Pall Biomedical Products Corp.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1674 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1674
Pall Biomedical Products Corporation, a Division of
Pall Corporation and Local 365, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW, AFL–CIO. Cases
29–CA–18545 and 29–CA–19565
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
The complaint in this case1 alleges that the Respondent
unlawfully refused to bargain with the Union in three
respects: (1) by revoking a letter of agreement providing
that the Respondent would extend recognition to the Un-
ion at the Port Washington, New York facility if one or
more employees performing unit work were employed
there; (2) by refusing to permit the Union access to the
Port Washington facility; and (3) by refusing to furnish
the Union with requested information relating to the
staffing of the Port Washington facility. The judge found
that the letter of agreement was a nonmandatory subject
of bargaining which the Act did not obligate the Respon-
dent to honor. The judge further found that the Respon-
dent’s refusals to grant the Union’s requests for access
and information did not violate the Act because the re-
quests derived from the Union’s attempts to enforce the
nonmandatory letter of agreement.
Having considered the judge’s decision in light of the
exceptions and briefs, we have decided, for the reasons
set forth here, to rule as follows on the issues raised by
the complaint: (1) to reverse the judge and find that the
Respondent’s repudiation of the letter of agreement vio-
lated Section 8(a)(5) and (1) of the Act; (2) to affirm the
judge and find that the Respondent’s refusal to permit the
Union access to the Port Washington facility did not vio-
late Section 8(a)(5) and (1) of the Act; and (3) to reverse
the judge and find that the Respondent’s refusal to fur-
nish the Union with certain requested information vio-
lated Section 8(a)(5) and (1) of the Act.
I. FACTS
The material facts are undisputed.2 For many years,
the Union has represented certain employees at the Re-
spondent’s East Hills and Glen Cove, New York loca-
tions.3 In 1990, the Respondent purchased the Port
Washington facility and, the Union sought to include it in
the contractual unit. A strike ensued, which was settled
when the parties entered into the following letter of
agreement, dated March 14, 1990:

1 On January 31, 1997, Administrative Law Judge Steven Davis is-
sued the attached decision in this proceeding. The General Counsel and
the Charging Party each filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
2 At the hearing the Respondent declined to put on any of its own
witnesses.
3 The collective-bargaining agreement defines the unit as:
All employees located at the East Hills facility and the Glen Cove
facility but excluding all office employees, officers, supervisors,
salespeople, draftspeople, engineers, degreed scientists and all super-
visors as defined in the Act.
The Employer agrees that in the event that it employs
one (1) or more employees performing bargaining unit
work at the Employer’s facility in Port Washington,
NY, the Employer will extend recognition over such
employees to Local 365, UAW. After extension of
recognition the Employer and Union will meet to dis-
cuss the terms and conditions of employment for such
employees.
While it is clear that recognition is conditioned on bargain-
ing unit work being performed at the Port Washington facil-
ity, the letter of agreement is silent as to whether the Union
must first demonstrate majority support among the Port
Washington employees.
In 1994, the Union learned that the Respondent was
moving a laboratory from Glen Cove to Port Washing-
ton. The operation of the equipment in that laboratory at
Glen Cove had been performed by bargaining unit em-
ployees. In addition, the Union learned that the Respon-
dent was hiring new employees at Port Washington in
positions with titles and duties similar to those of unit
employees.
Relying on the letter of agreement, the Union re-
quested permission to visit the Port Washington facility
to determine whether unit work was being performed
there. After an exchange of letters, the Respondent
stated that it revoked the letter of agreement. The Union
filed an unfair labor practice charge resulting in a June
1995 unilateral settlement agreement in which the Re-
spondent reaffirmed the letter of agreement and agreed to
permit the Union access to the Port Washington facility
for the purpose of determining whether unit work was
being performed there.
During two visits on September 13 and 22, 1995, the
Union observed unit work being performed at Port
Washington. On September 29, 1995, the Union de-
manded that, pursuant to the letter of agreement, the Re-
spondent recognize it as the representative of the Port
Washington employees and requested certain informa-
tion. Subsequently, the Union requested a third visit to
the Port Washington facility.
The Respondent refused to recognize the Union as the
representative of the Port Washington employees. On
October 11, 1995, the Union accused the Respondent of
revoking the letter of agreement, stated that the Port
Washington facility was an accretion to the existing bar-
gaining unit, requested additional information, and re-
quested access to the facility.
The Union requested further information on October
12, 1995, and subsequently filed an unfair labor practice
charge. On October 13, 1995, the Respondent wrote the
Union that it has “withdrawn from the [1995 unilateral]
settlement agreement and has reaffirmed its previous
331 NLRB No. 192
PALL BIOMEDICAL PRODUCTS CORP. 1675
revocation of the 1990 Letter Of Agreement.” On Octo-
ber 24, 1995, the Respondent stated that it would not
provide any of the requested information.
Although there is evidence that some Port Washington
employees were performing bargaining unit work, there
is no evidence that the Union obtained majority support
among the Port Washington employees. In addition, the
record fails to show that any unit employees from the
East Hills and the Glen Cove facilities were transferred
to the Port Washington facility to perform unit work.
Finally, the complaint does not allege that the Respon-
dent was obligated to recognize the Union as the repre-
sentative of the Port Washington employees or to apply
the terms of its collective-bargaining agreement to them.
Rather, as set forth above, the complaint alleges that the
Respondent violated Section 8(a)(5) by revoking the let-
ter of agreement, by refusing to grant the Union’s re-
quests for access to the Port Washington facility, and by
refusing to provide the information the Union requested
on September 29 and October 11 and 12, 1995.
II. DISCUSSION
A. The Repudiation of the Letter of Agreement
The first issue to be addressed is whether the Respon-
dent violated Section 8(a)(5) of the Act by revoking the
letter of agreement. As the judge recognized, resolution
of this issue turns on whether the letter of agreement was
a mandatory or permissive subject of bargaining. If, as
the General Counsel and the Charging Party contend, the
letter of agreement was a mandatory subject of bargain-
ing, then the Respondent’s repudiation of it constituted
an unfair labor practice prohibited by Sections 8(a)(5)
and 8(d) of the Act. See Allied Chemical & Alkali Work-
ers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157,
185 (1971) (Act is violated only when employer
“changes a term that is a mandatory rather than permis-
sive subject of bargaining”).
In Pittsburgh Plate Glass, the Court held that the sub-
jects for mandatory bargaining are generally limited to
“issues that settle an aspect of the relationship between
the employer and employees.” 404 U.S. at 178. Recog-
nizing that matters involving individuals outside the em-
ployment relationship do not fall within that category,
the Court further explained that these matters are not
wholly excluded. The Court stated that “in each case the
question is not whether the third-party concern is antago-
nistic to or compatible with the interests of bargaining-
unit employees, but whether it vitally affects the ‘terms
and conditions’ of their employment.” Id. at 179.
The Board has applied the above principle to so called
“after-acquired store clauses,” whereby the employer
agrees to recognize the union as the representative of,
and apply the collective-bargaining agreement to, em-
ployees in stores acquired after the execution of the con-
tract. The leading case in this area is Kroger Co., 219
NLRB 388 (1975). In Kroger, the parties included in
their collective-bargaining agreement an after-acquired
store clause providing that the employer would recognize
the union as the bargaining representative of “all em-
ployees . . . in stores operating in the State of Texas.”
The clause provided that these additionally recognized
employees would all be in the same unit. Thereafter, the
union demanded recognition as the representative of the
employees working in two new stores, and offered to
prove that it had card majorities among the employees
sought. The employer, however, refused to honor the
union’s demand for recognition.
The Board interpreted the after-acquired store clause
as waiving the employer’s right to a Board-conducted
election and requiring the employer to recognize the un-
ion upon proof of majority status. The fact that the
clause itself did not contain an explicit condition that the
union obtain the support of a majority of the employees
in a new store was immaterial because the Board said
that it would impose such a condition as a matter of law.
Accordingly, the Board concluded that the employer vio-
lated Section 8(a)(5) by its breach of the after-acquired
store clause and its refusal to recognize the Union as the
representative of the employees in the two new stores.
Because the Act requires adherence only to mandatory,
not permissive terms, Pittsburgh Plate Glass, supra, the
implicit holding of Kroger was that the after-acquired
store clause in that case was a mandatory subject of bar-
gaining.4 That point was further developed in the
Board’s subsequent decision in Lone Star Steel.5 In that
case, the Board considered whether the union violated
Section 8(b)(3) of the Act by insisting to impasse on an
“application-of-contract” clause, requiring extension of

4 Citing two cases, the Respondent argues that “[s]ubsequent deci-
sions have made clear that even the Board no longer considers [a]
Kroger . . . clause to be a mandatory subject of bargaining.” We dis-
agree and find the Respondent’s reliance on the two cases to be mis-
placed.
In A-1 Fire Protection, Inc., 250 NLRB 217, 220 (1980), remanded
676 F.2d 826 (D.C. Cir. 1982), on remand 273 NLRB 964 (1984), enfd.
789 F.2d 9 (D.C. Cir. 1986), the Board merely categorized the Kroger
case as one in which the clear and unmistakable waiver standard was
applied to determine whether the employer waived its statutory right to
petition the Board for an election.
In Triple A Maintenance Corp., 283 NLRB 44 fn. 2 (1987), the
Board found that the respondent did not violate Sec. 8(a)(5) by its al-
leged refusal to comply with a Kroger-type clause. Most significantly,
the Board observed that the collective-bargaining agreement containing
the Kroger-type clause had expired at the time the respondent allegedly
refused to honor it. Kroger clauses, involving as they do a waiver of a
statutory right, generally do not survive the contracts that contain them.
See Holiday Inn of Victorville, 284 NLRB 916 (1987). Therefore, the
alleged refusal of the respondent in Triple A Maintenance to comply
with the Kroger-type clause in the expired contract could not constitute
a violation of Sec. 8(a)(5). To the extent that language in Triple A
Maintenance can be read as suggesting that a Kroger clause is not a
mandatory subject of bargaining, such language was mere dicta because
it was not necessary to support the decision reached by the Board.
5 Mine Workers (Lone Star Steel), 231 NLRB 573 (1977), enf. de-
nied 639 F.2d 545 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981),
supplemental decision 262 NLRB 368 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1676
the applicable collective-bargaining agreement to all new
operations of the employer (including those that did not
compete with the work performed by the employees).
Unlike the clause at issue in Kroger, the “application-of-
contract” clause was not limited to adding additional
employees to the existing unit, but would have extended
the collective-bargaining agreement to employees who
were concededly outside the bargaining unit.
Applying the principles of Pittsburgh Plate Glass, the
Lone Star Steel Board held that, like the after-acquired
clause in Kroger, the “application-of-contract” clause
was a mandatory subject of bargaining. Although that
clause differed from the Kroger clause in that it extended
the contract to employees outside the unit, the Board
found that it nonetheless “vitally affects” the terms and
conditions of employment of the unit employees because
it removed economic incentives which might have oth-
erwise encouraged the employer to transfer the work out
of the bargaining unit. 231 NLRB at 576.
On review, the 10th Circuit denied enforcement of the
Board’s decision in Lone Star Steel.6 Reversing the
Board’s finding that the “application-of-contract” clause
was a mandatory subject of bargaining under the “vitally
affects” test, the court held that the clause was not di-
rected towards any specific problem and thus was “much
broader than necessary to accomplish the legitimate Un-
ion goal of protecting” jobs and wages. 639 F.2d at 558.
We need not address in this case the issue raised in
Lone Star Steel regarding clauses that apply to all new
operations or facilities of an employer. As set forth
above, the instant letter of agreement specifically per-
tains to bargaining unit work performed at only one other
facility in the same geographical area, the Respondent’s
Port Washington facility. Thus, the clause is clearly
more limited in scope than the broad “application-of-
contract” clause at issue in Lone Star Steel.
Further, we find that the General Counsel has shown
by a preponderance of evidence that the clause in this
case was in fact directed at the concerns of the unit em-
ployees and “vitally affects” their terms and conditions
of employment. The record shows that in 1990 unit em-
ployees were so concerned about the possibility that bar-
gaining unit work would be transferred to the Port Wash-
ington facility that they engaged in a strike. The strike
did not end until the Respondent executed the letter of
agreement. Moreover, 4 years later, the Respondent did,
in fact, transfer equipment worked on by unit employees
from Glen Cove to Port Washington, and the Respondent
began hiring new employees at Port Washington in posi-
tions with titles and duties similar to those of unit em-
ployees. We find that these facts are sufficient to estab-

6 639 F.2d 545 (10th Cir. 1980).
lish that the clause “vitally affects” the unit under the
Pittsburgh Plate Glass test.7
In finding the clause to be a nonmandatory subject, the
judge relied on two factors which he found distinguished
this case from Kroger. We find neither distinction per-
suasive.
First, the judge stated that in Kroger the union repre-
sented a majority of the employees in the new stores,
while in this case the Union has not demonstrated its
majority at the Port Washington facility. While that ob-
servation is true, it is not relevant to the complaint
allegations in this case. Here, unlike Kroger, there is no
contention that the Respondent was obligated to recog-
nize the Union as the representative of the Port Washing-
ton employees. Rather, according to the General Coun-
sel, the Respondent’s obligation was to honor the letter
of agreement and extend recognition to the Union only if
at some later date it achieved majority status. Therefore,
the absence of a showing that the Union presently repre-
sents a majority of the Port Washington employees has
no bearing on the issues before us.
Of course, the letter of agreement itself does not re-
quire the Union to demonstrate majority support at Port
Washington. As discussed above, such a requirement
was likewise absent from the after-acquired store clause
in issue in Kroger, and the Board nevertheless held that
the clause was valid. In this respect, the instant case is
not distinguishable from Kroger, as suggested by Mem-
ber Hurtgen’s dissent, but rather closely resembles it.
Thus, contrary to our dissenting colleague, we find that
the letter of agreement should be given a “Kroger gloss.”
As the Board did in Kroger and similar cases, we here
have construed the agreement at issue as requiring the
showing of majority support before it may be properly
applied. In Kroger, the Board imposed the condition of
majority status “as a matter of law” and to preserve the
legality of the provision. Because we view the letter of
agreement as serving a purpose similar to that of an after-
acquired provision, we impose a similar requirement on
the letter of agreement.
Second, the judge stated that in Kroger the employees
working in the new stores would be absorbed into the
existing bargaining unit, while in this case the Port
Washington employees would constitute a separate bar-
gaining unit. Again, while the judge’s observation may
well be true, we do not find it to be significant.8 A
7 These facts also appear to satisfy the 10th Circuit’s concern in
Lone Star that the agreement be directed toward remedying “a specific
problem over which the parties had disagreed,” and that it accomplishes
“the legitimate union goal of protecting employees against a shift” of
bargaining unit work to a nonunit facility. 639 F.2d at 558.
8 As indicated above, a similar distinction was rejected by the Board
in Lone Star. Although the 10th Circuit denied enforcement in that
case, as indicated above it appeared to do so because of the breadth of
the clause (i.e., the fact that it applied to all new operations that might
have no affect on unit employees), not because the employees at those
facilities would not be added to the unit.
PALL BIOMEDICAL PRODUCTS CORP. 1677
Kroger after-acquired store clause protects against the
erosion of the terms and conditions of employment of
existing unit employees by absorbing the new employees
into the unit and applying the terms of the collective-
bargaining agreement to them. Even if the letter of
agreement contemplated the placement of the Port Wash-
ington employees in a separate bargaining unit, under its
terms the Union would still be able to accomplish the
same objective: If the Respondent began performing bar-
gaining unit work at Port Washington, the Union would
be in a position to protect the interests of the existing unit
employees by achieving recognition as the bargaining
representative of the Port Washington employees and
negotiating terms and conditions of employment for
them similar to those enjoyed by the East Hills and Glen
Cove employees. If labor costs at the two facilities were
substantially the same, there would be no economic in-
centive for the Respondent to transfer work from one to
the other. In sum, whether the letter of agreement con-
templates that the two groups of employees will be in the
same or different units is not dispositive; what is critical
is that the employment of employees at Port Washington
performing bargaining unit work “vitally affects” unit
employees and that the letter of agreement is specifically
addressed to that concern.
We recognize, as the judge stated, that the Union
sought recognition from the Respondent “for the Port
Washington unit, even in the absence of a showing of
majority representation, in violation of Kroger.” The
Respondent, however, did not simply reject the Union’s
demand for recognition; instead, it explicitly informed
the Union that it was revoking the letter of agreement.
The Respondent clearly had options readily available to
it short of revoking the letter of agreement in its entirety.
Given that our national labor policy favors the honoring
of voluntary agreements reached between employers and
labor organizations,9 the Respondent should have re-
sorted to one of these alternatives instead of repudiating
its commitment to the Union.
Specifically, the Respondent could have simply re-
jected the Union’s interpretation of the letter of agree-
ment and lawfully insisted that the Union achieve major-
ity status among the Port Washington employees before
recognition would be extended. Alternatively, the Re-
spondent could have challenged the Union’s invoking the
agreement by filing an 8(b)(1)(A) unfair labor practice
charge against the Union. In this regard, Board has held
that it is unlawful for a union to demand and accept rec-
ognition as the bargaining representative of a group of
employees, who may constitute a separate appropriate
unit, at a time when the union does not represent a major-
ity of those employees. E.g., Melbet Jewelry Co., 180
NLRB 107, 110 (1969). Indeed, when the Union filed its

9 See Retail Clerks Local 455 v. NLRB, 510 F.2d 802, 807 fn. 20
(D.C. Cir. 1975), citing, inter alia, Sec. 301 of the Act.
unfair labor practice charge against the Respondent, the
Regional Director dismissed it insofar as it alleged that
the Respondent was obligated to recognize the Union for
the Port Washington unit in the absence of evidence that
the Union enjoyed majority status at Port Washington.
Although the Union’s interpretation of the letter of
agreement as requiring immediate recognition without
regard to majority status could lead to unfair labor prac-
tice charges, the Respondent was not thereby privileged
to repudiate the letter of agreement. The Respondent
could have taken the “reasonable step” of simply reject-
ing the Union’s interpretation. The Respondent instead
took the destructive step of outright repudiation. Con-
trary to our dissenting colleague, we do not view outright
repudiation as taking a “reasonable step.”
For all these reasons, we find, contrary to the judge,
that the parties’ letter of agreement was a mandatory
subject of bargaining and that the Respondent violated
Section 8(a)(5) and (1) of the Act by revoking it.
B. The Refusal to Grant the Union’s Access Requests
The second issue to be discussed is whether the Re-
spondent violated Section 8(a)(5) of the Act by refusing
to grant the Union’s requests for access to the Port Wash-
ington facility. Like the judge, we dismiss this allegation
of the complaint, but we do so on the ground that the
record shows that the Union’s requests were linked to its
improperly invoking the letter of agreement to seek rec-
ognition in the absence of majority support.
As the judge found, the Respondent permitted the Un-
ion to visit the Port Washington facility on two after-
noons in September 1995. These visits were in accor-
dance with the terms of the June 1995 settlement agree-
ment which granted the Union access to the Port Wash-
ington facility for the purpose of determining whether
bargaining unit work was being performed there.
In a September 29, 1995 letter to the Respondent’s at-
torney, the Union’s attorney stated that during the visits,
union representatives observed individuals performing
bargaining unit work. The Union’s attorney demanded
that, pursuant to the letter of agreement, the Respondent
recognize the Union as the exclusive collective-
bargaining representative of the Port Washington em-
ployees.
In October 1995 the Union made oral and written re-
quests for a morning visit to the Port Washington facility.
In an October 11, 1995 letter to the Respondent’s attor-
ney, the Union’s attorney again claimed that the Union
represented the Port Washington employees, adding that
they constituted an accretion to the existing bargaining
unit and demanding that the collective-bargaining
agreement be applied to them. Referencing “the NLRB
settlement agreement and the parties collective bargain-
ing agreement,” the letter gave the following reasons for
the request for a third visit to Port Washington:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1678
Obviously, there are different employees performing
different functions at the facility, which may constitute
bargaining unit work, during the morning hours. In ad-
dition, bargaining unit work may be performed in those
areas of the plant which the Union has not yet been per-
mitted to visit, of which areas the employee union
representatives have already made the Pall Representa-
tives aware. In addition to the reasons already articu-
lated, permit me to advise you that the Union now
wishes to visit the plant to ensure compliance with the
terms of the collective bargaining agreement, to seek
execution of union membership and dues checkoff au-
thorization forms, and to ensure management is not en-
gaged in direct dealing with bargaining unit employees,
among other reasons.
Having carefully considered the record as a whole, we
find the Respondent was not obligated to grant the Union
a third visit to the Port Washington facility. The record
shows that by October 11 the Union was convinced that
bargaining unit work was being performed at Port Wash-
ington and that, by operation of the letter of agreement,
the Port Washington employees had become part of the
bargaining unit covered by the collective-bargaining
agreement. As discussed in the preceding section, the
Union’s interpretation of the letter of agreement was er-
roneous as a matter of law because the Union had not
achieved majority status among the Port Washington
employees. Given this background, we find that the rea-
sons advanced by the Union for requesting a third visit to
Port Washington cannot logically be separated from its
demand that it be recognized as the bargaining represen-
tative of the Port Washington employees. Thus, the Oc-
tober 11 letter explicitly stated that the request for access
is “to ensure compliance with the terms of the collective
bargaining agreement,” including the union security
clause, even though the collective-bargaining agreement
could not lawfully be extended to the Port Washington
employees. See Melbet Jewelry, 180 NLRB at 110. In
addition, the October 11 letter stated that access was nec-
essary to prevent “direct dealing with bargaining unit
employees.” The Union may one day be able to chal-
lenge “direct dealing.” But as of October 11 the Port
Washington employees were not “bargaining unit em-
ployees.” We recognize that the letter referred to another
reason for the access request, i.e., to determine whether
bargaining unit work was being performed by employees
whom the Union had not observed during its first two
visits. In the context of the Union’s improper demands
for compliance with the terms of the contract, however,
this reason appears to have been linked to the Union’s
attempt to ascertain whether there were additional Port
Washington employees who the Union could claim were
covered by the contract.
Accordingly, having found that the Union’s requests
for access to the Port Washington facility were tied to its
demands for recognition and extension of the collective-
bargaining agreement, we conclude that the Respon-
dent’s refusal to grant the requests did not violate the
Act.
C. The Refusal to Provide Requested Information
The final issue to be discussed is whether the Respon-
dent violated Section 8(a)(5) of the Act by refusing to
furnish the Union the information it requested in its let-
ters of September 29 and October 11 and 12, 1995. The
relevant principles are well established.
“There can be no question of the general obligation of
an employer to provide information that is needed by the
bargaining representative for the proper performance of
its duties.” NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967). A failure to fulfill the obligation to
furnish relevant information upon request “conflicts with
the statutory policy to facilitate effective collective bar-
gaining.” Procter & Gamble Mfg. Co. v. NLRB, 603
F.2d 1310, 1315 (8th Cir. 1979).
The duty to furnish information turns on “the circum-
stance of the particular case.” NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 153 (1956). The key question in determin-
ing whether information must be produced is “one of
relevance.” Emeryville Research Center v. NLRB, 441
F.2d 880, 883 (9th Cir. 1971). Certain information is
considered “so intrinsic to the core of the employer-
employee relationship as to be presumptively rele-
vant . . . .” Electrical Workers IBEW v. NLRB, 648 F.2d
18, 24 (D.C. Cir. 1980).
When the requested information pertains to employees
outside the bargaining unit, however, such as the Port
Washington employees here involved, there is no such
presumption, and the union has the “initial burden to
show relevancy.” NLRB v. Associated General Contrac-
tors, 633 F.2d 766, 770 (9th Cir. 1980), cert. denied 452
U.S. 915 (1981). This burden is not a heavy one. “The
Supreme Court has adopted a liberal, discovery-type
standard by which relevancy of requested information is
to be judged.” NLRB v. Leonard B. Hebert, Jr. & Co.,
696 F.2d 1120, 1124 (5th Cir. 1983), citing Acme Indus-
trial, supra. The Union need only be “acting upon the
probability that the desired information [is] relevant, and
that it would be of use to the union in carrying out its
statutory duties and responsibilities.” Acme Industrial,
supra, 385 U.S. at 437.
Applying these principles to the facts of this case, we
find, as explained below, that the Union made a showing
of probable relevance sufficient to impose on the Re-
spondent an obligation to supply the requested informa-
tion. In its September 29, 1995 letter, the Union stated:
[W]hile touring the [Port Washington] plant, the Com-
pany representative advised the Union representatives
that she could not answer many of their questions, and
invited them to submit inquiries in writing. Accord-
ingly, without prejudice to the Union’s demand for
PALL BIOMEDICAL PRODUCTS CORP. 1679
immediate recognition, and pursuant to the settlement
of the above-referenced NLRB charge, the Union re-
quests the following information regarding individuals
working at the Port Washington facility which is rea-
sonably necessary and relevant to its representative re-
sponsibilities.
The text of the Union’s information request is attached to
the judge’s decision as an appendix. In substance, the Un-
ion sought the names of all employees performing bargain-
ing unit work at Port Washington, and their job classifica-
tions, job descriptions, departments or functions, grades, and
shifts.
Significantly, the Union did not link its September 29,
1995 information request to its improper demand for
recognition. On the contrary, the Union was careful to
state that its request was independent of its demand for
immediate recognition and to express a separate, legiti-
mate reason for its September 29 request, i.e., that the
information was “necessary and relevant to its represen-
tational responsibilities.”
Further, we find that, under the Acme Industrial stan-
dard, the Union has shown that the information it sought
was of probable relevance to the performance of its statu-
tory duties and responsibilities. Specifically, the requested
information would be of use to the Union in administering
the letter of agreement it had negotiated on behalf of the
East Hills and Glen Cove employees it represented. As
discussed in section II,A, supra, under the 1990 letter of
agreement, the Respondent was obligated to recognize the
Union as the bargaining representative of the Port Wash-
ington employees if they performed bargaining unit work
and, as a matter of law, if a majority of them selected the
Union. Based on its September 1995 tours of the Port
Washington facility, the Union had a reasonable basis for
believing that unit work was being performed there. In
these circumstances, the information the Union requested
relating to the staffing of the Port Washington facility was
relevant in assisting the Union to determine precisely
which job classifications made up the Port Washington
bargaining unit that the Union might one day represent.
Certainly, the Union cannot possibly seek to represent a
bargaining unit without knowing the scope and composi-
tion of that unit.
In addition, the requested information would assist the
Union in communicating with the Port Washington em-
ployees to determine if they desired union representation.
After all, the Union is no “stranger” to these employees,
for their employer has agreed that, if a majority of them
select the Union, their employer will recognize the Union
as their bargaining representative pursuant to the letter of
agreement. As stated in Kroger, supra, “The Board has
held that an employer may agree in advance of a card
count to recognize a union on the basis of a card majority,
and we can perceive of no reason why it may not contract
with the union to do so in advance of the time the union
has commenced organizing.” 219 NLRB at 389 (footnote
omitted). Having negotiated such a contract with the Re-
spondent and having learned that there were employees at
Port Washington performing bargaining unit work, the
Union was entitled to information from the Respondent
that would assist it in fulfilling Kroger’s majority status
requirement and enforcing its rights under the letter of
agreement.
By letter dated October 12, 1995, the Union supple-
mented its September 29, 1995 request by seeking in-
formation concerning the terms and conditions of em-
ployment of all employees in the Port Washington unit.
Like its first information request, the information the
Union sought on October 12, 1995, was of probable rele-
vance to the performance of its statutory duties and re-
sponsibilities in connection with administering the letter
of agreement. For example, this information would be
useful to the Union not only in organizing the Port Wash-
ington employees if it were to show that their terms and
conditions of employment were inferior to those of the
East Hills and Glen Cove employees that the Union al-
ready represented but also in protecting labor standards
of existing unit employees. See Lone Star Steel, 231
NLRB at 575.
Accordingly, for the above-stated reasons, we find that
the Respondent was obligated to furnish the Union the
information it requested in its letters of September 29
and October 12, 1995, and that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to do so.10
AMENDED CONCLUSIONS OF LAW
1. By revoking the March 14, 1990 letter of agreement,
the Respondent has unlawfully refused to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
2. By refusing to furnish the Union with the informa-
tion it requested on September 29 and October 12, 1995,
the Respondent has unlawfully refused to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
3. The above unfair labor practices affect commerce
within the meaning of the Act.

10 By contrast, we find that the Respondent did not violate the Act by
failing to furnish the Union the information it requested in its October
11, 1995 letter. The October 11 letter requested the names, addresses,
and home telephone numbers of all employees, except for those explic-
itly excluded by the bargaining agreement, at the Port Washington
facility and detailed descriptions of every occasion in which employees
at East Hills or Glen Cove worked at Port Washington and vice versa,
the nature of the operations at Port Washington, the identity and re-
sponsibilities of administration and labor relations management at all
facilities, and labor relations policies at all facilities. The only reason
the Union offered for this information request, however, was its claim
that it was the bargaining representative of the Port Washington em-
ployees. As we have repeatedly stated above, the Union’s demand for
recognition as the bargaining representative of the Port Washington
employees was improper. Accordingly, we conclude that the Respon-
dent was not obligated to honor the October 11, 1995 request, and we
shall dismiss the complaint insofar as it alleges that the Respondent
violated the Act by failing to do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1680
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to reaffirm the letter of agreement, and to furnish
relevant information to the Union in accord with our de-
cision.
ORDER
The National Labor Relations Board orders that the
Respondent, Pall Biomedical Products Corporation, a
Division of Pall Corporation, East Hills, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 365, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, UAW, AFL–CIO, as the exclusive bargain-
ing representative of the employees in the bargaining
unit, by revoking the March 14, 1990 letter of agreement
with the Union and by failing and refusing to furnish the
Union with information that is relevant and necessary to
its role as the exclusive bargaining representative of the
unit employees. The unit is:
All employees located at the East Hills facility and the
Glen Cove facility but excluding all office employees,
officers, supervisors, salespeople, draftspeople, engi-
neers, degreed scientists and all supervisors as defined
in the Act.
(b) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reaffirm the March 14, 1990 letter of agreement
and notify the Union in writing that it has done so.
(b) Furnish the Union the information it requested on
September 29 and October 12, 1995.
(c) Within 14 days after service by the Region, post at
its facilities in East Hills, Glen Cove, and Port Washing-
ton, New York, copies of the attached notice marked
“Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, 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 a facility involved in these proceedings, the Re-

11 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent since August
22, 1994.
(d) 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 steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed in so far as it alleges violations not found.

MEMBER HURTGEN, dissenting.
I do not agree that the relevant clause here is a manda-
tory subject of bargaining. Accordingly, the repudiation
of the clause was not unlawful under Section 8(a)(5).
The Union represents the Employer’s employees at
East Hills and Glen Cove, New York.
The relevant clause reads as follows:
The Employer agrees that in the event that it employs
one (1) or more employees performing bargaining unit
work at the Employer’s facility in Port Washington,
NY, the Employer will extend recognition over such
employees to Local 365, UAW. After extension of
recognition the Employer and Union will meet to dis-
cuss the terms and conditions of employment for such
employees.
My colleagues analogize the clause herein to the
clause in Kroger Co., 219 NLRB 388 (1975). In my
view, the clauses are markedly different. In Kroger, the
clause (as construed) required the employer to recognize
the union in any newly acquired store, provided that ma-
jority status was shown at that store. In the instant case,
the clause requires the Employer (the Respondent) to
recognize the Union at a new facility if “one or more
employees” performs unit work there. Thus, the clause
mandates recognition even if only one employee is per-
forming unit work at the new facility. The clause oper-
ates without regard to majority status and indeed without
regard to whether the employee (who is performing unit
work) is a transferee from the represented unit. Thus, the
application of the clause would result in an 8(a)(2) and
8(b)(1)(A) unfair labor practice. That is, the Port Wash-
ington facility is a separate unit, and the Union did not
have majority status there. Clearly, recognition in these
circumstances would be unlawful. Accordingly, since
the clause would produce an unfair labor practice, it is
not a mandatory subject of bargaining.
My colleagues seek to avoid this result by saying that
the Respondent should have sought a lawful interpreta-
tion of the clause (i.e., add a “majority” requirement) or
the Respondent should have filed an 8(b)(1)(A) charge.
I disagree. The Union was the drafter and proponent
of the clause. It was therefore not the responsibility of
the Respondent to try to render it lawful. Nor must the
Respondent attack it as an unfair labor practice. Instead,
the Respondent took the reasonable step of simply de-
PALL BIOMEDICAL PRODUCTS CORP. 1681
clining to apply it, inasmuch as such application would
have resulted in an unfair labor practice by the Respon-
dent.
My colleagues attempt to avoid the 8(a)(2) conse-
quences of the clause by giving the clause a “Kroger
gloss,” i.e., reading into the clause a requirement of ma-
jority status. In my view, the clause is different from the
one in Kroger and cannot be given a “Kroger gloss.” In
Kroger, the clause simply required recognition at newly
acquired stores. The Board read into the clause a re-
quirement that majority status must be shown at any such
store. By contrast, the instant clause already states the
requirement for recognition, and that requirement has
nothing to do with majority status at the new facility.
Where, as here, the parties have set forth a condition for
recognition, it is wholly unrealistic to read into the clause
a different condition.
In sum, the clause, on its face, requires recognition
upon the bare showing that one or more unit employees
performs work there.
In addition, I conclude that the clause would not be a
mandatory subject even if it contained a “majority” re-
quirement. In this regard, I note (as do my colleagues)
that the general rule is that a clause pertaining to a differ-
ent unit (i.e., different from the one in which the clause is
proposed) is not a mandatory subject. Under the Act,
parties must bargain about terms and conditions of em-
ployment in the bargaining unit; they may not “clog up”
that bargaining with extraneous matters. My colleagues
concede the general rule, but rely on an exception. If the
clause “vitally affects” terms and conditions of employ-
ment in the unit in which bargaining occurs, the clause
can be a mandatory subject. Thus, for example, assume
that an employer operates a unionized grocery store and a
nearby nonunion grocery. If it is shown that market
forces are such that the nonunion store is undermining
the economic conditions at the union store, the employ-
ees at the unionized store may have a legitimate interest
in bargaining about transforming the nonunion store into
a union store and applying the contract there. However,
in the instant case, there is no evidentiary showing that
the nonunion character of Port Washington is having an
economic impact on the Union’s facilities at East Hill
and Glen Cove. Indeed, the clause is not triggered by the
presence of any such impact, but rather by the mere fact
that an employee at Port Washington performs unit work
there. In sum, there may be economic forces which ren-
der the nonunion character of Port Washington relevant
to the bargaining at East Hills and Glen Cove, but those
facts have not been shown.
My colleagues seek to show that the nonunion charac-
ter of Port Washington is having an economic impact on
the represented units. They state that employees in the
represented units were concerned about the transfer of
unit work to Port Washington. However, the instant
clause does not address that problem. It does not forbid
or even limit such transfers. Nor does it provide that the
contract will apply to Port Washington so as to take away
the economic incentive to transfer work there. Rather,
the clause simply mandates recognition.
In sum, inasmuch as Port Washington is a separate
unit, the General Counsel was required to show that the
conditions there would vitally affect the conditions at
East Hills and Glen Cove.1 That showing has not been
made.
My colleagues respond that no such showing was
made in Kroger. However, the result in Kroger did not
turn on the “mandatory vs. permissive” issue. Rather,
Kroger was simply an application of the Snow & Sons
principle.2 That is, if an employer agrees to recognize a
union upon a showing of card majority, the Board will
enforce that agreement. The employer has waived its
right to a Board election. The Board in Kroger simply
applied that principle. The Board in Kroger did not even
discuss its holding in mandatory vs. permissive terms.
Thus, the Board did not even discuss, much less resolve,
the question of whether a union can “clog up” the bar-
gaining in unit A by insisting on a clause relating to unit
B. As discussed above, the general rule is that a union
cannot do so, unless it can be shown that the conditions
at B “vitally affect” the conditions at A.
Further, even if Kroger is read to hold that the clause
therein was a mandatory subject, that holding would not
apply to the instant case. The Kroger clause provided
that the new stores would be in the same unit as the ex-
tant stores. By contrast, under the instant clause, the Port
Washington facility is to be a different unit.3 Thus, the
instant clause is nonmandatory because it relates to a
different unit.
My position is supported by the court’s decision in
Lone Star Steel Co. v. NLRB,4 In that case, the court
dealt with a clause that would apply the contract to other
facilities. The court held that the clause was a nonman-
datory subject.
My colleagues seek to distinguish Lone Star Steel on
the basis that the clause there pertained to all new facili-
ties of the employer. By contrast, my colleagues note,
the instant clause pertains to only one facility, i.e., Port
Washington. The distinction is without a legal differ-
ence. Where, as here, the clause pertains to a different
unit, the clause is nonmandatory, irrespective of whether
the different unit is comprised of one facility or many
facilities. The nonmandatoriness of the clause is based
on the fact that it pertains to a different unit, rather than
on the number of such units.

1 U.S. Postal Service, 308 NLRB 1305, 1308 (1992).
2 134 NLRB 709 (1961).
3 The instant clause provides that, after recognition, the parties will
bargain. If the parties intended for Port Washington to be in the same
unit, the contract would apply.
4 639 F.2d 545 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1682
Further, even if one accepts the Board’s decision in
Lone Star, the case offers no help to my colleagues. In
that case, the clause would apply the contract to the other
unit only if the employer became obligated to recognize
the union there. And, by applying the contract, the
clause removed the economic incentive to transfer work
from one unit to another. By contrast, in the instant case,
the clause forces recognition in the other unit, and it does
not apply the contract there.
Based on all of the above, I conclude that the clause is
not a mandatory subject, because it calls for an unlawful
result. And, even if that defect were cured, the clause is
nonetheless a nonmandatory subject.
Finally, since the clause is not a mandatory subject, the
Respondent was not required to furnish information
sought with respect thereto.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 with Local 365,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL–CIO, as the ex-
clusive bargaining representative of the employees in the
bargaining unit, by revoking the March 14, 1990 letter of
agreement and by failing and refusing to furnish the Un-
ion with information relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees. The unit is:
All employees located at our East Hills facility and the
Glen Cove facility but excluding all office employees,
officers, supervisors, salespeople, draftspeople, engi-
neers, degreed scientists and all supervisors as defined
in the Act.
WE WILL NOT in any like or related matter interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reaffirm the March 14, 1990 letter of agree-
ment and notify the Union in writing that we have done
so.
WE WILL furnish the Union the information it re-
quested on September 29 and October 12, 1995.
PALL BIOMEDICAL PRODUCTS
CORPORATION, A DIVISION OF PALL
CORPORATION
Marcia Adams, Esq., for the General Counsel.
G. Peter Clark, Esq. (Clifton Budd & DeMaria, LLP), of New
York, New York, for the Respondent.
Jamie Rucker, Esq. (Eisner & Hubbard, P.C.), of New York,
New York , for the Charging Party.
DECISION
STEVEN DAVIS, Administrative Law Judge. Based on a
charge in Case 29–CA–18545 filed on September 16, 1994, by
Local 365, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFL–CIO (the Union),
and based on a charge in Case 29–CA–19565 filed on October
17, 1995, by the Union, Region 29 of the Board on March 29,
1996, issued a complaint against Pall Biomedical Products
Corporation, a Division of Pall Corporation (the Respondent or
Pall).
The complaint alleges that Respondent unlawfully refused to
bargain with the Union by (a) revoking a letter of agreement
between them which provided that Respondent would extend
recognition to the Union at its after-acquired Port Washington
facility if one or more employees were employed there, (b)
refusing to permit the Union access to its Port Washington
facility, and (c) refusing to provide certain information re-
quested by the Union.
Respondent’s answer denied the material allegations of the
complaint, and on October 22, 1996, a hearing was held before
me in Brooklyn, New York. Respondent’s unopposed motion to
correct the transcript is granted.
On the evidence presented in this proceeding, and my obser-
vation of the demeanor of the witnesses, and after consideration
of the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its principal
office at 2200 Northern Boulevard, East Hills, New York, and
having other places of business located at 30 Sea Cliff Avenue,
Glen Cove, New York, and at 25 Harbor Park Drive, Port
Washington, New York, is engaged in the manufacture and
wholesale distribution of filtration devices.
During the past year, Respondent sold and shipped from its
New York facilities products and materials valued in excess of
$50,000 directly to points located outside New York State.
Respondent admits, and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent also admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has represented the employees of Respondent at
its East Hills and Glen Cove locations for many years. Their
collective-bargaining agreement sets forth the appropriate col-
lective-bargaining unit as follows:
PALL BIOMEDICAL PRODUCTS CORP. 1683

All employees located at the East Hills facility and the Glen
Cove facility but excluding all office employees, officers, su-
pervisors, salespeople, draftspeople, engineers, degreed scien-
tists and all supervisors as defined in the Act.

In 1990, Respondent purchased a facility in Port Washing-
ton, New York. That year, while the parties were engaged in
negotiations for a new agreement, the Union sought to have the
Port Washington facility included in the contractual unit al-
ready recognized. At that time and apparently until 1994, that
location remained empty with no work being performed there.
No agreement was reached upon economic terms, benefits,
or an agreement on the inclusion of the Port Washington facil-
ity in the contract, and the employees struck. Thereafter,
agreement was reached on wages and benefits. Regarding the
Port Washington facility, the parties entered into the following
letter of agreement, dated March 14, 1990:

The Employer agrees that in the event that it employs one (1)
or more employees performing bargaining unit work at the
Employer’s facility in Port Washington, NY, the Employer
will extend recognition over such employees to Local 365,
UAW. After extension of recognition the Employer and Un-
ion will meet to discuss the terms and conditions of employ-
ment for such employees.

By entering into this agreement, the Union effectively with-
drew its bargaining demand that the Port Washington facility
should be part of a single unit comprised of the East Hills, Glen
Cove, and Port Washington locations.
In about June 1994, it came to the attention of the Union that
the SLS laboratory was being moved from Glen Cove to Port
Washington. The operation of the equipment in that laboratory
at Glen Cove had been performed by bargaining unit employees
such as electricians, plumbers, mechanics, machine builders,
and welders.
In addition, on August 21, 1994, a help wanted advertise-
ment appeared in a local newspaper, seeking “shipping receiv-
ing clerk/chemical handler” at its “Technical Center, a new
state-of the art-facility.” The address set forth in the ad was the
Port Washington facility. The job titles of shipping clerk and
chemical handler are unit positions,and the duties described in
the ad, transporting and transferring chemicals, are performed
by unit employees. Further, Richard Van Wickler, an employee
of Respondent and a union committee chairperson, was advised
by coworkers that their friends and relatives applied for posi-
tions at the Port Washington facility.
On July 19, 1994, K. Dean Hubbard, the Union’s attorney,
sent a letter to Pat Lowy, Respondent’s director of human re-
sources. The letter stated that Hubbard had been informed that
employees at Port Washington were performing work normally
performed by members of the bargaining unit. He requested
that union representatives be granted permission to enter the
facility in order to determine whether work “currently being
performed should be performed by members of the Union.”
The Union’s attorney enclosed a copy of the Letter of Agree-
ment.
On July 26, Thomas Budd, Respondent’s attorney replied,
asking what “work” Hubbard was referring to.
On August 3, Hubbard answered, stating that the work re-
ferred to was all work performed by all employees of Respon-
dent in its bargaining unit. Hubbard also stated that the parties’
collective-bargaining agreement requires Respondent to admit
the Union to its plants.
The contract provides as follows:

Officers and representatives of the Union shall be granted
admission to the plants during working hours for the purpose
of investigating conditions in the plant or investigating or ad-
justing grievances, complaints or disputes.

On August 22, Budd replied to Hubbard’s August 3 letter. In
the letter, Budd stated that Respondent revoked the letter of
agreement. He noted that the letter of agreement contains no
termination date, was not part of the collective-bargaining
agreement, and was no longer effective. Budd stated that if the
Union wanted to represent the Port Washington employees it
would have to file a petition with the Board. Respondent re-
fused to permit access to the Port Washington facility, noting
that the contractual provision, above, related only to the 2 rec-
ognized units—East Hills and Glen Cove.
On September 16, the Union filed a charge in Case 29–CA–
18545. The charge alleged that Respondent refused to bargain
in good faith with the Union in violation of Section 8(a)(5) of
the Act by (a) refusing to permit access to the Port Washington
facility and (b) unilaterally revoking the letter of agreement.
A unilateral settlement agreement of the charge was signed
by the Respondent in June 1995, and approved by the Regional
Director, pursuant to which Respondent agreed to (a) reaffirm
the letter of agreement and (b) permit the Union, on request, to
enter the Port Washington facility and answer questions by the
Union regarding the work and functions being observed, for the
purpose of investigating and “determining whether work per-
formed by employees employed by us in the bargaining unit is
being performed by the employees of the Port Washington
Technical Center.”
Pursuant to the settlement agreement, two visits to the Port
Washington facility took place, in the afternoons of September
13 and 22, 1995. Six people were present for the Union, includ-
ing Van Wickler. Pursuant to agreed-on arrangements, the vis-
its consisted of an escorted tour of the premises by Human
Resources Director Lowy, during which the union representa-
tives were not permitted to speak to employees.
Van Wickler testified that during the first visit, which lasted
1.5 hours, he asked Lowy who changed the light bulbs in the
light fixtures, and who emptied the garbage, both of which
were functions performed by bargaining unit members at East
Hills and Glen Cove. Lowy said that she did not know, but
assumed that the maintenance department, and a porter did
those jobs. Van Wickler observed five or six employees work-
ing with wrenches on a large piece of equipment, which tasks
are unit work. Lowy said the workers were employees of Re-
spondent. One employee wore a Pall identification badge. Van
Wickler noticed a forklift in the shipping department, and asked
Lowy who operated the forklift, which is unit work. Lowy told
him to put that question in writing, and she would respond. Van
Wickler spoke to the driver of a UPS truck who had just made a
delivery. The driver told him that “Cruz” signed for the deliv-
ery. Van Wickler asked Lowy if “Cruz” referred to Cruz
Rosario, a nonunit employee in the purchasing department at
East Hills. Lowy told him to make the request for such
information in writing.
Van Wickler also noticed an employee wearing a Pall uni-
form handling chemicals and pouring liquids in an area marked
“chemical waste.” He testified that the job of chemical waste
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1684
specialist is a unit position at East Hills and Glen Cove. Van
Wickler also observed a person cleaning a bathroom, which is
also unit work.
During the second visit, which lasted 1 to 1.5 hours, Van
Wickler noticed construction work, consisting of the installa-
tion of cabinets, electrical wiring, and plumbing, being per-
formed in certain laboratories, all of which were unit positions,
according to Van Wickler. He also observed an employee
named Nicole tightening certain equipment with a torque
wrench, and saw Cruz Rosario closing and taping a box. When
the union representatives left the building, they spoke to Mike
Basile, who they knew as a nonunit employee in Glen Cove.
Van Wickler overheard a conversation on a two-way radio in
which someone told Basile that he had finished cleaning certain
ceiling traps. Such a function is unit work according to Van
Wickler.
On September 29, Hubbard wrote to Respondent Attorney
Budd, stating that during the visits, union representatives ob-
served individuals performing bargaining unit work. Hubbard
demanded recognition of the Union, pursuant to the letter of
agreement, as the exclusive collective-bargaining representative
of Pall’s Port Washington employees. The letter further re-
quested certain information concerning “individuals working at
the Port Washington facility.” The information requested in-
cluded the names, number of employees, job classifications,
grades, and job descriptions of all employees (a) performing
bargaining unit work at Port Washington and (b) working in
various, named departments.1
In early October, Van Wickler requested a third visit to the
Port Washington facility, which he wanted to take place at
about 9 a.m. He and Lowy could not agree on a time for the
visit, and she asked him to put his request in writing. His writ-
ten request stated that (a) there were still areas in the plant that
the Union delegation had not seen and (b) the early time was
needed in order to observe employees who might work earlier
and who perform different functions than the workers they
observed during the two afternoon visits. A third tour of the site
did not take place.
On October 3, Budd wrote to Hubbard, asking whether the
Union was requesting recognition in a separate Port Washing-
ton unit. In reply, Hubbard stated that pursuant to the letter of
agreement, the Union was demanding that recognition be given
in a separate unit of Port Washington employees. In answer,
Budd wrote that Respondent did not believe that the Union
represented a majority of the Port Washington employees, and
refused to extend recognition to the Union for such a unit.
On October 11, Hubbard wrote to Budd stating that by refus-
ing to recognize the Union as the representative of employees
doing bargaining unit work at Port Washington, Respondent
has unilaterally revoked the letter of agreement. Hubbard fur-
ther stated that the Union considered the Port Washington facil-
ity as an accretion to the existing bargaining unit, and de-
manded application of all terms of the collective-bargaining
agreement to such unit.
Hubbard further requested additional information:

1. Names, addresses and home telephone numbers of
all employees at the Port Washington facility, excluding
only employees in those job classifications expressly ex-

1 The text of the request is set forth in the appendix.
cluded from the bargaining unit description set forth in the
parties’ collective-bargaining agreement.
2. Describe in detail with respect to each of the East
Hills, Glen Cove and Port Washington facilities (collec-
tively the “Long Island facilities”) (a) each and every oc-
casion and nature and extent to which Pall employees at
the East Hills or Glen Cove location have performed work
at the Port Washington facility and vice versa (b) the na-
ture of Pall’s operations at the Port Washington facility,
including but not limited to the relations with operations,
machinery or product lines at the other Long Island facili-
ties (c) the identity and responsibilities of each member of
management for administration and/or labor relations at
the Long Island facilities and (d) labor relations policies at
each of the Long Island facilities.

Finally, in addition to the reasons previously given for mak-
ing a third visit to the Port Washington site, Hubbard requested
another visit in order to “ensure compliance with the terms of
the collective-bargaining agreement, to seek execution of union
membership and dues-checkoff authorization forms, and to
ensure management is not engaged in direct dealing with bar-
gaining unit employees, among other reasons.”
The following day, October 12, Hubbard requested addi-
tional information:

All terms and conditions of employment of all employees at
the Port Washington facility, including but not limited to
wages, hours and working conditions, excluding only em-
ployees in those job classifications expressly excluded from
the bargaining unit description set forth in the parties’ collec-
tive-bargaining agreement.

That day, Hubbard signed the charge in Case 29–CA–19565,
in which it was alleged, inter alia, that Respondent violated
Section 8(a)(5) of the Act by refusing to bargain in good faith
with the Union by (a) failing to provide requested information
to the Union,(b) refusing to recognize the Union pursuant to the
letter of agreement and settlement agreement, and (c) failing to
apply the terms of the collective-bargaining agreement to its
Port Washington facility, which is an accretion to the existing
unit.2
On October 13, Budd wrote to Hubbard advising that Re-
spondent has “withdrawn from the settlement agreement, and
has reaffirmed its previous revocation of the Letter of Agree-
ment.” Budd added that he was examining the information
request contained in Hubbard’s September 29 and October 11
letters and that he would advise Hubbard of Respondent’s posi-
tion within 2 weeks.
The charge was filed on October 17. On October 24, Budd
wrote to Hubbard stating that the Union has “chosen to prose-
cute the issue of recognition at the Port Washington facility and
the related request for information through NLRB unfair labor
practice procedures. Your information request is, in essence a
discovery device seeking evidence pertinent to UAW Local
365’s unfair labor practice charge. In these circumstances, Pall
is not required to submit to unfair labor practice-related discov-
2 The Regional Director dismissed that part of the charge which al-
leged that Respondent was obligated to recognize the Union for the
Port Washington unit, or apply the terms of its collective-bargaining
agreement to that unit, absent evidence of majority status at Port Wash-
ington, and absent evidence that such unit cannot constitute a separate
appropriate unit.
PALL BIOMEDICAL PRODUCTS CORP. 1685
ery, and therefore, it will not provide you with any of the in-
formation requested, at the present time.”
B. Analysis and Discussion
The Letter of Agreement
The complaint alleges that Respondent repudiated, unilater-
ally terminated, and refused to honor the letter of agreement.
There can be no question that by its letter of August 22, 1994,
Respondent expressly and unilaterally revoked the letter of
agreement and refused to honor its terms. I find that it was le-
gally entitled to do so.
An employer may not make unilateral changes regarding
matters which are subjects of mandatory bargaining. NLRB v.
Katz, 369 U.S. 736, 737 (1962); and Serramonte Oldsmobile,
Inc. v. NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). The question
here is whether the letter of agreement was a subject of manda-
tory bargaining.
The General Counsel argues that the letter of agreement is a
Kroger, after-acquired clause. Kroger Co., 208 NLRB 928
(1974). In that case, the employer, a chain of retail food stores,
and the union had a collective-bargaining agreement which
provided that the contract would cover all employees in stores
that were later owned by the employer, and those employees
would be included in the existing, multistore unit. The em-
ployer refused to honor the union’s demands for recognition in
two new stores, and the union filed a refusal-to-bargain charge.
The Board in Kroger dismissed the complaint on the ground
that the employer was not required to recognize the union, since
no agreed upon method for the union to prove its majority
status in the new stores had been established.
Following remand from the District of Columbia Court of
Appeals, the Board reversed its original decision, holding that
the employer was required to honor its commitment to recog-
nize the union in accordance with the after-acquired-store
clause. The Board emphasized that the union had a valid card
majority in the units involved “which leaves no barrier to giv-
ing full effect to the contractual commitments of the parties.”
The Board stated that the after-acquired clause can be read to
require recognition on proof of majority status by a union.
Kroger Co., 219 NLRB 388 (1975). The employer’s statutory
duty to recognize the union and to apply the contract to the new
operation arises only if the union presented it with evidence of
support by a majority of the new store’s employees. Joseph
Magnin Co., 257 NLRB 656, 657 (1981).
Here, there has been no showing that the Union represents a
majority of the Port Washington employees.
Counsel for the General Counsel does not seek here that Re-
spondent be required to recognize the Union for its Port Wash-
ington employees. She demands only that Respondent honor its
Letter of Agreement, and be found to have unlawfully revoked
it. General Counsel claims that Respondent is required to honor
the letter of agreement as a Kroger clause because it refers to
an after-acquired shop. Although the Union has not now dem-
onstrated its majority status among the Port Washington em-
ployees, the General Counsel contends that the Union may at a
later date obtain such status, and then properly demand recogni-
tion and bargaining.
Mine Workers (Lone Star Steel), 231 NLRB 573, 576 (1977),
the Board, citing Pittsburgh Plate Glass, infra, stated that
“where an after acquired clause contemplates the accretion or
absorption of employees into an existing unit, the matter consti-
tutes a subject for mandatory bargaining.”3 Respondent argues,
of course, that the Port Washington unit was considered by the
parties, as set forth in their Letter of Agreement, as a separate
bargaining unit, as to which a separate agreement would be
negotiated if unit work was performed there.
Thus, Respondent argues that the Letter of Agreement is not
a mandatory subject of bargaining because it did not contem-
plate the accretion of the Port Washington unit into the existing
East Hills and Glen Cove unit. Kroger emphasizes that the new
employees who were the subject of the after-acquired clause
would be absorbed into the existing bargaining unit, and that it
was implicit in the decision that the clause did not contemplate
the extension of the contract to other operations.
In contrast, here the new employees in the Port Washington
unit would not be absorbed into the existing East Hills and Glen
Cove bargaining unit. Rather, they would be a part of a separate
bargaining unit which covered only the Port Washington facil-
ity, a different operation than the existing facilities, as to which
separate bargaining would take place for their terms and condi-
tions of employment.
I can find no similarity between the facts herein and those in
Kroger, which required the company to honor its obligation to
recognize the Union as the representative of the employees at
the new stores. The decision in Kroger was premised upon a
finding that the union represented a majority of the employees
in the new stores, and that the after-acquired clause acted to
effect an accretion of the new stores’ employees to the larger
unit. Neither of those facts are present here. I accordingly find
that the Letter of Agreement was not a Kroger clause, and that
Respondent was not obligated to honor it based upon Kroger.
Respondent asserts that it was justified in revoking the Letter
of Agreement because it is not a mandatory subject of bargain-
ing. The Supreme Court in Chemical & Alkali Workers v. Pitts-
burgh Plate Glass, 404 U.S. 157, 178 (1971), stated that gener-
ally, subjects for mandatory bargaining include “only issues
that settle an aspect of the relationship between the employer
and employees. Although normally matters involving individu-
als outside the employment relationship do not fall within that
category, they are not wholly excluded.” The Court also stated
that “in each case the question is not whether the third-party
concern is antagonistic to or compatible with the interests of
bargaining-unit employees, but whether it vitally affects the
‘terms and conditions’ of their employment.” 404 U.S. at 179.
The General Counsel argues that even assuming the Letter of
Agreement cannot be considered a Kroger clause, it is a subject
for mandatory bargaining because it “vitally” affected the terms
and conditions of the unit employees. Pittsburgh Plate Glass,
supra. In support of this position, the General Counsel contends
that the strike by the unit employees took place, in part, in order
to have the Port Washington unit included in the collective-
bargaining agreement which already encompassed the East
Hills and Glen Cove locations. The Letter of Agreement, ac-
cording to the General Counsel, was therefore of vital interest
to the unit employees.
Section 8(a)(5) and (d) require an employer to bargain in
good faith with its employees’ representative concerning
wages, hours, and other terms and conditions of employment of

3 On remand from the 10th Circuit Court of Appeals, the Board ac-
cepted the court’s decision as the law of the case, and found that the
after-acquired clause was a nonmandatory subject of bargaining. Mine
Workers, 262 NLRB 368 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1686
bargaining unit employees. Where an employer revokes an
agreement with the Union without giving the Union an oppor-
tunity to bargain with it, the employer’s action violates Section
8(a)(5) of the Act. However, this rule is applicable only when
the employer’s action involves the terms and conditions of
bargaining unit employees. “When the employer makes deci-
sions involving the interests of individuals outside the bargain-
ing unit, the Board will not find an 8(a)(5) violation if the em-
ployer fails to notify the union in advance of implementation
unless the third-party concern . . . vitally affects the terms and
conditions of bargaining unit employees’ employment.” U.S.
Postal Service, 308 NLRB 1305, 1308 (1992).
In interpreting the requirements of Section 8(a)(5) and 8(d),
the Supreme Court defined mandatory subjects of bargaining as
including only those issues that settle an aspect of the relation-
ship between the employer and employees. While matters af-
fecting individuals outside the bargaining unit are not automati-
cally excluded from the scope of mandatory bargaining, the
touchstone is whether such matters “vitally affect” the terms
and conditions of employment of unit employees. An indirect
or incidental impact on unit employees is not sufficient to es-
tablish a matter as a mandatory subject. Rather, mandatory
subjects include only those matters that materially or signifi-
cantly affect unit employees’ terms and conditions of employ-
ment. United Technologies Corp., 274 NLRB 1069, 1070
(1985).
The only ground offered by the General Counsel in behalf of
a showing that the letter of agreement vitally affects the unit
employees is that the unit employees were so concerned about
obtaining it that they struck to obtain it, and that Respondent
secured an end to the strike by executing it. It is clear that a
compromise was reached pursuant to which the strike ended,
and as part of that compromise the letter of agreement was
executed. However, these facts do not support a finding that the
letter of agreement now vitally affects the terms and conditions
of employment of the unit employees.
It must also be noted that the reason for the strike was that
the employees and the Union sought to have Port Washington
included in the contractual unit. The Union sought and still
seeks recognition for the Port Washington unit without having
to show that it represented a majority of the Port Washington
employees. Essentially, the Union sought an accretion of the
Port Washington unit to the contractual unit. That position has
been rejected by the Regional Director and the General Counsel
has not embraced it here.
The Union argues that inasmuch as Respondent’s reaffir-
mance of the letter of agreement was the quid pro quo for the
Union’s withdrawal of its refusal to bargain charge, Respondent
should not be permitted to be relieved of its obligation to honor
it. The Union’s argument goes further than this, and consistent
with its positions in its letters to Respondent it argues on brief
that Respondent be required to bargain with it, and be prohib-
ited from raising any doubt concerning its majority status
among the Port Washington employees. The cases cited by the
Union, however, all involve unions which have at one time
demonstrated their majority status among the employees in-
volved. See NLRB v. Accurate Web, Inc., 818 F.2d 273, 276 (2d
Cir. 1978). The situation here, of course, is quite different. The
Union has not demonstrated its majority status in the Port
Washington unit and, according to Kroger, there is no require-
ment that Respondent recognize the Union in the absence of a
showing of majority support for the Union.
Indeed, the Union’s position has not changed. Here, it urges
that I find Respondent obligated to recognize the Union for the
Port Washington unit, even in the absence of a showing of ma-
jority representation, in violation of Kroger.
One could speculate that (a) assuming the Union represented
a majority of the Port Washington employees and (b) bargain-
ing began over the terms of a contract for those employees and
(c) if Respondent was able to bargain a contract containing less
favorable terms than its contract covering the East Hills and
Glen Cove employees, then the Union could argue that such
terms would vitally affect the East Hills and Glen Cove em-
ployees since Respondent would argue that if it obtained less
favorable terms for the Port Washington employees, it would
insist on the same terms for the East Hills and Glen Cove em-
ployees. However, no such argument was made here, and even
if it had, it would be too speculative to find that the letter of
agreement thereby was a mandatory subject of bargaining.
Thus, I find, in agreement with Respondent, that what the
Union is seeking here is recognition in the Port Washington
unit. In effect it is demanding bargaining over a scope of the
unit clause, which is a nonmandatory subject of bargaining.
The scope of the unit itself does not involve wages, hours, or
other terms and conditions of employment, and therefore is a
permissive subject. Neither party is required to bargain over a
permissive subject. Antelope Valley Press, 311 NLRB 459, 460
(1993). Attempting to modify an existing bargaining unit by
merging it into a multiemployer bargaining unit is a permissive
subject for bargaining, and insisting to impasse upon such a
subject violates the Act. Walnut Creek Honda, 316 NLRB 139
fn. 1, 141 (1995). Even when parties have successfully bar-
gained about a permissive subject, a party may reject the bar-
gain without violating Section 8(a)(5). Bricklayers, 306 NLRB
229, 235 (1992); Pittsburgh Plate Glass, 404 U.S. at 187–188.
I accordingly find and conclude that the letter of agreement
is a nonmandatory subject of bargaining, and that by unilater-
ally terminating it and refusing to continue in effect its terms,
Respondent did not violate the Act.
The Requests for Access and Information
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by refusing the Union’s request that it enter
its Port Washington facility on October 5, 1995, in order to
investigate and determine whether work normally performed in
the collective-bargaining unit was being performed by employ-
ees at Port Washington.
As set forth above, the Union made two visits to the Port
Washington facility prior to this request, during which time its
representatives were escorted through the premises by Respon-
dent’s representative.
The General Counsel’s position is that the Union’s requests
for access and information with respect to the Port Washington
facility are derived from the letter of agreement. However, the
letter of agreement does not contain any provisions concerning
these matters.
In Holyoke Water Power Co., 273 NLRB 1369, 1370 (1985),
the Board established a balancing test for determining whether
an employer’s denial of access to its facility for the union rep-
resenting its employees violates Section 8(a)(5) of the Act. The
Board stated:

[E]ach of two conflicting rights must be accommodated. First
there is the right of employees to be responsibly represented
by the labor organization of their choice and, second there is
PALL BIOMEDICAL PRODUCTS CORP. 1687
the right of the employer to control its property and ensure
that its operations are not interfered with. As noted by the Su-
preme Court in Babcock & Wilcox, the Government protects
employee rights as well as property rights, and
“[a]ccommodation between the two must be obtained with as
little destruction of one as is consistent with the other.”
Thus, we are constrained to balance the employer’s
property rights against the employees’ right to proper rep-
resentation.

The first question which must be decided is the nature of the
“employees’ right to proper representation.” Access is sought at
the Port Washington facility, as to which the Union has no
representational rights. Indeed, that facility is outside the bar-
gaining unit represented by the Union. Access to Port Washing-
ton is sought by the Union in order to determine whether work
typically performed in the unit locations is being performed
there.
If such work is being performed at Port Washington, then the
Union would seek to enforce the Letter of Agreement, requiring
recognition in the event that one or more persons are perform-
ing typically unit work there.
Inasmuch as I have found that the letter of agreement is a
permissive subject for bargaining which Respondent had no
obligation to honor and properly revoked, for the same reasons
I find that the Union’s request for access must be rejected.
For even assuming that further access to the Port Washington
facility was permitted, and during a further visit the union rep-
resentatives discovered that unit work was being performed
there, Respondent would not be obligated to recognize the Un-
ion under the terms of the letter of agreement. Accordingly, the
Respondent’s property rights must prevail.
In addition, the Union’s stated reasons for seeking access on
October 5 do not support a finding that it was entitled to such
access. Union attorney Hubbard’s letter of October 11 re-
quested access in order to “ensure compliance with the terms of
the collective-bargaining agreement, to seek execution of union
membership and dues checkoff authorization forms, and to
ensure management is not engaged in direct dealing with bar-
gaining unit employees, among other reasons.” None of these
reasons require Respondent to yield its property rights. Thus,
there was no collective-bargaining agreement for the Port
Washington employees, and no compliance could be sought
with an agreement that did not exist. The collective-bargaining
agreement applied only to East Hills and Glen Cove. Further,
Respondent was not required to open its facility in order to
permit the Union to engage in organizing there, and there were
no unit employees located at Port Washington with whom Re-
spondent could engage in direct dealing.
Regarding the Union’s requests for information, as to infor-
mation sought concerning matters outside the bargaining unit,
the Union must show that the information sought is relevant. It
must also be shown that the Union has a reasonable basis for
requesting the information, consisting of sufficient evidence as
to make its information request “reasonably calculated to lead
to the discovery of admissible evidence.” Brisco Sheet Metal,
307 NLRB 361, 366 (1992).
Any evidence which the Union might secure pursuant to its
requests for information would be related to its attempt to have
Respondent honor the letter of agreement, or, as it has argued,
recognize and be required to bargain with it.
Inasmuch as I have found that Respondent had no obligation
to honor the letter of agreement, and has properly revoked it, I
cannot find that any of the Union’s requests for information are
valid. All of the requests relate to the nature of the work per-
formed at the Port Washington facility, and the persons per-
forming such work. As such, the requests concern a nonunit
facility as to which the Union has no representational rights. No
“admissible evidence” obtained from such requests could there-
fore be adduced in any proceeding relating to the Port Wash-
ington facility. Accordingly, none of the requests are relevant.
CONCLUSIONS OF LAW
1. Pall Biomedical Products Corporation, a Division of Pall
Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 365, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act in any
manner as alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
APPENDIX
The following is the text of the Union’s request for informa-
tion, dated September 29, 1995:
“Identify” means state the name(s) and number of em-
ployee(s), and each of their job classifications, grades and job
descriptions.
“Pall” means Pall Corporation or Pall Biomedical Products
Corporation.
1. Please identify all Pall employees at the Port Washington
facility performing work in the [following] bargaining unit:

All employees of Pall Corporation, and Pall Biomedical
Products Corporation, located at 25 Harbor Park Drive, Port
Washington, New York, but excluding office employees, of-
ficers, supervisors, salespeople, draftspeople, engineers, de-
greed scientists and all supervisory employees as defined in
the National Labor Relations Act, as amended.

2. Please identify all Pall employees in the maintenance de-
partment.
3. Please identify all Pall employees in the shipping depart-
ment.
4. Please identify all Pall employees handling the chemical
waste.
5. Please identify all Pall employees performing machine
building functions on the Pall SEP project.
6. Please identify all employees performing support work for
the various labs (including but not limited to plumbing, electri-
cal machining etc.)
7. Please identify all employees who do regeneration of the
deionization water and who maintain said system.
8. Please identify all employees who handle the Bio-Medical
waste.
9. Please identify all employees who operate the Hi/Lo.
10. Please identify all employees who do the trouble shoot-
ing and repairs in the electronics support lab.
11. What section of the building has been allocated for the
CNC machines?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1688
12. What is the classification, grade, job description and full
name of Pall employee “Nicole” who was working on equip-
ment in the Pall SEP area?
13. Does Cruz Rosario do all the receiving in the shipping
dept? If not, identify other Pall employees and functions per-
formed in the shipping and receiving department.
14. What is the classification, grade and job description for
Pall employee Cruz Rosario?
15. What is the real name of the individual who was identi-
fied to the union representatives as Pat Lowy? Is that individual
a Pall employee? What are that individual’s classification,
grade and job description?
16. What is the classification, grade and job description of a
Pall employee named Michael Basile?
17. What is the classification, grade and description of a Pall
employee named George Pitsios in the shipping room?
18. What is the classification, grade and description of a Pall
employee named “Ralph” in the maintenance dept?
19. What person is trained and knowledgeable in handling
hazardous waste material in the shipping dept. and which Pall
employee performs this function?
20. Which of the above-identified employees in questions 1-
19 work 2nd or 3rd shift?
21. When is the expected completion date for the mainte-
nance room?