Aerospace Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1994

314 N.L.R.B. 100 (N.L.R.B. 1994)

100
314 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We note that no exceptions have been filed to the judge’s rec-
ommendation that the complaint allegation that the Respondent un-
lawfully failed to provide the Union with requested salary and raise
information be dismissed.
1 There is no dispute as to the facts here.
The Aerospace Corporation and Aerospace Profes-
sional Staff Association. Case 31–CA–19441
June 24, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On November 17, 1993, Administrative Law Judge
Burton Litvack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Aerospace Corpora-
tion, El Segundo, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Gary Freelen Ellison, Esq., for the General Counsel.
James M. Adler, Esq. (Irell and Manella), of Los Angeles,
California, for the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Based on
the unfair labor practice charge in the above-captioned mat-
ter, which was filed on June 29, 1992, by the Aerospace Pro-
fessional Staff Association (APSA) on August 13, 1992, the
Acting Regional Director for Region 31 of the National
Labor Relations Board (the Board) issued a complaint alleg-
ing that The Aerospace Corporation (Respondent) had en-
gaged in, and is engaging in, acts and conduct violative of
Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act). Respondent timely filed an answer, essentially de-
nying the commission of the alleged unfair labor practices.
As scheduled, the matter came to trial before me in Los An-
geles, California, on February 18, 1993. At the trial, all par-
ties were given the opportunity to examine and cross-exam-
ine all witnesses, to offer into the record any relevant evi-
dence, to argue their legal positions orally, and to file
posthearing briefs. The latter documents were filed by coun-
sel for the General Counsel and by counsel for Respondent,
and such have been carefully considered. Accordingly, based
on the entire record here, including my observation of the
testimonial demeanor of the several witnesses and the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a State of California corporation, with an of-
fice and principal place of business located in El Segundo,
California, is engaged in the business of providing research
and development services to the United States Air Force. In
the course and conduct of the business operations, Respond-
ent annually purchases and receives goods and services, val-
ued in excess of $50,000, directly from suppliers located out-
side the State of California; provides research and develop-
ment services for the United States Government, valued in
excess of $1 million; and has a substantial impact on the na-
tional defense of the United States. Respondent admits that
it is an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(6) and (7)
of the Act.
II. LABOR ORGANIZATION
Respondent admits that APSA is a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUE
The complaint alleges that Respondent engaged in conduct
violative of Section 8(a)(1) and (5) of the Act by failing and
refusing to furnish to APSA ladder position, matrix, salary,
and raise information, which had been requested by APSA
and which is necessary and relevant to the processing of a
grievance, by APSA on behalf of a bargaining unit em-
ployee, against Respondent. Contrary to the General Counsel,
Respondent argues that certain of the requested information,
while arguably relevant to the processing of the grievance,
implicates important privacy concerns, requiring the parties
to engage in good-faith bargaining regarding the requested
material and that, as APSA has refused to bargain to impasse
with respect to the furnishing of all the requested data, the
instant unfair labor practice charge is premature. With regard
to the requested wage and raise information, Respondent as-
serts that it has not engaged in any unlawful conduct inas-
much as said information had previously been provided to
APSA in a different form.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record1 establishes that Respondent is a ‘‘general sys-
tems engineering and integration’’ contractor, working with
that portion of the United States Air Force responsible for
the acquisition of satellites for the Department of Defense
and that at least 95 percent of Respondent’s work is of a
classified nature. The record further establishes that, since
1974, Respondent has recognized APSA as the collective-
bargaining representative of its technical staff, comprised of
nonsupervisory MTS levels I, II, and III employees, with
such recognition embodied in successive collective-bargain-
ing agreements, with the most recent of which effective from
101AEROSPACE CORP.
2 The record establishes that Respondent gives each technical staff
employee a yearly performance review, upon which Respondent
mainly relies in determining whether the employee will receive a
yearly salary increase and that the performance review consists of
written comments by his immediate supervisor; the completion, by
the employee’s immediate supervisor, of a so-called ‘‘matrix’’ form,
consisting of 16 employment attributes, including quantity and qual-
ity of work, timeliness, versatility, communicative skills, and respon-
sibility, for each of which the supervisor gives a ranking of from
zero to five for the employee; and the ‘‘ladder’’ ranking of the em-
ployee. The latter is a ‘‘recent innovation’’ by which Respondent
gives a numerical ranking to each employee in a department. Thus,
in the strategic defense operations department, to which 50 technical
staff employees are assigned, Respondent ranked Stan Hansen at
number 50, making him the lowest rated technical staff employee in
his department.
3 Par. 1505 of the parties’ most recent collective-bargaining agree-
ment states that:
The company will provide to APSA on request . . . such data
as is necessary and reasonable to permit APSA to fulfill its re-
sponsibilities as the bargaining agent for the employees covered
by this agreement. Data to be provided hereunder shall include
social security number, without names, for each member of the
bargaining unit, salary and salary review date, amount of in-
crease, date of hire, position code, years of experience, date and
type of highest degree, the average dollar amount per employee
distributed each quarter, and cost center code . . . by first two
digits only. Such data shall be provided for all bargaining unit
employees . . . for each three-(3)-month period.
According to Shirley McCarty, the purpose of using social security
numbers rather than names is to ‘‘protect the privacy of the individ-
uals.’’
4 The record establishes that some of Respondent’s employees are
concerned about guarding their privacy and that both Respondent
and APSA have recognized this. Thus, according to Bonnie Kent,
Respondent employs ‘‘a lot of people who don’t want anything di-
vulged about them. They won’t even tell us their home address.’’
Also, in 1990, APSA filed a grievance over a reduction in force. On
that occasion, Respondent gave information, identifying employees
by name rather than by code, to APSA. However, Respondent re-
quired each employee to execute a release, and two employees re-
fused. Moreover, Respondent protects employee privacy by stamping
all personnel record jackets with a privacy label and maintaining a
published personnel ‘‘practice,’’ protecting the contents of personnel
folders from all but ‘‘authorized requesters’’ and establishing for the
transfer of files and the accountability for them. Further, as stated
above, while, by contract, APSA receives salary and raise data, em-
ployees are identified only by social security numbers. Finally,
Theodore Little acknowledged that APSA has likewise long recog-
nized the ‘‘sensitivity’’ of personnel data and, in this regard, I note
that APSA offered to permit Respondent to provide the requested in-
formation with the employees identified by social security numbers
or some sort of code and that, pursuant to the investigation of past
grievances, Respondent has given performance review information to
APSA.
With regard to the above-noted personnel ‘‘practice,’’ it is unclear
in the record whether the policy has ever been disseminated to the
technical staff employees. Also, there is no record evidence as to
whether Respondent has ever given assurances to its technical staff
employees that performance review information would be maintained
as confidential information. In this regard, I note the uncontroverted
testimony of Little that, in processing past grievances, APSA offi-
cials have been given access to performance review information.
There is no record evidence whether, in such instances, Respondent
required employees to execute releases.
August 1, 1990, through July 31, 1992, and extended until
December 16, 1992, and that there are approximately 1800
bargaining unit employees, with all having bachelor degrees
and most having advanced masters or doctorate degrees.
Shirley McCarty is the general manager of Respondent’s
human resources department; beneath her, in Respondent’s
supervisorial hierarchy, are Bonnie Kent, who is in charge of
the employee relations and services department, and Roman
Gallego, who, since December 1992, has been Respondent’s
labor relations administrator. Theodore Little, a technical
staff employee for Respondent, is the first vice president of
APSA and Bruce Campbell is the negotiations chairman.
The record discloses that the genesis of the instant dispute
between Respondent and APSA and of the consequent unfair
labor practice allegations was a contractual grievance, filed
by Stan Hansen, a technical staff employee in Respondent’s
strategic defense operations division, on December 21, 1991.
In his grievance, Hansen, who possesses an advanced doc-
torate degree, asserted that his 1991 performance review,
which resulted in the denial of an annual salary increase, was
‘‘unfair.’’2 Subsequently, after Hansen met separately with
Bonnie Kent and W. M. Mann, the vice president of the
strategic defense operations division, in unsuccessful efforts
to resolve the grievance, APSA officials and Hansen decided
to further pursue the grievance and, according to Theodore
Little, ‘‘felt that more data was needed in order to be able
to evaluate and investigate the grievance.’’ Accordingly,
Warner Lee, APSA’s grievance chairman, wrote to Bonnie
Kent, on March 23, 1992, requesting ‘‘a hearing of his griev-
ance at the Group Vice President level’’ and noting that
APSA was unable to evaluate the merits of Hansen’s conten-
tions ‘‘without knowing what his . . . matrix means in rela-
tion to the rest of the division and the company.’’ A hearing
date was scheduled for April 23, and, on April 13, in accord
with what Lee stated in his above-quoted letter, Theodore
Little wrote a letter to Shirley McCarty, requesting the fol-
lowing information in order that APSA could ‘‘intelligently,
rationally and properly evaluate, process and pursue’’ Han-
sen’s grievance—‘‘Ladder position, matrix, salary and raise
data for every bargaining unit member in Strategic Defense
Operations for 1990 and 1991.’’ Little added that ‘‘social se-
curity numbers or other code may be used to protect the
identity of individuals.’’
As it desired time in which to respond to APSA’s informa-
tion request, Respondent canceled the grievance hearing, and,
on May 5, Bonnie Kent responded, by letter, to Little. Re-
garding the requested salary and raise information, she wrote
that ‘‘APSA already receives [such] information broken
down by division in addition to other data for every Bar-
gaining Unit member. You have in your possession the re-
ports from 1990 and 1991.’’3 As to the ladder rankings, Kent
stated that Hansen’s rank was ‘‘at the bottom’’ and that ‘‘we
are prepare[d] to give you ladder and matrix information for
the bottom six lowest ranked members of the division so that
you will be able to conduct your own evaluation.’’ Kent con-
cluded her letter by offering to work with Little in order to
resolve the matter. With regard to Respondent’s counteroffer,
Shirley McCarty, who signed the letter for Kent, testified
that, in formulating its response, Respondent balanced the
privacy rights of its employees4 against APSA’s need to
have enough information to establish ‘‘consistency’’ in Re-
spondent’s employee review process and that, inasmuch as
the collective-bargaining agreement mandated that Respond-
ent provide such on a quarterly basis, APSA already pos-
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 While testifying, Little explained that APSA had received infor-
mation that Respondent’s ladder rankings of technical staff employ-
ees was inconsistent with the matrices and that this ‘‘lack of consist-
ency’’ was the basis for APSA’s request for ladder rankings and
matrices for all of the technical staff employees in the strategic de-
fense operations division.
6 McCarty stated that APSA shared Respondent’s privacy concerns
and, during cross-examination, stated that she understood APSA’s
policy was that only selected APSA officials are permitted to view
confidential materials and that APSA gave no indication that such
would not be the policy with regard to the requested material. Dur-
ing her cross-examination, Bonnie Kent conceded that she has no
knowledge that APSA shares confidential information with bar-
gaining unit personnel and that, while stating Respondent has had
past problems with disclosures by some APSA officials, ‘‘Ted is
very, very good about that.’’ Finally, as stated above, Little testified,
without contradiction, that, in processing past grievances, APSA offi-
cials have been given employee performance review information by
Respondent.
sessed the requested salary and raise data. In this regard,
when asked if APSA would have needed more salary infor-
mation if Respondent provided the requested ladder and ma-
trix information, Little conceded ‘‘in general, no.’’
Clearly, APSA believed that Respondent’s offer was insuf-
ficient. Thus, on May 11, Little wrote a letter to McCarty,
stating that Kent’s May 5 response was ‘‘unacceptable’’ and
renewed APSA’s April 13 information request ‘‘so that
APSA can intelligently, rationally and properly evaluate,
process and pursue the [Hansen grievance].’’ By letter, Shir-
ley McCarty immediately responded the next day. She stated
that, while Respondent is charged with protecting the privacy
of all employees, ‘‘so that you may evaluate Mr. Hansen’s
position within his division, we are prepared to provide you
with the matrices and a code for the seven individuals above
Mr. Hansen on the performance ladder. Together with the
salary information you received earlier, we believe this will
allow you to conduct your evaluation.’’ Apparently, McCarty
hand delivered her above-quoted response letter to Little in
her office and reiterated Respondent’s position that APSA
did not require any more data beyond what had previously
been offered and what was added that day. To this, Little re-
peated that the requested information was needed to permit
APSA to evaluate and investigate Hansen’s grievance5 and
that APSA wanted ‘‘all of the data or they didn’t want any
of it.’’
Bonnie Kent testified that, prior to and subsequent to the
foregoing exchange of letters, she frequently spoke to Little
with regard to APSA’s information request and that Little
continually refused Respondent’s limited compromise re-
sponses, saying ‘‘[W]e want all the information.’’ Asked if
Little ever explained why APSA needed the ladder and ma-
trix information for all of the technical staff employees in the
strategic defense operations division, Kent testified that ‘‘he
did say to evaluate the grievance. . . . We need it to process
and evaluate the grievance.’’ She added that she always dis-
agreed with Little on this point, telling him that since Hansen
was at the bottom of the ladder rankings, the requested infor-
mation would be worthless to APSA. With regard to the sal-
ary and raise information, according to Kent, she explained
to Little that providing such to APSA was unnecessary as it
already had the data for the past 2 years, and Little’s re-
sponse was that what APSA had was ‘‘cumbersome’’ and
‘‘difficult to assimilate.’’
The record establishes that, subsequent to the exchange of
the above-quoted letters, APSA neither deviated from its stat-
ed information demand nor accepted Respondent’s com-
promise offers for resolving the matter and that, notwith-
standing its proposals to furnish some, Respondent provided
none of the requested information. With matters in that pos-
ture, APSA filed the instant unfair labor practice charge on
June 29, 1992. Approximately 3 weeks later, on July 24,
Theodore Little and Bruce Campbell met with McCarty and
Kent in McCarty’s conference room to once again discuss
the information request. There is no dispute that the APSA
representatives continued to demand the salary and raise in-
formation for 1990 and 1991 and the 1990 and 1991 ladder
rankings and matrices for each of the technical staff employ-
ees in the strategic defense operations division. After
McCarty repeated Respondent’s position that it did not be-
lieve that APSA needed all the requested material for Han-
sen’s grievance, Little reiterated that APSA continued to re-
quire all of the requested material and that such was nec-
essary to investigate and evaluate the grievance, and Camp-
bell added that the data was needed ‘‘for the purpose of
looking at the consistency of the data and for dramatic
changes.’’ McCarty, who admitted understanding that APSA
questioned the consistency of ladder rankings and matrices,
replied that she had examined the material and it was con-
sistent and that she believed Respondent’s offer was suffi-
cient for APSA to see that there had been consistency and
that Hansen’s performance review was ‘‘reasonable.’’
McCarty added that it was difficult for Respondent to re-
trieve and collate all the requested material; that ‘‘the con-
cern is that information when it gets out into hands that can
correlate information, get names, possibly identify people, es-
pecially when you’re talking about one . . . division’’; and
that Respondent’s concerns were ‘‘privacy’’ as well as pos-
sible ‘‘embarrassment’’ and ‘‘morale’’ problems.6 The record
establishes that the meeting ended with each party adamantly
adhering to its premeeting position and that none of the re-
quested material was transmitted to APSA.
The Regional Director for Region 31 issued the instant
complaint on August 13, 1992, and 11 days later, in a letter
dated August 24, in order ‘‘to reach a satisfactory accommo-
dation’’ with regard to APSA’s information request, McCarty
made another compromise proposal to Little. With regard to
the requested salary and raise information, McCarty reiter-
ated that such ‘‘is already in your possession having been
provided to you . . . in accordance with our collective bar-
gaining agreement’’ but proposed to ‘‘replace’’ copies of
said material which had been lost or mislaid. As to the lad-
der placement and matrix information, after restating Re-
spondent’s position that APSA had never ‘‘successfully ex-
plained . . . why it is necessary to secure ladder ranking and
matrix information for every bargaining unit employee in the
Operation’’ and that ‘‘verification of the fairness of [Han-
sen’s] treatment can be achieved by examining a limited
number of employees immediately above him on the lad-
der,’’ McCarty proposed ‘‘providing you with the ladder
rankings and matrices of up to 25 nonsupervisory [technical
staff employees] in Strategic Defense Operations.’’ She
added that APSA could ‘‘designate the 25 positions imme-
diately above Stan Hansen or you may designate up to 25
persons by ladder position in order to ensure a fair sampling.
103AEROSPACE CORP.
7 Asked, if, by increasing its compromise offer to 25 ladder
rankings and matrices, Respondent’s privacy concerns had been dis-
pelled, McCarty said, ‘‘We wanted to balance the need of [APSA]
. . . against the privacy; and we felt that that was a reasonable bal-
ance.’’
8 Asked why Respondent failed to act unilaterally by selecting 25
rankings and matrices and releasing said material to APSA, McCarty
replied, ‘‘If it wasn’t what they wanted, we didn’t want to go the
work of getting all that information together.’’
9 Little testified that, to his knowledge, Hansen was the only stra-
tegic defense operations technical staff employee, who complained
about his 1991 performance review.
10 An employer bears the burden of demonstrating that its refusal
to provide relevant and necessary information to a labor organization
is excusable because the requested data is privileged information.
McDonnell Douglas Corp., 224 NLRB 881 (1976).
11 Counsel for Respondent argues that the Board now requires the
parties initially must negotiate in good faith in an effort to resolve
their differences prior to intervention by the Board in order to bal-
ance the employer’s legitimate privacy interest against the labor or-
ganization’s need for the information. Counsel cites four Board deci-
sions (Minnesota Mining Co., 261 NLRB 27 (1982), enfd. 711 F.2d
348 (D.C. Cir. 1983); Borden Chemical, 261 NLRB 64 (1982), enfd.
711 F.2d 348 (D.C. Cir. 1983); Colgate-Palmolive Co., 261 NLRB
90 (1982), enfd. 711 F.2d (D.C. Cir. 1983); and Plough, Inc., 262
NLRB 1095 (1982)), as support for this argument. However, close
scrutiny of these and related Board decisions establishes that, while
the Board required bargaining in each prior to balancing the employ-
er’s privacy interests against the labor organization’s need for the in-
formation, its orders were limited to assertedly confidential and pro-
prietary trade secret information and were not more broadly worded.
Indeed, in each of the cases, the Board engaged in an immediate bal-
ancing of the parties’ respective interests over health and safety in-
formation and other data about which the employers raised no trade
secret defense. In only one other case (General Dynamics, supra) did
the Board require the parties to engage in bargaining prior to engag-
ing in a balancing of interests, but the requirement therein was lim-
ited to bargaining over the conditions under which the material
would be disclosed. Accordingly, I reject Respondent’s argument as
being without merit.
If, after receiving the 25 matrices and ladder rankings, you
still believe additional information to be necessary, we will
both be in a better position to discuss the matter.’’7 There
is no question that Little, on behalf of APSA, rejected Re-
spondent’s compromise proposal—‘‘I’m sure I responded
and said we needed all of the data.’’8 Asked why, Little reit-
erated that APSA believed the ladder rankings and matrices
‘‘data was inconsistent’’ for 1990 and 1991 and wanted to
ascertain if such was true for just ‘‘some’’ or the ‘‘majority
of the people,’’ and, specifically as to the Hansen grievance,
he stated that any inconsistency ‘‘would imply that the thing
was not being approached in a very careful, reasoning fash-
ion’’ and that Hansen’s evaluation ‘‘may have been a willy-
nilly performance review that was given him for some reason
that we’re not aware of.’’9 Finally, there is no dispute that,
as of the date of the instant trial, Respondent had provided
none of the requested 1990 and 1991 salary and raise or lad-
der ranking or matrix information for the strategic defense
operations division employees to APSA.
B. Legal Analysis
As to whether Respondent’s refusal to provide the re-
quested 1990 and 1991 salary and raise and ladder ranking
and matrix information for all technical staff employees in
the strategic defense operations division to APSA constituted
a violation of Section 8(a)(1) and (5) of the Act, there is no
dispute as to the applicable legal principles. Thus, it has long
been established that, generally, an employer is under a statu-
tory obligation to, upon request, provide a labor organization,
which is the collective-bargaining representative of the em-
ployer’s employees, with information, which is necessary and
relevant for the proper performance of the labor organiza-
tion’s duties in representing the bargaining unit employees.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956); Howard University,
290 NLRB 1006 (1988). This duty to provide information
encompasses not only material necessary and relevant for the
purpose of contract negotiations but also information nec-
essary for administration of a collective-bargaining agree-
ment, including information required by the labor organiza-
tion to process a grievance. Acme Industrial, supra; Bacardi
Corp., 296 NLRB 1220 (1989); Howard University, supra.
The standard for relevancy is a ‘‘liberal discovery-type stand-
ard,’’ with the sought-after evidence having to be not nec-
essarily dispositive of the issue between the parties but only
of some bearing upon it and of probable use to the labor or-
ganization in carrying out its statutory responsibilities. Ba-
cardi Corp., supra; Howard University, supra; Pfizer, Inc.,
268 NLRB 916 (1984). Necessity is not a guideline in itself
but rather is directly related to relevancy, and only the prob-
ability that the requested information will be of use to the
labor organization need be established. Bacardi Corp., supra.
Moreover, information, which concerns the terms and condi-
tions of employment of the bargaining unit employees, is
deemed ‘‘so intrinsic to the core of the employer-employee
relationship’’ so as to be presumptively relevant. York Inter-
national Corp., 290 NLRB 438 (1988), quoting Southwestern
Bell Telephone Co., 173 NLRB 172 (1968); Buffalo Con-
crete, 276 NLRB 839 (1985). While the foregoing constitutes
a general statement of the applicable legal principles, in De-
troit Edison Co. v. NLRB, 440 U.S. 301 (1979), the Supreme
Court ‘‘recognized a limited exception [to the duty to pro-
vide relevant information to a bargaining representative] for
information that is confidential in nature.’’ New Jersey Bell
Telephone Co. v. NLRB, 720 F.2d 789, 791 (3d Cir. 1983).
In such circumstances, where the employer has raised a ‘‘le-
gitimate and substantial’’ claim of confidentiality,10 ‘‘the
Board is . . . required to balance the [labor organization’s]
need for the information against the legitimate confidentiality
interest established by the employer.’’ General Dynamics
Corp., 268 NLRB 1432, 1433 (1984).11
Counsel for the General Counsel argues that the requested
1990 and 1991 salary and raise and ladder ranking and ma-
trix information is presumptively relevant for the Stan Han-
sen grievance, and, in its defense to the allegations of the
complaint that it acted unlawfully in refusing to provide the
information to APSA, Respondent does not dispute the rel-
evancy or necessity of the information for the grievance. In-
deed, there can be no doubt of relevancy herein. Thus, not
only did Theodore Little explain, on several occasions, to
Respondent’s officials that all the requested material was
necessary for APSA to investigate and evaluate the merits of
the Hansen grievance but also Bruce Campbell explained,
and Shirley McCarty admittedly understood, that APSA was
concerned about the consistency of the ladder rankings and
matrices. Rather than lack of relevancy, Respondent’s de-
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Notwithstanding my view that employees should not reasonably
expect that their performance reviews will be treated as entirely pri-
vate, as has occurred in the past, some of Respondent’s technical
staff employees in the strategic defense operations division may
complain about disclosure of such information in conjunction with
the Hansen grievance. As has the Board in similar circumstances, I
quote from WCCO Radio v. NLRB, 844 F.2d 511, 515 (8th Cir.
1988), that ‘‘one of the consequences of collective bargaining is that
it subordinates the particular interests of individual employees to the
collective interest of the unit. Hence, a preference for confidentiality
on the part of some . . . employees does not nullify [the Union’s]
right to the information.’’
fense, for refusing to provide the requested ladder ranking
and matrix information, involves the confidentiality of the re-
quested information, with counsel asserting that the informa-
tion sought by APSA is personnel file information ‘‘of a
most sensitive nature’’ and, more specifically, that disclosure
of the ladder ranking and matrix information to APSA
‘‘would cause substantial embarrassment to members of a
bargaining unit which consists of a unique group of highly
talented, highly paid, and individualistic professional employ-
ees who have always exhibited a particular sensitivity about
privacy issues.’’ In accord with the approach of the Board
in such cases, prior to engaging in a balancing of the respec-
tive interests of Respondent and of APSA and even assuming
there is validity to counsel for Respondent’s argument re-
garding prior bargaining, my threshold inquiry must concern
whether Respondent has met its burden of proof—estab-
lishing that its expressed concern for employee privacy and
confidentiality is ‘‘legitimate and substantial.’’ Detroit Edi-
son, supra at 315. For the below-stated reasons, I find that
Respondent has failed to meet its burden.
Initially, in Detroit Edison, the Supreme Court defined the
nature of the privacy interest, at issue therein, as the ‘‘sensi-
tivity’’ of any individual resulting from the ‘‘disclosure of
information that may be taken to bear on his or her basic
competence,’’ and counsel for Respondent asserts that ‘‘there
is no fundamental difference between the employee evalua-
tions embodied in the matrices sought by APSA and the re-
quested testing information at issue in Detroit Edison.’’ The
contention utterly subverts the meaning of the Supreme
Court’s decision. Thus, contrary to counsel, the Court was
confronted with defining the privacy interests inherent in em-
ployee aptitude test scores, ‘‘which theoretically reveal intel-
lectual capacity and psychological makeup’’ and ‘‘taken out
of context . . . may threaten an individual’s ego and sense
of self-worth.’’ Salt River Valley Water Users’ Assn. v.
NLRB, 769 F.2d 639, 642 (9th Cir. 1985). Moreover, as
noted by the Supreme Court, psychologists, who administer
such tests, consider them so ‘‘highly sensitive’’ that they are
ethically bound not to reveal either the test scores or the ac-
tual tests to unauthorized persons, including management
personnel. Detroit Edison, supra at 306–307; Salt River
Assn., supra. In contrast, the performance matrices, requested
by APSA, consist of a supervisor’s rating of 16 of an em-
ployee’s employment attributes (timeliness, versatility, com-
municative skills, quantity, and quality of work, etc.) and, as
the record establishes, are confined to evaluations of Re-
spondent’s employees’ on-the-job performance, something
which can hardly be described as private and which may
readily be observed by fellow employees. Also, the informa-
tion, contained in the evaluation matrices, merely catalog a
‘‘garden variety’’ of common employment characteristics and
‘‘demonstrate the employee’s level of success at his job, but
[the information] does not attempt to provide an objective
measure of his ‘intelligence’ or psychological fitness.’’ Salt
River Assn., supra; New Jersey Bell Telephone Co., 289
NLRB 318, 319 (1988).
Furthermore, there exists no record evidence that Respond-
ent’s employees have any expectation that their ladder
rankings or matrices will remain confidential in the instant
circumstances. Thus, unlike in Detroit Edison, supra, there is
no record evidence that Respondent ever made any commit-
ment, to its technical staff bargaining unit employees, to
maintain the confidentiality of their ladder rankings or mat-
rices, and there is no record evidence that employees have
sought to keep the information confidential or have any ex-
pectation of confidentiality in the normal processing of griev-
ances. Illinois-American Water Co., 296 NLRB 715, 724
(1989); Salt River Valley Water Users’ Assn., 272 NLRB
296 (1984), affd. 769 F.2d 639 (9th Cir. 1985); Pfizer, Inc.,
supra at 919. Indeed, the information, at issue herein, unlike
the aptitude tests in Detroit Edison and like employment his-
tories and disciplinary records, seems to be of the type fre-
quently introduced in arbitration proceedings for the limited
purpose of evaluating a bargaining unit employee’s griev-
ance, and the Board has recently found that an employer
acted in violation of Section 8(a)(1) and (5) of the Act in
refusing to provide performance appraisals to a labor organi-
zation. New York Telephone Co., 299 NLRB 351 (1990);
Pfizer, Inc., supra.12 Also, while Respondent maintains a
general personnel ‘‘practice,’’ regarding the release, transfer,
and accountability of personnel folders, its representatives do
not seem to have been subject to any restraints regarding the
confidentiality of the information, at issue herein. In this re-
gard, I note that, on July 24, in expressing her opinion to
Theodore Little and Bruce Campbell that Respondent’s com-
promise offer was sufficient for APSA’s purposes, Shirley
McCarty stated that she had reviewed the requested material.
As does the United States Court of Appeals for the Ninth
Circuit, I believe it fundamentally unfair for Respondent to
be able to rely on the ‘‘confidential’’ information for its own
defense while, at the same time, denying the employees’ bar-
gaining representative access to the information. Salt River
Assn., supra at 643. Finally, such must be contrasted with the
absolute confidentiality, including from managerial scrutiny,
of the aptitude test scores in Detroit Edison, supra.
Counsel for Respondent argues that the confidentiality of
information contained in employees’ personnel files has its
sources in both state and Federal law. In this regard, in De-
troit Edison, supra, the Supreme Court pointed out that ‘‘a
person’s interest in preserving the confidentiality of sensitive
information contained in his personnel files has long been
given forceful recognition in both Federal and state legisla-
tion . . . .’’ Id. at 318 fn. 16. Furthermore, as pointed out
by counsel, the State of California Constitution recognizes
privacy as an ‘‘inalienable right’’ and, with regard to person-
nel records, the California courts have generally ‘‘concluded
that the public interest in preserving confidential information
outweighs the interest of a private litigant in obtaining the
confidential information.’’ Harding Lawson Assoc. v. Supe-
rior Court, 12 Cal.Rptr. 2d 538, 539 (Cal.App 1 Dist. 1992).
However, while counsel’s statement of the law is correct, his
argument begs the question—is the performance review in-
105AEROSPACE CORP.
formation, the ladder rankings and matrices, contained in Re-
spondent’s technical staff employees’ personnel files inher-
ently confidential in nature. I have concluded that such is
not, and, accordingly, whatever privacy right may attach to
‘‘sensitive’’ information, contained in employee personnel
files, is not applicable in this instance. Counsel next points
out that Respondent’s technical staff bargaining unit is a
‘‘unique’’ group, comprised of highly talented, highly paid,
and individualistic professional employees and that disclosure
of the ladder rankings and matrices would cause them ‘‘sub-
stantial embarrassment.’’ If counsel means to suggest that
analysis of the confidentiality of said information is depend-
ent upon the class of employees involved, he is, of course,
utterly incorrect. In my view, whether an individual can be
said to truly have a privacy interest in any material depends
upon the nature of the material itself and not the individual.
Thus, in Detroit Edison, analysis of the objective and inher-
ent nature of the psychological aptitude tests themselves, to-
gether with the employer’s promise of confidentiality, rather
than analysis of the employees, who were given the tests,
formed the basis of the Supreme Court’s conclusion that the
employer’s concern for employee confidentiality was legiti-
mate and substantial. If, instead, counsel means to suggest
that all means must be undertaken to ensure against general
disclosure of the job performance information, any potential
risk of embarrassment to bargaining unit employees may be
minimized by continuation of the parties’ past practice of
providing APSA with the requested information in coded
form and identifying individuals only by social security num-
bers, and such shall be included in my recommended Order
herein. Based on the foregoing, I conclude that Respondent
has failed to meet its burden of proof of establishing a legiti-
mate and substantial privacy concern in the requested 1990
and 1991 ladder and matrix information and that Respondent
acted in violation of Section 8(a)(1) and (5) of the Act in
failing to provide such information pursuant to APSA’s re-
quest. Salt River Assn., supra; Howard University, supra;
Pfizer, Inc., supra.
Turning to Respondent’s failure and refusal to provide
APSA with the requested 1990 and 1991 salary and raise in-
formation for the strategic defense operations division tech-
nical staff employees, counsel for Respondent, citing
Emeryville Research Center v. NLRB, 441 F.2d 880 (9th Cir.
1971), and United Aircraft Corp., 192 NLRB 382 (1971), ar-
gues that, inasmuch as, pursuant to the existing collective-
bargaining agreement, it provides to APSA salary and raise
data for every bargaining unit employee on a quarterly basis
and as, therefore, APSA already possesses the requested ma-
terial, it was under no obligation to comply with APSA’s re-
quest for such information in a different form than previously
provided. Contrary to Respondent, counsel for the General
Counsel, citing Illinois-American Water Co., supra, argues
that, even though requested information is available to a
labor organization through other sources, including its own
records, an employer is not relieved of its bargaining obliga-
tion to supply the requested information to the labor organi-
zation in a convenient form. I find merit in Respondent’s po-
sition. Initially, there is no dispute that Respondent provides
salary and raise information for all bargaining unit employ-
ees to APSA on a quarterly basis. Further, while the re-
quested salary and raise information was restricted to the
technical staff employees in Respondent’s strategic defense
operations division, when asked if the labor organization
would have required any more salary information if Re-
spondent had provided the requested ladder rankings and
matrices, Theodore Little conceded ‘‘in general, no.’’ In
United Aircraft Corp., supra at 389, the Board stated that
‘‘an employer, if it is to fulfill its bargaining obligation
under Section 8(a)(5) is required to furnish relevant informa-
tion requested by the employee representative. But it does
not follow that the union is entitled to such information in
the exact form or on the exact terms requested.’’ Similarly,
the United States Court of Appeals for the Ninth Circuit, in
Emeryville Research Center, supra at 884, ruled that there
would not ‘‘be the slightest basis for an unfair labor practice
charge where the company offers information in a form dif-
ferent from that demanded but which nonetheless meets
every need stated by the Union,’’ and, significantly, in De-
troit Edison, supra at 318, the Supreme Court cited this deci-
sion as support for its conclusion that a labor organization’s
interests, however legitimate, do not always predominate
over other interests. Moreover, Illinois-American Water Co.,
the decision relied upon by counsel for the General Counsel,
appears to be inapposite. While the employers, in United Air-
craft Corp. and in Emeryville Research Center, had provided,
or offered to provide, requested information in a different
form than demanded by the labor organizations, which rep-
resented their respective employees, the employer, in Illinois-
American Water Co., refused to provide any requested infor-
mation to the labor organization therein, asserting that the
same information was available from other sources. Such, of
course, is not the situation involved herein. In these cir-
cumstances, as Respondent has, concededly, previously pro-
vided the requested salary and raise information to APSA, al-
beit in a different form, the former has not engaged in con-
duct, violative of Section 8(a)(1) and (5) of the Act by refus-
ing to provide the requested 1990 and 1991 salary and raise
information to APSA, and I shall recommend dismissal of
this aspect of the complaint allegations.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. APSA is a labor organization within the meaning of
Section 2(5) of the Act.
3. APSA is the exclusive collective-bargaining representa-
tive within the meaning of Section 9(a) of the Act of certain
of Respondent’s employees in the following appropriate unit:
All regular employees employed by Respondent as non-
supervisory MTS level I, level II, and level III at the follow-
ing locations: El Segundo, Vandenberg Air Force Base, and
Sunnyvale, California, Buckley Air Force Base, Colorado,
Kennedy Space Center, Florida, Washington, D.C., Omaha,
Nebraska, Houston, Texas, Kirkland Air Force Base, New
Mexico, Falcon Air Force Base, Colorado, and Australia; ex-
cluding all other employees, confidential employees, clerical
employees, guards, and supervisors as defined by the Act.
4. By failing and refusing to furnish to APSA, pursuant to
its request in connection with the grievance filed by Stan
Hansen, copies of the 1990 and 1991 ladder rankings and
matrices for all bargaining unit employees in Respondent’s
strategic defense operations division, Respondent engaged in
conduct violative of Section 8(a)(1) and (5) of the Act.
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
14 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
5. The unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
6. Unless set forth above, Respondent engaged in no other
unfair labor practices.
REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) and (5)
of the Act, I shall order it to cease and desist and take cer-
tain affirmative action necessary to effectuate the purposes
and policies of the Act. Specifically, inasmuch as Respond-
ent has been found to have unlawfully failed and refused to
furnish to APSA the requested 1990 and 1991 ladder
rankings and matrices for all the bargaining unit employees
in the strategic defense operations division, I shall rec-
ommend that Respondent be ordered, upon request, to fur-
nish said information to APSA.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, The Aerospace Corporation, El Segundo,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish to APSA, pursuant to
its request in connection with the grievance filed by Stan
Hansen, copies of the 1990 and 1991 ladder rankings and
matrices for all bargaining unit employees in Respondent’s
strategic defense operations division.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish to APSA the 1990 and 1991 ladder
rankings and matrices for all employees in Respondent’s
strategic defense operations division provided that, in accord
with the parties’ collective-bargaining agreement, past prac-
tice, and APSA’s letter dated April 13, 1992, social security
numbers or some other identification code is utilized in order
to protect the identities of bargaining unit employees in the
strategic defense operations division.
(b) Post at its facilities in El Segundo, Sunnyvale, and
Vandenberg Air Force Base, California, Buckley Air Force
Base, Colorado, Kennedy Space Center, Florida, Washington,
D.C., Omaha, Nebraska, Houston, Texas, Kirkland Air Force
Base, New Mexico, Falcon Air Force Base, Colorado, and
Australia, copies of the attached notice marked ‘‘Appen-
dix.’’14 Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able 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.
IT IS FURTHER ORDERED that, insofar as the complaint al-
leges that Respondent unlawfully failed and refused to fur-
nish to APSA 1990 and 1991 salary and raise information,
the complaint shall be, and is, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with Aero-
space Professional Staff Association, as the collective bar-
gaining representative of our nonsupervisory MTS level I,
level II, and level III employees, by failing and refusing to
furnish to Aerospace Professional Staff Association, pursuant
to its request in connection with a grievance filed by Stan
Hansen, copies of the 1990 and 1991 ladder rankings and
matrices for all bargaining unit employees in our strategic
defense operations division.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
WE WILL, on request, furnish to Aerospace Professional
Staff Association copies of the 1990 and 1991 ladder
rankings and matrices for all bargaining unit employees in
our strategic defense operations division, provided that, in
accord with the existing collective-bargaining agreement, past
practice, and Aerospace Professional Staff Association, re-
quest, social security numbers or some other code is utilized
to protect the identities of the bargaining unit employees,
whose performance review data has been given to Aerospace
Professional Staff Association.
THE AEROSPACE CORPORATION