Sonat Marine, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 100 (N.L.R.B. 1986)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sonat Marine, Inc. and Seafarers International
Union of North America , Atlantic, Gulf, Lakes
and Inland Waters District , AFL-CIO. Case 4-
CA-14650
31 March 1986
DECISION AND ORDER
By MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 23 August 1985 Administrative Law Judge
James L. Rose issued the attached decision. The
General Counsel and the Charging Party Union
each filed exceptions and a supporting brief. The
Respondent filed cross-exceptions and a brief in
support thereof and in response to the General
Counsel's and the Charging Party Union's excep-
tions; the Charging Party Union filed an answering
brief to the Respondent 's cross-exceptions.
The National Labor Relations Board has delegat-
ed 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
Decision and Order.
The judge found, and we agree, that the Re-
spondent was obligated to furnish the Union with
requested factual information concerning the Re-
spondent's position that tugboat captains , mates,
and barge captains, who have been included in bar-
gaining units represented by the Union, are super-
visors within the meaning of the Act. The judge
further concluded, however, that the Respondent
did not, as alleged, violate Section 8(a)(5) and (1)
of the Act because it offered to provide the Union
with the requested information in a reasonable and
timely fashion. For the reasons set forth below, we
find merit in the General Counsel's and the Charg-
ing Party Union's exceptions to the judge's finding
that the Respondent satisfied its bargaining obliga-
tion.
The pertinent facts are as follows: The Respond-
ent is engaged in the transportation of petroleum
and petrochemical products. For many years, Sea-
farers International Union of North America, At-
lantic, Gulf, Lakes and Inland Waters District,
AFL-CIO (the Union) has represented in two sep-
arate bargaining units the licensed and unlicensed
personnel working aboard vessels operated by
Interstate Oil Transport Company which the Re-
spondent owns.' The most recent contracts cover-
' The licensed personnel unit is composed of tugboat captains and
mates All employees working as barge captains, tankermen, deck hands,
and cooks are covered by the unlicensed personnel agreement
ing these bargaining units were effective from 15
August 1981 through 14 August 1984.
On 14 June 19842 the Respondent sent the Union
a letter giving notice of its desire to commence ne-
gotiations on a successor agreement "covering
those persons working as captains , mates, deck
hands (OS/AB), cooks, barge captains, and tanker-
men aboard the company's vessels ." Subsequently,
on 13 July the Respondent informed the Union in
writing that upon conclusion of the existing bar-
gaining agreement the Respondent was withdraw-
ing recognition from the Union as the representa-
tive of its tugboat captains , mates, and barge cap-
tains on the ground that they were statutory super-
visors . During a preliminary negotiating session
also held on 13 July, the Union was notified that
the Respondent had reached this conclusion based
on advice given by its attorneys. Thereafter, at a
meeting on 19 July, the Union's attorney Herbert
Belgrade asked the Respondent for the factual basis
underlying its decision to withdraw recognition. J.
Anthony Messina, the Respondent's attorney, re-
plied that since the job classifications involved
were supervisory, the Respondent had no legal ob-
ligation to provide that information and would
refuse to do so. While the parties continued con-
tract discussions regarding workers whose employ-
ee status was not in dispute, the Respondent denied
similar information requests concerning the alleged
supervisors at bargaining sessions held on 1 and 2
August.
On 8 August the Union hand-delivered a letter
to Respondent specifically restating its request for
the factual basis for the Respondent's conclusion
that the classifications were supervisory. The judge
found that the Respondent's labor relations manag-
er John Burns credibly testified that about this time
"we did come to a decision . . . that we would be
willing to tell the Union what we based our deci-
sion on. But we were not going to do that at the
bargaining table." The judge, however, did not re-
solve a credibility conflict between the parties' wit-
nesses over whether or not the Respondent then in-
formed the Union of this decision. Burns and an-
other management official, William Cope, testified
that during the bargaining the Respondent offered
to meet outside the course of negotiations and pro-
vide the Union with factual information on the su-
pervisory issue . By contrast, Union Attorney
Charles Heyman, in his testimony, denied that the
Respondent had made such an offer.
On 4 September Messina sent a letter to Bel-
grade, which stated in pertinent part as follows:
2 All dates are in 1984 unless otherwise noted
279 NLRB No. 16
SONAT MARINE 101
If you or Charlie [Heyman] at any time wish
to meet with Anthony Haller [an attorney in
Messina's law firm] and myself to discuss in
more detail the legal basis for Sonat's supervi-
sory decision, please feel free to give either of
us a call to set up a mutually convenient meet-
ing.
After receiving a phone call from Haller inquiring
about his receipt of that letter, Belgrade sent his re-
sponse to Messina on 6 November.3 He explained
the Union's understanding of Messina's offer to
meet as follows:
In that letter you offered to discuss the "legal
basis for Sonat's supervisory decision," but
stated that you had "no intention of giving
[the SIU] information concerning [Sonat's]
non-represented supervision." Mr. Heyman un-
derstood your letter to be a mere repetition of
the position adopted by Sonat on July 13 and
restated at each subsequent meeting and bar-
gaining session : Sonat would state its legal
conclusions but refused to provide the Union
with the facutal information upon which man-
agement based its claim that the licensed
seamen and barge captains are supervisors.
Under the circumstances, Mr. Heyman did not
feel obligated to respond to your limited and
inadequate offer.
If he mistook your intent, and you are now
willing to furnish the factual predicate for
Sonat's action, please advise me. As you know,
the SIU has requested this information repeat-
edly, but to no avail.
When Messina sent a written reply to the Union on
26 November, he reiterated that he had offered to
discuss "the legal basis for Sonat's supervisory de-
cision" and, while professing that he did "not
know what more we could have done to accomo-
date your request," he failed to dispute Belgrade's
understanding that the Respondent's offer of a
meeting was not for the purpose of providing the
requested information. Notwithstanding the
Union's clear indication that it wished "the factual
predicate for Sonat's action," Messina also asserted
that "[d]espite the pending [unfair labor practice]
charge, we still do not know what specific infor-
mation you are looking for or the form in which
you believe we should produce it."
In finding that the Respondent had fulfilled its
bargaining obligation to the Union, the judge con-
cluded that "at least by [its] 4 September [letter], if
8 In the meantime , on 12 October, the Union filed the instant unfair
labor practice charge.
not before, at most 6 weeks after the Union's initial
demand, the Respondent made an offer" to provide
the requested information which was not accepted.
While noting that under Section 2(11) of the Act
the resolution of supervisory issues involves a
mixed question of fact and law, the judge found
that Messina's 4 September letter demonstrated that
the Respondent intended to supply the Union with
the requested information. In so doing, the judge
stated that he did not believe that Messina would
offer to meet simply to restate his legal conclusion
on the issue. In dismissing the complaint, the judge
further noted that at the hearing the Respondent
apparently introduced into the record the informa-
tion which the Union had sought and thus, in his
view, the issuance of a remedial order in this case
would be questionable in any event.
Contrary to the judge, we find that the Respond-
ent has violated Section 8(a)(5) and (1) of the Act
by failing and refusing to provide the Union with
requested information. The record evidence here
shows that the Union has represented individuals
working as tugboat captains, mates, and barge cap-
tains for many years in the two historical bargain-
ing units. After the Respondent expressed its view
at the outset of negotiations that these positions
were supervisory, the Union requested the factual
basis of the decision. As the judge stated, quoting
Cherokee Culvert Co., 262 NLRB 917, 926 (1982):
"Nowhere does the Act require that the Union
must accept without any verification an employer's
claim that bargaining unit employees are now out
of the bargaining unit." The Respondent in this
case, however, would reveal no more than the fact
that its attorneys had reached this conclusion based
on a review of applicable Board and court prece-
dent.
We disagree with the judge's finding that the Re-
spondent's 4 September letter offered to provide
the Union with the requested information. We em-
phasize that the Respondent there merely stated its
willingness to meet and discuss "the legal basis for
[its] supervisory decision." There is nothing in this
letter which suggests that the Respondent was in-
tending to explain the factual basis for its decision.
It appears, rather, from the phrasing of its letter
that the Respondent simply was adhering to its pre-
viously stated view on the matter. Moreover, we
note that in its subsequent letter of 26 November
the Respondent did not attempt to clarify the
meaning of its offer, as requested, by demonstrating
to the Union a willingness to provide facts as op-
posed to legal conclusions on the supervisory issue.
For these reasons, we reject the judge's finding
that the 4 September letter constituted an offer by
the Respondent to furnish the requested informa-
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.4 Accordingly, we conclude that the Respond-
ent has violated Section 8(a)(5) and (1) of the Act
by failing and refusing to satisfy its bargaining obli-
gation to the Union.5
We also disagree with the judge's suggestion that
a remedial order is unwarranted here even if a vio-
lation is found. Although it appears that much of
the requested information was presented in evi-
dence in this proceeding, this does not excuse the
Respondent's unlawful conduct, nor does it consti-
tute an adequate substitute, either in law or fact,
for direct and prompt compliance with a proper re-
quest for information by the bargaining representa-
tive.6 Thus, we shall provide for our usual order to
remedy the violation found.
CONCLUSIONS OF LAW
1. The Respondent , Sonat Marine, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Seafarers International Union of North Amer-
ica, Atlantic, Gulf, Lakes, and Inland Waters Dis-
trict, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material to this proceeding, the
Union has been and continues to be the exclusive
representative for purposes of collective bargaining
of the following groups of the Respondent's li-
censed and unlicensed employees:
Licensed Employee Unit.- All tugboat captains
and mates on boats the Employer owns, oper-
ates, or charters on a bareboat basis when the
crews on board such boats are employees of
and on the payroll of the Employer itself and
not of subsidiary or affiliated companies.
Unlicensed Employee Unit: All able seamen, or-
dinary seamen, tankermen, utilitymen, cooks
and other unlicensed employees on boats the
4 Furthermore , even assuming that at some point during the bargaining
for a successor contract the Respondent , as Burns and Cope testified,
proposed meeting with the Union outside the negotiations to provide the
requested information , we find that this offer would have been inad-
equate to satisfy the Respondent 's bargaining obligation The Respond-
ent's offer to provide the requested information , if made, was conditioned
on the Union 's willingness to discuss the supervisory issues apart from
contract negotiations By its refusal to discuss this subject during the
actual negotiating sessions, the Respondent effectively precluded the
Union from having the opportunity to bargain over the disputed job clas-
sifications
s In concluding that the Respondent's conduct was unlawful, we adopt
the judge's finding that the requested information was not protected from
disclosure by the attorney-client or attorney work-product privilege We
further reject the Respondent's defenses that (1) the Union's information
request was not made in good faith , and (2) the information is readily and
easily available to the Union through its own sources The Respondent
has made no showing that the Union' s request was made in bad faith
Further, a union's right to requested information is not defeated merely
because the union independently could acquire the information else-
where See Kroger Co, 226 NLRB 512, 513-514 (1976)
B See Whitehead Bros Co, 263 NLRB 895, 900 (1982)
Employer owns, operates, or charters on a
bareboat basis when the crews on board such
boats are employees of and on the payroll of
the Employer itself and not of subsidiary or af-
filiated companies.
4. By failing and refusing to furnish the Union
with the factual information relating to its conclu-
sion that the tugboat captains, mates, and barge
captains are supervisors as defined by the Act, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order it to cease and desist therefrom and
to take certain affirmative action necessary to ef-
fectuate the policies of the Act. Specifically, we
shall order that the Respondent, on request, furnish
the Union with factual information relating to its
conclusion that the tugboat captains, mates, and
barge captains are statutory supervisors.
ORDER
The National Labor Relations Board orders that
the Respondent, Sonat Marine, Inc., Philadelphia,
Pennsylvania, its officers, agents , successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith
with Seafarers International Union of North Amer-
ica, Atlantic, Gulf, Lakes and Inland Waters Dis-
trict, AFL-CIO by failing and refusing to furnish
the Union with requested factual information relat-
ing to its conclusion that tugboat captains, mates,
and barge captains are supervisors within the
meaning of the Act.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish the Union, on request, with factual
information relating to its conclusion that tugboat
captains , mates , and barge captains are supervisors
within the meaning of the Act.
(b) Post at its facility in Philadelphia, Pennsylva-
nia copies of the attached notice marked "Appen-
dix."? Copies of the notice, on forms provided by
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Continued
SONAT MARINE
the Regional Director for Region 4, after being
signed by the Respondent 's authorized representa-
tive , shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
at 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in
good faith with Seafarers International Union of
North America , Atlantic , Gulf, Lakes and Inland
Waters District , AFL-CIO, by failing and refusing
to furnish the Union with requested factual infor-
mation relating to our conclusion that tugboat cap-
tains, mates , and barge captains are supervisors
within the meaning of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish the Union , on request, with
factual information relating to our conclusion that
tugboat captains , mates , and barge captains are su-
pervisors within the meaning of the Act.
SONAT MARINE INC.
Henry R . Protas, Esq., for the General Counsel.
J. Anthony Messina, Esq., and Anthony B. Haller, Esq., of
Philadelphia , Pennsylvania , for the Respondent.
Stephen Burrow, Esq., of New York, New York , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me on 29 and 30 April and 1
103
May 1985 at Philadelphia , Pennsylvania , on the General
Counsel 's complaint which alleged that the Respondent'
refused to furnish requested information (relating to its
conclusion that certain categories of employees who had
previously been in the bargaining units are supervisors)
thus violating Section 8(a)(5) of the National Labor Rela-
tions Act.
The Respondent generally denies the allegations of the
complaint and specifically contends , as set forth in coun-
sel's brief:
[T]here was no obligation to provide the informa-
tion because (1) the information concerns a nonman-
datory subject of bargaining ; (2) the information is
protected by attorney client and work product
privilege ; (3) all the information is readily and easily
available to the union ; (4) the Union 's request was
not made in good faith.
Finally , the Respondent contends that it did in fact
provide the information or that, at least , the Union ig-
nored and refused to respond to the Respondent 's offer
to meet and supply the requested information.
On the record as a whole , including my observation of
the witnesses , after and consideration of briefs and argu-
ments of counsel , I issue the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Delaware corporation engaged in
the marine transportation of petroleum and petrochemi-
cal products with a facility located at Philadelphia, Penn-
sylvania . In this business the Respondent annually de-
rives gross revenues in excess of $50 ,000 from the trans-
portation of petroleum and petrochemical products from
the Philadelphia facility to points directly outside the
Commonwealth of Pennsylvania . It is admitted, and I
find, that the Respondent is an employer engaged in
interstate commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Seafarers International Union of North America, At-
lantic , Gulf, Lakes and Inland Waters District, AFL-
CIO (the Union) for many years has represented certain
classifications of employees of the Respondent and has
negotiated with the Respondent 's collective-bargaining
agreements the most recent of which were effective from
15 August 1981 through 14 August 1984 . Although the
Respondent denies that the Union is a labor organization
within the meaning of Section 2 (5) of the Act, I find
from the record herein that the Union in fact did repre-
sent employees of the Respondent, which is an employer
engaged in interstate commerce, concerning wages,
hours, and other terms and conditions of employment.
Accordingly , I conclude that the Union is, and at all
I The Respondent 's motion to dismiss following the close of the Gen-
eral Counsel's case-in-chief is denied
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times material has been, a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The material facts involved in this matter are not seri-
ously in dispute.
In its business of transporting petroleum products
along the eastern seaboard of the United States and the
Gulf Coast , the Respondent has seven operating compa-
nies including Interstate Oil Transport Company (IOT or
the green fleet). IOT operates 7 tugs and 20 barges. For
many years, the Respondent recognized the Union as the
bargaining representative for two units of its IOT em-
ployees (as well as employees of other subsidiaries not
involved in this matter). One is the licensed personnel
unit covering tug captains and mates . The unlicensed
personnel agreement covers all nonlicensed employees
working on the tugs and barges including the barge cap-
tains , tanker men , deck hands , and cooks.
As noted above , the most recent collective -bargaining
agreements material to this dispute were effective from
15 August 1981 through 14 August 1984. On 14 June
1984 John J . Hearn Jr., manager of labor relations for
the Respondent, wrote John Fay an officer of the Union:
In accordance with the terms and conditions of
the current collective bargaining agreement for li-
censed and unlicensed employees between Seafarers
International Union, A.Y.I. & I.W.D., AFL-CIO,
and Interstate Oil Transport Company, which is due
to expire August 14, 1984, you are hereby given
notice of Interstate Oil Transport Company 's desire
to commence discussions concerning a new collec-
tive-bargaining agreement covering those persons
working as captains , mates , deck hands (OS/AB),
cooks , barge captains, and tankermen aboard the
company's vessels.
Interstate Oil Transport Company requests that
such discussions begin as soon as possible.
Prior to the first meeting of the parties, by telex dated
13 July 1984, Steven A. Van Dyck, the Respondent's
president, informed Frank Drozak, president of the
Union, that the Respondent would no longer "negotiate
with your union over supervisory personnel, specifically
Captain , Mates , and Barge Captains ." He went on to
state:
We shall continue to honor all provisions of the ex-
isting collective bargaining agreements until they
expire on August 14, 1984, and we expect you to
honor your obligations pursuant to the same agree-
ment . You should be aware , however , that it is our
intention as of that date formally to withdraw rec-
ognition from your union as the collective-bargain-
ing agent for our marine supervisors, who will then
become integrated members of our management
team and will receive benefits for shoreside supervi-
sors.
Van Dyck then gave some of the policy reasons for
the Company's decision, however, he did not set forth
any of the facts on which it was determined that the
named classifications of employees were supervisors
within the meaning of Section 2(11) of the Act.
This telex was answered by John Fay with a telegram
to John Burns dated 16 July 1984 in which he stated that
the Union disagreed with the Company's conclusions
concerning these classifications: "Our analyst conclude
that such group of persons are employees under applica-
ble labor law." A meeting between the parties was sug-
gested for 19 July, though they first met on 13 July.
At the 19 July meeting, Charles B. Heyman, counsel
for the Union, requested the facts on which the Re-
spondent based its conclusion that the captain, mates,
and barge captains are supervisors within the meaning of
the Act. The Union was told that the decision was that
of the board of directors based on the legal opinion of its
counsel . As counsel for the Respondent notes on brief
"Sonat's initial response to these requests [19 July and 1
August] was that the supervisory issue was not negotia-
ble and that there was no legal obligation to provide the
information."
Thereafter, undisputably, at negotiation sessions the
Union requested the facts on which the Company based
its conclusion that the captains, mates, and barge captains
are supervisors. It is also undisputed that the Company
refused to provide this information to the Union during
bargaining sessions . However , the Respondent now con-
tends that it did offer to meet with the Union outside
collective bargaining and furnish this information.
In support of this position, the Respondent offered the
testimony of William S. Cope.2 He testified, "There was
also some discussion as far as the factual basis of their
[the Respondent] case, that we would meet outside to
discuss that."
Q. Did the Company make any response to the
request for factual information, that request?
A. Not other than the fact that they would meet
outside the course of negotiations to do so.
Q. Can you you tell me what offer was made?
A. There were offers made twice to Mr. Heyman
to meet outside the course of negotiations to discuss
the supervisory issue . The Company had made its
position clear from the beginning that they were at
the bargaining table to come to an agreement over
nonsupervisory employees, and the supervisory
issue would be resolved elsewhere.
John Barnes testified that "we did come to a decision
about halfway through the negotiating process that we
would be willing to tell the union what we based our de-
cision on . But we were not going to do that at the bar-
gaining table ." Thus, according to his testimony, on two
occasions during bargaining the Respondent formally of-
2 Cope testified that he was employed by the Respondent I December
1980 through 14 December 1982 but also that he attended all the 1984
bargaining sessions as a member of the management team His status is
unclear but , I conclude, immaterial
SONAT MARINE
fered to meet with the Union outside negotiations to give
this information
Consistent with his testimony is the letter written by
Respondent Counsel J . Anthony Messina to Union Coun-
sel Herbert Belgrad dated 4 September 1984 in which he
states, inter aha , "If you or Charlie [Heyman] at any time
wish to meet with Anthony Haller and myself to discuss
in more detail the legal basis for Sonat 's supervisory de-
cision , please feel free to give either of us a call to set up
an convenient meeting."
Neither Belgrad nor Heyman responded to this sugges-
tion , though mention of the 4 September letter was made
in Belgrad 's letter to Messina of 6 November . Nor, did
the Respondent accede to the Union 's demand to furnish
the facts on which it based its decision to withdraw rec-
ognition as to the captains , mates, and barge captains.
However , during the course of the hearing herein, the
Respondent offered testimony and documentary evidence
concerning the duties of captains , mates , and barge cap-
tains, asserting that such were the facts on which it
relied
B. Analysis and Concluding Findings
Although the Respondent was allowed to present evi-
dence on the supervisory issue , I now conclude that
whether the captains , mates, and barge captains are in
fact supervisors within the meaning of Section 2(11) of
the Act is not material . The Respondent contends that
since they are supervisors there is no legal obligation to
provide information concerning them or their status.
Counsel cited no authority wherein the Board has adopt-
ed such a per se rule, and I decline to do so . To the con-
trary, the Board has long held that in appropriate cir-
cumstances , an employer has a duty to furnish informa-
tion concerning supervisors . Northwest Publications, 211
NLRB 464 (1974).
Nor is it material whether the Respondent lawfully
withdrew recognition concerning those categories. The
issues before me are whether ( 1) the Respondent had a
duty to furnish the Union on request the factual informa-
tion from which it concluded that the captains , mates,
and barge captains are supervisors ; and (2) the Respond-
ent breached its duty. I conclude , for the reasons set
forth below, that the Respondent had a duty to furnish
the Union the information requested but it satisfied this
duty.
1. The duty to furnish information
The parties seem to agree in general concerning the
obligations of the Company to furnish information. It has
the duty to furnish the Union , on request , such informa-
tion as is reasonably necessary for the Union to perform
its duties as the collective -bargaining representative of
employees . NLRB v. Acme Industrial Co., 385 U.S. 432
(1967) And in the context of collective -bargaining nego-
tiations , where an employer puts a particular matter in
issue , good faith requires it to furnish such information as
is requested relevant to that issue . NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956). Although the fact situations in
these matters were different , the principles are generally
the same and are relied on interchangeably.
105
In this case , the Union had represented the captains,
mates , and barge captains for many years and had negoti-
ated with the Company successive collective -bargaining
agreements covering those categories . And prior to the
expiration of the most recent collective -bargaining agree-
ment, the Respondent wrote the Union announcing its
desire to commence negotiations for a successor agree-
ment covering all categories of employees specifically,
including the captains , mates, and barge captains. A
month following this letter and 3 days prior to the first
scheduled bargaining session , the Respondent for the first
time announced that it intended to withdraw recognition
from the Union concerning those categories of employ-
ees and would not then negotiate a successor agreement
covering them. The Union asked for the facts on which
the Respondent based its conclusion that the captains,
mates, and barge captains are supervisors.
The Respondent withdrew recognition concerning
classifications of employees which it had recognized for
many years and the Respondent stated its refusal to dis-
cuss the issue of the union representation of these catego-
ries during bargaining . Thus there are general representa-
tion , as well as bargaining , aspects to this case.
The Respondent contends that inasmuch as the cap-
tains, mates, and barge captains are supervisors , they are
statutory exclusions from the definition of employee and
are outside the bargaining unit . Therefore, it did not
have to provide the information requested by the Union.
By this argument , however , the Respondent reasons
from its conclusion . Given certain facts, the argument
goes, captains , mates, and barge captains are supervisors,
thus the Respondent need not tell the Union what facts
support its conclusion that they are supervisors.
This reasoning misses the essential point of Truitt. Bar-
gaining presupposes testing the logical legitimacy of po-
sitions, and this can be done only if both parties are
privy to the same facts. Thus good faith requires the
party taking a particular stand to furnish , on demand, the
factual support for it. In Truitt, for instance , the compa-
ny may very well have been right that it could not
afford the 50-cent-per-hour wage increase demanded by
the union. But the correctness of the company's position
was not the test. Without the information, the union was
in no position to accept, reject, or argue concerning the
company's position.
Here the Respondent may very well be correct that
the captains , mates, and barge captains have and exercise
such authority. that they are supervisors within the mean-
ing of the Act. But those facts-what the captains,
mates, and barge captains are charged with doing and
what they in fact do-should be presented to the Union
so the Union could determine whether to accept the Re-
spondent's conclusion or take such other action as might
be appropriate.
A union is no more required to accept a company's
legal conclusion concerning bargaining unit issues than it
is to accept a company's economic conclusions. When
such issues are brought up during contract negotiations
the union is entitled to learn the factual basis for those
conclusions
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Cherokee Culvert Co., 262 NLRB 917 (1982), during
the course of collective bargaining the union asked for
certain information about two individuals which the re-
spondent refused claiming that they were no longer in
the bargaining unit , one having voluntarily terminated
his employment and the other having been promoted to
a supervisory position. In concluding that the Respond-
ent was required to furnish the information, notwith-
standing its contention that these individuals were non-
unit employees, the Board adopted, inter alia, the admin-
istrative law judge's conclusion: "Nowhere does the Act
require that the Union must accept without any verifica-
tion an employers claim that bargaining unit employees
are now out of the bargaining unit."
In addition , the Board has long held that a union is en-
titled, on request, to information concerning nonbargain-
ing unit personnel if the relevancy of that information to
the union's duties as a bargaining representative can be
established. See, e.g., Associated General Contractors of
California, 242 NLRB 891 (1979); Leonard B. Herbert Jr.,
259 NLRB 881 (1981 ). These cases were recently af-
firmed by the Board in Walter N. Yoder & Sons, 270
NLRB 653 (1984), with the reservation by Chairman
Dotson and Member Dennis that the Union must demon-
strate "reasonable or probable relevance whenever the
requested information ostensibly relates to employees
outside the represented bargaining unit" 270 NLRB at
fn. 5. In Yoder, the Board found that the company had
violated Section 8(a)(5) by refusing to supply information
to the union concerning whether the Respondent was
operating a "nonunion" company in violation of its con-
tract. The Board found substantial probability that the in-
formation sought was material to the union in the per-
formance of its representation duties.
Clearly the information sought by the Union here was
important in the performance of its representation func-
tion. If the Union was privy to the facts on which the
Respondent based its conclusion that the captains, mates,
and barge captains are supervisors, it would be in a posi-
tion to negotiate a change in the recognition or work ju-
risdiction clauses of the collective-bargaining agreement,
file an appropriate proceeding with the Board, or take
any one of several other courses of action. The point is:
the Respondent announced its intention to change the
status quo because of certain facts, the status quo being
the Union's representation of specific classifications of
employees. Accordingly, the Union was entitled to learn
those facts.
I therefore conclude that, on request, the Respondent
was obligated to furnish the Union with factual informa-
tion requested relating to the issue of whether the cap-
tains , mates, and barge captains are supervisors within
the meaning of Section 2(11) of the Act.
The Respondent argues that it has no duty to disclose
the information citing the attorney-client and attorney
work-product privileges. Although this can be a very
complicated area, suffice it that the attorney-client privi-
lege protects disclosure of client communications to the
attorney; the work-product privilege protects disclosure
of the lawyer's mental processes. Upjohn v. U.S., 449 U.S.
383 (1981). Neither protects disclosure of facts. Just be-
cause a fact is known to an attorney does not prevent its
disclosure. Were it otherwise, there would be no disclo-
sure of information in these types of cases. In virtually
every instance, the company's attorney knows the fact
sought. Here neither communications nor mental proc-
esses were sought. The Respondent was not asked to
weigh the facts, but simply to reveal what it knew. I
therefore reject the Respondent's privilege defense.
2. Compliance with the obligation to furnish
information
There is no one correct way in which a company sat-
isfies its duty to furnish information. The test is always
whether the company gave, or offered to give, the infor-
mation in a reasonable and timely fashion.
Thus in Cincinnati Steel Castings Co., 86 NLRB 592,
593 (1949), the Board held, "the employer is [not] obli-
gated to furnish such information in the exact form re-
quested by the representative. It is sufficient if the infor-
mation is made available in a manner not so burdensome
or time-consuming as to impede the process of bargain-
ing." This holding was recently affirmed in Roadway Ex-
press, 275 NLRB 1107 (1985). There the company al-
lowed the union to inspect, but not copy, a document
material to a grievance proceeding. Such satisfied the
company's obligation, though the union did not take ad-
vantage of the offer. The question was whether "the Re-
spondent has demonstrated its willingness to supply the
information to the Union in a reasonable manner." 275
NLRB at 1107. See also American Telephone & Telegraph
Co., 250 NLRB 47 (1980).
In this case, the record amply demonstrates that the
Respondent begun with an adamant refusal to furnish the
requested information. As counsel for the Respondent
stated in his brief, at the 1 August meeting:
and at other negotiating sessions, the union, through
its legal counsel, restated their request for factual
information based on which Sonat concluded that
captains, mates, and barge captains were supervi-
sors.
Sonat's initial response to these requests was that
the supervisory issue was not negotiable and there
was no legal obligation to provide the information.
Burns testified credibly, I believe, that "we did come
to the decision about half way through the negotiating
process that we would be willing to tell the Union what
we based our decision. But we were not going to do it at
the bargaining table." He then went on to state there was
an offer during negotiations made by the company to
meet with the Union to discuss this issue which was not
accepted. (Nor, apparently, was it rejected, the Union's
principal witness on this issue testifying that he remem-
bers no such offer being made.)
But even without resolving whether or in what
manner the Respondent made an offer to meet outside
negotiations to discuss the basis of the supervisory issue,
undoubtedly there was an exchange of correspondence
which I conclude demonstrates the Respondent's willing-
ness to meet with the Union to supply the information,
and the Union did not accept. Given the importance of
SONAT MARINE
the correspondence to the resolution of this matter, the
letters are quoted in full insofar as they relate at all to
the supervisory issue . In his letter of 4 September to Bel-
grad , Messina wrote:
As I stated in my response to Charlie during the
negotiations , after he delivered his letter of August
8, 1984 , we have supplied the Union with all the
relevant information concerning nonsupervisory
personnel and we have bargained and will continue
to deal with the SIU as the exclusive representative
of those nonsupervisory employees.
The Union has in its possession all the relevant
benefit plans for the represented employees. We
have, however , no intention of giving you informa-
tion concerning our non -represented supervision. If
you or Charlie at any time wish to meet with An-
thony Haller and myself to discuss in more detail
the legal basis for Sonat 's supervisory decision,
please fill free to give either of us a call to set up a
mutually convenient meeting.
On 6 November Belgrad wrote Messina:
On Friday , November 2, 1984 , I received a
phone call from your associate Anthony Haller, in-
quiring about the receipt of your letter of Septem-
ber 4 , 1984, addressed to me . As you will remem-
ber, I called you on October 22 , 1984, following the
receipt of a letter from you dated October 19, 1984,
in which you made reference to your September 4
letter . In that call , I advised you that I had no
record of the September 4 letter in my file and
could not recall having received the same. Subse-
quently, I learned that your letter or September 4
was, in my absence directed to my partner , Charles
Heyman In that letter you offered to discuss the
"legal basis for Sonat 's supervisory decision," but
stated that you had "no intention of giving [the SIU]
information concerning [Sonat's] non-represented
supervision ." Mr. Heyman understood your letter to
be a mere repetition of the position adopted by
Sonat on July 13 and restated that each subsequent
meeting and bargaining session : Sonat would state
its legal conclusions but refused to provide the
Union with the factual information upon which
management based its claim that the licensed
seamen and barge captains are supervisors. Under
the circumstances , Mr. Heyman did not feel obligat-
ed to respond to your limited and inadequate offer.
If he mistook your intent , and you are now will-
ing to furnish the factual predicate for Sonat's
action , please advise me. As you know, the SIU has
requested this information repeatedly , but to no
avail
You are also aware that on October 12 the Union
filed an unfair labor practice charge with alleged
that Sonat violated the National Labor Relations
Act by refusing to provide the information demand-
ed by the Union . The obvious purpose of the
charge is to obtain through legal proceedings infor-
mation which Sonat has unlawfully withheld. The
allegations that the Union has made no "effort
107
to resolve the supervisory question through legal
means" is therefore incorrect.
Then on 26 November Messina responded to this
letter:
First , in my letter of September 4, 1984 , I offered
to discuss the legal basis for Sonat 's supervisory de-
cision and , for whatever reason , the union decided
not to pursue this offer but instead to file an unfair
labor practice charge alleging an unlawful refusal to
provide this very information . We do not know
what more we could have done to accommodate
your request . Despite the pending charge , we still
do not know that what specific information you are
looking for or the form in which you believe we
should produce it. The NLRB agent has been
unable to articulate what you want us to produce
and we are equally at a loss.
The Union and the General Counsel seem to maintain
that all Messina offered was to meet with the Union and
state that , in his opinion , the captains , mates , and barge
captains are supervisors within the meaning of the Act.
Although such is a conceivable interpretation of Mes-
sina's letters, a more reasonable and, therefore , I believe
a correct interpretation was that Messina offered to meet
with counsel for the Union and state the basis on which
he arrived at the legal conclusion . Such necessarily pre-
supposes recitation of the facts.
The contention that in his 4 September letter Messina
qualified his offer of a meeting with the statement, "[W]e
have , however , no intention of giving you information
concerning our nonrepresented supervision" miscon-
strues the portion of the letter which that statement was
meant to modify. As I read the letter , he stated the Com-
pany had no intention of furnishing information concern-
ing benefit plans for unrepresented employees.
Perhaps more careful draftsmenship would have indi-
cated a new paragraph beginning with "If you or Char-
lie." Though Messina's letter may be susceptible to the
interpretation suggested by the Union and the General
Counsel , the juxtaposition of these sentences was not, as
stated by Belgrad in his 6 November letter . In any event,
the fact remains that Messina 's letter went unanswered
for 2 months and when it was answered there was no in-
dication on the part of the Union that his suggestion to
meet and discuss the issue was acceptable Since Heyman
testified that he was willing to receive the information
orally or in writing, the offer to meet should have suf-
ficed.
The issue of whether or not a given individual is or is
not a supervisor within the meaning of Section 2(11) is
always a mixed question of law and fact , dependent on
how certain authority is exercised and whether inde-
pendent judgment is required or whether apparent super-
visory functions are performed in a routine fashion. Such
are not the sort of facts which are easily susceptible to
delineation without explanation . Thus I conclude that it
was not unreasonable for the Respondent to suggest a
meeting between counsel to discuss the issue wherein, I
conclude, it was the intent of the Respondent to lay out
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those facts on which it based its conclusion . I do not be-
lieve that Messina would offer to meet simply to restate
the final conclusion.
I conclude that Respondent should have been more
forthright in setting forth the facts on which it based its
conclusion that these categories of individuals are super-
visors . And the Union could have been more definitive
in its request . Nevertheless , I conclude that at least by 4
September , if not before , at most 6 weeks after the
Union 's initial demand , the Respondent made an offer to
comply . This offer was not accepted.
It may well be that in other cases when a different
type of information is requested , an offer to meet would
not be sufficient . In this case , however , given the nature
of the issue concerning which the information was re-
quested , I conclude that an offer by counsel to meet with
opposing counsel was a reasonable and good-faith com-
pliance with Respondent 's duty to furnish the requested
information.
No doubt here the Respondent could have agreed to
furnish the information much sooner than it did . Still the
question is whether the time between the Union's
demand and the Respondent 's ultimate agreement to
meet was reasonable under all the circumstances.
In the context of massive other unfair labor practices,
a delay of 2 months in furnishing easily accessible infor-
mation was found unlawful . J. P. Stevens Co., 239 NLRB
738 (1978). On the other hand when there had been no
real refusal by the employer to furnish information but
the union had been somewhat inept in describing what it
wanted, a delay of 2 months was found not to be unrea-
sonable. Alkahn Silk Label Co ., 193 NLRB 167 (1971).
Similarly , though the information was furnished 2 weeks
after the complaint issued and more than 2 months after
the initial request , there was some indication that re-
spondent reasonably believed that the union was no
longer interested in the information . In any event, in
view of the short time , the delay in furnishing the infor-
mation was held not a violation of Section 8(a)(5) of the
Act. Kisco Co., 192 NLRB 899 (1971).
Here, although the Respondent adamantly , and incor-
rectly , refused to furnish the information when such ini-
tially was requested by the Union , within 6 weeks the
Respondent changed its mind and notified the Union that
it would meet to discuss the issue . This, I conclude, in-
cluded an offer to furnish the information requested. The
Union did not reply to this request for 2 months which
suggests a limited interest in pursuing the matter. And
when it did reply , the offer was not accepted. Given
these factors and noting the unfair labor practice alleged
did not occur in connection with others and appears to
be isolated, I conclude that the remedial authority of the
Board would be misapplied by entering an order at this
time . I also note that during the course of this proceed-
ing, the information apparently requested by the Union
made its way into the record . In such circumstances the
issuance of a remedial order would be questionable. C -B
Buick, v. NLRB, 506 F . 2d 1086 (3d Cir. 1974).
Accordingly, I conclude that the General Counsel
failed to establish by a preponderance of the credible evi-
dence that the Respondent violated Section 8(a)(5) of the
Act by refusing to furnish relevant information in a
timely fashion to the Union , and I shall recommend that
the complaint be dismissed in its entirety.
[Recommended Order for dismissal omitted from pub-
lication.]