ALCAN ROLLED PRODUCTS - RAVENSWOOD, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 12, 2011

09-CA-046267 (N.L.R.B. Sep. 12, 2011)

JD-56-11
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALCAN ROLLED PRODUCTS—
RAVENSWOOD, LLC,
and Case 9–CA–46267
UNITED STEEL, PAPER AND
FORESTRY, RUBBER, MANUFACTURING
ENERGY, ALLIED INDUSTRIAL AND
SERVICE WORKERS INTERNATIONAL UNION,
LOCAL 5668, AFL-CIO-CLC.
Linda B. Finch, Esq. (NLRB Region 9),
for the General Counsel
Christopher L. Slaughter, Esq. (Steptoe & Johnson PLLC),
of Huntington, West Virginia, for the Respondent
Elijah Morris (Grievance Committee Chairman, Local 5668),
of Ravenswood, West Virginia, for the Charging Party
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves an employer’s
refusal to provide its employees’ union with the names of two union-represented employees
who told a supervisor—in confidence according to the employer—that a third employee, who
had been disciplined for two mobile equipment accidents in three months, was unsafe to work
with and needed “help.”
The General Counsel contends that the requested information is relevant to the union’s
investigation of the disciplined employee’s grievance and to the union’s general safety-related
representational activities. As discussed herein, I agree. The employer contends that it has a
confidentiality interest in sheltering the names of the complaining employees. As discussed
herein, I agree with this too. Under settled Board precedent, the employer’s duty is to seek an
accommodation of the conflicting union and employer interests. The employer has failed to do
so, and objects that there is no accommodation it can make. As discussed herein, I disagree
and I will order the employer to bargain for an accommodation.
JD-56-11
5
STATEMENT OF THE CASE
On February 23, 2011, the United Steel, Paper and Forestry, Rubber, Manufacturing, 10
Energy, Allied Industrial and Services Workers International Union, Local 5668, AFL–CIO–CLC
(Union or Local 5668) filed an unfair labor practice charge against Alcan Rolled Products—
Ravenswood, LLC (Alcan or Employer), docketed by Region 9 of the National Labor Relations
Board (Board) as Case 9–CA–46267.
15
On April 27, 2011, based on an investigation into the charge filed by the Union, the
Acting General Counsel, by the Acting Regional Director for Region 6, issued a complaint and
notice of hearing against Alcan alleging violations of the Act. The complaint alleged that Alcan’s
refusal to provide the Union with certain requested information violated Section 8(a)(1) and (5)
of the Act. Alcan filed an answer denying all violations of the Act.20
A trial in this case was conducted June 21, 2011 in Ripley, West Virginia. Counsel for
the General Counsel and the Respondent filed briefs in support of their positions by July 26,
2011. On the entire record, I make the following findings, conclusions of law, and
recommendations. 25
JURISDICTION
30
The complaint alleges, the Respondent admits, and I find that the Respondent is a
corporation with offices and places of business located in Ravenswood, West Virginia, and has
been engaged in the operation of an aluminum fabrication plant. The complaint further alleges,
the Respondent admits, and I find that during the 12-month period preceding issuance of the
complaint the Respondent in conducting its operations sold and shipped goods and materials 35
valued in excess of $50,000 from its Ravenswood, West Virginia facility directly to points outside
the State of West Virginia. The complaint further alleges, the Respondent admits, and I find,
that at all material times the Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. It is also alleged, admitted, and found that
at all material times the Union has been a labor organization within the meaning of Section 2(5) 40
of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
45
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JD–56–11
3
UNFAIR LABOR PRACTICES5
Background Facts
Approximately 1400 employees work at Alcan’s aluminum fabrication facility. Alcan’s
production and maintenance employees are represented by the Union, which, along with the 10
International Union, are the designated exclusive collective-bargaining representative of the
bargaining unit.1
The International Union and Alcan are parties to a labor agreement covering the terms
and conditions of employment of the unit employees, effective July 15, 2010, to July 15, 2012. 15
The labor agreement contains a multistep grievance and arbitration procedure governing
resolution of alleged violations of the agreement, including discipline and discharge of
employees.
The storeroom serves as a “parts store” for the facility, a secure area where parts 20
needed for the plant’s operation are kept, and from where they are distributed to the plant’s
departments. Individual departments requisition parts from the storeroom, sometimes picking
up requests and other times storeroom employees deliver items to the requested department.
In pulling orders from the storeroom area, employees are often required to drive mobile
equipment through the aisles of the storeroom. When delivering orders storeroom employees 25
drive mobile equipment through the plant, such as forklifts and “buggies.” (Buggies are delivery
vehicles approximately the size of a golf cart.) Safety concerns in the plant include the
interaction of pedestrians and mobile equipment within the plant.
Nine employees work in the storeroom on the day shift. The evening shift has two 30
storeroom employees. The overnight shift has one.
The Union assumes a role in monitoring the safety conditions in the facility. Article 14 of
the labor agreement provides for an extensive array of safety procedures involving the union,
including a union safety representative, a joint safety and health committee, regular safety 35
audits, and union involvement in safety investigations. Article 14 provides that “[t]he Company
and the Union will continue to cooperate toward eliminating safety and health hazards and will
encourage employees to use the procedures stated herein in reaching this objective.”
Employees voice safety complaints to a number of union and employer officials. Alcan 40
employee and union representative, David Gandee, testified that typically if storeroom
employees have a safety concern they go to the storeroom supervisor, Yvonne Zickefoose, or
another company official. If the company does not agree with the safety concern and will not fix

1The represented bargaining unit is composed of:
All production and maintenance employees employed at the Ravenswood, West Virginia plant,
but excluding executives, administrative and professional employees, office and clerical
employees, guards, full-time first-aid and safety employees, foremen and any other supervisory
employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees or effectively recommend such action.
JD–56–11
4
it, employees will then call the union “safety man.” According to Gandee, employees are not 5
shy about involving the Union with safety concerns.
Article 14 of the labor agreement also contains a drug and alcohol policy, the preamble
to which states that “[t]he Company and the Union agree that it is in everyone’s best interests to
maintain a drug free work place.” The policy also states that “[t]he Company considers that in 10
enforcing its policy it will receive the support of all concerned employees and it is hoped that all
employees will cooperate in addressing the issue at hand.”
Employee Robert Bush is employed in the Alcan storeroom, working day shifts. The
Employer’s discipline of Bush led to the information request at issue in this case.15
Bush had two accidents while driving mobile equipment in the Alcan facility, one in
November 2010, and one in January 2011. One accident occurred when he backed the forklift
he was driving into the hook of a crane and knocked out the back glass from the cab of the
forklift. The other accident occurred when Bush drove a buggy over a curb or hit a barrier while 20
looking backwards to remotely close a garage. The steering mechanism on the underside of
the buggy was damaged.2
Neither accident took place in the storeroom, but rather, while Bush was driving
equipment in other areas of the plant. After the first incident, Bush told Zickefoose that in the 25
past he had consumed alcohol but did not say when this had last happened. After the second
incident, Bush told Zickefoose that he had smoked marijuana the previous evening. Bush was
drug and alcohol tested after each incident. His drug test was negative and he tested positive
for alcohol but at low levels.
30
Storeroom Supervisor Zickefoose testified that within days after Bush’s second incident
she received several different comments from storeroom employees who approached her
regarding Bush. There were concerns about Bush operating mobile equipment in the
storeroom: “It was just mentioned that maybe he could go to another area in the plant where
there wasn’t so much mobile equipment being used. . . . I had people concerned about if there 35
was another incident, you know, [how] would their wives react if, you know, the Company didn’t
do something.” One employee told Zickefoose that Bush “knew he needed help and should
seek help but he refused.” Zickefoose assumed (but the employee did not say) that the “help”
referred to was with “alcohol, or whatever.”
40
The employees and Zickefoose discussed that these conversations were “off the record,
which [Zickefoose testified] means, to me, it doesn’t go any further”; it was “between he and I,
and it was off the record.” Zickefoose committed to the employee that the conversation would
remain “off the record”: “Anytime anyone asks me that, I do try to keep it confidential.”
45
On January 28, 2011, Bush was suspended pending discharge. The disciplinary
meeting was attended by Bush, Union Representative Gandee, Alcan HR representatives Marty
Lucki, Labor Relations Manager Hank Chawansky, and Bush’s supervisor Zickefoose. At the
meeting Chawansky stated that Bush was charged with a violation of company rules for

2Union Representative Morris testified that the forklift incident occurred in November 2010,
and the buggy incident in January 2011. Storeroom Supervisor Yvonne Zickefoose testified that
the buggy incident occurred in November 2010 and the forklift incident in January 2011. I note
the contradiction, but it is not necessary to resolve it.
JD–56–11
5
damaging company property and was going to be discharged. During the meeting, Chawansky 5
stated that two of Bush’s coworkers had said that “they felt it was unsafe to work with Bob
Bush,” a suggestion that Union Representative Gandee disputed, saying he did not believe that
was true. Gandee asked if anything could be done to avoid having Bush fired. Chawansky said
that Bush could retire to avoid discharge.
10
After the meeting, Gandee emailed Eli Morris, the chairman of the union grievance
committee, to report on the meeting, and included in his email the assertion that Chawansky
“said somebody from the storeroom came to him and said they was scared to work around
[Bush] and “[I] told him [I] didn’t bel[ie]ve it.”3
15
That day, Morris called Chawansky and arranged for a grievance meeting over the Bush
discipline. The meeting was originally scheduled for January 31. Morris also sent Chawansky a
letter requesting certain information for use at the upcoming grievance meeting. In the letter,
Morris requested a copy of Bush’s drug and alcohol tests from both the January 2011 and
November 2010 incidents; the names of employees who had “incidents resulting in damage to 20
equipment or property within the last 18 months; copies of all significant “incident reports” for the
past 2 years; and the
[n]ames of hourly employees referred to by Mr. Chawansky in [the] 5 day prior
suspension meeting that allegedly told him they were afraid to work around Mr. 25
Bush.
Morris told Gandee that he was requesting the names of the employees who complained
about Bush. Morris asked Gandee if he knew of anyone who had said they felt it was a safety
hazard to work around Bush. Gandee said he did not but that he would ask the employees 30
about it. Gandee attempted to find out by raising the issue in the lunchroom early the next
morning. Gandee testified that he told the employees:
Before this gets out of hand, I’d like to—if anybody in here has something, that it
was unsafe to work with Bob Bush, . . . I need to get that information to Mr. Eli 35
Morris.
Gandee told employees:

3Over the hearsay objection of counsel for the Respondent, Gandee’s email account of the
meeting was introduced into evidence under Federal Rule of Evidence 803(1), the “present
sense” exception. Although I admitted the document on that basis, I was wrong, and the
Respondent right. The present sense exception applies to a statement “made while the
declarant was perceiving the event or condition, or immediately thereafter.” According to the
advisory committee notes, only a “slight lapse” of time is allowable and “spontaneity is the key
factor.” According to Gandee, the meeting occurred at 2 or 2:30 p.m. It lasted about ten
minutes. He emailed Morris after the shift, between 3:00 and 4:00 p.m. That is too long.
United States of America v. Green, 556 F.3d 151, 155-156 (3d Cir. 2009) (and cases cited
therein). I reverse my ruling at trial and I do not rely on Gandee’s email for the truth of the
matters asserted therein. However, the document remains useful to the extent it corroborates
others accounts of the meeting, and explains how Union Representative Morris was first
acquainted with the issues in this case and came to write and phrase the initial request for
information at issue. In particular, I note that there is no evidence for the assertion in the email
that Chawansky said that the complaining employees spoke directly to him about Bush. I do not
credit that claim.
JD–56–11
6
5
[I]f somebody here has went out and said they’re scared to work with [Bush] they
need to call [Morris]. And I said, don’t even tell me, I said, just call him.
Gandee testified that “I felt like I talked to everybody,” but no one came forward in
response to his request. Gandee testified that “it was known through[out] the whole story that I 10
needed, if there was somebody that said they felt unsafe . . . that . . . [Morris] would like to know
. . . who they were.” However, Gandee did not obtain any information from the employees.
Gandee reported this to Morris.
The information requested by Morris from Alcan was not provided as of the time of the 15
initial grievance meeting, which was rescheduled to February 2. Morris and Gandee attended
for the Union. Zickefoose and Chawansky were present. Bush was at the meeting.
During the meeting Chawansky told the Union that the results of the drug testing showed
no drugs in Bush’s system and limited alcohol. Morris contended that this was not a violation of 20
the contract. The Employer said that it was not using drug and alcohol issues as a basis for the
discharge.
Morris asked Chawansky for the names of the two employees that had reported feeling
unsafe working with Bush. Chawansky refused to provide the names, contending that the 25
names were confidential.4
Chawansky did tell the union representatives that the employees who complained about
Bush were storeroom employees.5 Morris told Chawansky that “I believe I’m entitled to this
information under the National Labor Relations Act.” Chawansky still refused to provide the 30
names, stating that Morris should “take whatever legal action” he felt necessary and that
Chawansky would respond as directed by the company’s legal department. Chawansky did not
offer to bargain or otherwise accommodate the demand for the names.
On February 11, 2011, as anticipated by the original discipline, Alcan converted Bush’s 35
suspension to a discharge, to be effective February 14, 2011. According to the discharge letter
sent by Chawansky to Bush,
In the appeal hearing, the Company looked at other considerations based on the
discussions with the Union and your comments related to circumstances outside40
of the work environment.

4According to Morris, Chawansky stated that he had been “given the names in confidence.”
Zickefoose testified that she shared with Chawansky the substance of the employees’ remarks,
but did not provide Chawansky or anyone else the employees’ names. In his testimony,
Chawansky did not address the issue of whether he had been provided the names. Given
Zickefoose’s certainty on this score, I credit her testimony that she did not provide the names to
Chawansky.
5It is not entirely clear from the record whether this happened at this meeting or in the
discipline meeting. I think it is more likely, and I will assume, that it was stated at this grievance
meeting. While it potentially is significant that the Union knew this, it is not significant at which
meeting it was stated. However, if required, I would find that, based on the context, the
statement was made during the grievance meeting.
JD–56–11
7
Your behaviors in the work place that contributed to damages to Company 5
property on two (2) different occasions within approximately two (2) months of
each other with alcohol detected in your system have put other employees and
you at risk.
Accordingly, your employment with Alcan Engineered Products—Ravenswood, 10
has ended effective February 14, 2011.
The Union grieved the announcement by Alcan of the formal decision to discharge Bush.
On February 25, 2011, Morris wrote to Chawansky, requesting additional information “in
addition to information already requested and not yet provided” by letter dated “1/28/2011.” 15
Subsequently, pursuant to an agreement between Bush and Alcan, Bush’s discharge
was converted to a suspension and he was reinstated without pay on May 31, 2011. The
agreement contained a provision stating that “the Company recommends” that Bush participate
in an employee assistance program [the REACH program] that is available to assist employees 20
with a variety of personal, financial, drug and alcohol problems. The agreement provided that
the suspension could be grieved. As of June 2011, the Union maintained its grievance over the
incident, the remaining issues being Bush’s backpay and the maintenance of the suspension in
his file.
25
Zickefoose testified that employees frequently share information with her that is to be
kept “off the record” or “confidential” concerning a range of work issues. Zickefoose testified
that she had conversations with employees that she considered confidential often, as often as
twice a week, although it varied greatly depending on what issues developed. This is, in effect,
part of Zickefoose’s supervisory style, and aids her administration of the storeroom. Zickefoose 30
testified that previously “in the storeroom, we kind of had a vindictive environment.” But under
her supervision, “I’ve opened up the doors in there for them to help me make decision[s] on
what we do in there. So I value their comments, and I—I just feel that their confidence stays
with me.” Zickefoose described the comments made about Bush as no different than lots of “off
the record” comments made to her by employees: “They come to me with the concerns, and I 35
do what I need to do with those concerns.” Zickefoose testified that in the past (but not
specifically with regard to comments made about Bush), that employees have expressed
concern that if people knew they made the comments they might be “treated like they’ve ratted
on someone.”
40
Out of all the comments Zickefoose received from employees on Bush, she “picked out
two of the strongest concerns and brought those forward” to Chawansky.
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JD–56–11
8
Analysis5
i. Precedent
Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of its employees.” 29 U.S.C. § 158(a)(5). 10
“An employer's duty to bargain includes a general duty to provide information needed by the
bargaining representative in contract negotiations and administration." A-1 Door & Building
Solutions, 356 NLRB No. 76, slip op. at 2 (2011); NLRB v. Truitt Mfg. Co., 351 U.S. 149 152–
153 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
15
Information pertaining to employees within the bargaining unit is presumptively
relevant to a union's representational duties, including that necessary to decide
whether to proceed with a grievance or arbitration. Thus, employee personnel
information, job descriptions, pay-related data, employee benefits, and policies
that relate thereto are all presumptively relevant, as is similar information 20
regarding employee hires, including strike replacements. Bargaining
representatives are not required to make a specific showing of the relevance of
requested information unless the employer has rebutted the presumption of such.
Presumptively relevant information must be furnished on request to employees'
collective-bargaining representatives unless the employer establishes legitimate 25
affirmative defenses to the production of the information.
Ralphs Grocery, Co., 352 NLRB 128, 134 (2008), reaffirmed and incorporated by reference, 355
NLRB No. 210 (2010); Disneyland Park, 350 NLRB 1256, 1257 (2007) (“Where the union's
request is for information pertaining to employees in the bargaining unit, that information is 30
presumptively relevant and the Respondent must provide the information”).
Where a showing of relevance is required—either because the presumption has been
rebutted or because the request concerns nonunit matters, the burden is "not exceptionally
heavy." Leland Stanford Junior University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th 35
Cir. 1983); Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). “The Board uses a broad,
discovery-type of standard in determining relevance in information requests.” Caldwell Mfg.
Co., 346 NLRB 1159, 1160 (2006).
Where the information is requested in connection with a grievance, the Board's test for 40
relevance remains liberal. In NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), the Supreme
Court endorsed the Board's view that a "liberal" broad "discovery type" standard must apply to
union information requests related to the evaluation of grievances. Analogizing the grievance
procedure to the pretrial discovery phase of litigation, the Court quoted approvingly from the
recognition in Moore's Federal Practice that "it must be borne in mind that the standard for 45
determining relevancy at a discovery examination is not as well defined as at the trial. . . . Since
the matters in dispute between the parties are not as well determined at discovery examinations
as at the trial, courts of necessity must follow a more liberal standard as to relevancy." 385 U.S.
at 437 fn. 6, quoting 4 Moore, Federal Practice P26.16[1], 1175–1176 (2d ed.).
50
The issue is whether the Union’s request for information is of “probable” or “potential”
relevance. Transport of New Jersey, 233 NLRB 694, 694 (1977) (citing NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967)). As the Board explained in Pennsylvania Power & Light
Co., 301 NLRB 1104, 1105 (1991):
55
JD–56–11
9
the information need not be dispositive of the issue between the parties but must 5
merely have some bearing on it. In general, the Board and the courts have held
that information that aids the arbitral process is relevant and should be provided.
Further,
10
the fact that the information, if produced at the early stages of grievance
discussions would tend to establish that a grievance is without merit, equally
serves a legitimate function of collective bargaining as such disclosure would
thereby enable a union to determine which grievances should be pursued to
arbitration and which should be dropped.15
LaGuardia Hospital, 260 NLRB 1455, 1461 (1982); Acme Industrial, supra.
As the Board affirmed in W–L Moulding Co., 272 NLRB 1239, 1240 (1984), quoting
NLRB v. Rockwell–Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969) and Acme Industrial Co., 20
supra at 437, in considering an information request, it is not the Board’s role to pass on the
merits of the Union's claim, “[t]he Board’s only function in such situation is in ‘acting upon the
possibility that the desired information was relevant, and that it would be of use to the union in
carrying out its statutory duties and responsibilities.’” Accord, Howard University, 290 NLRB
1006, 1007 (1988).25
The failure to provide requested relevant information is a violation of Section 8(a)(5) of
the Act.6 Like a flat refusal to bargain, "[t]he refusal of an employer to provide a bargaining
agent with information relevant to the Union's task of representing its constituency is a per se
violation of the Act" without regard to the employer's subjective good or bad faith. Brooklyn 30
Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751
(1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
Even if requested information is relevant, in certain instances a party may assert a
confidentiality defense to the demand for information. In two recent cases the Board has 35
summarized the requirements of this defense. In U.S. Postal Service, 356 NLRB No. 75, slip
op. at 4 (2011), the Board explained:
A party asserting a confidentiality defense must prove a legitimate and
substantial confidentiality interest in the information withheld. Pennsylvania 40
Power Co., 301 NLRB 1104, 1105 (1991). Confidential information is limited to a
few general categories that would reveal, contrary to promises or reasonable
expectations, highly personal information. Detroit Newspaper Agency, 317
NLRB 1071, 1073 (1995). Such confidential information may include "individual
medical records or psychological test results; that which would reveal substantial 45
proprietary information, such as trade secrets; that which could reasonably be
expected to lead to harassment or retaliation, such as the identity of witnesses;
and that which is traditionally privileged, such as memoranda prepared for
pending lawsuits." Id. Additionally, the party asserting the confidentiality defense
may not simply refuse to furnish the requested information, but must raise its 50

6In addition, an employer’s violation of Sec. 8(a)(5) of the Act is a derivative violation of Sec.
8(a)(1) of the Act. Tennessee Coach Co., 115 NLRB 677, 679, enfd. 237 F.2d 907 (6th Cir.
1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
JD–56–11
10
confidentiality concerns in a timely manner and seek an accommodation from the 5
other party. Id. at 1072.
In A–1 Door & Building Solutions, 356 NLRB No. 76, slip op. at 3 (2011), the Board
stated:
10
In considering union requests for relevant but assertedly confidential information,
the Board balances the union's need for the information against any "legitimate
and substantial" confidentiality interests established by the employer. See
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) [parallel citations omitted]. The
party asserting confidentiality has the burden of proving that such interests exist 15
and that they outweigh its bargaining partner's need for the information. See
Jacksonville Area Assn. for Retarded Citizens, 316 NLRB 338, 340 (1995).
Further, a party refusing to supply information on confidentiality grounds has a
duty to seek an accommodation. Pennsylvania Power Co., 301 NLRB 1104,
1105 (1991) (footnotes omitted).20
ii. Relevance
The Union asserts that the names of the employees who complained to Zickefoose 25
about Bush are relevant to its representational duties in two ways. One, as part of the
investigation and evaluation of the Bush grievance. Two, more generally to investigate safety
concerns within the plant.
Both are legitimate subjects for the Union to be concerned with and for which it is 30
entitled to request and receive information. The issue is whether under a liberal discovery
standard the names of the employees are helpful to the Union’s representational duties.
Because the information directly concerns unit employees whom the Union represents,
the requested information is presumptively relevant. Ralphs Grocery, Co., supra; Disneyland 35
Park, supra.7
The Respondent, however, contends that the presumption is rebutted in the instant case
because the Respondent’s labor relations manager, Chawansky, stated at trial that it did not rely
upon the employees’ statements in issuing the discipline against Bush and did not intend to rely 40
upon the statements in any arbitration over the grievance and, indeed, is precluded by the terms
of the labor agreement from calling employees as witnesses in arbitration. The Respondent
maintains that in issuing the discipline against Bush it relied on his admitted involvement in two
accidents. “Therefore,” contends the Respondent, “the storeroom employees are not necessary
to prove that Alcan had just cause to discipline and discharge Mr. Bush.” (R. Br. at 7). 45
The Respondent’s evidence and contentions do not rebut the presumptive relevance of
the Union’s information request.

7Because the request for the identity of the two complaining employees concerned
bargaining unit employees, and is presumptively relevant, the Union was not required to explain
its rationale for wanting the information. However, were it necessary to establish relevance,
Morris’s explanation at trial provided more than sufficient rationale for the Union’s desire for the
information.
JD–56–11
11
In the first place, the Respondent raised and disclosed the employee comments in the 5
initial discipline meeting, thereby making them and their source relevant to the matter at hand.
National Extrusion & Manufacturing Co., 357 NLRB No. 8, slip op. at 2 (2011) (citing NLRB v.
Truitt Mfg., supra at 152–153 ("if . . . an argument is important enough to present in the give and
take of bargaining, it is important enough to require some sort of proof of its accuracy")).
10
Contrary to the assertions of the Respondent, it did not foreswear reliance on the
information in the grievance procedure, nor did it tell the Union at any time prior to the trial (or
perhaps prior to the eve of trial—there were settlement discussions) that it did not, and did not
intend to, rely on the employee statements. There was the suggestion at trial that this was
conveyed to the Region early in the investigation, but that is not the same thing as telling the 15
Union.
I credit Morris’ testimony that the Union was not told by the Employer that it did not
intend to rely upon the employee statements. In this regard, I discredit Chawansky’s assertion
that he told the Union this in the discipline meeting. In discrediting it I rely, in addition to Morris’s 20
testimony, on the clear implication of Chawansky’s testimony that
I told them in the [discipline meeting] because [in] the rules of conduct we stated
that he was discharged for damage to Company property. (Emphasis added).
25
In other words, the Chawansky’s explanation is not, really, that he told the Union that the
Employer was not going to rely upon the employee statements, but rather, that the Union should
have figured it out from the fact that the basis for the discharge was the two accidents and not
the employee statements. On brief, the Respondent runs with this theme, contending that
neither the discharge memo nor the step III grievance answer indicates that the comments were 30
a basis for the decision. This is inadequate.
As Union Representative Morris pointed out at trial, the discharge letter states that
Bush’s behaviors “have put other employees and you at risk.” The step 3 grievance answer
states that as a result of the two accidents “Mr. Bush jeopardized the safety of other employees 35
and himself.”
While these characterizations of the offense do not explicitly state that the employer is
relying on the employee statements that Bush made them feel unsafe and that he needed help,
they are certainly consistent with reliance on comments by employees that the Respondent40
raised as part of the discharge meeting. There was no indication to the Union that the Employer
was not relying on these statements.
The Respondent’s representation at trial that it has not and will not rely on the employee
statements, has no effect on the presumptive relevancy of the requested information at the time 45
the request was made in January 2011 until the trial in this case in June 2011.
And prospectively, the Respondent’s representation only diminishes the relevance of the
Union having the names of the employees who allegedly complained, it does not eliminate it. It
is natural that the Union would want to interview the two employees. This would allow the Union 50
to verify the truth of the Employer’s claim that employees felt it was unsafe to work around
Bush, a matter that, whether relied upon by the Respondent or not, might influence the Union’s
position on how to proceed with the grievance. Whether it is for the purpose of evaluating how
far to take the Bush grievance, or to ascertain what kind of “help” Bush may nor may not need,
or for the purpose of acting generally to represent the employees in safety matters, an interview 55
JD–56–11
12
with employees who allegedly have knowledge of and opinions on Bush and his effect on safety 5
in the plant is clearly relevant to the Union’s activities as the employees’ representative. Any
competent attorney or union griever charged with handling a grievance such as the Bush
grievance would want to know all he could about Bush’s work performance and safety record,
practices, and reputation. These two employees have information that Morris, reasonably,
wants for the purpose of fulfilling the union’s representational duties. The names of 10
the complaining employees will “be of use” to the Union in its efforts to interview them. The
requested information is presumptively relevant and the presumption has not been rebutted.8
iii. Confidentiality15
Alcan asserts a confidentiality interest in protecting from disclosure the names of the
employees who spoke with Zickefoose about Bush.
The Board has defined some types of information that give rise to a legitimate and 20
substantial confidentiality interest:
Confidential information is limited to a few general categories: that which would
reveal, contrary to promises or reasonable expectations, highly personal
information, such as individual medical records or psychological test results; that 25
which would reveal substantial proprietary information, such as trade secrets;
that which could reasonably be expected to lead to harassment or retaliation,
such as the identity of witnesses; and that which is traditionally privileged, such
as memoranda prepared for pending lawsuits.
30
Detroit Newspaper Agency, 317 NLRB 1071, 1073 (1995).
In Detroit Newspaper Agency the Board was clear that information accorded confidential
status “is limited to a few general categories” as described above. In that case the Board
rejected the employer’s claim of a legitimate confidentiality interest in an internal safety audit 35
report because it “falls outside these general categories.”
Notwithstanding this approach, the Board has held, in reference to the Detroit
Newspaper Agency formulation, that “this description of confidential information is not intended
to be exhaustive.” NIPSCO, 347 NLRB 210, 211 (2006). Rather the Board has “considered 40
whether the information was sensitive or confidential with in the factual context of each case.”
Id. In particular, the Board has recognized, at least in some contexts, the existence of a valid
confidentiality interest for employees’ reporting to management on the misconduct of other
employees. The recognition of a confidentiality interest in the identity of informants turns on
some combination of the importance of encouraging employees to report the issue to 45
management in terms of employee or public safety, the illegality of and/or threat posed by the
underlying conduct, the potential involvement of illegal drugs, and concerns about physical or
other retaliation against the informants. Pennsylvania Power & Light Co., 301 NLRB 1104,

8I recognize that even if the Union has the names the employees may be unwilling to talk to
the Union, just as they have not come forward in response to the Union’s general appeal to the
storeroom employees. But the Union has a legitimate interest in making a personal appeal to
the employees in question—employees whom they represent—and not being relegated to
general solicitations to anonymous employees. The names will be “of use” to the Union in its
efforts to investigate this matter.
JD–56–11
13
1107 (1991) (legitimate interest in keeping names of informants confidential where employer 5
was engaged in investigation of criminal drug activity with potential for harassment of
informants); Mobil Oil Corp., 303 NLRB 780, 780–781 (1991); See Metropolitan Edison Co., 330
NLRB 107, 107–108 (1999) (assuming legitimate interest in confidentiality of informants’ names
providing information on workplace theft); See also, NIPSCO, 347 NLRB 210 (2006).
10
In this case, the information sought to be protected is not highly personal, proprietary, or
traditionally privileged. And there is no record evidence of fear by employees of retaliation or
physical threat from Bush or the Union if they were identified.9
If legitimate confidentiality interests were limited to the “general categories” described in 15
Detroit Newspaper Agency, supra, it might be easy to dismiss the employer’s assertion of a
confidentiality interest here.
Certainly I reject any suggestion that the mere desire to ensure that employees talk
more freely to management, a goal enhanced, to be sure, by assurances of confidentiality, 20
establishes a legitimate confidentiality interest. Similarly, I reject the suggestion that a
confidentiality interest is established by Zickefoose’s assurances to employees that their
discussions with her—on nearly any subject—are confidential should they want them to be.10
And yet, under the more expansive understanding of confidentiality involving employee 25
informants that the case law presents, one is hard pressed to say that the employer’s interest in
the confidentiality of the identity of those making reports about Bush—even if not as weighty as
in some cases—is not legitimate. If Alcan’s operation does not pose a significant risk to public
safety, it clearly contains many inherent dangers for employees that make the safe operation of
equipment a priority. There can be no doubt that Alcan has a significant and legitimate interest 30
in encouraging employees to report other employees who may be acting in ways that endanger
themselves, their coemployees or the facility. “The connection of confidentiality to the safety of .

9Zickefoose testified that employees (at least, in other instances, not the instances at issue
here), have stated that they feared being treated as having “ratted” on others, and more
generally, indicated by asking for confidentiality that they preferred that their identities not be
disclosed. However, this does not provide evidence of a significant risk of retaliation or
harassment. Concerns about social disapproval at having spoken negatively of another
employee do not amount to a demonstration of the likelihood of harassment or retaliation.
“While it “would be naïve to deny any latent possibility of retaliation against informants whose
information leads to an investigation and discharge of an employee, . . . this case presents no
more than just that—a possibility. There is nothing in this record to indicate a likelihood or real
risk of retaliation or violence.” Metropolitan Edison, 330 NLRB at 108.
10I do not criticize the efficacy of this management approach (although it is also worth
bearing in mind that confidentiality can also encourage dishonest reports, as the informants
need never face scrutiny). But management’s willingness to grant confidentiality cannot, by
itself, create a legitimate employer interest in confidentiality for purposes of avoiding disclosure
of otherwise relevant information to a union. While the Board majority in NIPSCO, supra, found
that a “promise of confidentiality is relevant to the issue of whether the information will be
considered confidential,” that case also involved other factors. No Board precedent finds that a
promise of confidentiality, by itself, transforms otherwise nonconfidential information into
confidential information. A union’s right to request and receive relevant information is critical to
the collective bargaining process and an employer cannot unilaterally limit that right and insulate
any information from disclosure just by offering not to disclose information to the union.
JD–56–11
14
. . other employees and to job performance is plain.” Pennsylvania Power, supra. Moreover, 5
the unsafe conduct at issue here, and the employees’ comments, do involve concerns about
substance abuse, a subject that the Board has recognized, because of its threat to workplace
safety, its illegality, and, the pervasiveness of the problem as a concern of national policy,
heightens the need for confidentiality. Id. at 1107–1108.
10
Given these concerns, and the Board precedent, I find that the employer has a legitimate
interest in preserving the confidentiality of the names of the employees who complained to
management about their perception of Bush’s unsafe conduct and his need for “help.”
15
iv. The duty to bargain to accommodate the parties’ interests
The recognition of the legitimacy of the confidentiality interest in the employees’ names does not
end the statutory inquiry under the Act.
20
When an employer demonstrates a substantial confidentiality interest, it cannot
simply ignore the Union's request for information. It must still seek an
accommodation of its concerns and the Union's need for the requested
information. The burden of formulating a reasonable accommodation is on the
employer; the union need not propose a precise alternative to providing the 25
requested information unedited. United States Testing Co. v NLRB, 160 F.3d 14,
21 (D.C. Cir. 1998) (citing Tritac Corp., 286 NLRB 522, 522 (1987)).
Borgess Medical Center, 342 NLRB 1105, 1106 (2004); U.S. Testing Co. Inc. v. NLRB, 160
F.3d 14, 20 (D.C. Cir. 1998) ("an employer is not relieved of its obligation to turn over relevant 30
information simply by invoking concerns about confidentiality, but must offer to accommodate
both its concern and its bargaining obligations, as is often done by making an offer to release
information conditionally or by placing restrictions on the use of that information").
In this case, I find that while the confidentiality interest at stake here is legitimate, it is not 35
entitled to the same “unusually great weight” as the claims asserted in Pennsylvania Power. It
does not trump the Union’s need for the information. Accordingly, the Board’s reasoning in
Metropolitan Edison, 330 NLRB at 109, is fully applicable here: the Respondent’s confidentiality
claim, although
40
legitimate, is not entitled to the same "unusually great weight" as the claims
asserted in Pennsylvania Power and Mobil Oil. We have further found that the
Union has a legitimate and substantial need for the requested information.
Finally, we have found that while a possibility of retaliation against informants
exists, the likelihood of such retaliation in this case is purely speculative. In 45
these circumstances, we find that the Respondent was not privileged to flatly
reject the Union's request for the informants' names, but was obligated to bargain
with the Union to seek an accommodation. By failing to do so, the Respondent
violated Section 8(a)(5).
50
In this case, the undisputed evidence is that no offer or effort to accommodate the
Union’s and Employer’s concerns was made. The Employer did not offer to bargain or
otherwise formulate or suggest a method of accommodation. Just saying no to a union’s
information request does not satisfy the employer’s duty to seek an accommodation.
55
JD–56–11
15
Thus, under settled precedent the Employer violated the Act by refusing to provide the 5
requested information on grounds of confidentiality, while failing to make an effort to bargain to
accommodate the Union’s concerns with its own. Accordingly, “the violation found is the failure
to bargain over an accommodation (i.e., an alternative means of satisfying the Union’s need),
not the failure to provide the names themselves.” Metropolitan Edison Co., 330 NLRB 107, 109
(1999) (original emphasis); Borgess Medical Center, 342 NLRB at 1106 fn. 6 (“we have made 10
no finding that the Respondent violated Sec. 8(a)(5) by failing to turn over the incident reports.
The violation was the failure to bargain about a possible accommodation”).
Alcan contends that it could not have accommodated the Union under the
circumstances, as “there was no accommodation which could have given the Union the 15
information it needed while withholding the identities of the employees.” (R. Br. at 13).
I reject the Respondent’s position. While I agree that it is far from clear that the Union
would have accepted any offer of accommodation, the Respondent’s duty was to make the
effort. It could have, for instance, offered to provide the identities to a designated union official, 20
subject to bargained restrictions on the Union’s use and dissemination of the information. It
could have offered to provide the identities subject to a confidentiality agreement to an
International Union official unaffiliated with the facility for use interviewing the employees.
Certainly there are other potential accommodations that the parties could discuss.
25
Of course, it is not for me or the Board (at least, not at this juncture) to say what kind of
arrangement or accommodation would best suit the parties. But just saying no is not enough.
Pennsylvania Power, 301 NLRB at 1106 (“a party refusing to supply information on
confidentiality grounds has a duty to seek an accommodation. Thus, when a union is entitled to
information concerning which an employer can legitimately claim a partial confidentiality interest, 30
the employer must bargain toward an accommodation between the union's information needs
and the employer's justified interests”).
It is a virtue of Board precedent that the union and employer are required to work
through the dispute: they, more than the Board, know how to best accommodate the interests at 35
stake. And while cases can be found where the Board has intervened and resolved the matter
in the absence of the parties’ bargaining, they are the exception. See e.g., Pennsylvania Power
& Light Co., 301 NLRB 1104, 1108 fn. 18 (1991) (“We recognize that the remedy ordered here
deviates in some respects from the Board's usual view that parties should bargain over the
disclosure of partially confidential information. However, we view this departure as necessitated 40
by the peculiar circumstances of this case and the strong interest in fostering efforts to create
safe and drug-free workplaces”).
As the Board explained in Metropolitan Edison Co., 330 NLRB 107, 109 (1999):
45
We recognize merit both in the Union’s asserted interest and in the Respondent’s
confidentiality concerns. The appropriate remedy in these circumstances is to
give the parties an opportunity to bargain regarding the conductions under which
the Union’s need for relevant information could be satisfied with appropriate
safeguards protective of the Respondent’s confidentiality concerns. We do not 50
now decide the particular content of accommodation bargaining that must occur,
except to direct that the parties should thoroughly explore any and all reasonable
alternatives.

55
JD–56–11
16
As the Board further explained in Metropolitan Edison, 330 NLRB at 109:5
The Board's cumulative experience has shown that ‘there should be, and almost
always is, a way that the parties can effectively bargain’ for an accommodation
that will satisfy both the union's needs and the employer's protective concerns. . .
. Indeed, to our knowledge, none of the cases in which the Board has employed 10
this approach have ever returned to the Board, because the parties were unable
or unwilling to arrive at a mutually acceptable accommodation of their respective
interests.
(citing, Exxon Co., USA, 321 NLRB 896, 899 (1996)). See also, Minnesota Mining & Mfg., 361 15
NLRB 27, 32 (1982), enfd. 711 F.2d 348 (D.C. Cir. 1983); General Dynamics Corp., 268 NLRB
1432 (1984); National Steel Corp., 335 NLRB 747, 747–748 (2001), enfd. 324 F.3d 928 (7th Cir.
2003).
The Respondent will be ordered to bargain in good faith with the Union in an attempt to 20
reach an accommodation of interests in response to the Union’s request for the names of the
employees complaining about safety concerns with regard to Bush. As the Board explained in
Metropolitan Edison, supra at 109-110:
we recognize that if the Respondent and the Union are unable to reach an 25
agreement on a method whereby their respective interests would be satisfactorily
protected, they may be before us again. If the issue of whether the parties have
bargained in good faith is presented to us, we shall decide that question then. If
necessary, we shall also undertake the task of balancing the Union's right to the
information it requested with the Respondent's expressed confidentiality 30
concerns in accord with the Detroit Edison test and in light of proposals made
during bargaining, and we shall make a final determination whether the
Respondent has fulfilled its statutory obligation. We believe, however, that first
allowing the parties an opportunity to adjust their differences best effectuates the
Act's policy of encouraging the resolution of disputes between employees and 35
employers through collective bargaining.
Accord, Minnesota Mining & Mfg., supra at 32.
40
CONCLUSIONS OF LAW
1. The Respondent Alcan Rolled Products—Ravenswood, LLC is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
45
2. The Charging Party United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Services Workers International Union, Local 5668, AFL–
CIO–CLC is a labor organization with the meaning of Section 2(5) of the Act.
3. At all material times the Union, along with the International Union, has been the 50
designated exclusive collective-bargaining representative of the following bargaining
unit of the Respondent’s employees:
All production and maintenance employees employed at the Ravenswood,
West Virginia plant, but excluding executives, administrative and 55
JD–56–11
17
professional employees, office and clerical employees, guards, full-time first-5
aid and safety employees, foremen and any other supervisory employees
with the authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such action.
4. The Respondent violated Section 8(a)(1) and (5) of the Act by failing to offer to 10
bargain with the Union for an accommodation of interests in response to the Union’s
request for the names of employees who made safety-related complaints to the
Respondent’s supervisor about fellow employee Bush, information that the
Respondent considers confidential.
15
5. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
20
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Generally, where an employer fails to provide relevant requested information, the 25
appropriate affirmative remedy includes an order that the employer provide the information.
This is not the appropriate remedy here, where, as I have found, the employer has established
that there is a legitimate confidentiality interest in the information at issue. It is to be
remembered that the violation found here is not the failure to provide the information, but the
failure to attempt to bargain an accommodation.30
The Respondent will be ordered to bargain in good faith with the Union in an
attempt to reach an accommodation of interests in response to the Union’s request for
relevant information about the names of employees who made safety-related complaints
regarding employee Bush. 35
The Respondent shall post an appropriate informational notice, as described in the
attached Appendix. This notice shall be posted in the Employer’s facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or
defacing its contents. In addition to physical posting of paper notices, notices shall be 40
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. When the notice is issued to the Employer, it shall sign it or otherwise notify
Region 9 of the Board what action it will take with respect to this decision.
45
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
50

11If 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 purposes.
JD–56–11
18
5
ORDER
The Respondent, Alcan Rolled Products—Ravenswood, LLC, Ravenswood, West
Virginia, its officers, agents, successors, and assigns, shall10
1. Cease and desist from
(a) Refusing to bargain in good faith with the Union in an attempt to reach an 15
accommodation of interests in response to the Union’s request for relevant
information regarding safety-related complaints made by employees regarding
another employee, in which the employer maintains a confidentiality interest.
(b) In any like or related manner interfering with, restraining, or coercing employees 20
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
25
(a) Bargain in good faith with the Union regarding its request for the names of
employees complaining to supervisors and/or management about the
safety issues related to grievant Robert Bush, in order to reach an
accommodation of the Union and the Respondent’s interests, and
thereafter comply with any agreement reached through such bargaining.30
(b) Within 14 days after service by the Region, post at its union-represented
facilities the attached notice marked "Appendix."12 Copies of the notice, on forms
provided by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative shall be posted by the Respondent and 35
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to the physical
posting of paper notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, or other electronic means, if the
Respondent customarily communicates with its employees by such means. 40
Reasonable steps shall be taken by the Respondents to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of
business or closed any facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current 45
employees and former employees employed by the Respondent at any time
since January 28, 2011.

12If 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.”
JD–56–11
19
(c) Within 21 days after service by the Region, file with the Regional Director a 5
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
10
Dated, Washington, D.C., September 12, 2011.
____________________15
David I. Goldman
U.S. Administrative Law Judge
JD-56-11
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain with the Union in an effort to reach an accommodation of
interests in response to the Union’s request for relevant information that we consider
confidential.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union regarding its request for the names of employees
complaining to supervisors and/or management about the safety issues related to grievant
Robert Bush, and thereafter comply with any agreement reached through such bargaining.
ALCAN ROLLED
PRODUCTS—RAVENSWOOD, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3750.