W L Molding Co.

National Labor Relations Board - Board Decisions

Nov 27, 1984

272 N.L.R.B. 1239 (N.L.R.B. 1984)

W L MOLDING CO 1239
The W L Molding Company and Local 609, United
Rubber, Cork, Linoleum and Plastics Workers
of America, AFL-CIO Case 7-CA-22223
27 November 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 5 January 1984 Administrative Law Judge
Norman Zankel issued the attached decision The
Respondent filed exceptions to which it attached its
memorandum to the administrative law judge
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 attached
memorandum and has decided to affirm the judge s
rulings, findings and conclusions as modified, and
to adopt the recommended Order as modified
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Rela
tions Act by refusing to provide the Union with
relevant information and reasonable access to the
plant for the purpose of investigating grievances
and policing compliance with the collective bar
gaining agreement In addition to denying the
Union any access to the plant the Respondent re
fused to provide unit employees names addresses
pay scales and timecards notes from physicians
that employees were required to submit when
going on or returning from sick leave and informa
tion concerning the subcontracting or transfer of
unit work Although the Respondent excepted to
the judge s conclusions that the Respondent violat
ed Section 8(a)(5) and (1) of the Act by refusing to
provide access to the plant and each of the request
ed items of information the Respondent stated the
basis for its exception only with respect to subcon
tracting information Thus neither in its exceptions
nor in its attached memorandum did the Respond
ent give the Board notice of specifically what it ob
jected to in the judge s other findings of violation
Section 102 46(b) of the Board s Rules and Regula
tions provides
(b) Each exception (1) shall set forth specifi
cally the questions of procedure fact law or
policy to which exceptions are taken, (2) shall
identify that part of the administrative law
judge s decision to which objection is made
(3) shall designate by precise citation of page
the portions of the record relied on and (4)
shall state the grounds for the exceptions and
shall include the citation of authorities unless
set forth in a supporting brief Any exception
to a ruling finding conclusion, or recommen
dation which is not specifically urged shall be
deemed to have been waived Any exception
which fails to comply with the foregoing re
quirements may be disregarded
In the absence of any explanation for the Respond
ent s exceptions to matters other than subcontract
ing information we find that the Respondent s ex
ceptions are insufficient to put in issue any of the
judge s other findings of violation See Aitoo Paint
ing Corp 238 NLRB 366 (1978) See also Singer
Co v NLRB 429 F 2d 172, 180-182 (8th Cir
1970) NLRB v Daniel Construction Co, 731 F 2d
191, 198 (4th Cir 1984)
The Respondent contends that the Union waived
its right to information regarding subcontracting
Article III, section 3 of the current collective bar
gaining agreement provides
Nothing in this Agreement shall be construed
or interpreted to restrict the right of the Corn
pany to subcontract production set up and
maintenance work or to restrict the transfer of
tools, equipment and materials which rights
are vested with the Company and are not sub
ject to the grievance and arbitration procedure
provided for in this agreement 1
In concluding that the Respondent violated Sec
tion 8(a)(5) and (1) of the Act by refusing to fur
nish information on subcontracting the judge
relied on two grounds First the judge stated that
although disputes over subcontracting might not be
arbitrable under the agreement arbitrability is not
an issue for the Board to decide and information on
subcontracting is relevant and necessary to enable
the Union to decide whether a question of arbitra
Nifty concerning subcontracting exists Second the
judge found that the subcontracting information
was relevant because of its bearing on other possi
ble contract violations and that at the very least
the requested information would have provided the
Union with some ability to determine to what
extent if any unit jobs might be vacant or elimi
nated We find merit in the second ground and
therefore find it unnecessary to reach the first
On 1 November 1981 the unit employees went
on strike when their prior collective bargaining
' It is not clear that the production set up and maintenance work
referred to in the subcontracting clause encompasses all unit work That
issue need not be reached under our view of this case
As noted in the Respondent s exceptions the collective bargaining
agreement also Includes a management rights clause which was not re
scinded when the subcontracting clause was made part of the current
agreement
272 NLRB No 196
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement expired 2 The strike continued for over
10 months until 12 September 1982 the effective
date of the current collective bargaining agree
ment In a letter of understanding dated 8 Decem
ber 1982 the Respondent set forth the agreed ar
rangement for the return to work of striking em
ployees 3 The letter provided that employees
hired during the strike would not be terminated to
make room for returning strikers, but that strikers
would be recalled to available job openings consist
ent with the recall provisions of the collective bar
gaining agreement 4 Strikers were not recalled to
work until August 1983 almost a year after the
strike ended
In the months before the strikers were recalled
union representatives complained that the Respond
ent was not compl3 ing with the agreement to
recall strikers to available job openings Among
other things union representatives expressed con
cern over reports that management was performing
unit work in violation of the contract that current
employees had been transferred out of their classifi
cations to perform unit work for which they were
ineligible and that the Respondent was not posting
available jobs and was deliberately maneuvering to
avoid recalling strikers Grievances were filed over
management s alleged performance of unit work to
avoid recalling strikers and the alleged transfer of
employees out of a closed department into ma
chine operating jobs for which they were ineligi
ble 5
The Union requested access to the plant and
other information bearing on the availability of
jobs for strikers and on the allegat ons that the Re
spondent was deliberately frustrating strikers recall
rights under the agreement In this connection the
Union sought information on subcontracting and
the transfer of equipment and machinery out of the
plant The Union s representatives explained that
they had received reports that machines were
being moved to another plant and suggested that
the Respondent was subcontracting or transferring
unit work to avoid recalling strikers In addition
2 The typographical error in the judge s decision placing the date of
the strike and expiration of the collective bargaining agreement on 11
November 1981 is hereby corrected
3 The letter of understanding is Included in R Exh 1 as an attachment
to the current collective bargaining agreement Accordingly the Judge s
statement that the record contains no explicit evidence of a striker recall
agreement would appear to be in error
4 An exception was made for bargaining committee members who
were to be given seniority preference in recalls
5 Contrary to the judge s finding the record shows that the Union
pressed to arbitration and won the grievance of May 1983 alleging that
management was performing unit work to avoid recalling strikers Earlier
grievances concerning the performance of unit work by management or
ineligible employees were withdrawn by the Union before arbitration al
legedly because the Respondent s denial of access to the plant made it
impossible to gather sufficient supporting data
the Union stated that if machines were being
moved out the employees previously working on
those machines must have been reclassified and
their new jobs should have been posted By letter
dated 9 March 1983 the Union's attorney asked the
Respondent to afford access to the plant and to fur
nish information on the transfer and subcontracting
o' all unit work and equipment to I N N Manufac
tunng Company North Star Company or any
other companies
The Respondent denied the Union s request for
information on subcontracting and transfers of unit
work on the ground that the collective bargaining
agreement allowed the Respondent full freedom to
subcontract work and transfer equipment It also
denied the Union s requests for plant access and
denied or only partially granted the Union s other
information requests
As the judge noted, a broad discovery type
standard is applicable to requests for information
relevant to a union s functions of negotiating and
policing compliance with a collective bargaining
agreement NLRB v Acme Industrial Co, 385 U S
432 437 (1967) General Motors v NLRB 700 F 2d
1083 1088 (6th Cir 1983), NLRB v Rockwell
Standard Corp, 410 F 2d 953, 957 (6th Cir 1969)
[lit is not the Board s function in this type case to
pass on the merits of the Union s claim that Re
spondent breached the collective bargaining agree
ment or committed an unfair labor practice
NLRB v Rockwell Standard Corp 410 F 2d at 957
Thus the union need not demonstrate actual in
stances of contractual violations before the employ
er must supply information Boyers Construction
Co 267 NLRB 227 229 (1983) Nor must the
bargaining agent show that the information which
triggered its request is accurate nonhearsay, or
even ultimately reliable Ibid The Board s only
function in such situation is in acting upon the
probability that the desired information was rele
vant and that it would be of use to the union in
carrying out its statutory duties and responsibil
Ales NLRB v Rockwell Standard Corp, 410 F 2d
at 957 quoting NLRB v Acme Industrial Co 385
U S at 437 Accord General Motors v NLRB 700
F 2d at 1088 6
Applying the broad discovery type standard ap
plicable here we conclude that the information re
quested by the Union on subcontracting and trans
fers was relevant to possible contract violations
6 Contrary to the Respondent s suggestion the Union s statutory func
tion of policing the collective bargaining agreement is not limited to in
vestigating already filed grievances but includes as well evaluat[ing] a
possible grievance Rockwell Standard Corp 166 NLRB 124 132 (1967)
enfd 410 F 2d 953 957 (6th Cir 1969) See Curtiss Wright Corp 145
NLRB 152 153-154 157 (1963) enfd 347 F 2d 61 (3d Cir 1965)
W L MOLDING CO 1241
Thus the striker recall agreement might be con
strued to prohibit deliberate efforts to avoid recall
of strikers by subcontracting or transferring unit
work out of the plant Moreover the collective
bargaining agreement (art III sec 4) explicitly
provides Neither the Company nor any of its
agents will exercise discrimination interference re
straint or coercion against any members of the
Union on account of such membership And the
term union membership may be construed to in
clude all forms of union activity including strike
activity See Radio Officers v NLRB, 347 U S 17
39-40 (1954), NLRB v Fleetwood Trailer Co 389
U S 375 (1967)
As noted, the Union had received reports that
the Respondent was violating the contract by per
mating management to perform unit work by
transferring ineligible employees into available unit
jobs, and by failing to post job vacancies The Re
spondent had denied the Union access to the plant
and relevant information that would have enabled
it to verify those reports In addition the Union
had received reports that the Respondent was
moving machines out of the plant and transferring
them to another plant Accordingly, we find that
the Union had a good faith concern that the Re
spondent might be evading its obligation to recall
strikers to available jobs consistent with the con
tractual recall procedure Further support for the
bona fide nature of the Union s concern is provided
by the undented testimony of Union Vice President
Nora Duff that the Union processed to arbitration
and won a grievance alleging that management was
performing unit work to avoid recalling strikers In
the Circumstances we find that the requested mfor
'nation on subcontracting and the transfer of unit
work to other plants was relevant and reasonably
necessary to the Union s function of policing corn
phance with the contract Assuming as the Re
spondent contends that article III section 3 of the
collective bargaining agreement removes from the
contractual grievance and arbitration procedure
disputes over subcontracting and transfers as such
we find that it does not waive the Union s statuto
ry right to information relevant to determining
whether striker recall rights were being deliberate
ly defeated through the discriminatory subcontract
ing and transfer of unit work
We therefore affirm the judge s finding that the
Respondent s refusal to furnish subcontracting in
formation violated Section 8(a)(5) and (1) of the
Act As noted, we have adopted the judge s other
unfair labor practice findings, in the absence of any
valid exception
We also adopt the remedial relief recommended
by the judge, subject to the following modifica
tions The order provision requiring the Respond
ent to cease and desist from violating employee
rights in any other manner is modified to in any
like or related manner because in our view the
Respondent has not been shown to have a proclivi
ty to violate the Act or a general disregard for em
ployees fundamental statutory rights See Hickmott
Foods, 242 NLRB 1357 (1979) In addition we
have added a provision to the affirmative relief rec
ommended by the judge directing the Respondent
to furnish relevant information concerning the sub
contracting or transfer of unit work Although the
judge found the denial of subcontracting informa
tion unlawful his recommended Order inadvertent
ly omitted language requiring the Respondent to
furnish it Finally we have conformed the notice
to employees in accordance with the above modifi
cation of the Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, The W L Molding Company, Portage
Michigan its officers agents successors and as
signs shall take the action set forth in the Order as
modified
1 Substitute the following for paragraph 1(b)
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Substitute the following for paragraph 2(a)
(a) Furnish, on request to the Union the names
addresses wage scales timecards and doctors sick
leave notes for all employees in the unit found ap
propriate herein and information concerning the
subcontracting or transfer of unit work relevant to
the Union s performance of its statutory functions
3 Substitute the attached notice for that of the
administrative law judge
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
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
lives of their own choice
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT refuse to bargain collectively with
Local 609 United Rubber, Cork and Linoleum
Workers of America, AFL-CIO by refusing to
supply relevant information on request
WE WILL NOT refuse the above named Union
reasonable access to our plant in Portage, Michi
gan, for the purpose of policing implementation of
its collective bargaining agreement with us and in
vestigating grievances
WE WILL NOT in any like or related manner
interfere with restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec
tion 7 of the Act
WE WILL on request furnish the above named
Union with the names addresses wage scales
timecards and doctors sick leave notes for all the
employees in the appropriate bargaining unit identi
tied below and with information concerning sub
contracting or transfer of bargaining unit work rel
evant to the Union s performance of its statutory
functions The appropriate unit is
All production maintenance and shipping em
ployees employed by us at our Portage, Michi
gan plant but excluding office clerical employ
ees, guards and supervisors as defined in the
National Labor Relations Act
WE WILL on request grant the above named
Union reasonable access to our Portage, Michigan
plant for the purpose of policing how we imple
ment the collective bargaining agreement for the
employees in the appropriate unit described above
and for investigation of their grievances
THE W L MOLDING COMPANY
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL Administrative Law Judge This
case was tried before me on November 17 1983 ' at
Kalamazoo Michigan The charge was filed by the
Union on June 9 The complaint was issued on July 14
The complaint alleges that the Employer unlawfully
refused to bargain in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act) by failing
to comply with the Union s requests for information
claimed necessary and relevant to the performance of its
collective bargaining obligations Specifically it is al
leged that the Employer did not submit doctors notes
for employees on sick leave and timecards of unit em
ployees names and addresses and wage data of all unit
I All dates are in 1983 unless otherwise stated
employees and information on transfer and subcontract
mg of unit work Also the complaint alleges the Ern
ployer had failed to permit union representatives access
to the Employer s Portage Michigan plant to observe
production
The Employer s timely answer denies it committed
any unfair labor practices
On the entire record including my observation of the
demeanor of witnesses and after consideration of the
briefs filed by the Board s General Counsel and the Em
ployer I make the following
FINDINGS OF FACT
I JURISDICTION
The parties stipulated the record reflects and I find
that the Employer a Michigan corporation with an
office and place of business at 8212 Shaver Road Por
tage Michigan has been at all times material engaged in
the manufacture nonretail sale and distribution of
molded plastic parts During the calendar year immedi
ately preceding issuance of the complaint a representa
tive period the Employer manufactured sold and dis
tributed products in excess of $50 000 in value at its Por
tage plant which products were shipped from that plant
directly to points located outside of Michigan The Em
ployer is and at all material times has been an employer
engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act
It was stipulated the record reflects and I find that
the Union is and at all material times has been a labor
organization within the meaning of Section 2(5) of the
Act
II THE APPROPRIATE BARGAINING UNIT
The parties stipulated and I find that the following
employees constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act
All production and shipping employ
ees employed by the Employer at its Portage
Michigan plant but excluding office clerical em
ployees guards and supervisors as defined in the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
Since 1960 and at all times thereafter the Union has
been the designated exclusive collective bargaining rep
resentative of the employees in the unit found appropri
ate above and has been recognized as such by the Em
ployer
Jack Crofoot at all material times has been the Em
ployer s personnel director and a supervisor of the Em
ployer within the meaning of Section 2(11) of the Act
Since about February 25 and on various dates thereaf
ter the Union orally and in writing requested the Em
ployer to furnish it with the timecards for all employees
working in the unit for specified periods of time
W L MOLDING CO 1243
The Employer furnished the Union with two partial
sets of timecards One set was for the pay period ending
April 2 The second set of timecards covered the pay
period ending May 28
Since about March 9 and on various dates thereafter
the Union orally and in writing requested the Employer
to furnish it with the names addresses and pay scales of
all unit employees
Since about March 9 and on various dates thereafter
the Union orally and in writing requested the Employer
to furnish it with information on transfer and subcon
tracting of all molding and secondary work and equip
ment to I N N Manufacturing North Star Company or
any other company
The parties stipulated that the Employer has failed and
refused to furnish the Union the names addresses and
pay scales of all unit employees Also the Employer
agreed it has failed and refused to furnish the Union in
formation on transfer and subcontracting of all molding
and secondary work and equipment to I N N Manufac
turing North Star Company or any other company
The Union and Employer currently are parties to a
collective bargaining agreement covering the unit em
ployees and effective September 12 1982 to September
12 1985 Article III section 3 of that agreement pro
vides
Nothing in this Agreement shall be construed or in
terpreted to restrict the right of the Company to
subcontract production set up and maintenance
work or to restrict the transfer of tools and equip
ment which rights are vested with the Company
and are not subject to the grievance and arbitration
procedure provided for in this agreement
A prior collective bargaining agreement between the
parties expired on November 11 1981 2 On that date the
unit employees went on strike The strike continued until
September 12 1982 the effective date of the current col
lective bargaining agreement Striking employees were
not recalled to work until August 1983 During that
period the Employer operated with strike replacements
In August Leota Michielson and Nora Duff the Union s
president and vice president respectively returned to
work During the entire period November 11 1981 to
the date these two employees returned to work in
August no Union representative entered the operating
area of the plant Nonetheless since at least January
1983 Crofoot and union officials met at least once
monthly to discuss matters relevant to unit employees
Such meetings customarily were conducted during the
term of the expired collective bargaining agreement
2 The 1978-1981 collective bargaining agreement did not contain a
subcontracting or transfer clause such as in art III sec 3 of the 1982-
1985 agreement Instead the expired contract provided
Article III Section 2—Company Authority The management of
the business and operation of the plant and the authority to execute
all the various duties functions and responsibilities incident thereto is
vested in the Company The exercise of such authority shall not con
flict with this Agreement or the supplements thereto
The record establishes the following chronological
scenario regarding the various information and plant
access requests and the Employer s responses 3
January 6 Michielson requested Union access to the
plant during a joint meeting between the parties
She told Crofoot access was necessary to (1) police
the Employer s adherence to the 1982-1985 agree
ment and (2) to investigate the accuracy of reports
that management personnel were performing bar
gaining unit work 4 Crofoot said he would check
on it
January 17 Richmond wrote the Employer re
questing to enter (the Employer s premises) to
see that the company is living up to the contract
We have reason to believe the company is
working management is not replacing people that
are on sick leave quitting and being fired with
union employees as was agreed to in the contract
We have reason to believe the Company is deliber
ately maneuvering to keep from calling union mem
hers back to work
January 25 The parties met Union noted no re
sponse to January 17 letter was received Duff
orally repeated access was needed to investigate re
ports of management performing unit work
Also on this date Union orally asked whether ma
chines had been removed from the plant 5 Union
also said it received reports that job vacancies were
being filled by transfer without recourse to the
contractual bidding procedure
Crofoot responded only to the access request He
said he would let the Union know about it in the
future
January 29 Richmond wrote Crofoot The letter re
iterated the previous request for plant access and
specified it was being made pursuant to Article I
section 2 of the contract [That provision entitled
Harmony expresses the parties intention to pro
mote harmonious working relations between
them ]
February 9 Union filed grievance over improper
transfer of employees [Art VIII sec 12 provides
for bidding to fill vacancies ]
2 This sequence is derived from a composite of relevant documentary
evidence and the testimony of Duff and the Union s recording secretary
and its chief steward Nina Richmond and _Margaret Kiser respectively
Each General Counsel witness was uncontradicted in her material testi
mony Though offered an opportunity to present witnesses to testify in its
behalf the Employer rested its case without calling any witness I fully
credit each witness who testified based upon demeanor supporting docu
ments plausibility and internal consistency
4 Art III sec 1 of the 1982-1985 contract provides Production work
shall not be done by Supervisors except in the discharge of their duties
in cases of emergency and when It is necessary for instructions Supervi
sors who run samples shall do so for the purpose of checking out set ups
and machines and not for the purpose of running regular production
5 The Union believed some equipment had been removed to another
plant of the Employer in Elkhart Indiana
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on this date Crofoot wrote Richmond in re
sponse to her January 29 letter Crofoot asserted the
Employer acknowledges the responsibility of
Local 609 in such matters and suggests that Union
and Company representatives discuss the question
of accessibility at the next regularly scheduled
meeting between them
February 24 The parties met Michielson asked
whether Employer had a response to access request
Crofoot said no Duff asked under what terms and
conditions the Employer would permit access Cro
foot asked whether a specific problem existed
which caused the Union to request access Duff said
the Union officials had already described those situ
ations Crofoot commented giving Union access to
the plant would disrupt the work force Union
suggested access be afforded only to Union presi
dent and not its entire bargaining committee Cro
foot rejected that proposal He said there isn t any
problem in there The Union repeated its access re
quest Crofoot said he had no authority to grant the
request The Union asked for the identity of such
authorizing official Crofoot did not respond
The Union also raised the problems of management
doing unit work lack of job posting for bids and
employees working outside their classifications
Crofoot simply denied there was any problem
February 25 Crofoot wrote Richmond The letter
states regarding the access requests the Company
feels it would be appropriate that such action begin
with a request for Union representation initiated by
the employees desiring Union representation
In addition it is suggested that if the committee
feels that its obligation for employee representation
presents a problem to the committee it would
appear that the question of employee representation
might be alleviated by the election of Union officers
or stewards within the group of employees current
ly involved in full time employment Also on Feb
ruary 25 Richmond wrote Crofoot The letter re
quested production of all time cards for unit em
ployees on the payroll for the month of February
The Union offered to pay copying costs Its request
asserted that information is needed to process a
grievance [At that time the February 9 grievance
discussed above was pending ]
March 9 The Union s attorney John F Foley
wrote Employer Attorney Edward R Freeberg
That letter requested the Employer to furnish
copies of time cards of unit employees names ad
dresses and pay scales of those employees informa
tion on transfer and subcontracting of all unit work
and equipment to I N N Manufacturing Company
North Star Company or any other companies and
access to the plant by Union stewards and commit
tee persons
Early March At a grievance meeting the Union re
quested production of unit employee time cards to
verify employment status It was asserted the infor
mation was necessary to process a grievance
Some time after the March grievance meeting the
parties met again for their regular monthly meeting
Then the Union again asked for plant access That
request was denied
March 27 Union filed grievance over management
performing unit work
April 11 Attorney Freeberg wrote Attorney Foley
He responded to Foley s March 9 letter
Freeberg stated that the union stewards and corn
mittee persons would be granted plant access after
notice to Crofoot to meet with employees to in
vestigate grievances The letter also stated that
Requests beyond this scope should be communicat
ed to Jack Crofoot and where responsible and
within the scope of the union s duty proper accom
modations can be made
As to time cards and employee names addresses
and pay scales the letter proposed a sampling
week (undefined) and that if employees notify
Crofoot of objections to dissemination of that infor
mation Crofoot would so advise the Union
Regarding subcontracting information the letter as
serted the Employer complied with its duty to bar
gain over that issue when it negotiated its right to
subcontract without recourse to the grievance pro
cedure [See art III sec 3 supra ]
April Sometime after receipt of Attorney Free
berg s April 11 letter the parties met The Union
asked that the Union committee be granted access
to the plant to determine the number of employees
operating machinery Crofoot denied that request
Once again Duff suggested that only one Union of
ficer be granted access Crofoot said he did not see
any problem existed and he had no authority to
grant the request
The Union asked for Unit employee time cards as
serting they were necessary to verify the amount of
overtime being worked The Union representatives
complained that excessive overtime might be delay
mg recall of former strikers The request was
denied Crofoot showed the Union notes signed by
employees in which they claimed they (the em
ployees) did not want the Union to have access to
their time cards
May 27 The Union filed a grievance over manage
ment doing unit work
The March 27 and May 27 grievances were with
drawn by the Union assertedly because it was unable to
procure sufficient information to support them due to the
inability to obtain access to the plant
B Analysis—Duty to Supply Information
An employer s duty to bargain in good faith includes
the obligation to provide information that is needed by
the bargaining representative for the proper performance
of its duties NLRB v Truitt Mfg Co 351 U S 149
(1956) The duty to supply information unquestionably
extends beyond the period of contract negotiations and
W L MOLDING CO

1245
continues throughout the life of the contract so far as it
is necessary to enable the bargaining representative to
administer the contract and resolve grievances or dis
putes NLRB v Acme Industrial Co 385 U S 432 (1967)
The right to receive information arises by operation of
the NLRA itself on an appropriate request and the
scope of the right is limited only by considerations of
relevancy Ellsworth Sheet Metal 224 NLRB 1506 1507
(1976) In determining whether an employer is obligated
under the statute to supply particular requested informa
tion the Board need only find a probability that the de
sired information is relevant and it will be of use to the
Union in carrying out its statutory responsibilities This is
a discovery type standard and allows the Union access
to a broad range of potentially useful information for the
purpose of effectuating the bargaining process and ad
ministering the contract NLRB v Acme Industrial Co
supra at 437 fn 6 NLRB v Rockwell Standard Corp 410
F 2d 953 957 (6th Cir 1969) Westinghouse Electric Co
239 NLRB 106 (1978) In the Westinghouse decision (at
107) the Board observed
It is well established that a labor organization obli
gated to represent employees in a bargaining unit
with respect to their terms and conditions of em
ployment is entitled to such information from the
employer as may be relevant and reasonably neces
sary to the proper execution of that obligation
(Vertol Division Boeing Company 182 NLRB 421
NLRB v Wham Machine Works 217 F 2d 593
(C A 4 1954) cert denied 349 U S 905 (1955))
The right to such information exists not only for the
purpose of negotiating a contract but also for the
purpose of administering a collective bargaining
agreement The employer s obligation in either in
stance is predicated upon the need for such infor
melon in order to provide intelligent representation
of the employees (F W Woolworth Co 109 NLRB
196 197 enfd 352 U S 938 (1956)) The test of the
union s need for such information is simply a show
mg of probability that the desired information was
relevant and that it would be of use to the union in
carrying out its statutory duties and responsibil
ities (Acme Industrial supra at 437) The Union
need not demonstrate that the information sought is
certainly relevant or clearly dispositive of the basic
negotiating or arbitration issues between the parties
The fact that the information is of probable or po
tential relevance is sufficient to give rise to an obli
gation on the part of the employer to provide it
(The Brooklyn Union Gas Company 220 NLRB
189) The appropriate standard in determining the
potential relevance of information sought in aid of
the bargaining agent s responsibility is a liberal dis
covery type standard (Acme Industrial supra)
1 Names addresses and pay scales
The parties stipulated and documents in evidence sup
port the stipulation that this information was requested
and refused Such information is presumptively relevant
SEMCO Printing Center 265 NLRB No 73 (not report
ed in Board volumes) Summer Home for the Aged 226
NLRB 976 (1976) enf granted in part denied in part
and remanded 599 F 2d 762 (6th Cir 1979) Viewlex Inc
204 NLRB 1080 (1973) NLRB v F W Woolworth Co
supra
Though it is not necessary that the Union demonstrate
the relevancy of such information Abbey Medical 264
NLRB 969 (1982) the instant record contains evidence it
clearly was relevant Thus until the union officials were
returned to work in August there was no representative
of the employees on the premises to obtain the informa
tion Without it the Union could not evaluate the Em
ployer s implementation of the contract because it could
not determine what jobs were held or vacant for any
reason This made it impossible to police the bidding and
posting provisions of its contract The union officials
protested it needed the information for that very reason
On the above I find that the Employer refused to bar
gain in violation of Section 8(a)(5) and (1) of the Act by
failing and refusing to provide the Union with the names
addresses and wage rates of the unit employees
2 Timecards
The record reflects both written and oral requests for
timecards of the unit employees The Union offered to
pay duplication costs The Employer only partially com
plied with the requests and then provided incomplete in
formation In Colt Eagle 210 NLRB 495 496 (1974) a
union requested the employer to furnish certain informa
tion among which were timecards which the union
claimed was necessary to effectively process grievances
The Board held the employer refused to bargain when it
failed to produce those records
Here the Union told the employer the timecards were
needed to verify the number of employees at work and
the amount of overtime being worked by them It was
asserted the timecards would enable the Union to effec
tively process pending grievances though there is no al
lusion to the precise grievances to which that informa
tion would have related There is evidence not previous
ly discussed which shows the Employer had complied
with identical requests under its previous collective bar
gaining agreement 6
The circumstances persuade me that the timecards
would have revealed information which probably could
have been effectively used by the Union in grievance
processing The standards set forth in Acme Industrial are
thus satisfied With that information the Union could
have determined whether vacancies existed for job post
ing and bidding among other things (The record strong
ly suggests there was some agreement for recall of
former strikers but no explicit evidence in this connec
tion was adduced ) It could have more readily ascer
tamed the merits of pending or potential grievances
Accordingly I find that the Employer s refusal to pro
6 The General Counsel in her brief argues this deviation from past
practice separately comprises an unlawful unilateral change which
though not alleged should be found to be a violation of Sec 8(a)(5) In
view of my findings on the complaint allegations with respect to the re
fusals of information I deem it unnecessary to enter such a separate find
mg It would not enhance my order
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vide the timecards constitutes a violation of Section
8(a)(5) and (1) of the Act
3 Access to the plant
As noted earlier the Employer operated from Novem
ber 1981 until August 1983 with an employee comple
ment consisting in whole or in part of striker replace
ments It was not until August that any official had been
returned to work Thus for approximately 20 months
the Union had no direct means by which it could obtain
information relevant to its bargaining obligations A new
collective bargaining agreement had been negotiated but
the Union was left with no way to police implementation
of its terms
The first request for access to the plant was made on
January 6 Then the Union advised Crofoot the request
was based on a need to check into contract adherence
and to investigate reports that management was perform
ing unit work The various subsequent oral and written
requests for plant access were consistently denied or re
sponses were delayed I find the Employer s February 25
written suggestion that the union conduct new elections
of officials from among the group of employees cur
rently working in full time employment particularly
derogatory of and inconsistent with the Union s bar
gaining obligations and collective bargaining principles
That attempt to interfere with internal union affairs tends
to show the Employer was determining the Union s need
for information on its own (the Employer s) terms of rel
evance This is clearly contrary to the Acme Industrial
standards Patently the Union had a need to obtain in
formation Actual grievances had been filed Potential
existed for other grievances Yet the Union had no
direct means to procure essential information
It is true that alternative methods were available for
the Union to receive information Evidence not prey'
ously discussed shows there were friends or relatives of
union officials at work early in 1983 However such in
formation if obtained was sure to be spotty The Em
ployer s failure to provide the other information such as
employee names addresses wage data and timecards
simply exacerbated the impact of the denial of access
Earlier cited cases establish the Union s requests for
plant access were proper in the instant circumstances
The availability of working employees as secondary
sources of information does not exonerate the Employer
from its statutory duty to supply information New York
Times Co 265 NLRB 353 (1982) and cases cited at 353
Though Crofoot asserted the Union s presence would
disrupt operations no specific evidence was presented
to support that assertion
On the above I find that the denial of access to the
plant for the purposes of policing contract implementa
lion and investigation of grievances violative of Section
8(a)(5) and (1) of the Act
4 Subcontracting information
Admittedly the Employer refused to supply subcon
tracting information It argues the Union waived its right
to such information by agreeing to article III section 3
of the 1982-1985 contract (The full text of which ap
pears above in sec III A)
Such information is relevant to the Union s bargaining
obligations It is based on a union s concern for preserva
tion of bargaining unit work National Woodwork Mfrs
Assn v NLRB 386 US 612 (1967) Markle Mfg Co of
San Antonio 239 NLRB 1142 (1979) LeLand Standard
Junior University 262 NLRB 136 (1982)
Waivers of the right to information must be clear and
unmistakable Hearst Corp 113 NLRB 1067 (1955)
Hughes Tool Co 100 NLRB 208 (1951) A waiver
cannot be found by implication Skyway Luggage Co 117
NLRB 681 (1957)
It is true that the 1982-85 subcontracting clause re
moves that issue from the grievance and arbitration pro
visions of that agreement However that fact does not
resolve the instant Issue In Safeway Stores 236 NLRB
1126 fn 1(1978) the Board commented before a union
is put to the effort of arbitrating even the question of ar
bitrability it has a statutory right to potentially relevant
information necessary to allow it to decide if the under
lying grievances have merit and whether they should be
pursued at all If the instant Employer had engaged in
subcontracting it is possible that activity could not be
recognized as arbitrable under the contract s terms
However arbitrability is not an issue for the Board to
decide PPG Industries 255 NLRB 296 297 (1981) I
conclude the information on subcontracting requested in
the case at bar is relevant and necessary for the Union to
determine whether a question of arbitrability existed
Moreover in view of the Employer s refusals to provide
the names addresses wage rates and timecards of unit
employees and denial of plant access the subcontracting
information potentially could have yielded information
by which the Union could make an intelligent appraisal
of whether or not grievances other than over the subcon
tractmg issue had merit At the very least the informa
tion would have provided the Union with some ability to
determine to what extent if any unit jobs might be
vacant or eliminated I find nothing in the contract s sub
contracting clause which suggests the Union waived its
right to grieve over subjects unrelated to subcontracting
or to present the issue of arbitrability to be addressed
Accordingly I find the Employer s failure to comply
with subcontracting information requests in the instant
circumstances constitutes a violation of Section 8(a)(5)
and (1)
5 Doctors notes
The Union made repeated requests for physicians
notes for unit employees going on and returning from
sick leave The evidence shows the Employer requn ed
employees to submit such notes Contractually (art X
sec 4) those notes are mandated The notes were used
by the Union to police implementation of the contract s
bidding procedures (see art IX sec 12)
There is no dispute that the Employer refused to
comply with the Union s various requests outlined in the
factual narrative in this decision The denials were based
on the Employer s receipt of signed statements from the
employees which indicated opposition to the Employer s
W L MOLDING CO

1247
divulging of that information Relevance is not seriously
disputed by the Employer
The Employer impliedly contends albeit without ex
plication it was privileged to withhold the doctors notes
because of the employees instructions and its confiden
nal character (The confidentiality position equally ap
plies to the information requests for wage data names
and addresses and timecards )
That the doctors notes were relevant does not neces
sarily trigger the obligation to produce them Not all rdl
evant information need be disclosed Emeryville Research
Center v NLRB 441 F 2d 880 885 (8th Cir 1971) The
law requires a balancing of interests including the exami
nation of the circumstances of each case and the need for
disclosure (Detroit Edison Co v NLRB 440 U S 301
314 (1979)) In Detroit Edison the Supreme Court bal
anced the union s interest in obtaining information rele
vant to contract administration against the employer s in
terest in maintaining security of psychological test ques
tions answers and scores It upheld the employer s refus
al to supply that information
In the instant case the Union clearly was not interest
ed in any information contained in the doctors notes
which might have revealed specific ailments results of
medical examinations diagnoses or prognoses It merely
wanted to confirm the fact that employees were actually
carried on sick leave If the notes contained specific
medical information such matter readily could have
been excised by the Employer prior to delivery Such ex
cision would remove any possibility a claim of confiden
tiality is valid All that would remain in effect is a
group of records which would identify employee leave
status
In North American Soccer League 245 NLRB 1301
(1979) the Board held that the union had the right to
review information concerning names of physicians and
player injury reports among other things The Board left
undisturbed the reasoning of Judge Harold Bernard Jr
that the health connected information was an integral
part of the players working conditions and therefore a
legitimate union concern I grant that the Soccer League
case presents by the nature of the sports industry a set
of more compelling circumstances than that before me
for disclosure of doctors notes Nonetheless the Soccer
League case does indicate that medical privilege asser
tions do not alone suffice to license withholding of such
information
In any event the information requested by the Union
herein was for employment status not medical reports
of the employees Indeed no probative evidence was ad
duced in this case to show that the doctors notes con
tamed such private information as might be considered
confidential All that appears in this case is the bare un
supported claim of confidentiality
The totality of circumstances herein persuade me there
is no merit to the claim that any of the information re
quested particularly the doctors notes could be with
held lawfully from the Union On balance I conclude
there is insufficient evidence to show the doctors notes
were not subject to disclosure Upon the above I find
the Employer s refusal to comply with the Union s re
quests for that information violated Section 8(a)(5) and
(1) of the Act
CONCLUSIONS OF LAW
1 The Employer is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 All production maintenance and shipping employ
ees employed by the Employer at its Portage Michigan
plant but excluding office clerical employees guards and
supervisors as defined in the Act constitute an appropri
ate bargaining unit
4 By failing and refusing to provide the Union with
unit employees names and addresses wage scales time
cards doctors notes and subcontracting information
and by denying the Union access to the Portage plant
all between January and August 1983 the Employer un
lawfully refused to bargain in violation of Section 8(a)(5)
and (1) of the Act
5 The above unfair labor practices affect commerce
within the meaning of the Act
THE REMEDY
Having found that the Employer engaged in certain
unfair labor practices I find it necessary to order it to
cease and desist and to take certain affirmative action de
signed to effectuate the policies of the Act That order
will make provision for the Employer to comply with
the various requests of the Union for information and
access to the plant
I consider the refusal to provide plant access and in
formation in the instant circumstances tantamount to a
rejection of the Act s collective bargaining principles
Not only did the Employer thwart the Union s ability to
police its contract but it also interposed its own terms of
relevance on to Union s requests and suggested alteration
of internal Union procedures These events in my view
represent a total disparagement of the collective bargain
ing process As such they are considered sufficiently
egregious to warrant a broad proscriptive order Hick
mott Foods 242 NLRB 1357 (1979) Therefore the Em
ployer will also be ordered to refrain from in any
manner interfering with restraining or coercing em
ployees in the exercise of their Section 7 rights
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 7 ,.
ORDER
The Respondent W-L Molding Company Portage
Michigan its officers agents successors and assigns
shall
I Cease and desist from
7 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Local 609
United Rubber Cork Linoleum and Plastics Workers of
America AFL-CIO by refusing to supply relevant infor
motion and denying plant access on the Union s request
(b) In any manner interfering with restraining or co
ercing employees in the exercise of the rights guaranteed
in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Furnish on request to the Union the names ad
dresses wage scales timecards and doctors sick leave
notes for all employees in the unit found appropriate
herein
(b) Grant the Union reasonable access to the plant at
Portage Michigan on request to investigate the Em
ployer s implementation of its collective bargaining
agreement with the Union and to investigate grievances
(c) Post at its Portage Michigan plant copies of the
attached notice marked Appendix 8 Copies of the
notice on forms provided by the Regional Director for
Region 7 after being signed by the Respondent s author
ized representative shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to unit employees are customarily posted
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered defaced or coy
ered by any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Employ
er has taken to comply
8 if this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board