Amstrong, World Industries

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1239 (N.L.R.B. 1981)

.D
Order.'
10(c)
officers,
to
RIES,
Inc.,'
8(a)(5)
'
POI.ICIES
5,000 emdoyees
p"rposes bargaining
1,800
part^.^
are,drafted,
Charg- *
3
.as Sec. 2(5)
160
ARMSTRONG WORL
Armstrong World Industries, Inc. and United
Rubber, Cork, Linoleum and Plastic Workers of
America, Local 285. Case 4-CA-10726
March 10, 1981
DECISION A N D ORDER
On November 18, 1980, Administrative Law
Judge Bernard Ries issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Armstrong
World Industries, Inc., Lancaster, Pennsylvania, its
agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
Respondent asserts that the Administrative Law Judge's recommend-
ed Order is defective because it does not specifically limit Respondent's
obligation turn over copies of its policies to the Union to the turning
over of "relevant" policies. In his Decision, the Administrative Law
Judge discusses, at length, the scope of Respondent's obligation. In that
portion of his recommended Order excepted to by Respondent. the Ad-
ministrative Law Judge directs Respondent to provide the Union with
copies of its policies "in the form and at the times set out in the Decision
of the Administrative Law Judge . . . ." We find that the recommended
Order is clear of ambiguity and wholly adequate.
DECISION
BERNARD Administrative Law Judge: This
matter was heard in Lancaster, Pennsylvania, on July 10
and 14, 1980. The complaint, denied in all material re-
spects, alleges that on two occasions in 1979, Respondent
Armstrong World Industries, refused to provide
information to the Charging Party and thereby violated
Section of the Act.
Briefs have been received from counsel for the parties.
Based on the entire record2 in the case, I make the fol-
lowing:
INDUSTRIES. INC.
I. THE REQUEST FOR WAGE A N D PAY
The complaint alleges that Respondent violated the
Act by refusing, since on or about June 20, 1979, "to fur-
nish the Union with 'complete copies' of all of Respond-
ent's policies concerning wages and methods of payment
of employees in the unit."
Respondent is engaged in the manufacture of flooring
products in Lancaster, Pennsylvania. There it employs a
total of employees. Some of these are
represented for of collective by the
International Association of Machinists, some are unre-
presented by a union, and about production and
maintenance employees are represented by the Charging
The relationship between Respondent and the
Charging Party is of long duration and has been mani-
fested in a number of successive bargaining agreements.
The record shows that Respondent has, for many
years, maintained a manual for the use of, and distributed
to, management officials and supervisors, which details
the approved practices and procedures on various sub-
jects. Robert Gage, Respondent's manager of plant em-
ployee relations, testified that the "manual" consists of
two looseleaf binders divided into various topics. One
topic deals with engineering, building, and grounds; an-
other with laboratory materials and processes; another
with benefit programs; another with personnel policies;
and another, the relevant one here, treats "hours of work
and payment."
The statements of policy set out in the latter section
said Gage, whenever management perceives
a need for written guidance to its 120 supervisors. The
policies contained in this section, Gage further testified,
are a mixed bag. Some of them relate exclusively to
wages and methods of payment for, respectively, unre-
presented employees, employees represented by the Ma-
chinists Union, and employees represented by the
ing Party; and some of the policies deal collectively with
combinations of these groups. Gage further stated that
"many of [the statements of policy] are probably consid-
erably out-of-date." They are sometimes modified, he
said, whenever an issue arises "where we detect a need
for update in the policy as new guidance to supervisors,"
but this is not always done. "Amendments" to, or "inter-
pretations" of, the policies are made in different ways:
oral interpretations of the policies are "frequently" made,
often to only one supervisor without further dissemina-
tion; amendments may also be made in writing, either by
revising the policies themselves, by memoranda, by in-
clusion in the bimonthly supervisory newsletter, or by "a
variety of other means."
Union President Donald Eves and Vice President
Dennis Brommer testified that they not infrequently have
heard reference made by supervisors to "company
policy" on one subject or another, usually without fur-
As amended at the hearing.
Respondent has filed an unopposed motion to correct the transcript
which has been granted.
254 NLRB No.
-
The pleadings establish that Respondent is engaged in commerce and
that it is appropriate for the Board to exercise jurisdiction in this case.
They further show that the Charging Party. United Rubber, Cork. Lino-
leum and Plastics Workers of America, Local 285, is a labor organization
defined by o f the statute.
p~l icy.")~
policies
N.L.R.B U.S.
wttness
i.e.,
Reseamh
N.L.R.B., F.2d
F.2d
request
Truitt
(19561,
matter.=
e.g. , Steel (1978): "[I)
suflicient
U n ~ o n Pres~denr
Superintendenl hlm
policy"
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther explication. They stated that employees have told
them that supervisors have said that a particular decision
was based on "policy," and they have heard the term
"company policy" used by supervisors informally and
during grievance processing and arbitration. Brommer
specifically testified that such reference had been made
with regard to grievances about the method of payment
for employees testing a new product, for mechanical
downtime, and for "wage protection" for training and
other purposes. Gage testified that some of these policies
have been explained to the Union upon request.
The record contains documentation of two grievance
proceedings in 1978 and 1979 in which the first-step
company representative referred to "Company policy"
("Company policy states that an employee 'in training'
shall be paid what he would have earned had he re-
mained on his regular job, or he shall be paid the same
hourly earnings as other employees working on the job
for which he is being trained, whichever is lower." "This
was done properly based on the Company pay
Gage testified that prior to the June 20, 1979, letter,
discussed below, which gave rise to this complaint alle-
gation, the Union had requested a statement in writing of
company policy on a single subject, that of training pay.
The record shows that on June 19, 1979, Gage furnished
the Union a "description of the Plant practice" as to
training pay which, he testified, was "abstracted" from
the policy contained in the manual.
On June 20, 1979, the Union wrote to Gage, request-
ing that it "be provided with complete copies of all
Armstrong Floor Plant policies concerning wages and
methods of payment." The letter stated that the
were needed "in order to resolve problems and to proc-
ess grievances more effectively." Gage responded by
letter of June 26 that the Company would not comply
with the request, but further stated that wherever the
Union had a "legitimate interest," Respondent would
supply a statement of the "practice" followed by Re-
spondent which resulted from a particular "policy," as it
had in the very recent case of training pay. It is on the
basis of this request and refusal that the present com-
plaint allegation rests.
"There can be no question of the general obligation of
an employer to provide information that is needed by the
bargaining representative for the proper performance of
its duties." v. Acme Industrial Co., 385 432,
435-436 (1967). The word "needed," as used by the
Court, unquestionably has a more restrictive connotation
than the Court intended; later in its opinion, the Court
observed that when the Board in that case had (correct-
ly) ordered the employer to furnish certain data "[the
Board] was only acting upon the probability that the de-
sired information was relevant, and that it would be of
use to the union in carrying out its statutory duties and
responsibilities." Thus the test, as I understand the Acme
case, is whether the information requested relates to the
statutory obligations and functions of a union and might
I very much doubt that company "policies" have been referred to at
arbitration proceedings, and I credit Gage, a more impressive
than Eves and Brommer, on this point.
be useful to the union in discharging those duties and of-
fices.
Some types of information have come to be regarded
as "presumptively relevant," the nature of the date
sought, such as wage information pertaining to unit em-
ployees, is so clearly relevant to the union's general au-
thority that i t need make no special showing of perti-
nence, Emeryville Center, Shell Development
Company v. 441 880, 887 (9th Cir. 1971);
in these situations, the burden shifts to the employer to
demonstrate a lack of relevance or some other good
reason for refusing the demand, Prudential Insurance
Company of America v. N.L.R.B., 412 77, 84 (2d
Cir. 1969). It is easy to conceive of situations in which
the requesting union has no need, as such, for the wage
or other presumptively relevant data; that will not pre-
clude operation of the presumption.
Counsel for General Counsel does not contend on
brief that the requested policies at issue here are properly
assignable to the "presumptively relevant" category. He
does argue that they are in fact relevant, or probably rel-
evant, to the functions of the Union, in that they would
"permit . . . the Union to understand the Respondent's
interpretation of a wide variety of matters all of which
relate directly to the bargaining unit employees." So far
as I can ascertain, the Board has not squarely passed on
the validity of the kind of under consideration
here.
In N.L.R. B. v. Manufacturing Co., 35 1 U.S. 149,
153-154 the Supreme Court noted, regarding the
duty to furnish information, "Each case must turn on its
particular facts. The inquiry must always be whether or
not under the circumstances of the particular case the
statutory obligation to bargain in good faith has been
met." In "the circumstances of the particular case" pre-
sented, it seems to me that it might be useful for the
Union to have in hand statements of Respondent's poli-
cies with respect to "wages and methods of payment." It
is true that the request is somewhat unusual, in that it
seeks policy statements as opposed to the statistics and
data more commonly sought. These policy statements
would, however, seem to be potentially helpful, in vary-
ing degrees, to the Union.
The record indicates that the policy statements rele-
vant here fall into two categories. The first includes poli-
cies respecting interstitial matters not expressly touched
on by the bargaining agreement. An example is the prac-
tice with regard to the reimbursement of employees for
damage to their personal property. Respondent has evi-
dently formulated and applied a policy with respect to
this area, but the contract is silent on the It
seems safe to say that such a practice constitutes a condi-
tion of employment, the dimensions of which the Union
is entitled to be made aware, particularly since supervi-
sors refer to these statements of policy for guidance in
See, Florida Corporation, 235 NLRB 941, 942
is that the Union's request for information be supported by a
showing of 'probable' or 'potential' relevance.''
Vice Brommer testified without contradiction that
on one occasion Production Harry Ritter told that
the Company "has a on this subject, but would not furnish a
copy to Brommer, although he did "explain" the policy to Brommer.
dcfermining courses ex-
Ihtlng
the them.?
efficient
F.2d 1978),
Dumbauld
1 Unlon
that
char~tably,
difTerence
meanlng
4K8
membeis."
47-
Znc., (1968), F.2d
1969),
[tlhat
"[Tlhe
here.g
Curtiss-Wright Wrigh~ Aemnaurical
N.LR.B. , F.2d 61, (M 1965); V~rtol Boeing
Generol (1959),
N. L.R.B., F.2d 1968).
dicta
Kmger 457-458) prewnt
1241 ARMSTRONG WORLD INDUSTRIES. INC.
of action. There may indeed be
policies beneficial to employees of which the
Union has no knowledge at all, and therefore would not
think to ask about, and it would obviously be valuable to
Union to be cognizant of
The other relevant policy statements, for our purposes,
are those which offer guidelines to supervisors in inter-
preting and applying the bargaining agreement. It might
be thought that an argument would be advanced here
that Respondent's instructions and interpretations are
confidential in nature, but no such contention has been
made. The failure to d o so bespeaks a commendable atti-
tude on Respondent's part, since there should properly
be no room in a bargaining relationship for secrecy about
the terms and conditions of employment and an employ-
er's view of their metes and bounds. From what this
record shows, some 120 supervisory officials are apply-
ing the contract, in an infinitude of situations, with the
assistance of the policy guidelines. It seems to me that it
would be useful for the Union to have copies of those
guidelines. They might disclose benefits o r approaches or
resolution of problems not previously considered by the
Union. If the Union were to have possession of the poli-
cies, a steward might be able to point out to a first-line
supervisor that what the latter thinks is "company
policy" is not that at all, thus making more use
of company and union time and resources by obviating
what might otherwise end in resort to the grievance pro-
cedure. The policies may, on the other hand, alert the
Union to questionable procedures not previously brought
to its attention, thus perhaps resulting in the correction
of practices which a re improper under the contract.
A case which offers a meaningful analogy to the pres-
ent one is Western Massachusetts Electric Company v.
N.L.R.B., 589 42 (1st Cir. enfg. 234 NLRB
118. There the employer had developed and was using
certain guidelines "for a starting point in laying out" new
meter reader routes. At a time prior to the layoff of any
employees, and without any grievance pending, the
union requested a copy of the guidelines. The Board and
the court held that the union was entitled to see them.
The court's opinion (District Judge dissent-
ing) made several observations which are apposite here.
It pointed out, for one thing, that, like the Board, it con-
sidered unimportant the fact that no grievance had been
filed: "There is no principle that a grievance be filed
before the Union may obtain information relevant to as-
sessing and effectively processing a potential grievance."
While President Eves testified that the June 20 letter was seek-
ing only policies "that relate to the contract," it is a fair reading of his
testimony he considers virtually any condition of employment to be
so related. Thus, his professed belief that the "Safety and Health" article
of the agreement covers reimbursement for the breakage of eyeglasses is,
speaking a startling construction of that provision. The fact is,
however, that the contractual grievance procedure carefully permits
processing through the first three steps of the procedure "any
. . . between any employee or employees and the Company," while only
making thereafter arbitrable "a grievance arising out of differences with
respect to the and application of any provisions of this Agree-
ment . . . ." It therefore appears that even grievances relating to matters
not spelled out in the agreement may be processed through the first three
steps of the procedure and, to that extent. "relate to the contract."
Id. at The court stated, "The Board could infer that
had the information been provided promptly, it would
have helped the Union anticipate the configuration of
routes yet to come, hence better gauge their impact on
Id. at 46, fn. 6. A similarly speculative impact
statement could be made here about the value to employ-
ees of the policies sought by the Union-a real possibility
exists that they would presently o r in the future be of use
to the represented employees.
The court noted further that there were "possible
strategies" available to the union which were "certainly
real enough to give substance to the Union's inquiry."
The strategies were "possible grievance action or even,
though less likely . . . mid-term bargaining." Id. at
48. Those possibilities also exist here, and I might pro-
pose, as another "possible strategy," the potential use of
persuasion; in proper circumstances, a union may be enti-
tled to information even when the only arrow in its
quiver is the right to discuss and entreat. See Texaco.
170 NLRB 142, 146 enfd. 407 754 (7th
Cir. where the union was said to be entitled to
certain information to "bolster its arguments and try to
persuade Respondent to return operations to the status
quo ante."
As against the "discovery-type standard" of "probable
relevance" fashioned in Acme Industrial, supra, the court
in Western Massachusetts thought that the employer had
raised no real justification for disallowing discovery. Id.
at 46, fn. 6. While the study in question was "developed
by management to serve ends most often viewed as part
of the management function . . . fact alone is in-
sufficient reason to withhold the information from a
union." Id. at 47. As earlier stated, in the present case
Respondent has not asserted that the material sought is
confidential; similarly, it has not claimed that furnishing
it would be in any way burdensome. In essence, Re-
spondent seems to say that the Union may not have it
simply because the Union is not entitled to it, and that
the material also may not truly assist the Union. Putting
the last contention aside, Respondent's failure to offer
any of the normal justifications was treated by the First
Circuit in Western Massachusetts as follows: Com-
pany has not argued that release of the information pre-
sents particular perils o r hardships, nor has it identified
and sought to withhold portions that relate exclusively
to management concerns of a possibly confidential
nature. We might be more sympathetic had the Company
made a proffer o r showing along these lines." Id. at 46.
fn. 6.
It appears to me that the Western Massachusetts deci-
sion is, although not on all fours, effectively controlling
Here, as there, the Union has asked for material
which may be of some use to it, although no formal con-
troversy pends; here, as there, the employer has not re-
sisted by citing the "perils o r hardships" often asserted in
Accord, Corporation, Division v.
347 70 Cir. Division, Company,
182 NLRB 421.426 (1970).
Aniline and Film Corporation, 124 NLRB 1217 and
The Kmger Company v. 399 455 (6th Cir. cited by
Respondent, seem quite distinguishable on their facts, but the in
( Id . at tends to support the conclusion.
l o
relies," nonunit
nonunit l 2
11.
"[slince
8(a)(5)
ID Leavenwrrh
(1979).
Westinghouse
106 (1978),
I '
rnicient manual
'*
vft 1
w h ~ c h
1979,"
'3
15,
c
nonunit [sic],"I4
1960's.I5
addresses
assert-
'"he
l 5 letter
nonmembers."
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this arena. There seems to be a sufficient predicate of
unrebutted probable relevance, but one substantial prob-
lem remains.
Respondent's testimony that many of the policy state-
ments are outdated and have been modified piecemeal
and in several ways is, necessarily, not controverted. For
this reason, Respondent's offer to make available a cur-
rent statement of practice on any subject specified by the
Union has appeal. Nonetheless, such a procedure would
require a certain amount of shooting in the dark by the
Union; it may not know that there are items for which it
should ask, or it may not know precisely how to ask for
them. Furthermore, when a supervisor and a steward are
discussing company policy, it seems most useful for them
to be referring to the same piece of paper, rather than
bandying words about the implications of a paraphrased
document.
It would, however, be mischievous to require Re-
spondent to turn over to the Union documents upon
which it no longer or which refer to
employees. An order to that effect would scarcely con-
tribute to industrial harmony. It seems appropriate, there-
fore, to order Respondent to make available to the Union
only those policies, with pertinent amendments in what-
ever form, which it considers to represent Respondent's
current policies. It may, if it wishes, delete references to
employees.
It should be recognized that this decision is limited to
the particular facts presented. It allows the Union no
fishing expedition nor the right to rummage through Re-
spondent's files. It affords access only to official state-
ments of policy about terms and conditions of employ-
ment which have been disseminated to supervisors,
which may be of assistance to the Union, and as to
which Respondent has raised no meaningful objection
other than that some of the material may be outmoded,
an objection which the remedy here accommodates.
THE REQUEST FOR EMPLOYEE NAMES A N D
ADDRESSES
The second substantive allegation of the complaint as-
serts that on or about July 31, 1979, the Union
has requested Respondent to furnish the Union with the
names and addresses of the employees in the unit;" the
Respondent's refusal is said to violate Section of
Some further support appears in The Timer, 234 NLRB
649. 671 (1978). where the employer was required to provide "meaning-
ful information to the Union regarding past sick leave allowances," and
Canal Electric Company, 245 NLRB 1090 where the Board stated,
in dicta. that a union was entitled to evidence pertaining to application of
a new and undefined sick leave policy even if no grievances were pend-
ing at the time of the request. See also Electric Corporation,
239 NLRB where race and sex data was held presumptively
relevant for purposes of investigating whether the employer was engag-
ing in discrimination.
While I have no reason to disbelieve Gage's testimony that many of
the written policies are "probably" obsolete, it is hard to conceive that an
business would allow a intended to provide guidance to
a constantly changing group of supervisors to fall into serious disorder.
I t might be that Respondent has already, in prudent contemplation
of an adverse decision in this case, taken steps to completely update its
manual. In that event. I could see no purpose in permitting the Union to
through the ashes of history, and would limit the Union to materials
Respondent, in good faith, catalogues as its present policies.
the Act. The investigation and drafting of this allegation
has given rise to a rather complicated procedural issue
which requires treatment.
The complaint, as indicated, claims that since "on or
about July 31, the Union has been requesting "the
names and addresses of the employees in the unit." The
allegation was plainly based on a letter to Gage from
Eves of the given date; in that letter, however, Eves
asked only for the correct addresses of about 80 named
union "members" in order to mail the union newspaper
to them, as well as for Respondent's "cooperation in the
future in order to keep our address system updated, that
you notify the union when a member has a change of ad-
dress." The July 31 letter, then, did not constitute a re-
quest for "the names and addresses of the employees in
the unit," but rather only sought changes of address of
the union members.
Respondent replied to this letter on August ex-
pressing sympathy for the Union's problems and refusing
to "depart from our long-standing custom of declining to
supply employee addresses to someone outside the Com-
pany." The reply went on, however, to suggest two al-
ternatives: Respondent proposed that union stewards
could secure current addresses from members, and it also
offered to deliver to each member whose address was
desired a note from the Union requesting such informa-
tion.
Union President Eves gave testimony not particularly
helpful to the General Counsel's effort to show that after
July 31 the Union broadened its request. Eves answered
in the affirmative a leading question by counsel for Gen-
eral Counsel as to whether, during contract negotiations
in and after September 1979, he requested the "names
and addresses of bargaining unit members." While Eves
then said that the purported request "was submitted as a
proposal," the only written contract proposal made by
the Union in evidence shows that the Union offered a
clause stating merely, "The Company will notify the
Union of all address changes of their employees and re-
tirees in the bargaining unit weekly." Despite this lan-
guage, Eves testified that what the Union really
"wanted" was "addresses of all new employees hired and
all employees in the bargaining unit and
a request which he said the Union had been unsuccess-
fully making to Respondent since the Nonethe-
less, in explaining the limited nature of the contract pro-
posal, Eves stated that the bargaining commit tee "knew
we weren't going to get the nonmembers' names in a
proposal. So, we started out to try and get a little bit at a
time." Thereafter, however, Eves continued to assert
that, in its 1979 proposal, the Union was truly seeking
"the and changes of addresses for all employ-
ees in the bargaining unit."
The evidence presented by General Counsel thus
offers a somewhat tenuous predicate for the claim
record shows that about 1,500 of the 1.800 unit employees are
union members.
Eves evidently intended to say here "union and nonunion."
Eves in fact produced from union files a 1966 in which the
then-president of the Union had asked for the "addresses both of mem-
bers and
INC.
ed
unit."16
me
"I
proposal,17
1
(1941).18
"
unit"
inartful
"
"
dimeen
(1967). F.2d
employee^.^^
union-secu-
(1968),
"[oln
F.2d
C
[Dlata
"[nlecessity"
F.2d
d~merent
l 9 McCullorh Corporurion. 132
ARMSTRONG WORLD INDUSTRIES. 1243
in the complaint that the Union "on or about July 31,
1979," or at any time thereafter, "requested Respondent
to furnish the Union with the names and addresses of the
employees in the However, when Gage returned
to the stand to discuss this issue, he made it appear that
the Union may have indeed broadened its request at the
bargaining table. Gage testified that, as the Union's infor-
mation proposal was discussed, its character varied:
In subsequent conversation, the interpretation had
changed back and forth across the table over a
matter of several days as w e got back to that sub-
ject. Sometimes it seems to they would have
been satisfied with address changes for union mem-
bers. Sometimes they wanted address changes for
all bargaining unit members and sometime they
change it to say they want addresses for everybody, and
I'm not too sure in our response to that we ever got
down to the point of seriously considering whether
we would d o any of that in bargaining, but to me it
was not surprising because in bargaining these
things get defined and redefined. [Emphasis sup-
plied.]
Subsequently, in answer to a question as to whether
the Union at one point requested "the names and ad-
dresses of all bargaining unit employees," Gage said,
think one of the many forms, as the proposal took as w e
went around, went on to something else. Yes, it's very
possible."
In summary, while Eves did not testify in so many
words that the Union ever expressly expanded its written
Gage indicated that at some point the Union
asked for "addresses for everybody." Although Respond-
ent argues on brief that there was inadequate evidence of
a request for names and addresses of nonunion employ-
ees, am inclined to believe that there is a sufficient
foundation for concluding that such a request was made
and that the legal questions engendered by the request
should be addressed. It would be absurd to require the
Union to make another, more carefully phrased, request;
Respondent, which declared in its August 1979 letter its
"long-standing custom of declining to supply employee
addresses to someone outside the Company," would
surely refuse such a request, and another Board proceed-
ing would as surely follow. Since administrative pro-
ceedings are designed to expeditiously resolve the kind
of problem presented here, and since Respondent has
been afforded full opportunity to make its case, a failure
to decide the issue now would be untoward deference to
a foolish formality. "Litigation is the pursuit of practical
ends, not a game of chess." City of Indianapolis v. Chase
National Bank of City of New York, 314 U.S. 63, 69
I t could be contended, however. that the contract clause seeking
"all address changes of their employees . . . in the bargaining was
an request for the addresses of all employees.
At one juncture, he answered affirmatively a leading question as to
whether, during negotiations, he made an "oral request for names and ad-
dresses." but then he immediately referred to a proposal "for changing
the names and addresses of employees in the bargaining union [sic]."
The related argument made by Respondent. that a request for a con-
tract provision from a direct request for data, seems to me, on re-
flection. to be insubstantial. The proposal of a contract clause requiring
Standard Oil Company of California, Western Oper-
ations. Inc., 166 NLRB 343 enfd. 399 639
(9th Cir. 1968). appears to have been the first case in
which the Board ordered an employer to honor a union
request for names and addresses of unit
There the Board based its conclusion that the informa-
tion was relevant upon the relationship between the
union's statutory obligations and the evidence of prob-
lems the union had encountered in attempting to commu-
nicate with unit employees by means other than mailing
(id. at 345):
In this case the relevance of the unit employees'
address list is apparent from a comparison of the
Union's statutory duty of fair representation with
the difficulties it faced in attempting to reach those
to whom it owed such duty. The Union's duty ex-
tends to nonunion unit employees as well as to
union members. Because of the relatively low union
membership in the unit, the absence of a
rity clause in the collective-bargaining agreement,
the residential dispersion of unit employees over a
five- or six-county area, the apparent ineffectiveness
of the steward system, the lack of adequate expo-
sure of unit employees to union bulletin boards, and
the inefficiency of handbilling efforts, the Union
could not in any effective manner communicate
with the beneficiaries of its statutory obligation.
In Prudential Insurance Company, 173 NLRB 792, 793
the Board engaged in a similar meticulous analy-
sis of the evidence pertaining to need, and concluded
that the basis of the evidence before us, we are
convinced that the information the Union requested from
Respondent was necessary and relevant to collective bar-
gaining and the administration of the collective-bargain-
ing agreement." The opinion of the Court of Appeals for
the Second Circuit on review of that case, in Prudential
Insurance Company v. N.L.R.B., 412 77, 84 (1969)
(Judge Friendly dissenting), is evidently the first holding
that name and address information is at least presump-
tively relevant: "The kind of information requested by
the Union in this case has an even more fundamental rel-
evance than that considered presumptively relevant . . .
without which a union cannot even communicate
with employees whom it represents is, by its very nature,
fundamental to the entire expanse of its relationship with
the employees . . . . Because this information is there-
fore so basically related to the proper performance of the
union's statutory duties, w e believe any special showing
of specific relevance would be superfluous." The court
did, however, discuss in detail the evidence tending to
show the union's inability to adequately communicate
with employees through means other than mailing, there-
by establishing the for the requested infor-
mation. 412 at 81.
that certain information be furnished is not materially from a
demand for the information itself.
In N L R B 201, 209-210 (1961). the
Board had adopted without comment a recommendation by a trial exam-
iner to deny such a request.
&
(1970),
DePalma
&
Inc.,
e.g.,
W:
Inc., Kelly-Springfield
E.g.,
Autoprod,
Sec. 8(a)(5)
efficiency,
F.2d
R e ~ p o n d e n t , ~ ~
20
2 1
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the Trial Examiner in United Aircraft Cor-
poration (Pratt Whitney Aircraft and Hamilton Standard
Division), 181 NLRB 892, 903 relying on the
Second Circuit's Prudential decision, concluded that the
name and address information was "presumptively rele-
vant," but he also engaged in an elaborate survey of the
"alternative means of communicating with employees"
before holding that they were inadequate. Since then, a
number of cases have described such data as "presump-
tively relevant," and that clearly appears to be the cur-
rent position of the Board. Printing Co., 204
NLRB 3 1, 32 (1973); California Blowpipe Steel Compa-
ny 2 18 NLRB 736, 742-743 (1975); Georgetown Asso-
ciates d /b /a Georgetown Holiday Inn, 235 NLRB 485, 486
(1978); Aydin Energy Division, 245 NLRB 468 (1979);
Helca Mining Company, 248 NLRB 1341, 1343 (1980).
The theory of the Board in Standard Oil seems to have
been that the duty of fair representation is an imperative
which elevates to statutory dignity a union's desire to
communicate with the employees it represents, and that
the union may rightfully call upon the employer to fur-
nish information assisting it to do so when it has been es-
tablished that, aside from the mails, no other adequate
conduits for communication with the unit employees are
available. In many of the cases decided since Standard
Oil, the Board and/or administrative law judges have
embarked upon discussions, some of exhaustive length,
speculating on the adequacy in the particular circum-
stances of the alternative methods of communication
available to the union. See, General Electric Compa-
ny, 176 NLRB 605, 606-609 (1969); A. Thompson,
2 16 NLRB 710, 7 12 (1975); The
Tire Company, 223 NLRB 878, 879-880 (1976); Sumner
Home for the Aged, 226 NLRB 976, 981-982 (1976).
In others, some of them more recent cases, however,
there has been little or no analysis of the availability of
alternate means. Hotel Enterprises, Inc., 224 NLRB
810 (1976); Sahara-Tahoe Corporation, 229 NLRB 1094,
1096 (1977); Alvin J. Bart and Co., Inc., 236 NLRB 242,
252 (1978); Big Bear Supermarkets #3, 239 NLRB 179,
184 (1978); Southwestern Bell Telephone Company, 247
NLRB 27 (1980) (here, the Board noted only the circum-
stance that the bargaining unit consisted of 65,000 em-
ployees located in five States). The language of the two
later cases, which I have found focus on this point, indi-
cates that the Board no longer believes it necessary that
the evidence demonstrate a union's inability to communi-
cate adequately through means other than postal.
In Inc., 223 NLRB 773 (1973) (then-Chair-
man Murphy dissenting), the panel majority required that
names and addresses be furnished despite the fact that
the bargaining unit consisted of only 14 employees at a
single location. The majority first noted that the area
was densely populated and that a search for addresses
would burden the union. It then continued (223 NLRB
at 773, fn. 2):
Moreover, the fact that the Union may have been
able to obtain the addresses of the employees by
other means does not diminish the obligation of the
Employer to furnish relevant information. For it is
clear that imposes on an employer the
duty to furnish a union with information relevant to
the union's intelligent performance of its representa-
tive function.
This language appears to state flatly that a union is enti-
tled to the addresses of unit employees, whether or not
those addresses could be obtained by other means and, a
fortiori, whether or not the union might be able to dis-
seminate information to unit employees by other means
than mailing.
In a subsequent case, an administrative law judge
reached the same result, as a practical matter, by a some-
what different analysis. He read the earlier cases on al-
ternative means "as suggesting that the availability of
such alternate channels is a factor to be weighed against
the potential burden to the employer of compiling and
furnishing such a list . . . . Where, as here, however,
Respondent can furnish the list with ease and
this factor renders the availability of such alternative
channels relatively insignificant to the statutory merits of
the Union's demand." The Board adopted the foregoing
discussion without comment. Helca Mining Company,
supra, 248 NLRB 1341, 1343 (1980).
It thus appears that the mainstream of Board law no
longer requires proof that a union is unable adequately to
communicate with unit employees by other means before
an employer will be ordered to divulge names and ad-
dresses upon request. This progression in the law seems
salutary. Litigation of the issue of alternative channels
has been, as the cases show, an exhausting and demand-
ing effort; in his dissent in Prudential Insurance Company,
supra, 412 at 1150, Judge Friendly labeled it a
"painful and time-consuming task." I have, moreover,
discovered no case in which the Board or a court has
concluded that adequate alternative means of communi-
cation were present. The reason seems evident: mailing a
letter or questionnaire to an employee which can be
studied and digested in the comfort of a home plainly
provides a superior and more effective opportunity for
communication than a hurried glance at such plant bulle-
tin boards as might be available, or a hasty message from
a steward, or catch-as-catch-can handbilling at the plant
gates, or some literature placed in a distribution rack.
There is no satisfying reason why the Board should not
take notice of this obvious fact of life, at least with re-
spect to a bargaining unit of any size at
In view of the undoubted likelihood that furnishing the
names and addresses of the unit employees would impose
no undue burden upon I conclude that
the names and addresses sought are presumptively rele-
vant to the discharge of the Union's responsibilities,
without regard to the alternative means available for
In the present case, the Union has a membership of 1,500 employees
in a unit of 1.800. As other facts of life, it is fair to assume that many of
the members neglect to notify the Union of their changes of address, and
that securing the new addresses of these members, and the names and ad-
dresses of the 300 nonmembers, would be an arduous and wasteful task
for the Union, as would be attempting to communicate information
through means other than the mails.
This issue was not alluded to at the hearing. Respondent. however,
raised no defense premised on burdensameness. It seems safe to believe
that a 5.000-employee plant is sufficiently equipped with modern elec-
tronic means to supply the information without particular effort.
againit
F.2d
F.2d
F.2d 84-
S.Ct. L.Ed.2d
Inc.,
Inc.,
Aircrafr
B.,
F.2d 1970), "In
R e s p o n d e n t ' s - ~ u ~ u s t I5
C ~ r n p a n y . " ~ ~
signed."23
2 2 lo
' V h ~ s
1245 ARMSTRONG WORLD INDUSTRIES. INC.
communicating with the unit members. Such an ap-
proach seems harmonious with the general rule
remitting a union to painstakingly search out relevant in-
formation for itself: "Although the information might be
secured from the employees themselves, this did not re-
lieve the company from this duty." N.L.R.B. v . North-
western Publishing Company, 343 521, 525 (7th Cir.
1965); Texaco, Inc. v. N.L.R.B., 407 754, 758 (7th
Cir. 1969).
"Presumptive relevance," of course, raises only a pre-
sumption which, one assumes, may be rebutted. In the
present case, the Union itself offered none of the more
usual reasons for desiring the names and addresses (such
as soliciting views on contract proposals and preferences,
informing employees about contract benefits, and encour-
aging employee participation in policing the bargaining
agreement, see Prudential Insurance Co., supra, 173
NLRB at 794). Union President Eves testified that he
wanted the changed addresses of members in order to
mail the union newspaper to them, and he desired the
names and addresses of nonmembers so that the Union
could inform them of the "special dispensation periods"
during which they could join the Union without paying
fees. May it be argued that the Union, by advancing only
these justifications for the requested information, has in
effect itself rebutted the presumption of relevancy?
T h e answer appears to be a negative one. In Prudential
Insurance Company v. N.L.R.B., supra, 412 at
85, the court found "of no moment" the employer's (and
dissenting Judge Friendly's) suspicion that the request
was in truth motivated by the union's desire to solicit
new members. The court said:
As the Board has so appropriately indicated, there
is no clear distinction between informing non-
member agents about the benefits it has obtained
and hopes in the future to secure for them and its
solicitation of their support. In any case, union so-
licitation is itself hardly an evil-especially where,
as here, the union is already the exclusive bargain-
ing representative of the employees it is soliciting.
Moreover, the Supreme Court has upheld the pro-
priety of a Board order requiring an employer to
submit a list of the names and addresses of its em-
ployees eligible to vote in a representation election
to facilitate solicitation by unions participating in
the election. N. L. R.B. v. Wyman-Gordon Company,
394 U.S. 759, 89 1426, 22 709 (April
23, 1969).
And, in addressing the same sort of argument, the Board
has stated to like effect in Standard Oil Company of Cali-
fornia, Western Operations, supra, 166 NLRB at 346:
"The Union's effectiveness as an employee representative
was necessarily dependent on its bargaining strength, and
this in turn was dependent on continued employee adher-
ence and support." This position was reaffirmed in Har-
vey's Wagon Wheel, 236 NLRB 1670, 1694 (1978)
("It is immaterial" that the union wanted the information
in order to respond to the employer's messages to em-
ployees o r for organizational purposes.)
In this case, Respondent offered the Union other meth-
ods of obtaining the names and addresses of the unit em-
ployees, the most promising, perhaps, being an offer to
itself mail and send to all the employees a printed union
request for such information. The problem with this sort
of alternative, however, is that it hardly guarantees that
the Union would thereby come into possession of a com-
plete mailing list. But if the Union has a legitimate right
(or, perhaps, duty) to attempt to communicate with all
the employees it represents, and if a mailing list may
easily be supplied, this kind of alternative, certainly
promising an incomplete list, would frustrate the Union's
ability to communicate with the entire unit.
The interest which Respondent avowedly seeks to
serve here is the "right of privacy" of the employees.
There was no testimony that any employees have ever
notified Respondent that they did not want the Union to
have access to their names or addresses. This particular
aspect of the "right of privacy" does not seem to be one
of the more inviolable branches of that right. It is freely
invaded every day, with businesses, charitable organiza-
tions, and political groups busily selling to one another
the names and addresses of potential patrons and sub-
scribers. And early on, in United Corporation,
supra, 181 NLRB at 903, the Board rejected any abstract
"right of privacy" claim when weighed against the inter-
est of a union in receiving the desired information.
There is, however, a limited context in which the right
of privacy may become pertinent. The Second Circuit
stated, in United Aircraft Corporation v. N.L.R. 434
1198, 1207 (2d Cir. determining whether
a disclosure of addresses violates the employees' right of
privacy, the crucial factor appears to be the likelihood of
a clear and present danger to the employees involved."
A s previously stated, refusal
letter gave no specific reason for withholding the
change-of-address information sought by the Union other
than "our long-standing custom of declining to supply
employee addresses to someone outside the
At the hearing, however, Respondent introduced
through Employee Relations Manager Gage certain evi-
dence offered to show that Respondent entertained a
well-founded fear of harassment of its employees as a
result of revelation of their addresses.
Entered in evidence were 11 departmental lists of non-
members found posted in the plant in 1979. One of these
has the words "Scab List" handwritten on it, and an-
other, also in handwriting, denotes certain employees as
"Tile Scabs" and names an employee who "pulled out of
Union right before contract was Another
posted document was a list of 23 employees who benefit-
ed from a grievance settlement; 4 of the names are
marked "scab," with the legend, "If you want to keep
getting free money, join the Union. This will be the last
time a scab gets paid for a grievance." In addition, there
is in evidence a posted notice to nonmembers urging
them to join the Union, which states, inter alia, "We
The letter also noted a preference not "assume responsibility for
maintaining your mailing list."
list is dated November 1979, after the requests for, and refusal
of, information.
infirm the
duty
signup
copy
"scab"
documents.24
F.2d
1972),
SheN
''
the
members initiative.15
Company, F.2d
1980),
afier
nonunit
8(a)(5)
2(2), (6),
2(5)
8(a)(5)
2(6)
pursu-
2 6 " b n a
jide," SheN
court,
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to you, non-members, that we think it is
our as leaders of this organization, to inform the
dues-paying members the names of those who are sitting
back and reaping all the benefits and not carrying their
share of responsibility. Those who have not taken advan-
tage of this open period will have their names
listed by department and distributed throughout the plant
in the near future." Also entered is a of a union
newspaper article containing a list of some nonmembers
and asking, "How must their conscience feel knowing
someone else is paying their way?" and "Whose name
will appear in the next issue of the Spot Light? Will your
name be on the list? Let's hope not!" Finally, four time-
cards of an employee had the word "Scab" written on
them.
Gage also gave testimony about harassment of employ-
ees. One employee came to him and said that he was
being called names because of his nonmember status. An-
other telephoned Gage and said that she wanted Re-
spondent to protect her from harassment; her tires were
later slashed in the parking lot. A supervisor told Gage
that an employee had asked to be transferred because he
was "on the verge of a nervous breakdown" as a result
o f "getting so much trouble on the job." A fourth em-
ployee, a janitor, who had refused to join the Union,
found paint sprayed on mirrors and sliced soap on a
floor he had already cleaned. There is no evidence that
the Union itself was responsible for the asserted harass-
ment of employees o r for the and other refer-
ences on the posted
In Shell Oil Company v. N.L. R. B., 457 6 15 (9th
Cir. the court denied enforcement of a Board
order to supply names and addresses. The request for in-
formation there had followed a strike in which there had
been, inter alia, harassment of nonstriking employees "at
individual employees' homes." Id. at 616. A union repre-
sentative testified at the hearing that the addresses were
desired not only for purposes of mailing, but also to
"make personal visits to employees' homes in order to
organize them." Id. at 617. The employer, concerned
that the addresses might fall into the wrong hands, of-
fered to pay for the cost of unlimited mailings of union
correspondence to the employees by a commercial serv-
ice. The court concluded, contrary to the Board, that
there was a "likelihood of clear and present danger to
the employees involved" and that the employer's con-
cern was "bona fide." Id. at 618-619 and 620.
The Board's Decision in Oil, of course, controls
my own. It seems clear that if the Board would require
the furnishing of names and addresses in that case, it
would d o so here, and I think that the Shell Oil court
might agree. T h e postings here were relatively innoc-
uous. None of the four employees to whom Gage re-
ferred had indicated to him that any union partisans had
come to their homes to harass them, nor is there evi-
dence that any of the 300 nonmember employees had
been so bedeviled; if there were union zealots who
wanted to pursue that course, presumably they might
It would appear, however, that the Union was responsible for post-
ing the lists of nonmembers, as indicated in the union newsletter. Eves
also testified. "We made up . . . notices of nonmembers lists and we put
them on bulletin boards and the company tore them down."
have found a way to secure the addresses of some non-
on their own
N.L.R.B. v. A. S. Abell 624 506 (4th
Cir. cited by Respondent, is distinguishable. The
union there had requested and received the names of em-
ployees represented by it who had been trained to per-
form the work of another union in the event of a strike.
The day receipt of the information, the recipient
union posted bulletins labeling such employees as
"scabs," and made no other use of the information.
When the union subsequently asked for information
about a second group of trainees, the company declined
to furnish it. The Board (Member Walther dissenting)
held that the union was entitled to the data sought, 230
NLRB 11 12 (1977). The Fourth Circuit reversed, relying
in part on the union's prior misuse of similar information
to "insult the employees involved." I must, beyond ques-
tion, apply Board law. Beyond that, however, I note that
Abell involved a request for information only about po-
tential use of unit employees to perform work
and, as well, a showing that the same information previ-
ously requested had been used exclusively for a purpose
which might fairly be termed illegitimate. Neither cir-
cumstance obtains here.
Accordingly, I conclude that Respondent was obliged
to honor the Union's request for a list of names and ad-
dresses of employees in the bargaining unit, and that it
violated Section by refusing to do so. I shall rec-
ommend that Respondent be required to furnish informa-
tion as to the current names and addresses of all unit em-
ployees not already in the possession of the Union, and
to further inform the Union, at quarterly intervals, of
changes of identity and addresses of unit employees.
1. Respondent is an employer engaged in commerce
within the meaning of Section and (7) of t h e ,
Act.
2. The Union is a labor organization within the mean-
ing of Section of the Act.
3. By refusing, since on o r about June 26, 1979, to fur-
nish the Union with copies of Respondent's policies con-
cerning wages and methods of payment, and by refusing,
since in o r about September 1979, to furnish the Union
the current names and addresses of employees in the bar-
gaining unit, Respondent has violated Section and
(1) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and
If an element of the test is whether the employer's concern is
as the Oil court held. then Gage's testimony as to the inci-
dents related to him by the four employees is relevant, not for the truth
of the matters asserted, but as bearing upon his state of mind. On the
other hand, the test of a "likelihood of clear and present danger," also
adopted by the compels an appraisal of the reasonableness of such
a state of mind. Gage convinced me that these four employees had in fact
complained to him; but I cannot overlook that Respondent refused the
first request on the basis of a "long-standing custom" of not disclosing
addresses, which I assume would have dictated the answer to any such
request whether or not there had been harassment.
ant IO(c)
1.
" A p p e n d i ~ . " ~ ~
2 8 Sec.
prov~ded
Sec.
2 7
had
WILL
WILL
WE
1247 ARMSTRONG WORLD INDUSTRIES. INC.
to Section of the Act, I hereby issue the fol-
lowing recommended:
The Respondent, Armstrong World Industries, Inc.,
Lancaster, Pennsylvania, its officers, agents, successors,
and assigns, shall:
Cease and desist from:
(a) Refusing to bargain collectively with United
Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, Local 285, by refusing to furnish copies of its rele-
vant policies concerning wages and methods of payment
of bargaining unit employees and by refusing to furnish
current names and addresses of employees in the bargain-
ing unit represented by the Union.
(b) In any like or related manner, interfering with, re-
straining, o r coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Furnish the Union, in the form and at the times set
out in the Decision of the Administrative Law Judge,
copies of Respondent's policies concerning wages and
methods of payment, and the names and addresses of the
employees in the bargaining unit.
(b) Post at its Lancaster, Pennsylvania, facility copies
of the attached notice marked Copies of
said notice, on forms provided by the Regional Director
for Region 4, after being duly signed by Respondent's
In the event no exceptions are filed as provided by 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as
in 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes.
In the event that 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 Pursu-
ant to a Judgement of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government
After a hearing at which all parties were represented and
the opportunity to present testimony, the National
Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post
this notice.
W E NOT refuse to bargain collectively with
United Rubber, Cork, Linoleum and Plastic Work-
ers of America, Local 285, by refusing to furnish in-
formation to which the Union is entitled under the
National Labor Relations Act.
WE NOT in any like or related manner, in-
terfere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of the
National Labor Relations Act.
WE WILL furnish to the Union copies of our poli-
cies concerning wages and methods of payment of
the employees represented by the Union, and
W ILL make available to the Union the names and
addresses of those employees, in the form and at the
times directed by the Board.