their participation.
Long and Bellard, the only two individuals interviewed
besides Chaplin, testified that they would have provided
less information if they had not been assured of confi-
dentiality. This evidence reinforces our conclusion that
an employer’s inability to reliably assure interviewees of
confidentiality is likely to impede its investigations into
workplace harassment or threats of violence and to deter
the reporting of such incidents. Pennsylvania Power,
supra, 301 NLRB at 1107. Such investigations are
common and often necessary for safety in the current
workplace. IBM Corp., 341 NLRB 1288, 1291–1294
(2004). Without them, an employer would be handi-
capped in protecting its employees from harm by verify-
ing and correcting workplace misconduct. Similarly, it
would be hindered in defending itself against allegations
of employer misconduct or vicarious liability for an em-
ployee’s misconduct.10
Moreover, an individual’s participation in such an in-
vestigation, whether as complainant or as witness, may
subject the individual to intimidation and harassment by
coworkers and/or supervisors. See, e.g., Pennsylvania
Power, supra at 1107. In Pennsylvania Power, the em-
ployer declined a union request for the names of infor-
mants and the information they provided, which led the
employer to suspect drug use by certain employees and
subject those employees to drug testing. The Board

10 We recognize that Chaplin was the only employee who was inter-
viewed. But the Respondent had an interest in securing the full story
from Chaplin in response to questions framed by Sacha. In order to get
that full story, the Respondent promised confidentiality to Chaplin.
Unlike our dissenting colleague, we find that, in view of the clear threat
in Long’s conduct, Chaplin reasonably would have been less forthcom-
ing without a promise of confidentiality. We do not agree with our
colleague’s assumption that, because Chaplin brought the matter to the
Respondent’s attention, he would have been equally candid with or
without such assurance. Similarly, Long would reasonably fear retalia-
tion from Chaplin and his sympathizers for telling Long’s side of the
story, and Bellard would fear retaliation from Long or from Chaplin
and his sympathizers, depending upon his comments regarding Long’s
supervision of employees. As previously noted, both Bellard and Long
testified that they would have provided less information if there were
no assurance of confidentiality.
Moreover, contrary to our colleague’s assertion, at the time of his
discussion with Sacha, Chaplin had not formally complained about
Long’s conduct. In fact, Chaplin never filed a formal complaint; the
later grievance was filed by Blythe on Chaplin’s behalf.
found that the potential for harassment of witnesses dis-
tinguished investigations of such misconduct from inves-
tigations of accidents. Id. at fn. 15 (distinguishing Trans-
port of New Jersey, 233 NLRB 694 (1977), which in-
volved an employer’s collection of passengers’ state-
ments about an employee’s traffic accident). The Board
found persuasive the employer’s confidentiality interest
in the identity of the informants and their statements. It
required the employer to provide a summary of the
statements only to the extent possible while protecting
those important confidentiality concerns. Here, Sacha’s
investigation pertained to allegations of serious miscon-
duct by a supervisor toward employees, including an
alleged threat of violence and bodily injury or even
death. The Respondent, in answer to the Union’s infor-
mation request, provided the names of individuals in-
volved in the incident and interviewed by Sacha. In
these circumstances, those employees would reasonably
be concerned about retaliation if they confirmed the alle-
gations. The considerations on which the Board relied in
Pennsylvania Power apply equally in the face of an alle-
gation that the subject of the investigation has already
threatened deadly violence.
Finally, we believe that a promise of confidentiality is
a reasonable and lawful step in securing information
about alleged misconduct. Our colleague suggests that a
promise of confidentiality is not a defense. Presumably,
she would require the promisor to break the promise,
contrary to the underlying confidentiality interest of the
promisor and the promisee. Thus, contrary to the asser-
tion of our dissenting colleague, a promise of confidenti-
ality is relevant to the issue of whether the information
will be considered confidential.
We disagree with our colleague that an unconditional
promise of confidentiality “seems unrealistic in a busi-
ness setting.” There are a variety of reasons why such
promises are made, e.g., to persuade employees to coop-
erate in an investigation of very sensitive matters involv-
ing other employees. It may well be that, in a particular
case, a court or the Board will find that other interests
outweigh those reasons. But that is not to say that it was
unrealistic for the employer to make and defend its
promise. Nor is it to say that the promise was not
grounded in a legitimate business interest. Rather, it is a
question of weighing that interest against other societal
interests.11

11 The case that our dissenting colleague cites, Postal Service, 332
NLRB 635, 637 (2000), is inapposite. In that case, unlike here, the
union did not request the notes taken by the employee assistance coor-
dinator during the climate assessment interviews that she conducted,
but rather the report that she submitted to management. The report did
not specify what individual employees said in their interviews. More-
NORTHERN INDIANA PUBLIC SERVICE CO. 213
Next, we find that the balance between the Union’s as-
serted need for the information and NIPSCO’s interest in
confidentiality favors NIPSCO.12 Contrary to the judge,
who found that the information sought by the Union
“goes to the very heart of the grievance,” we perceive
this information as qualitatively different from the type
of information on which a union relies to carry out its
statutory responsibilities in the processing of a grievance.
Union grievance committeeperson James Blythe de-
scribed the “Statement of the Grievance” that he in-
scribed on the grievance form as follows:
Supervisor Pat Long engaged in a violent manner to-
ward subordinates. On the most recent event, Long
approached Control Operator Randy Chaplin and stated
“Peace, love, and understanding, and then you empty
the clip.” While saying this, Long made a physical ges-
ture, acting out like he was firing a handgun at Mr.
Chaplin.
Article XVIII of the contract, on which this grievance is
based, requires NIPSCO to provide a safe work environ-
ment for its employees. Therefore, the merits of the griev-
ance depended on whether Long’s conduct was consistent
with that contractual obligation. However, the information
contained in Sacha’s interview notes would not establish or
measure NIPSCO’s compliance. Because the Union al-
ready knew the identity of the witnesses and the substance
of Chaplin’s complaint, it could expect the interview notes
to provide, at best, corroboration, denials, or assertions of
mitigation regarding what was said.
The cases relied on by our dissenting colleague are in-
apposite. In New Jersey Bell Telephone, 300 NLRB 42
(1990), enfd. 936 F.2d 144 (3d Cir. 1991), the union rep-
resenting an employee accused of disclosing an unpub-
lished telephone number sought notes of conversations
between the employer and the customer who had com-
plained about the disclosure of the telephone number. In
that case, the complaining customer had been offered no

over, contrary to our colleague’s suggestion, the Board did not consider
the relevance of the promise of confidentiality, because the employer
did not rely on it in arguing that it was not obligated to furnish the
requested information. Rather, the employer contended that the infor-
mation was subject to an evidentiary privilege as witness statements
and a self-evaluative report. We find no basis for our colleague’s con-
jecture that, by not expressly considering the promise of confidentiality,
an issue that was not argued in the litigation, the Board implicitly did
consider it and deemed it irrelevant. Notably, although the Board re-
jected the employer’s “possible claim of confidentiality” as untimely
raised and lacking in merit, the employer insisted that it was not ad-
vancing such a claim.
12 In NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), cited by our
dissenting colleague for the proposition that information requested by a
union need only be useful or germane, no confidentiality concern was
at issue.
assurance of confidentiality regarding the information
she provided. In addition, the information pertaining to
the employer’s investigation was sought to establish the
basis on which the employer had made its decision to
issue the suspension that was the subject of the union’s
grievance.13
Similarly, in Pennsylvania Power, discussed above,
the employer relied on statements from informants in
conducting an investigation of employee drug use and
ordering drug testing of certain employees.14 The drug
testing led to discipline, including discharge, of those
who tested positive for drugs. The Board found that the
employer was entitled to withhold the identity of the in-
formants and their statements, based on legitimate confi-
dentiality concerns involving the potential for deterring
informants from coming forward and for subjecting them
to harassment, and not solely on the sensitive perform-
ance impairment issues related to that industry, as our
dissenting colleague suggests. However, because the
collective-bargaining agreement provided that the em-
ployer could require an employee to submit to drug test-
ing only when the employer had a “suspicion” that the
employee was under the influence of drugs, the Board
found that the employer was required to provide a sum-
mary of the statements’ contents, to the extent the safe-
guarding of confidential identifying information would
permit, in order to demonstrate the basis for the required
belief.15
In this case, by contrast, the Union seeks the Sacha
notes neither to determine the basis for any action by
NIPSCO against an employee nor to assess that basis
against a contractual standard. Rather, the question is
whether the statements made to Chaplin by Long are
consistent with the contractual obligation to maintain a
safe workplace. The Union has at its disposal, if only by
virtue of Chaplin’s account, the substance of what it must
show to process a grievance related to workplace safety.
Therefore, we find that the additional information that
the Union could obtain from Sacha’s notes does not go to
the heart of that grievance.16 Moreover, we find that

13 Thus, there are two bases for distinguishing New Jersey Bell.
And, as to the first basis, we believe that an assurance of confidentiality
(as here) or lack of same is a factor to be considered.
14 301 NLRB at 1106.
15 See also Columbus Products Co., 259 NLRB 220, 220 (1981)
(where the union knows the identity of all employees involved in the
incident giving rise to a grievance and has conducted its own interviews
with them, and knows as the substance of the employees’ statements,
“all relevant and needed information has been rendered . . . [so as to]
enable the Union to represent employees more effectively.” American
Standard, Inc., 203 NLRB 1132 (1973)).
16 Booth Newspapers, Inc., 331 NLRB 296 (2000), relied on by our
dissenting colleague, is also inapposite. There, the Board found that the
union was entitled to documents that memorialized oral discipline and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD214
NIPSCO’s concerns about the consequences of disclo-
sure were reasonable and substantial, particularly be-
cause it had already provided the Union the names of the
interviewees who had provided the information. Accord-
ingly, we conclude that the balance of interests favors
NIPSCO’s confidentiality interest.
Generally, a party that lawfully refuses to provide re-
quested and relevant information on confidentiality
grounds must seek an accommodation with the request-
ing party. Metropolitan Edison Co., 330 NLRB 107, 108
(1999). In the particular circumstances of this case, how-
ever, we find that accommodations were offered.
The investigation conducted by Sacha involved alleged
behavior that threatened violence toward employees,
including Long’s imitating firing a gun and at the same
time making a statement about “empty[ing] the clip.”
Besides Long, Sacha had interviewed only two individu-
als, Chaplin and Bellard. NIPSCO provided the Union
the names of the interviewees and those involved in the
incident. Thus, the Union could interview them, just as
the Respondent did.17
NIPSCO also provided the Union with all of the re-
quested information regarding its handling of Chaplin’s
complaint, other than the Sacha notes. In addition, the
Union’s access to Chaplin provided it with sufficient
information to evaluate and pursue its grievance regard-
ing the Respondent’s duty to maintain a safe workplace.
We find that there was accommodation, and that any
further accommodation would compromise not only the
pledge of confidentiality on which the interviewees re-
lied but also their personal safety.18
We find irrelevant our dissenting colleague’s observa-
tion, in hindsight, that the parties could have negotiated a
mediation program exempt from information-sharing
obligations. As noted, the Respondent offered accom-
modations. If the Union wanted more, it could have
counterproposed same. Our colleague’s suggestion of a
mediation program far exceeds the bounds of any tradi-

were placed in employees’ personnel files, rather than having to rely on
the employees’ recollections of the basis for the discipline. Sacha’s
notes here neither reflected nor resulted in any similar action by the
Respondent.
We do not find, as asserted by our dissenting colleague, that the Un-
ion has the burden of showing that it could not obtain the information
directly from Long and Bellard. Rather, in balancing the Union’s need
for the information against the Respondent’s confidentiality concerns,
we find that the Union had access at a minimum to Chaplin’s account
and could pursue its grievance on that basis.
17 Our colleague suggests that the supervisors would not permit an
interview by the Union. However, the Union never asked, and, thus,
the matter was never tested.
18 We believe that the Respondent’s supply of the names was an ef-
fort to accommodate the Union’s interests. We disagree with our col-
league’s contention that we have raised this contention post hoc.
tional accommodation required by the Board. More fun-
damentally, the Board has no authority to dictate the con-
tents of agreements between parties.19 Accordingly, we
find no basis for considering what the Union and
NIPSCO could have negotiated had they anticipated the
present dispute.
Our dissenting colleague contends that the Sacha notes
have not been shown to contain confidential information.
However, it is not the substantive content of the notes
that makes them confidential. Rather, it is the promise of
confidentiality that was made to the interviewees, and the
concern that they might be subjected to intimidation.
Our dissenting colleague also contends that our deci-
sion today is “out of sync” with certain Federal court
decisions. The cases cited by our colleague, however,
expressly address the existence of a discovery privilege
covering certain types of documents created under prom-
ise of confidentiality. Our decision here, however, does
not involve a court proceeding or the Federal Rules of
Evidence, including, as our colleague posits, the discov-
ery privilege. Moreover, the frequency of information
requests, and the continuing relationship between an em-
ployer and a union that represents its employees, impli-
cate different considerations than those involved in liti-
gation. In any case, the trend our dissenting colleague
finds in federal courts is not unidirectional. Several dis-
trict courts, in view of the need to encourage candid
complaints and the risk of witness harassment, have rec-
ognized an evidentiary privilege for ombudsmen’s com-
munications. See, e.g., Kientzy v. McDonnell Douglas
Corp., 133 F.R.D. 570 (E.D. Mo. 1991); Shabazz v.
Scurr, 662 F.Supp. 90 (S.D. Iowa 1987).
Finally, our colleague cites cases where the Board has
declined to require the production of information. While
she criticizes these cases, they constitute Board prece-
dent, which we follow.20
For these reasons, we conclude that NIPSCO did not
violate the Act in refusing, on confidentiality grounds, to
provide the Union with copies of Sacha’s notes of her
interviews with Chaplin, Long, and Bellard.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
Without even reading the documents, the majority er-
roneously finds: that Northern Indiana Public Service

19 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
20 Our colleague says that we have “repeatedly found ways to avoid
requiring employers to turn over information to unions.” We do not
think it prudent to re-fight old battles in the instant case. Those cases,
and this one, are confined to their specific facts, and the decisions speak
for themselves.
NORTHERN INDIANA PUBLIC SERVICE CO. 215
Company (NIPSCO) had a legitimate and substantial
confidentiality interest in the Sacha notes; that the bal-
ance of interests (even assuming that NIPSCO has a con-
fidentiality interest) favors NIPSCO; and that NIPSCO
adequately accommodated the Union’s need for the Sa-
cha notes by offering the Union nothing more than in-
formation it was otherwise obligated to provide. In ac-
cepting NIPSCO’s confidentiality defense, the majority
disregards protective measures available with regard to
the assertedly confidential information—and ordered by
the judge without challenge by the Union or the General
Counsel—to answer NIPSCO’s concerns. The majority
departs from Board precedent at each step.1
In recent decisions, while stating agreement with the
Board’s established framework for analyzing information
requests, the Board has repeatedly found ways to avoid
requiring employers to turn over information to unions.
See Richmond Times-Dispatch, 345 NLRB 195 (2005);
Borgess Medical Center, 342 NLRB 1105 (2004); South-
ern California Gas Co., 342 NLRB 613 (2004); Allen
Storage & Moving Co., 342 NLRB 501 (2004). See also
Chemical Workers Union Council v. NLRB, 2006 WL
1118514 (9th Cir. Apr. 28, 2006) (reversing Board’s
failure to require employer to disclose requested financial
information). In this case, the majority again reaches a
result contrary to settled principles.
Unlike the majority, I would reach NIPSCO’s argu-
ment that it need not provide the Sacha notes to the Un-
ion because the notes are not relevant to the Union’s rep-
resentative duties and because of deficiencies in the re-
lated grievance. An employer’s statutory duty to bargain
collectively with a union that represents its employees
includes the obligation to provide information that is
relevant to the union’s performance of its grievance-
processing duties. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967). Relevance is measured by a
liberal, “discovery-type standard,” id. at 437, a standard
these notes clearly meet. Further, “the Board, in passing
on an information request, is not concerned with the mer-
its of the grievance.” Pennsylvania Power Co., 301
NLRB 1104, 1105 (1991).2 Accordingly, I would find
the Sacha notes relevant and reject NIPSCO’s arguments
that the grievance is invalid, untimely, and moot.
Next, I disagree with the majority’s finding that
NIPSCO’s confidentiality interest is legitimate and sub-
stantial. The Board has narrowly limited the types of
information that are confidential. Detroit Newspaper

1 I join the majority’s resolution of the various issues addressed in
the final two paragraphs of the majority’s fn. 1.
2 Even if NIPSCO’s arguments were otherwise valid, it waived them
by processing the grievance through steps one and two of the contract’s
grievance procedure.
Agency, 317 NLRB 1071, 1073 (1995). We require par-
ties to provide investigative work product like the Sacha
notes. New Jersey Bell Telephone Co., 300 NLRB 42
(1990), enfd. 936 F.2d 144 (3d Cir. 1991). Assurances of
confidentiality to interviewees do not override the Un-
ion’s right to obtain the notes. Postal Service, 332 NLRB
635, 637 (2000) (ordering employer to provide summa-
ries of work climate interviews despite assurance of con-
fidentiality).3 Even “sensitive” facts may be subject to a
party’s obligation to provide information to its collec-
tive-bargaining partner. See, e.g., Wayne Memorial Hos-
pital Assn., 322 NLRB 100, 103 fn. 13 (1996). But here
we do not even know that the Sacha notes contain sensi-
tive information: neither the judge nor we have had a
chance to review the notes.4
To be sure, I recognize the importance of allowing
employers thoroughly and effectively to investigate em-
ployees’ complaints of workplace violence and harass-
ment. But the Union’s involvement would not necessar-
ily interfere with investigations.5 As the majority recog-
nized in IBM Corp., 341 NLRB 1288 (2004), a union
representative can facilitate the employer’s investigation
of workplace misconduct. In this case, the Union aided
NIPSCO’s investigation by identifying potential wit-
nesses. But when the Union sought information from

3 Thus, the majority’s effort to distinguish New Jersey Bell, supra,
because that employer did not assure interviewees of confidentiality, is
unavailing. Moreover, the majority’s effort to distinguish Postal Ser-
vice, supra, is not persuasive. The majority contends that Postal Service
is inapposite because the union there requested a different type of in-
formation and because the employer ostensibly disclaimed its confiden-
tiality defense before the Board. (As the majority recognizes, the Board
considered and rejected the “possible claim” on the merits nonetheless.)
Neither of the majority’s stated rationales for distinguishing Postal
Service, however, is relevant to the point for which I cite the case: the
Board’s unwillingness—before today—to allow an interviewer’s prom-
ise of confidentiality to trump a union’s right to obtain relevant infor-
mation. The majority correctly observes that the Board did not ex-
pressly consider the relevance of the employer’s promise of confidenti-
ality. In my view, this merely reinforces the fact that the Board consid-
ered the promise irrelevant to the question of whether the information
was actually confidential.
4 In contrast, in West Penn Power Co., 339 NLRB 585 (2003), enfd.
in part 394 F.3d 233 (4th Cir. 2005), relied on by the majority, the
judge found the employer’s investigative report confidential after re-
viewing it in camera. Despite the absence of such a finding in this case,
the judge ordered several protective measures to limit dissemination of
the notes’ contents. Neither the General Counsel nor the Union has
excepted to these protective measures.
5 As I stated in Fleming Cos., 332 NLRB 1086, 1089 (2000) (con-
curring opinion), I am “unwilling to presume that this concern [of wit-
ness harassment or intimidation] routinely exists to the same degree in
grievance and arbitration proceedings as in adversarial unfair labor
practice litigation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
NIPSCO about the investigation, it was treated as an in-
truder.6
The majority’s reliance on Pennsylvania Power is
misplaced. There, the Board found confidential the
names and addresses of informants who told the em-
ployer about drug use by employees, but not the contents
of the informants’ statements. Pennsylvania Power, 301
NLRB at 1107. Here, the substance of Sacha’s interview
notes is at issue; thus, even under Pennsylvania Power’s
analysis, the notes would not be protected from disclo-
sure to the Union. Further, the Board gave “unusually
great weight” to Pennsylvania Power’s confidentiality
concerns because of the context: drug use could danger-
ously impair employees’ performance of their duties in
nuclear power plants. Id.7
The majority’s conclusion that NIPSCO need not pro-
vide the Sacha notes to the Union is also out of sync with
the approach taken by Federal courts, including the Su-
preme Court, in declining to recognize evidentiary privi-
leges for similar information. In a case alleging discrimi-
nation in tenure decisions, the University of Pennsyl-
vania failed to persuade the Supreme Court that peer
review evaluations should be privileged from discovery
by the Equal Employment Opportunity Commission
(EEOC). The University argued that disclosure of the
documents would have a “chilling effect” on candid
communications and would impede the University’s fac-
ulty selection process. In rejecting the University’s
claim, the Supreme Court required that evidentiary privi-

6 In contrasting a union representative’s role with that of a coworker
in a nonunionized setting, the IBM majority asserted that the union
representative’s fiduciary duty to unit employees will “help[] to assure
confidentiality for the employer” with regard to information the union
acquires about the employer’s investigations. IBM Corp., supra at 1293.
While I question this claim (see id. at 1310 fn. 28 (dissenting opinion)),
I wonder why the majority here does not expect the Union to exercise
discretion with regard to the Sacha notes, based on its duty of fair rep-
resentation to NIPSCO’s employees.
7 The majority finds this case similar to Pennsylvania Power with
regard to interviewees’ assertedly reasonable fears of retaliation by a
supervisor (if they confirmed Chaplin’s allegation) or an employee (if
they denied Chaplin’s allegation). While rank-and-file employees
might reasonably harbor such fears in that context, Sacha did not in this
case interview any rank-and-file employees other than Chaplin himself,
on whose behalf the grievance was being processed. Contrary to the
majority’s implication, there is no basis for concern that Chaplin would
hesitate to tell Sacha the “full story” about Long’s threatening behavior;
Chaplin had already demonstrated his willingness to engage in
NIPSCO’s process by bringing his concerns about Long to the attention
of the Union and NIPSCO and by seeking NIPSCO’s assistance in
resolving those concerns. In turn, the record provides no basis for
concluding that Operations Shift Supervisor Patrick Long (whose own
conduct was under investigation) and Operations Superintendent Mick-
ey Bellard would reasonably fear retaliation from rank-and-file em-
ployees—or that Bellard would reasonably fear retaliation from Long—
in a manner likely to affect their participation in the investigation.
leges “promote[] sufficiently important interests to out-
weigh the need for probative evidence.” University of
Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). The
University’s claim that the solicitation of evaluations
traditionally included express or implied assurances of
confidentiality did not persuade the Court that the re-
quested privilege was appropriate.
Two circuit courts of appeals have ruled similarly. The
Eighth Circuit rejected a claim of privilege covering the
notes of a corporate ombudsman, who sought to resolve
employees’ complaints without resort to the grievance
process.8 Carman v. McDonnell Douglas Corp., 114 F.3d
790 (8th Cir. 1997). The court relied on “the significant
burden of establishing that . . . excluding relevant evi-
dence has a public good transcending the normally pre-
dominant principle of utilizing all rational means for as-
certaining truth.” Id. at 793 (internal quotation omitted).
Similarly, the Fifth Circuit held that notes of a mediation
process conducted under State law, which required such
programs to be confidential, were not privileged from
later discovery. In re Grand Jury Subpoena Dated De-
cember 17, 1996, 148 F.3d 487 (5th Cir. 1998). In each
case, the court considered the importance of confidential-
ity in promoting open communication but found it insuf-
ficient to justify the creation of a new rule of secrecy.
The courts have not lightly created privileges related to
alternative dispute resolution processes. And the Board
most certainly should not do so in enforcing the duty to
bargain. The importance of the exchange of information
in collective bargaining has been underscored in numer-
ous decisions.9 In particular, “[a]dequate information
concerning grievances enables the union to make a con-
sidered judgment about the strength of its claim, to
eliminate nonmeritorious claims at an early stage in the
grievance process, and to prepare for arbitration.”10
NIPSCO and the Union could have negotiated a me-
diation program, exempt from information-sharing du-
ties, within the grievance and arbitration provisions of
their collective-bargaining agreement. But they did not
do so. NIPSCO’s ad hoc “mediation” process, even if
that aptly describes the process, was subject to no preex-
isting agreement that the investigation notes would be

8 McDonnell Douglas’ ombudsman program was established and
used regularly, in contrast to NIPSCO’s ad hoc delegation of Sacha to
investigate, evaluate and resolve Chaplin’s complaint.
9 In NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), the Supreme
Court emphasized the importance of information relevant to the union
in its effort to police and administer the collective-bargaining agree-
ment, and endorsed the “discovery-type standard” applied by the
Board. It required disclosure of certain information pertaining to a
grievance filed by the union. Id. at 437.
10 1 Hardin, Developing Labor Law 858 (4th ed. 2001); id., fn. 527
(citing cases).
NORTHERN INDIANA PUBLIC SERVICE CO. 217
unavailable to the Union.11 By declining to order produc-
tion of the Sacha notes, the majority diminishes the Un-
ion’s ability to handle this grievance.
Unlike the majority, I would find that, even assuming
NIPSCO has a confidentiality interest, the balance be-
tween the Union’s need for the information and
NIPSCO’s interest in nondisclosure favors the Union.12
The majority finds that the Union could get all the infor-
mation it needed from Chaplin.13 This is both mistaken
and irrelevant.
True, the Union could have obtained information about
Sacha’s interview with Chaplin by speaking to Chaplin
himself. But Chaplin could not provide the Union with
“the Respondent’s officials[’] . . . impressions of what
transpired in the conversations.” New Jersey Bell, supra
at 43. In any event, the availability of information from
other sources is not a valid defense under Board law.
E.g., King Soopers, Inc., 344 NLRB 842, 845 (2005). In
Booth Newspapers, Inc., for example, 331 NLRB 296
(2000), we ordered the employer to provide the union a
manager’s notes of employee disciplinary meetings at-
tended by a union official, because “[i]t is not incumbent
upon the Union to go through the burdensome procedure
of polling its members and Local officials to obtain their
second hand opinions as to how [the manager] viewed a
particular[] incident.”14 The majority, however, would
require the Union to do exactly that.

11 The majority mischaracterizes my observation as seeking to im-
pose an obligation on NIPSCO to negotiate such a program as an ac-
commodation of its confidentiality interest. My point is simply that
collective bargaining could address situations like that presented here,
but that there is no contractual basis for NIPSCO’s position.
12 The majority charges that I “would require the promisor to break
the promise” of confidentiality. At the outset, the Respondent’s uncon-
ditional promise of confidentiality seems unrealistic in a business set-
ting where collective-bargaining duties and other legal requirements
may collide with the promise. But, in any event, the yielding of confi-
dentiality promises to public interests in disclosure of information is
hardly novel. See, e.g., In re Grand Jury Subpoena, 438 F.3d 1141,
1149–1150 (D.C. Cir. 2006) (even if a common-law privilege exists
protecting journalists’ confidential source information, it is not abso-
lute; need for disclosure outweighed the reporters’ and media’s inter-
ests in confidentiality).
13 The majority’s reliance on Columbus Products Co., 259 NLRB
220 (1981), is misplaced. There, the employer provided the union with
the substance of employees’ statements about the conduct being inves-
tigated; NIPSCO, in contrast, did not. Moreover, to the extent that the
majority suggests that the Union should have carried out its own inves-
tigation, rather than seeking information from NIPSCO, the majority
fails to explain how the Union could have induced the Respondent’s
supervisors to cooperate in providing information of the type that the
Respondent itself has already refused to provide. The majority errs
further in its implication that the Union bears the burden of showing
that it could not have obtained the information directly from Long and
Bellard.
14 See also Orthodox Jewish Home for the Aged, 314 NLRB 1006,
1008 (1994); Detroit Newspaper Agency, 317 NLRB at 1072.
The majority also errs in concluding that Sacha’s notes
of her interviews with Long and Bellard were not neces-
sary for the Union to pursue its grievance. It is far from
clear that the Union could process its grievance effec-
tively without this information. To the extent that these
notes may have provided information at odds with Chap-
lin’s version, or which may have indicated mitigating
circumstances, the Union was unable to fairly consider
whether it should continue to pursue the grievance. In-
deed, because the grievance was denied at steps one and
two, the Union faced the expense and burden of arbitra-
tion without first being able to obtain the information to
which it was entitled under the Act. That the Union per-
sisted in pursuing the grievance is not evidence that it did
not need the notes; rather, it reflects only that the Union
engaged in what was, by necessity, blind advocacy.
Contrary to the majority’s view, the information con-
tained in the Sacha notes was important to the Union’s
enforcement of the collective-bargaining agreement’s
provision that NIPSCO would provide a “safe working
environment.” In order to assess whether NIPSCO was
meeting this obligation, i.e., whether NIPSCO’s response
to the alleged threats was reasonable and adequate, the
Union needed to know what NIPSCO’s investigation had
revealed.15 Cf. New Jersey Bell, supra (union was enti-
tled to information it sought about employer’s investiga-
tion, in order to determine appropriateness of employer’s
action, assertedly based on investigation findings).
The majority also applies a far narrower definition of
“necessary” than the Board traditionally uses. In assess-
ing the relevance of requested information, we have, with
court approval, treated “necessary” as synonymous with
“useful” or “germane.” See NLRB v. Acme Industrial,
supra, 385 U.S. at 435–436, 437.16 Without doubt, Sa-
cha’s notes of her interviews with Long and Bellard
would be useful to the Union.
Worst, the majority disregards precedent establishing
that a party that refuses to supply information on confi-
dentiality grounds has an absolute duty to seek an ac-
commodation. Metropolitan Edison Co., 330 NLRB 107,
108 (1999); see also U.S. Testing Co. v. NLRB, 160 F.3d

15 The Union may have had good reason for concern about the ade-
quacy of NIPSCO’s response to Long’s apparent death threat. After
completing its investigation, NIPSCO appears to have taken no action
beyond calling a meeting, at which Chaplin was asked to “voice his
concerns” and Long was instructed to keep his conversations with
Chaplin strictly work-related. The goal of the meeting, NIPSCO states,
was to “attempt to reconcile any remaining acrimony between the two
individuals.”
16 Under Board law, “[i]t is sufficient if the requested information is
potentially relevant to a determination as to the merits of a grievance or
an evaluation as to whether a grievance should be pursued.” Booth
Newspapers, Inc., supra, 331 NLRB at 299 (citations omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
14, 20–21 (D.C. Cir. 1998). Here, despite the majority’s
claim to the contrary, NIPSCO unquestionably failed to
seek an accommodation and refused to provide the re-
quested information based on a generalized claim of con-
fidentiality. That should have been the end of the analy-
sis; the 8(a)(5) violation should have been found. See
Mission Foods, 345 NLRB 788, 793 (2005).
But the majority concludes that NIPSCO met its duty
of accommodation by providing the Union with the
names of interviewees and “all of the requested informa-
tion regarding its handling of Chaplin’s complaint, other
than the Sacha notes.” In fact, the only information that
NIPSCO provided was the names of interviewees, which
the Union had separately requested.
The Union’s written information request sought two
types of information:
1. All notes, memos, summaries and conclusions from
any meetings, discussions or conversations relative to
the issue in item 1 by the following people:
All Labor Relations Representatives
All Management Employees at [the plant]
All Nipsco Security Personnel
2. The names of all employees involved or interviewed
involving the claims made by Randy Chaplin in item 1.
NIPSCO’s labor relations coordinator, Jim Petrosky, re-
sponded to the request by letter. The letter began by sum-
marizing the course of NIPSCO’s investigation, but without
providing any details of Sacha’s interviews pertinent to item
1 of the Union’s information request. The letter then stated:
In response to your request for a copy of “all notes,
memos, summaries and conclusions from any meetings
. . .” which may have been kept or maintained by Man-
agement employees involved in this incident, the Com-
pany maintains that such records are strictly confiden-
tial and we are under no obligation to supply such re-
cords to the Union.
In response to Item No. 2, “The names of all employees
involved or interviewed involving the claims made by
Randy Chaplin . . .” the Company responds with the
following names: Dennis Knight, William Breen, Pat-
rick Long and Randy Chaplin.17

17 The record does not disclose NIPSCO’s basis for identifying
Knight and Breen, who were not interviewed regarding the incident.
Please contact me if I can be of further assistance in
this matter.
It is clear from the text of NIPSCO’s letter that it did
not propose any accommodation of the Union’s request
for item 1. NIPSCO simply stated that the notes were
confidential and that it was under no obligation to supply
them. Even NIPSCO does not contend, as the majority
does, that providing the interviewees’ names (requested
in item 2)18 in any way accommodated the Union’s need
for the Sacha notes.19 The majority has simply fash-
ioned, post hoc, an unsupported rationalization for
NIPSCO’s failure to act.
Finally, the majority’s conclusion that “any further ac-
commodation would compromise . . . [the interviewees’]
personal safety” is purely hypothetical and wholly un-
supported by the record. It also defies “[t]he Board’s
cumulative experience [which] 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 employer’s protec-
tive concerns.” Metropolitan Edison, 330 NLRB 107,
109 (1999). The majority’s conclusion unnecessarily
rewards NIPSCO’s intransigence and is belied by the
judge’s recommended protective order, which stringently
limits the Union’s access to and use of the Sacha notes.20
Today, without acknowledging it is doing so, the ma-
jority alters Board law regarding confidentiality defenses
to information requests. It does so by expanding the
types of information that may give rise to a legitimate
and substantial confidentiality interest (despite a contrary
Federal court trend), weighing factors that have not been
part of the balancing test, and disregarding settled prece-
dent on the duty to accommodate a request for confiden-
tial information. Because the majority’s decision is at
odds with precedent and with the importance of the ex-
change of information to the collective-bargaining proc-
ess, I dissent.

18 Neither NIPSCO’s summary of its investigation process nor its re-
sponse to the Union’s item 2 included Mickey Bellard among the indi-
viduals interviewed regarding Chaplin’s complaint, though NIPSCO
has subsequently acknowledged that Sacha interviewed him.
19 NIPSCO argues only that it met its duty to accommodate by end-
ing its letter with “Please contact me if I can be of further assistance in
this matter.” Not surprisingly, NIPSCO has provided no support for the
proposition that such a formal pleasantry constitutes a legally-adequate
offer of accommodation, and the majority does not contend that it suf-
fices.
20 In West Penn Power Co., supra, the employer accommodated the
union’s request for all investigative notes and related documents by
providing the union with a summary of what it had discovered during
its investigation. A similar accommodation might have sufficed here.
NORTHERN INDIANA PUBLIC SERVICE CO. 219
Patricia H. McGruder, Esq., for the General Counsel.
Robert P. Casey, Esq. and Brian L. McDermott, Esq., for the
Company.
James Blythe, Committeeman, for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a re-
fusal to provide information case which I heard in Valparaiso,
Indiana, on August 1, 2002. The complaint alleges Northern
Indiana Public Service Company (the Company), a provider of
electricity in northern Indiana, has, since about October 23,
2001, refused, upon request, to provide Local Union No.
12775, United Steelworkers of America, a/w United Steelwork-
ers of America, AFL–CIO–CLC (the Union) with certain in-
formation relevant to the performance of its duties as the exclu-
sive collective-bargaining representative for employees in an
appropriate unit it represents. The Company’s actions are al-
leged to violate Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act). All parties were afforded full opportu-
nity to appear, to introduce relevant evidence, to examine and
cross-examine witnesses. At close of trial and after oral argu-
ment by the Government and company counsel, I issued a
Bench Decision pursuant to Section 102.35(a)(10) of the Na-
tional Labor Relations Board’s (the Board) Rules and Regula-
tions setting forth findings of fact and conclusions of law.
For the reasons stated by me on the record at the close of the
trial, I found the Company violated Section 8(a)(5) and (1) of
the Act, by failing and refusing to provide the Union three,
separate, one page each notes taken by Equal Employment
Opportunity Manager and Labor Relations Coordinator Barbara
Sacha of three separate interviews she conducted while investi-
gating a harassment complaint by employee Randy Chaplin
against Operations Shift Supervisor Patrick Long in August
2001. In finding a violation of the Act, I concluded the Gov-
ernment established that the requested information was relevant
and necessary for the proper performance of the Union’s duties
in representing the unit employees. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967); and NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956). I rejected the Company’s contention that the
interview notes constituted witness statements under Anheuser-
Busch, Inc., 237 NLRB 982 (1978). The record evidence estab-
lished the notes were based on conversations Sacha had with
two managers and an employee while investigating the harass-
ment complaint. Sacha’s notes were not verbatim accounts of
the statements nor were they reviewed, adopted or even seen by
the three persons interviewed. I likewise rejected the Com-
pany’s contention the information was confidential. The in-
formation did not fall into the few exceptions for confidentiality
recognized by the Board. Detroit Newspaper Agency, 317
NLRB 1071, 1073 (1995). Finally, I found the Union’s need
for the information outweighed any of the Company’s per-
ceived confidentiality concerns or claims. Detroit Edison Co.
v. NLRB, 440 U.S. 301 (1979). In ordering production of the
information I granted a protective order safeguarding the in-
formation and upon final disposition of the underlying griev-
ance directed the information be returned to the Company.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 145 to 165, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above and that its violations have affected and,
unless permanently enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found the Company violated Section 8(a)(5) and (1)
of the Act by failing and refusing to furnish the Union with
certain requested information, I recommend the Company be
ordered to cease and desist from engaging in such conduct and
to supply the Union the investigative interview notes taken by
Equal Employment Opportunity Manager and Labor Relations
Coordinator Sacha when she individually interviewed em-
ployee Randy Chaplin, Operations Shift Supervisor Patrick
Long, and Operations Superintendent Mickey Bellard regarding
Chaplin’s August 2001 harassment complaint.
[Recommended Order omitted from publication.]
APPENDIX A
145
This is my decision in the matter of Northern Indiana Public
Service Company, herein “Company,” Case No. 25–CA–
28040–1.
Let me state, first, that it has been a pleasure to be in north-
ern Indiana. I wish to thank Counsel and/or their representa-
tives for their presentation of the case. Each of you are a credit
to the party you represent.
This is an Unfair Labor Practice case, prosecuted by the Na-
tional Labor Relations Board’s, herein “Board,” General Coun-
sel, herein “Government Counsel,” acting through the Regional
Director for Region 25 of the Board, following an investigation
by Region 25’s staff.
The Regional Director for Region 25 of the Board, issued a
Complaint and Notice of Hearing, herein “Complaint,” on April
26, 2002, based on an Unfair Labor Practice charge filed on
February 7, 2002, by Local Union No. 12775, United Steel-
workers’ of America a/k United Steelworkers’ of America,
AFL–CIO, CLC, herein “Union” or “Charging Party.”
The facts in this case are admitted, stipulated, or undisputed.
I am required to set forth certain of those facts,
146
such as jurisdictional information, which I shall now do.
It is admitted that the Company, is a corporation with its
principal office and place of business in Merrillville, Indiana,
and numerous other facilities throughout northern Indiana,
including an office and place of business in Wheatfield, Indi-

1 I have corrected the transcript pages containing my Bench Decision
and the corrections are as reflected in attachment C [omitted from pub-
lication].
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
ana, where it has been and is engaged in the generation, trans-
mission, and sale of electricity.
During the twelve months preceding issuance of the Com-
plaint herein, a representative period, the Company, in conduct-
ing its business operations that I have just described, purchased
and received at its Indiana facilities, goods valued in excess of
$50,000, directly from suppliers located outside the state of
Indiana. During that same time, the Company sold and shipped
goods, or provided services, valued in excess of $50,000, di-
rectly to customers located outside the state of Indiana.
The evidence establishes, the parties admit, and I find, that
the Company is an Employer engaged in commerce within the
meaning of Section 2(2), (5), and (6), of the National Labor
Relations Act, as amended hereinafter, “Act.”
It is alleged, the parties admit, the evidence establishes, and I
find, the Union is a labor organization within the meaning of
Section 2(5) of the Act.
The parties admit, stipulate to, and I find that Labor Rela-
tions Coordinator and EEO Manager, Barbara Sacha, is an
147
agent of the Company, within the meaning of the Section 2(13)
of the Act.
The employees of the Company, in the following unit,
namely certain production, maintenance, generating station and
other employees of the Company, herein called the “Unit,”
constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Since at least August 9, 1972, and at all times material, the
Union has been the designated collective bargaining representa-
tive of the Unit, and since then, the Union has been recognized
as the representative by the Company. This recognition has
been embodied in successive collective bargaining agreements,
the most recent of which is effective from June 1, 1999 until
May 31, 2004.
At all times, since at least August 9, 1972, based on Section
9(a) of the Act, the Union has been the exclusive collective
bargaining representative of the Unit.
It is alleged, and the Company admits the Union, on October
23, 2001, requested in writing, that it be provided certain in-
formation, namely, all notes, memos, summaries and conclu-
sions from any meetings, discussions or conversations, relative
to . . [a grievance]. . , by the following . . . Labor Relations
Representatives, all management employees at RMSGS, all
NIPSCO security personnel.
It is alleged the requested information is necessary for
148
and relevant to, the Union’s performance of its duties, as the
exclusive collective bargaining representative for employees in
the Unit. It is acknowledged the Company has not provided the
requested information.
It is alleged that the Company’s actions violate Section
8(a)(5) and (1) of the Act. The Company denies having vio-
lated the Act in any manner alleged in the Complaint.
The facts of this case are taken from the testimony of various
of the witnesses, and there are no credibility conflicts to be
resolved. Any differences that there might appear between the
testimony of the witnesses can be easily reconciled.
James Blythe testified the Union and Company has had a
bargaining history or relationship for approximately fifty years,
and that he currently holds the position of Union Grievance
Committeeperson. Blythe explained the Collective Bargaining
Agreement has a grievance and arbitration provision, with a
two-step procedure, with a third step being final and binding
arbitration. According to Union Committee person Blythe, the
Union has some 900 pending grievances with the Company,
however this case involves only the grievance filed by Blythe
on or about October 23, 2001, on behalf of bargaining unit
employee, Randy Chaplin.
Union Committeeperson Blythe testified Chaplin spoke with
him on several occasions about the conduct of Chaplin’s imme-
diate supervisor, Patrick Long. According to Blythe,
149
Chaplin specifically complained to him about Operations Shift
Supervisor Long on August 27, 2001. Blythe testified Chaplin
was upset and afraid that Long would do physical harm to him,
based on statements and gestures Chaplin asserts Long made to
and toward him.
According to Blythe, a meeting was arranged on August 27,
2001, between Chaplin, Operations Shift Supervisor Long,
Union Committeeperson Blythe, Superintendent of Operations
Fitzgerald, and Operations Manager Canner. At the meeting,
Chaplin told the group of his concerns, and the basis for his
concerns, related to Operations Shift Supervisor Long.
According to Blythe, the parties agreed to see how they
could work through the situation. First, Chaplin was sent home
for the shift with pay, and the Company separated the two indi-
viduals, putting them on different shifts, and/or teams, so as to
keep them, as much as was possible, apart. The Company im-
mediately undertook an investigation of Chaplin’s complaint.
Company Operations Manager Dora testified he was Opera-
tions Shift Supervisor Long’s immediate supervisor. Dora
explained he was not present at the facility at the August 27,
2001 meeting, but learned of it immediately thereafter, by tele-
phone at his home. Operations Manager Dora testified he
spoke separately with Chaplin and Operations Supervisor Long,
about a third or neutral person, speaking with both of them, to
see if the matter and concerns related thereto, with both of
150
them, could be worked out or resolved. Dora testified both
Chaplin and Long agreed to that procedure.
A relatively new management employee, namely EEO Man-
ager and Labor Relations Coordinator Sacha, was selected by
the Company to be the neutral investigator. She was selected
because she was a new employee with the Company, and had
investigative experience in her various capacities prior to this
time. EEO Manager Sacha conducted separate interviews with
Chaplin, Long, and Operations Superintendent Bellard.
Sacha testified she chose Bellard to be interviewed , because
she knew him prior to this time, but did not know the others.
Sacha said she and Bellard had served on a Civil Rights Com-
mittee together.
NORTHERN INDIANA PUBLIC SERVICE CO. 221
EEOC Manager Sacha testified she interviewed Chaplin
alone in the control room on August 29, 2001. Sacha stated
they discussed Chaplin’s past history with the Company, his
personal history with Operations Supervisor Long, and his cur-
rent complaints against Long, and his complaints that other
employees had against Long.
Sacha testified she gave Chaplin, as was her practice, her as-
surance that anything he said to her, was said in confidence,
and was for her ears only. Sacha explained individuals spoke
more freely, if they knew and understood what they said would
be kept in confidence.
According to EEO Manager Sacha, Chaplin said he just
151
wanted to work in a professional manner, with Operations Su-
pervisor Long. Sacha made notes of her conversation with
Chaplin.
EEO Manager Sacha testified she saw Operations Superin-
tendent Bellard in the hallway, at the facility that same day,
August 29, 2001, and asked him if she could have a few min-
utes of his time. According to EEOC Manager Sacha, she
asked Operations Superintendent Bellard his opinion of Opera-
tions Supervisor Long, his relationship with Long, and about
any knowledge of complaints made about Long.
Sacha made notes of her meeting with Bellard. Sacha as-
sured Bellard his comments were confidential, and would not
be given to anyone.
Operations Superintendent Bellard testified he and EEO
Manager Sacha, discussed his opinion of Operations Supervisor
Long, Long’s relationship with the employees, the situation
between Chaplin and Long, and added no other supervisors
were discussed, other than Operations Supervisor Long.
EEO Manager Sacha testified that she made notes of her
meeting with Operations Supervisor Bellard, but did not reveal
them to anyone.
EEO Manager Sacha interviewed Operations Supervisor
Long on September 5, 2001. Sacha explained, she discussed
with Long Chaplin’s complaints against him. According to
Sacha, Long stated he wished Chaplin had come to him right at
the beginning,
152
so that it could have been worked out between them.
Sacha said they discussed Long’s management style and the
work facility, in general. Sacha told Long their conversation
would be kept confidential. Sacha made notes of her conversa-
tion with Long.
It is the notes that Sacha made of her meetings with Chaplin,
Long, and Bellard, that are at issue herein, with respect to the
Union’s information request.
On October 22, 2001, Operations Manager Dora held a meet-
ing with Chaplin, Union Representative Blythe, Operations
Supervisor Long, and one additional management person. At
the meeting, Chaplin explained his concerns regarding Opera-
tions Supervisor Long, and Long listened without saying much,
if anything.
According to Operations Manager Dora, it was decided that
Long would keep his conversations with Chaplin, “strictly work
related.”
On October 23, 2001, Union Committeeperson Blythe filed
the underlying grievance that gives rise to the information re-
quest, that forms the basis for the Government’s Complaint
herein. Blythe explained he filed the grievance, because the
matter had not been resolved, and that Chaplin still feared for
his physical safety.
According to Blythe, Chaplin and perhaps other employees
under Long’s supervision, feared Long was unstable, and that
he
153
had mood swings. In the grievance, Blythe sets forth Article
XVIII of the Collective Bargaining Agreement, as well as the
opening part of the Agreement itself. Article XVIII of the cur-
rent Collective Bargaining Agreement deals with the Company
providing a safe work place for the employees.
The “agreement” part of the Collective Bargaining Agree-
ment, in pertinent part provides, “It is the intent and purpose of
the parties hereto, to provide a means of adjustment of differ-
ences, that may arise from time to time, and to promote har-
mony and efficiency, to the end, that the Company, the Union,
and its members and the general public, may mutually benefit,
and to establish a basic understanding relative to rates of pay,
hours of work, and other conditions of employment.”
On an attachment to the regular grievance form, Union
Committeeperson Blythe attached a “statement of the griev-
ance”. That statement reads as follows: “Supervisor Pat Long
engaged in a violent manner towards subordinates. On the
most recent event, Long approached Control Room Operator
Randy Chaplin and stated, ‘Peace, love, and understanding, and
then you empty the clip.’ While saying this, Long made a
physical gesture, acting out like he was firing a handgun at Mr.
Chaplin.”
The Company responded at step one, that it thought the mat-
ter had been resolved, that the two individuals were not work-
ing together, and that the Company was dedicated to providing
a safe working environment for all.
154
On October 23, 2001, Union Committeeperson Blythe made
a written request to the Company for certain information. The
letter of request, at Paragraph 1, asked for, “All notes, memos,
summaries, and conclusions from any meetings, discussions or
conversations relative to the. . .[grievance]. . ., by the following
people, all Labor Relations representatives, all management
employees at RMSGS, and all NIPSCO security personnel.”
The Union also requested the names of all employees in-
volved or interviewed, involving the Randy Chaplin situation.
The Company provided the requested names to the Union, but
declined to provide any other of the requested information. In
its letter of October 26, 2001, the Company stated to the Union,
in pertinent part, “In response to your request for a copy of all
notes, memos, summaries, and conclusions from any meetings,
which may have been kept or maintained by management em-
ployees involved in this incident, the Company maintains that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
such records are strictly confidential, and we are under no obli-
gation to supply such records to the Union.”
Further the letter indicates, “Please contact me if I can be of
further assistance in this matter.”
It is acknowledged by all parties that the only information in
existence, that is responsive to the Union’s request, is the three
one-page each, notes, that EEO Manager Sacha made of her
meetings with Chaplin, Operations Supervisor Long, and Op-
erations Superintendent Bellard.
155
Before addressing the specific application of case law to the
instant facts, it is perhaps helpful to review certain applicable
legal principles.
The principle has long been established that an employer is
under a duty to provide a union which represents the em-
ployer’s employees with information requested by the union,
which is relevant and necessary, for the proper performance of
the union’s duties in representing the unit employees. NLRB v.
Acme Industrial Co., 385 U.S. 432(1967); NLRB v. Truitt
Manufacturing Co., 351 U.S.149 (1956). A failure to fulfill the
obligation to furnish relative information upon request, con-
flicts with the statutory policy to facilitate effective, collective
bargaining, Proctor & Gamble Mfg. Co. v. NLRB, 603 F.2d
1310 at 1315 (8th Cir. 1980).
The duty to furnish information turns on the circumstances
of each particular case, Emeryville Research Center v. NLRB,
441 F.2d 880 at 883 (9th Cir. 1971).
This duty extends not to just information which is useful and
relevant for the purposes of contract negotiations, but also to
that which is necessary to informed administration of a collec-
tive bargaining agreement, Safeway Stores, 252 NLRB 1323
(1980), and Barcardi Corporation, 296 NLRB 1220 (1989).
The key question in determining whether information must
be produced is one of relevance. The standard for relevance is
a liberal discovery type standard, and the sought after
156
information need not necessarily be dispositive of the issue
between the parties, but rather only of some bearing upon it,
and of probable use to the labor organization in carrying out its
statutory responsibilities, Barcardi Corporation, supra.
It is well-established, however, that information concerning
the terms and conditions of employment of unit employees, is
presumptably relevant, and must be furnished, Madison Center,
330 NLRB No. 72 (January 13, 2000) [not reported in bound
volumes].
The duty to furnish or provide information is not absolute, as
the Supreme Court held in Detroit Edison Co. v. NLRB, 440
U.S. 301 (1997).
There must be a balancing of interests of each side. The em-
ployer’s in retaining information and the union’s in obtaining it.
Confidentiality claims may justify a refusal to provide relevant
information. In making these determinations, the trier fact must
balance the union’s need for the information sought, against the
legitimate and substantial confidentiality interests of the em-
ployer. However, it is also well-settled, that as part of this bal-
ancing process, the party making a claim of confidentiality has
the burden of proving, that such interests are, in fact, present
and of such significance, as to outweigh the union’s need for
the information.
The party refusing to supply information on confidentiality
grounds, has an absolute duty to seek an accommodation, GTE
California, Inc., 324 NLRB 424 at 427 (1997).
157
Thus, confidentiality, where adequately established, has been
held to be a valid basis for declining to fully produce union-
requested data, Barcardi Corporation, 296 NLRB 1220 (1989).
Stated differently, the right to disclosure is not without lim-
its, and an employer’s obligation to provide such information is
not unlimited. Under certain narrow circumstances, an em-
ployer may be excused from providing information presumed
or shown to be relevant, when the employer has a good faith
claim of undue burden, legitimate need for confidentiality, or
justifiable fear of violence or harassment of employees, disclo-
sure generally will not be required.
In Detroit Newspaper Agency, 317 NLRB 1071 at 1073
(1995), the Board stated confidential information is limited to a
few categories: that which would reveal contrary to promises
or reasonable expectations, highly personal information, such
as individual medical records, or psychological test results, that
which would reveal substantial proprietary information, such as
trade secrets, that which could reasonably be expected to lead
to harassment or retaliation, such as the identity of witnesses,
and that which is traditionally privileged such as memoranda
prepared for pending litigation.
An employer may not refuse to furnish relevant information
to a union on the ground that the union has an alternative
source or method of obtaining such information. A union is
under no obligation to utilize a burdensome procedure, in order
158
to obtain desired information where the employer may have
such information available in a more convenient form, Ortho-
dox Jewish Home for the Aged, 314 NLRB 1006 at 1008
(1994).
An employer has an obligation to furnish requested relevant
information without undue delay, and within a reasonable time
reference to the request, Barclay Caterers, 308 NLRB 1025 at
1037 (1992).
If it is raised that a union has made its request for informa-
tion in bad faith, one must look at the evidence to see if at least
one reason for the demand can be justified and then, if it can,
good faith has been established.
The Board has long adhered to its policy, that witness state-
ments do not have to be produced under the teachings of An-
heuser-Busch, Inc., 237 NLRB 982 (1978).
The basis for not having to disclose witness statements is
based primarily on the fact that it would prevent intentional
intimidation and harassment of witnesses, aimed at making
them change their testimony, or decline to testify at all.
First, it must be determined whether or not the information
requested by the Union, that I have specifically outlined twice
in the Decision, is relevant for the purpose which the Union
requested it. Applying the teachings of the case law, with re-
NORTHERN INDIANA PUBLIC SERVICE CO. 223
spect to relevance, I must look at it in the manner that I would
as though it were a liberal discovery type policy. I must be
concerned whether it has some bearing upon
159
the issues. I must consider whether it is of probably use to the
Union in carrying out its duties.
I am persuaded that the information requested by the Union
is relevant to the issues of the grievance filed. The subject
matter of all three interviews dealt almost exclusively with the
situation between Chaplin and Long.
The Company seemed to indicate that perhaps Bellard, if not
any of the others, gave information regarding his views of su-
pervisors’ relationships with supervisors, or his view of other
supervisors.
Operations Superintendent Bellard cleared that up. He said
that no other discussions were had about any supervisors, other
than Supervisor Long, that the discussions about Supervisor
Long dealt with the matter that involved Chaplin, as well as
Supervisor Long’s conduct in the department.
The information sought is of the nature that goes to the very
heart of the grievance, that was filed by the Union. The Un-
ion’s grievance deals with allegations that Supervisor Long
conducted himself in an improper manner, toward Employee
Chaplin. That was the subject matter of the interviews by EEO
Manager Sacha, with each of the three individuals she inter-
viewed.
I am fully persuaded the Government has met its burden of
establishing the relevancy under the Board’s guidelines, of the
information sought.
160
To the extent that the Company contends, and I am not sure
they make a strong argument on this point, that the Union
wants the information for some purpose other than to pursue
the grievance involving Chaplin, and hints that the request
would be made in bad faith, is of no merit in my opinion.
The Union limited its request in writing to the information
and stated specifically , that it wanted it for the sole purpose of
pursuing this grievance, and based on relevance and a lack of
bad faith, it is entitled to the information.
Are the statements—are the notes that EEO Manager Sacha
made at her three meetings with the three individuals, witness
statements, as opposed to investigative work product.
I am persuaded that the statements that Sacha took are inves-
tigative work products, and not witness statements that would
be privileged to be precluded from being provided under the
teachings of Anheuser-Busch.
First, these notes that EEO Manager Sacha made, were not
adopted by the individuals, she interviewed. They were not
ratified by the individuals that she interviewed. They were not
signed by the individuals interviewed.
Now, I recognize that the Board in a number of cases, has
said that they haven’t spelled out any formality that must be
followed in order to qualify a statement, as a witness statement,
as opposed to a work product investigative statement. But,
looking at the purpose behind, which the Board allows the
161
non-production of witness statements, is that it would poten-
tially preclude the intimidation of witnesses, or having wit-
nesses change their testimony.
Neither of those items would be present in the production of
the statements that are at issue herein. There is no witness in-
timidation or harassment to change testimony, or even to de-
cline to testify at all in this case, because all this case involves
is three sets of notes that an EEO Manager took during an in-
vestigative interview with one employee, and two management
officials.
In summary, I am persuaded that these are not witness state-
ments that the Company would be privileged to preclude from
production, but are merely investigative work products.
The question then becomes, and perhaps is the most critical
question of this case, which is the Company’s contention that it
is privileged not to provide the three statements, based on con-
fidentiality claims.
There is no question but what the Company raised confiden-
tiality claims early in the request for the information. The
Company failed to make any effort in my opinion, to reach an
accommodation with the Union, regarding the confidential
nature of the information, and suggesting an alternative to it.
However, I do not view that as fatal to the Company’s re-
quest, or the Company’s contention that the information is of
162
such a confidential nature, that it should not be required to pro-
vide the information.
In a balancing of the interests with respect to confidentiality
claims, the Company does, however, have the burden of estab-
lishing that it has a legitimate and substantial confidentiality
claim.
The Company has failed, in my opinion, to meet those two
burdens, that it has a legitimate and substantial confidential
claim, such as which would preclude the production of these
documents.
The few categories where the Board has allowed the confi-
dentiality claim to be validly raised, involves and limited pretty
much to, medical records, psychological test results, proprietary
information, trade secrets, or confidential information that
would lead to harassment or intimidation, or the identification
of witnesses.
There are none of those categories in this case. The wit-
nesses have already been identified by the Company in meeting
the second request of the Union for information in its original
information request. There is no indication in this record that
the production of these documents could lead to harassment or
retaliation against anyone. There is no proprietary information
here. There is no psychological tests or medical records.
Thus, I find that the confidentiality defense is not available
to the Company in this case.
163
I find that the Company’s failure to provide this specific in-
formation, as I have outlined above, constitutes a violation of
Section 8(a)(5), and (1) of the Act. I shall direct the Company
to provide the Union the information requested, namely, EEO
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
Manager Sacha’s notes of her meetings with Chaplin, Long,
and Bellard, regarding Chaplin’s complaints about Long, but
with the following safeguards. In applying safeguards, I am not
unmindful of the need for a free exchange between investiga-
tors and the individuals that are providing the information to
the investigators, be they management or employees, so that a
proper investigation may be made, and hopefully resolving
employee complaints and management concerns, before they
reach the level they are presently at in this case.
I direct that the information be provided to Union Commit-
teeperson Blythe and/or the President of the Local Union in-
volved. I direct that the Union not show the information to
anyone, other than its local officials or legal Counsel. I direct
that the Union make no copies of the information, and that it
use the information only with respect to the underlying griev-
ance.
If the information that is provided is to be used in any arbi-
tration or legal proceeding, prior to such proceeding, the Union
will, at the time it seeks to offer the information, seek a protec-
tive order from the arbitrator or legal authority involved.
164
After a final and complete resolution of the dispute between
Chaplin and Long, as outlined in the grievance filed by Union
Committeeperson Blythe on October 23, 2001, I direct that the
Union, at that point, return the information to the Company,
with an indication that it has made no copies thereof.
I shall order that the Company post an appropriate notice re-
garding the allegations of the Complaint.
The Court Reporter is required, within ten days of today, or
thereabout, to provide a copy of the transcript of this proceed-
ing to me. At that time, I shall certify the pages of the tran-
script that constitute my decision. I shall, if necessary, make
corrections or additions thereto.
I then, will certify that to the Board, attaching a copy of the
transcript as corrected, that constitutes my decision, along with
a Notice, that I shall direct be posted, and it is at that point, that
any appeal period from this decision would commence, but
please be advised, that you should follow the Board’s rules and
regulations with respect to any appeal period, rather than rely
on my understanding of them.
I will serve on all parties, my certification of the decision,
when I have received the transcript and have had the opportu-
nity to review, make corrections, thereon, and certify it.
Let me again state, that it has been a pleasure to be in north-
ern Indiana, and this trial is closed.
165
(whereupon the hearing in the above-entitled matter was
closed.)