Earthgrains Co.

National Labor Relations Board - Board Decisions

Feb 22, 2007

349 N.L.R.B. 389 (N.L.R.B. 2007)

EARTHGRAINS CO.
349 NLRB No. 34
389
The Earthgrains Company, a wholly owned subsidi-
ary of Sara Lee Bakery Group, Inc. and Chauf-
feurs, Teamsters and Helpers Local Union No.
215, a/w International Brotherhood of Team-
sters. Case 25–CA–29803
February 22, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On July 28, 2006, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Earthgrains Company,
Owensboro, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Michael T. Beck, Esq., for the General Counsel.
John L. Collins, Esq., of Houston, Texas, for the Respondent.
Samuel Morris, Esq., of Memphis, Tennessee, for the Charging
Party.

1 In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to furnish requested relevant
information, we find it unnecessary to pass on the judge’s apparent
finding that the Respondent was obligated to retain and furnish docu-
ments that were created after October 11, 2005, the date of the informa-
tion request. The judge’s recommended Order, which the Board has
adopted, requires the Respondent, inter alia, to furnish the Union with
the information requested in certain paragraphs of the October 11 re-
quest. Any dispute as to the scope of information encompassed by that
request may be raised and litigated in compliance.
In finding that the Respondent failed to establish a claim of confi-
dentiality, Member Schaumber does not rely on the judge’s finding that
the Respondent did not timely raise this claim and his inference there-
from that the Respondent did not possess a legitimate confidentiality
interest in the requested information. Further, Member Schaumber
finds that the judge’s reliance on cases in which the Board inferred
unlawful motivation from an employer’s use of shifting defenses is
misplaced. As the Respondent stated in its Feb. 14, 2006 response to
the Union’s information request, “this supplements” the Respondent’s
earlier response to the information request. (Emphasis added.) In
Member Schaumber’s view, an employer has a right to supplement its
response to an information request and the judge erred by drawing an
adverse inference therefrom.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Owensboro, Kentucky, on May 16, 2006. The charge
was filed November 28, 2005,1 and the complaint was issued
February 27, 2006.
The complaint alleges that the Company unreasonably de-
layed in furnishing certain information requested by the Union.
It further alleges that the Company refused to provide other
information sought by the Union. Because it is contended that
the information is necessary for, and relevant to, the Union’s
performance of its duties as collective-bargaining representa-
tive of certain of the Company’s employees, the General Coun-
sel alleges that the Company’s conduct has been in violation of
Section 8(a)(5) and (1) of the Act.2 The Company filed an
answer denying the material allegations of the complaint.
As described in detail in the decision that follows, I find that
the Company waited over 4 months before providing certain
information requested by the Union, an unreasonably long pe-
riod of time. I further find that the Company has refused to
provide additional information requested by the Union. Having
also determined that the information requested is relevant to,
and necessary for, the performance of the Union’s duties as
collective-bargaining representative, I conclude that the Com-
pany’s conduct has been in violation of Section 8(a)(5) and (1)
of the Act.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Company, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, produces food products at its
facility in Owensboro, Kentucky, where it annually sells and
ships goods valued in excess of $50,000 directly to points out-
side the Commonwealth of Kentucky and purchases and re-
ceives goods valued in excess of $50,000 from points outside
the Commonwealth of Kentucky. The Company admits,4 and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Sara Lee Bakery Group, Inc. operates approximately 50
bakeries across the United States. Among these is one located

1 All dates are in 2005, unless otherwise indicated.
2 At the beginning of the trial, counsel for the General Counsel
moved to amend two minor aspects of the complaint. He corrected a
misspelling of the Company’s name and changed a date alleged in par.
6(d) of the complaint from November 22, 2006, to November 22, 2005.
These changes were unopposed, and I granted the motion to amend.
3 All dates are in 2005 unless otherwise indicated.
4 See the Company’s answer to the complaint, pars. 2(d) and 3. (GC
Exh. 1(e).)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD390
in Owensboro, Kentucky, belonging to its wholly owned sub-
sidiary, The Earthgrains Company. The Owensboro facility has
two production lines making bread and buns. The bakery dis-
tributes its product in two ways. It employs route sales drivers
who deliver baked goods directly to retail establishments. It
also has 16 transport operators who drive tractor-trailer trucks
taking products to other bakeries and depots owned by Sara
Lee. Fourteen of these transport drivers have specified bid runs
allocated on the basis of seniority. The remaining two are a
relief driver and a driver who covers vacancies due to employ-
ees’ vacations.
For approximately 20 years, Local 215 has been the collec-
tive-bargaining representative for both the route sales and
transport drivers. All of the Owensboro drivers are members of
the same bargaining unit. The parties negotiated their current
collective-bargaining agreement over a period of 7 months.
The agreement commenced on May 10, 2005, and extends
through May 10, 2007. (GC Exh. 5.) It provides a grievance
procedure culminating in arbitration.
The Union’s business agent responsible for contract en-
forcement at the Owensboro facility is Larry Murray. He
works with the drivers’ steward, Billy Ballard. Ballard has
been a transport driver for 11 years and has served as steward
for 3 years. He is also a member of the Union’s negotiating
committee.
William Baird is the Company’s plant manager at Owens-
boro. He has had extensive experience, beginning as a foreman
and production manager at Owensboro. He was promoted to
the position of plant manager at the Company’s bakery in Lon-
don, Kentucky. For a period in 2003 and 2004, Baird served as
plant manager for both the Owensboro and London facilities.
In the fall of 2004, he assumed his current position as Owens-
boro’s manager.
The matters at issue in this case involve the Company’s
manner of distributing its baked goods among its bakeries in
Kentucky and its depot in Louisville. Transport drivers take
products to the Company’s depots and also from one bakery to
another. With specific regard to this case, transport drivers at
the Owensboro bakery haul baked goods to the depot located in
Louisville. As mentioned, Sara Lee also owns a bakery located
at the other end of the state in London. Drivers from London
also deliver products to the depot in Louisville. The heart of
this controversy involves movement of the Company’s products
from the Owensboro bakery to the London bakery.5
Baird has been a major figure responsible for the current de-
sign and operation of the distribution chain from London to
Owensboro and back. He testified that, at the time he became
plant manager at London in July 2002, there was a driver as-
signed to make a regular run from London to Owensboro. The
purpose of this run was to drop off London’s products at

5 Baird testified that there are several reasons why the Company
moves products from one bakery to another. For example, if a particu-
lar product is not in heavy demand, it is more efficient for one bakery
to produce enough to service that demand and ship it to the other bak-
ery. In addition, the parent company certifies certain bakeries to pro-
duce specialty items. Certification is a difficult process and facilities
that lack certification in a particular product need to receive that item
from certified bakeries.
Owensboro and return to London carrying goods baked at
Owensboro. As of Baird’s arrival at London, this work was
performed by drivers employed by Sara Lee. Implementing a
plan developed before Baird assumed his duties as plant man-
ager at London, the transport work at London was outsourced
to another company, Worldwide Logistics. Just “a week or
two” after Baird arrived, Worldwide commenced operations at
London, hiring the transport drivers who had been performing
the same work for Sara Lee.6 (Tr. 115.)
Approximately a month or two after taking over at London,
Baird instituted a cross-docking system to improve the effi-
ciency of the Kentucky operations.7 He testified that he realized
that both Owensboro and London transport drivers were al-
ready making runs to the depot in Louisville. It made sense for
the London truck, after delivering its trailer to the depot, to pick
up the Owensboro trailer and return to London. By the same
token, the Owensboro driver could drop off his load at the de-
pot and take the trailer with London products back to Owens-
boro. As Baird put it
[W]e were both going [to the Louisville depot] anyway. It is
just—it is cost effective and it is a better way of doing the
business. The downside of that is, we both have to be there at
a specific time [to complete the transfer of trailers].
[Tr. 89.]
Baird testified that, upon implementation of cross-docking at
Louisville, there was a period in 2002 when there was “no truck
originating out of London going directly to Owensboro.” (Tr.
91.) All products destined for either bakery were exchanged
through cross-docking.
Eventually, scheduling problems and market changes re-
quired reinstitution of runs directly between London and
Owensboro. In late 2002, the Company introduced a new cot-
tage loaf bread product. The product was baked in London and
a portion was transferred to Owensboro. As a result, 5 days
each week a London driver working for Worldwide made a run
to Owensboro to deliver bread. A further practice developed,
described by Baird:
There were occasions when Owensboro could not meet the
time window for cross-docking [at Louisville]. Again, you
are meeting another transport in Louisville at a specific time.

6 At roughly the same time, the previously nonunion drivers at Lon-
don selected another Teamsters local to represent them. They remain
represented by that organization.
7 There was some dispute in the testimony between Baird and Bal-
lard regarding the reason for the institution of cross-docking. Ballard
claimed that it was devised as settlement of a grievance arising out of
the Union’s dissatisfaction with direct transfer of products using Lon-
don drivers. He presented no evidence or documentation for this con-
tention. The absence of such corroboration, coupled with Baird’s firm
assertion that he developed cross-docking for business reasons unre-
lated to labor relations, leads me to conclude that Ballard is mistaken.
In reaching this conclusion, I place particular weight on the logic be-
hind cross-docking as explained by Baird. Cross-docking is clearly a
felicitous means of streamlining the delivery process. I also note that
while under cross-examination, Ballard conceded that Baird would be
the person best situated to know the reasons for instituting cross-
docking.
EARTHGRAINS CO. 391
So, what that means is, you have to leave the Owensboro fa-
cility at a specific time. In the event that the Owensboro
product was not ready to go to the cross-docking trailer, after
we re-instituted the London to Owensboro . . . run, that gave
the Owensboro facility a Plan B to get the product back to
London. [Tr. 92.]
In other words, if Owensboro product destined for the Lon-
don facility was not ready in time to make the run to Louisville,
it could be loaded onto the empty trailer used by the London
driver to make his direct delivery at Owensboro. The parties
referred to this manner of delivery between Owensboro and
London as “backhauling.” This practice was followed from
late 2002 through 2005.
In testimony that highlights the source of the Union’s con-
cerns reflected in this case, Baird was unable to provide a
straightforward statement regarding the frequency of this back-
hauling practice over the period under consideration. Instead,
he testified that:
[I]t was on occasion. I cannot say that it was every day and I
cannot say that it was once a week either . . . once a week,
once every two weeks. Sometimes it was more; sometimes
it was less, just depending on the market conditions, as well
as, how well or how bad the plant ran. [Tr. 92–93.]
In addition to the imprecision of this testimony as to the Un-
ion’s central concern underlying this case, the estimate pro-
vided here stands in sharp variance with the Company’s formal
position regarding the same question. In a written response to
the Union’s information request, the Company made the fol-
lowing representation:
We can state that from at least March 2002 through Septem-
ber 2005, on an average of approximately three times per
week, a truck emanating from London would backhaul less
than approximately half a load of product from Owensboro to
London. [GC Exh. 9, p. 2.]
Similarly, in his posttrial brief, counsel for the Company re-
ported that:
[T]he Company’s best estimate [as to the amount of backhaul-
ing] is approximately three times per week in a volume of less
than half a trailer each time. [R. Br., at p. 5.]
While these two estimates are almost as disturbingly vague
as Baird’s testimony, they are strikingly different from that
testimony. To summarize, the Company’s general manager
testified that the backhauling, while variable, occurred about
“once a week, once every two weeks.” (Tr. 93.) The Com-
pany’s formal position in this litigation is that the backhauling
actually happened at a rate of approximately thrice weekly.8

8 The source of the Union’s concern can be readily demonstrated by
some arithmetic. At its narrowest, the Baird estimate and the Com-
pany’s formal position vary by a factor of 3 (once weekly versus thrice
weekly). At its widest, those two estimates vary by a factor of 6 (once
biweekly versus thrice weekly). I also note that the Company did not
provide any indication of how it arrived at this estimate. It is impossi-
ble to discern if management based the estimate on an analysis of re-
ports of the type being sought by the Union in this case.
The situation continued to evolve. In July 2005, Sara Lee
developed another new product, wholegrain white bread. The
introduction of this product was hugely successful. The bread
was baked at Owensboro and had to be shipped to London.
The amounts needed by London were very large. As a result,
both cross-docking and backhauling were utilized. Ballard
testified that during the summer of 2005, the amount of back-
hauling “increased and it increased.” (Tr. 20.) He opined that
Worldwide drivers were transporting products directly from
Owensboro to London “every day.” (Tr. 34.)
Ballard testified that the Union grew increasingly concerned
at the amount of product that was being backhauled. He ex-
pressed this concern to his business agent, Murray. On July 28,
the Union filed a grievance regarding the subject. That griev-
ance cited a specific incident on July 23, when a Worldwide
driver took a trailer directly from Owensboro to London. The
grievance contended that the trailer in question was supposed to
be driven to Louisville by a bargaining unit member for pur-
poses of cross-docking. It was asserted that this violated spe-
cific provisions of the collective-bargaining agreement. (GC
Exh. 2.)
On August 18, the parties met to discuss the grievance. Bal-
lard and Murray represented the Union. Present on behalf of
the Company were Baird and at least 3 other management offi-
cials. The discussion was not limited to the narrow issue in-
volving the July 23 run, but covered the entire subject of back-
hauling as well. Murray testified that, regarding the specific
incident, Baird explained that “this was a mistake. They did not
instruct this [Worldwide] guy to come and get this load. He ap-
parently just did it.” (Tr. 65.)
As to the parties’ discussion of the larger picture, the testi-
mony of Murray and Baird is relatively consistent. Both agree
that Baird attributed the increase in backhauling to the success
of the wholegrain white bread. He explained that the London
bakery was attempting to receive certification so that it could
begin producing this product. Murray reported that Baird also
minimized the amount of product being backhauled, describing
it as just “a couple of stacks at a time.” (Tr. 65.) As Baird
testified, he told Murray that once London became certified the
amount of backhauling would “go back to like it had been since
January of ’03, you know, on the as-needed basis to whatever
degree that was.” (Tr. 103–104.) Murray replied that if the
current situation “is just going to end here real soon, you know,
that is fine.” (Tr. 65.)
Ballard testified that later on the same day that the Union had
received these assurances he observed a London driver backhaul
half of a trailer load of bread to London. As Murray character-
ized it, “this couple of stacks of bread turned into be [sic] a half a
load.” (Tr. 66.) Murray testified that upon further observation of
the Company’s practices, “we would check and there would be
more bread than they were saying there was.” (Tr. 66.)
Based on its continuing concern with the practice of back-
hauling, the Union filed a second grievance on September 20.
The grievance form explained:
This is our work and we want to keep it . . . . It is our agree-
ment to haul this to this bakery’s distributors and depots, etc.
This includes what goes to London Bakery. No other com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD392
pany should be entitled to our work. I am requesting arbitra-
tion with backpay for each load hauled out by another com-
pany . . . . All drivers need to be made whole in every way.
[GC Exh. 3.]
The Company’s written response as listed on the grievance
form was, “[d]enied—no contractual violation.” (GC Exh. 3.)
The final entry on the grievance form, written in another hand-
writing, indicated that the Company “claims this is a dock
pickup.” (GC Exh. 3.)
On October 11, the parties held a second meeting to discuss
the grievance and the practice of backhauling. Ballard and
Murray represented the Union. Baird led the management team
which included at least five other officials. Baird testified that
he told Murray that Owensboro was in the process of gaining
approval to bake buns and, “[a]s soon as we got it approved, the
10 truck that originated in London to Owensboro would go
away completely.” (Tr. 104.) Of course, in that event back-
hauling would no longer be possible. Ballard testified that
Baird also continued to minimize the amount of backhauling,
indicating that “it was only two or three racks.” (Tr. 44.)
During this meeting, Murray presented Baird with the writ-
ten request for information that is the subject matter of this
case.9 The letter began by noting that the subject was, “World-
wide Logistics taking bread off of the Sara Lee, Owensboro
dock.” (GC Exh. 6.) He asserted that Baird had promised that
this backhauling would cease after 2 weeks and noted that it
had persisted beyond the promised limit. As a result, Murray
requested that the Company provide the following information:
1. The name, address and phone number of the subcon-
tracting company;
2. The number of baskets hauled in 2005 to date by
that entity, stating the date and amount hauled for each
date;
3. The price paid to the [entity] for the loads and the
total amount paid to date;
4. The total miles to date driven by each driver per-
forming subcontracting work, for each day performed;
5. Copies of any letters of agreement, e-mails, con-
tracts, or anything else reflecting the agreement between
the company and the contractor.
[GC Exh. 6.]
Finally, Murray added that Baird should “further consider
this our demand to bargain on this new round of subcontracting
work.” (GC Exh. 6.)
After the conclusion of the October 11 meeting, Murray
wrote another letter to the Company advising them that the
Union was advancing its grievance to arbitration. (R. Exh. 2.)
The Company prepared its response to the information re-
quest exactly 6 weeks after having received the document. This
letter, dated November 22, was written by Stacey M. Moulton,
associate chief counsel for Sara Lee Bakery Group. The letter
characterized the relationship between the Owensboro and
London bakeries as one between a seller and its customer, not-
ing that “the London bakery can choose to purchase product
from the Owensboro bakery, which is the current arrangement.”

9 Baird confirmed that he was given this letter during the meeting.
(GC Exh. 7.) Having described the relationship between the
bakeries as one of buyer and seller, Moulton observed that
Owensboro uses different transport methods for servicing its
various customers, adding that, “[s]ome customers prefer dock
pick-up basis” for delivery of their purchases.10 (GC Exh. 7.)
Moulton’s letter went on to assert that “the Teamsters have
not lost any work, hours or pay . . . . Therefore, Sara Lee fails
to see how the Teamsters have been harmed.” The letter’s
ultimate conclusion was that “[f]or the reasons stated above, we
decline to provide you with the documentation that you have
requested.” (GC Exh. 7.) In consequence, the Union filed the
charge in this case on November 28. (GC Exh. 1(a).)
During the autumn, the backhauling situation continued to
evolve. London began to produce its own wholegrain white
bread and Owensboro started baking its own bun product. As a
result, Baird testified that the final London to Owensboro run
was made on January 2, 2006. Immediately thereafter, on
January 4, 2006, counsel for the Company filed a position
statement addressed to the Board agent investigating the Un-
ion’s charge.
In his position statement, counsel clearly asserted that the
Company’s “response to this [information] request and to the
subsequent unfair labor practice charge, is twofold.” (GC Exh.
9, p. 4.) The two reasons given were that the request failed to
seek information that is relevant to the grievance, and that the
Company “does not have records that break out product moved
from the Owensboro plant via backhaul by London trucks.”
(GC Exh. 9, p. 4.) The statement concluded with the contention
that, “[f]or all of the foregoing reasons, the charge should be
dismissed.”11 (GC Exh. 9, p. 5.)
On February 14, 2006, counsel for the Company wrote an-
other letter to Murray in order to supplement his original re-
sponse to the October 11 request for information. That letter
began by continuing to dispute the Union’s characterization of
the backhauling practice as “subcontracting.” Counsel went on
to provide the information requested in the first item of the
Union’s original request, the name of Worldwide Logistics’
parent company, along with its address and telephone number.
In a paradoxical fashion, the letter informed the Union that
the Company “does not have data that identifies how product

10 I have already indicated that the Union’s grievance form in this case
contained a notation that the Company contended that the backhauling to
London represented a so-called “dock pickup.” (GC Exh. 3.) Moulton’s
letter also seems to be making this claim. If that is the Company’s con-
tention, it may have implications for this case. The parties’ collective-
bargaining agreement authorizes the Company to use dock pickup as a
means of attracting new business. However, under those circumstances,
article 43 of the collective-bargaining agreement provides that the Union
“shall have the right to request documentation” regarding the need to
employ this method of delivery. (GC Exh. 5, p. 19.)
11 Counsel’s letter appears to contain an inadvertent but significant
error when describing the factual background. In citing a hypothetical
example, he indicated that on a given day two trucks may be dispatched
from Owensboro to the Louisville depot for purposes of cross-docking.
(GC Exh. 9, p. 5). Because this is an important point as discussed later
in this decisions, I carefully questioned Baird about it. Baird clearly
and repeatedly testified that Owensboro has never dispatched more than
one truck per day to the depot for cross-docking purposes. (See Tr.
131–132.)
EARTHGRAINS CO. 393
received at the London plant from the Owensboro plant trav-
eled to London.” (GC Exh. 9, p. 2.) Nevertheless, he advised
the Union that
We can state that from at least March 2002 through Septem-
ber 2005, on an average of approximately three times per
week, a truck emanating from London would backhaul less
than approximately half a load of product from Owensboro to
London.12 [GC Exh. 9, p. 2.]
In addition, counsel raised a new objection to the provision
of certain of the remaining requested information. For the first
time, he noted that, “[t]he Company objects to disclosing the
financial terms of its contract with Worldwide Logistics be-
cause that information is highly confidential.” (GC Exh. 9, p.
2.) Counsel also observed that the Company believed that it
had now satisfied its obligation to respond to the information
request. He ended his letter with the following statement:
As always, the Company remains willing to negotiate with
your Union as to any additional information you may contend
you need to carry out your duty to represent members of the
Owensboro bargaining unit. [GC Exh. 9, p. 2.]
Two weeks later, the Regional Director filed the complaint
and notice of hearing in this case, alleging that the Company
had unreasonably delayed its response to the request for identi-
fying information regarding the Company that was performing
the backhauling of product and had unlawfully refused to pro-
vide the additional information sought by the Union. (GC Exh.
1(c).) The Company’s answer denied the material allegations
and asserted defenses of confidentiality and waiver by the Un-
ion. Specifically, the Company contended that its confidential-
ity interest “outweighs whatever legitimate interest the Union
might assert for such information.” (GC Exh. 1(e), pp. 2–3.) It
also contended that it had “offered to negotiate with the Union
to accommodate its needs, and the Union did not engage in
such negotiations.” (GC Exh. 1(e), p. 3.) As a result, the Com-
pany asserted that the Union had waived its right to the infor-
mation.
Although the legal issues were joined at this point, the events
underlying this controversy continued to develop. It will be
recalled that direct transfer of products between Owensboro
and London had ceased on January 2, 2006. It is undisputed
that such transfer resumed on April 25, 2006, and continued
through April 30. The reason for the temporary reinstitution of
this practice was the need to shut down the London production
line in order to install a new oven.13 After April 30, 2006, this
practice ceased. On May 1, the Union filed another grievance
alleging that the direct transfer of products on April 25–30
violated specific provisions of the parties’ collective-bargaining
agreement. (GC Exh. 8.)

12 I have already noted that this is certainly a much greater level of
activity than that described in Baird’s testimony. At trial, he indicated
that, while sometimes quite variable, the frequency of backhauling was
in the range of “once a week, once every two weeks.” (Tr. 93.)
13 At trial, I noted that what was being done in April 2006 was not
technically “backhauling.” Baird indicated that the trucks that departed
from London did not take product to Owensboro. They loaded Owens-
boro’s goods and took them to London.
As of the date of trial, there did not appear to be any current
direct transport of goods between Owensboro and London.
Baird testified that such direct hauling of products “has
ceased,” but he confirmed the accuracy of counsel for the Un-
ion’s summary of the Company’s viewpoint; that the Company
“still maintains it has the right to do it, on whatever basis it
deems necessary.” (Tr. 127.)
B. Legal Analysis
The sole issue in this case is whether the General Counsel
has correctly asserted that the Company’s manner of respond-
ing to the Union’s request for information dated October 11,
2005, was unlawful. In contesting this conclusion, the Com-
pany has raised a variety of defenses. I will address each of
these in turn.
1. Relevance of the requested information
First and foremost, the Company claims that the information
being sought by the Union does not pass the test of relevance.
The Board holds that an employer must provide information
being sought by the Union only if it is relevant to the Union’s
statutory duties as collective-bargaining representative. Pieper
Electric, Inc., 339 NLRB 1232 (2003). Information pertaining
to employees who are members of the bargaining unit is pre-
sumptively relevant. Calmat Co., 331 NLRB 1084, 1095
(2000). However, as counsel for the Company points out, this
is not such a case.
In this case, the Union seeks information about the activities
of a subcontractor and its employees and information regarding
the Company’s relationship to that subcontractor. In such cir-
cumstances, the General Counsel must demonstrate the rele-
vance of the information. The Board has often described the
standard to be employed in assessing such a claim. Very re-
cently, it summarized it as follows:
[W]hen the representative requests information that does not
concern the terms and conditions of employment for the bar-
gaining unit employees—such as data or information pertain-
ing to nonunit employees—there is no such presumption of
relevance, and the potential relevance must be shown. The
burden to show relevance is “not exceptionally heavy,” and
“[t]he Board uses a broad, discovery-type of standard in de-
termining relevance in information requests.” When there has
been a showing of relevance, the Board has consistently found
a duty to provide information such as competitor data, labor
costs, production costs, restructuring studies, income state-
ments, and wage rates for nonunit employees. [Citations
omitted.]
Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006).
Under the Act, relevant information is obtainable beyond the
confines of the parties’ negotiations for a collective-bargaining
agreement. In NLRB v. Acme Industrial Co., 385 U.S. 432
(1967), the Supreme Court held that the statutory duty to fur-
nish relevant information applied to union requests made in
connection with the processing of grievances. Indeed, it is
interesting to note that the facts in that case bear much resem-
blance to the issues here. The union, being concerned about the
preservation of bargaining unit work, filed 11 grievances relat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD394
ing to the employer’s movement of machinery from the plant.
It also filed a request for information about the employer’s
actions. The employer denied the request, observing that it had
not violated the collective-bargaining agreement because it had
not made any layoffs or reductions in job classifications. The
Court affirmed the Board’s finding that the information sought
was relevant to “enable the Union to evaluate intelligently the
grievances filed.” Id. at 435.
As with the general discovery-type standard, the Board’s test
for relevancy of information being sought in connection with a
grievance is a liberal one. As the Board explained in Pennsyl-
vania Power Co., 301 NLRB 1104, 1105 (1991):
[T]he information need not be dispositive of the issue be-
tween the parties but must merely have some bearing on it.
In general, the Board and the courts have held that in-
formation that aids the arbitral process is relevant and
should be provided.
. . . .
Moreover, information of “probable relevance” is not
rendered irrelevant by an employer’s claims that it will
neither raise a certain defense nor make certain factual
contentions, because “a union has the right and the respon-
sibility to frame the issues and advance whatever conten-
tions it believes may lead to the successful resolution of a
grievance.” Further, because the Board, in passing on an
information request, is not concerned with the merits of
the grievance, it is also not “willing to speculate regarding
what defense or defenses an employer will raise in an arbi-
tration proceeding.” [Citations omitted.]
Having outlined the broad principles that I must apply, it is
now useful to examine the Board’s precedents in cases involv-
ing similar or related issues. Over the decades, the Board has
not hesitated to find relevance when a union requests informa-
tion that is reasonably related to its concern about the preserva-
tion of bargaining unit work in conformity to its collective-
bargaining agreement with the employer. A number of exam-
ples will illustrate this.
In NLRB v. Rockwell-Standard Corp., 410 F.2d 753 (6th Cir.
1969), the union was worried about allocation of work between
two locations. The company denied a request for information,
contending that “information about employees and work done
outside the geographical scope of the bargaining unit could not
be relevant.” Id. at 957. The Court affirmed the Board’s con-
trary conclusion, observing that, “[t]he preservation or diversion
of unit work is a subject of mandatory bargaining under the Act.”
Id. The Court went on to note that it was not the Board’s func-
tion to assess the merits of the union’s inquiry or the employer’s
conduct. Instead, the Board, having found that the union had
“reasonable grounds to fear that unit work was being trans-
ferred,” was within its authority under the Act to order disclosure
of the information sought. Id. at 957.
United Graphics, 281 NLRB 463 (1986), involved a union’s
concern about work preservation in the context of the use of
temporary employees supplied by a contractor. The employer
objected to providing information about the extent of such use,
contending that the workers were not its employees and were
merely casual laborers who would be excluded from the bar-
gaining unit. The Board found a violation of the Act, holding
that:
[E]ven assuming that the temporary workers are nonunit em-
ployees, it is clear that information regarding individuals who
are engaged in performing the same tasks as rank-and-file
employees within the bargaining unit “relates directly to the
policing of contract terms.” [Citation omitted. Id. at 465.]
Some years later, the Board affirmed an administrative law
judge’s finding of a violation where an employer refused to
provide information regarding the employees of a subcontrac-
tor. The employer contended that the information was not
“useful or helpful in processing the grievances” filed by the
union. Public Service Co. of Colorado, 301 NLRB 238, 246
(1991). The judge rejected this contention, noting that:
[A]ssuming arguendo the information would not be helpful in
processing the grievance, the information is useful in assisting
the Union to determine whether to prosecute the grievance.
The number of employees used by the subcontractor as well
as the wage scale paid also have relevance to the Union’s le-
gitimate interest in determining if appropriate unit work and
promotional opportunities were adversely impacted.
In sum, I conclude the sought information is relevant
to processing the grievance, it directly relates to policing
the terms of the collective-bargaining agreement. To
evaluate the request further would adversely impact on the
contractual arbitration procedure by first deciding in this
proceeding the merits of the grievance under the guise of
determining the relevance of the requested information.
The information sought by the Union is sufficiently related
to its duties to police the contract to establish relevance
without undermining the contractual resolution mecha-
nism. [Citation omitted. Id. at 246.]
Most recently, the Board reversed a judge’s more restrictive
reading of the standard for relevance involving an information
request regarding an employer’s operations at a separate nonun-
ion facility. In Certco Distribution Centers, 346 NLRB 1112
(2006), the union had represented employees at the company’s
Verona facility since 1962. In 2004, the employer opened a
new facility at Helgesen. This was staffed with nonunion em-
ployees. The union sought information regarding the “transfer
of product to Helgesen” and “the establishment, management
and staffing of the new Helgesen facility.” Id. at 1113. The
judge ordered production of the information related to transfer
of products but denied the request for the additional informa-
tion. The Board reversed, finding that the union had met its
responsibility of demonstrating the relevance of all the re-
quested information. It held that:
The Union has shown that it had legitimate concerns about
the possible transfer of unit work from Verona to Helgesen
and had filed a grievance related to those concerns. In
these circumstances, we find that the Union has shown
that the information requested about nonunit Helgesen op-
erations was relevant. [Citation omitted. Id. at 1113.]
EARTHGRAINS CO. 395
Having outlined the parameters of the analytical process to
be employed, I will now turn to the facts of this case. On Sep-
tember 20, the Union filed a grievance regarding the backhaul-
ing of products from Owensboro to London by drivers em-
ployed with Worldwide Logistics. The written grievance
claimed that the Company’s actions were in violation of two
specific contractual provisions, articles 27 and 28 of the collec-
tive-bargaining agreement. Article 27 in its entirety provides:
The Company agrees not to enter into any Agreement, either
written or verbal, which is in conflict with this Agreement.
[GC Exh. 5, p. 10.]
Article 28, in pertinent part, provides:
The “Employer” agrees that all conditions of employment in
its individual operation relating to wages, hours of work,
overtime differentials and general working conditions shall be
maintained at not less than the highest minimum standards in
effect at the time of the signing of this Agreement. [GC Exh.
5, p. 10.]
The written information request, while rather terse, advised
the Company that the Union sought the information due to the
backhauling activity by the subcontractor. Moreover, the letter
also specifically asserted that the Company had made represen-
tations regarding the scope and extent of this activity. Finally,
it characterized the backhauling issue as a “new round of sub-
contracting.” (GC Exh. 6.)
Taken together, the Union’s written grievance and the writ-
ten information request filed in connection with that grievance
and presented to management during a meeting concerning that
grievance, demonstrate the relevance of the requested informa-
tion under the liberal standard traditionally employed by the
Board. I recognize that the Company contends that the back-
hauling practice did not replace a bargaining-unit bid run and
did not result in the loss of bargaining-unit positions. Never-
theless, backhauling did involve work that was performed in
significant part by bargaining-unit employees.
It is clear that the established routine method of transfer of
products between the two bakeries was for a bargaining-unit
employee to drive the trailer from Owensboro to Louisville and
a Worldwide Logistics employee to drive it on to London.
Backhauling obviated the need for a bargaining-unit employee
to transport the products to Louisville. At a minimum, this
could have some impact on the work available to the Owens-
boro drivers. Murray testified that, while he did not think there
would be enough additional work to support a new bid run, the
extra work could enable the relief driver or the vacation driver
“to pick up some extra hours and haul this.” (Tr. 76.)
The evidence establishes that, at the time of the information
request, the practice of backhauling appeared to be increasing
in frequency. In addition, I credit the testimony of Ballard and
Murray indicating that the Company’s explanations of its ac-
tivities in this regard were inaccurate and evasive. Ballard
testified that, during the parties’ first grievance meeting about
backhauling, Baird assured him that the amounts were small.
Despite this, shortly after receiving these assurances, he ob-
served a backhaul trailer that contained a significantly larger
quantity of product. This testimony was uncontroverted.
Moreover, Baird’s general testimony about the scope and extent
of backhauling was notable for its vagueness and it stood in
significant conflict with the Company’s formal representations
on that subject made in its second letter to the Union. I have no
difficulty in concluding that the evidence showed that the Un-
ion’s officials were genuinely concerned about both the in-
creasing amount of backhauling and the Company’s apparent
lack of forthrightness and precision in explaining the situation.
In sum, I conclude that the Union’s grievance cited specific
contractual provisions that could reasonably be implicated by
the Company’s growing practice of backhauling. The credible
testimony further showed that the union officials had a legiti-
mate concern that the Company was violating those provisions
and attempting to disguise its conduct. In such circumstances,
the decision to seek additional information regarding the back-
hauling strikes me as a classic example of policing the con-
tract.14
Beyond this, the type of information being sought appears
directly related to the nature of the policing task. Establishing
the precise identity and location of the subcontractor was a
necessary predicate to any such investigation. Determining the
quantity of product hauled was essential to evaluate the accu-
racy of the Company’s representations. Assessing the mileage
driven by Worldwide drivers was a useful cross-check as to the
amount of backhauling being performed. The sums paid to
Worldwide Logistics for its backhauling work provided insight
into the legitimacy of the motivation of the Company’s manag-
ers in employing the backhauling method and provided billing
information that, when compared to the terms of the contract
between the Company and the subcontractor, could also be
used as a cross-check as to the amount of backhauling being
done by Worldwide. Finally, a genuine question regarding the
Company’s compliance with its promise not to enter into incon-
sistent agreements with other entities having arisen, it was en-
tirely relevant for the Union to seek disclosure of the contract
entered into with the entity that was backhauling products that
would otherwise have been driven to Louisville by bargaining-
unit employees.
I have carefully considered the vigorous argument on the is-
sue of relevancy presented by counsel for the Company in his
brief. He correctly notes that for the Union’s requests to meet
the test of relevance, the information sought must be
“[l]ogically connected” to some matter at issue. (R. Br. at. 13,
citing Black’s Law Dictionary.) This is undoubtedly correct.15
However, in my view, counsel errs in his assessment of which
matter is at issue. The matter at issue before me is not whether,
as counsel describes it, “the fact of the backhauling . . . vio-
late[s] the Owensboro labor contract.” (R. Br. at 13.) Rather,
the issue I must decide is whether the materials requested are
logically connected to the Union’s statutorily protected right to

14 As I have already noted, the Board steers clear of assessing the
merits of the grievance. My comments should not be read as express-
ing any view as to the eventual outcome of the arbitarion of this dis-
pute.
15 As the Federal Rules of Evidence describe it, relevant evidence is
that which has “any tendency to make the existence of any fact that is
of consequence to the determination . . . more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD396
obtain information that will enable it to police its agreement
with the Company and represent its members in the contractual
grievance process.
At its heart, the inquiry comes down to this. In the collec-
tive-bargaining agreement, the Company promised not to enter
into any contractual relationship that would conflict with its
labor contract with the Union. The Company’s routine method
of delivery of goods from Owensboro to London involved their
transport to Louisville by a bargaining unit driver. With in-
creasing frequency, the Company elected to effectuate the
transfer of goods by transporting them on a truck operated by a
third party. While so doing, the Company’s officials made
vague and evasive statements to the Union regarding the issue.
The Union’s requests to obtain the Company’s contract with
that third party and information designed to illuminate the ex-
tent of the Company’s activities with that third party are logi-
cally connected to its duty to police that portion of the collec-
tive-bargaining agreement that prohibits the Company from
entering into agreements that are inconsistent with its labor
contract.16
For these reasons, I conclude that all of the information
sought by the Union in its letter of October 11 was relevant to
the grievance it had filed and necessary for the performance of
its duty to police the parties’ collective-bargaining agreement.
Absent some other lawful reason, Section 8(a)(5) of the Act
requires that it be produced by the Company.
2. The defense of confidentiality
The Company is particularly focused on its objections to the
Union’s request for a copy of the agreement between the Lon-
don bakery and Worldwide Logistics. In his opening statement,
counsel for the Company noted that the case “really boils
down” to this issue. (Tr. 15.) I have already concluded that the
Union’s request has passed the first hurdle, the test of rele-
vancy.
In further objection to the production of the agreement with
its subcontractor, the Company has asserted the defense of
confidentiality with respect to this document. The Board takes

16 I am not saying that the mere existence of this contractual provi-
sion in the collective-bargaining agreement would give the Union a
right to obtain copies of any and all contracts signed by the Company.
That broad question is not before me. Rather, I conclude that the Union
is entitled to access to this particular contract because the Company has
both been engaged in a practice that raises a reasonable concern that it
has entered into a contact with Worldwide Logistics that may be incon-
sistent with its obligations to the Union and has made vague and incon-
sistent representations regarding the nature and extent of its activities. I
recognize that, as counsel for the Company points out, the Board de-
clined to order production of agreements with subcontractors in SBC
Midwest, 346 NLRB 62 (2005). In my view, the situation in that case
was significantly different. The contracts were not sought pursuant to a
clause in the labor agreement prohibiting the employer for entering into
inconsistent agreements. Beyond this, the employer had already pro-
vided the union with a great deal of documentation concerning the
extent of its subcontracting activities. By contrast, the employer in this
case has provided virtually nothing. As discussed later in this decision,
the evidence also shows that the Company actually destroyed relevant
documentation even after becoming aware of the Union’s request for it.
such a claim quite seriously. Very recently, it has summarized
its analytical test for evaluating an invocation of this defense:
Under Board law, a party may refuse to furnish confidential
information to the other party in a collective-bargaining rela-
tionship under certain conditions. Initially, the party must
show that it has a legitimate and substantial confidentiality in-
terest in the information sought. If this showing is made, the
Board must weigh the party’s interest in confidentiality
against the requester’s need for the information, and the bal-
ance must favor the party asserting confidentiality. Finally,
even if these conditions are met, the party may not simply re-
fuse to provide the requested information, but must seek an
accommodation that would allow the requester to obtain the
information it needs while protecting the party’s interest in
confidentiality. [Citations omitted.]
Northern Indiana Public Service Co., 347 NLRB 117, 118
(2006). I will now apply this test.
At the first step, the Employer must demonstrate that it has a
legitimate and substantial confidentiality interest in the contract
with Worldwide. I conclude that it has failed to meet either
prong of this standard. As to the legitimacy of the confidential-
ity defense, two things strike me as particularly significant.
It will be recalled that the Union presented its written request
for a copy of the contract during the grievance meeting held on
October 11. The Company drafted its response to this letter
exactly 6 weeks later, a period of time that was clearly suffi-
cient to afford it the opportunity to thoroughly consider and
evaluate the Union’s position and its own needs and objectives.
The response was drafted by the parent company’s associate
chief counsel. The letter began by informing the Union that it
constituted the Company’s response to the information request.
It then explained to the Union that it was not required to pro-
vide any of the information being sought because it was “in
compliance with the terms of the [collective-bargaining agree-
ment].” (GC Exh. 7, p. 1.) The letter concluded by observing
that the information request was being rejected, “[f]or the rea-
sons stated above.” (GC Exh. 7, p. 2.) What is noteworthy
about all this is that the explanatory letter made absolutely no
claim of confidentiality.
After the Union filed its unfair labor practice charge, the
Company submitted its position statement to the Board agent
investigating the matter. This was prepared on January 4, 2006,
by counsel for the Company. He informed the Board agent that
the Company had a “twofold” response to the Union’s charge.
(GC Exh. 9, p. 4.) Those reasons were that the charge should
be dismissed because the information being sought was irrele-
vant and, in some cases, that it did not exist. Nowhere in coun-
sel’s detailed exposition does the issue of confidentiality ap-
pear.
The Company first raised the issue of confidentiality in a let-
ter to the Union dated February 14, 2006, written by counsel for
the Company. Thus, the employer did not assert this defense
until over 4 months after it had received the request for this
item. Having belatedly raised the issue, the Company again
asserted this defense in its answer to the complaint.
Although arising out of different contexts, the Board has had
frequent occasion to comment on the inferences properly drawn
EARTHGRAINS CO. 397
from belated assertions of employers’ rationales. For example,
in Meaden Screw Products, 336 NLRB 298, 302 (2001), it
commented on an employer’s tardy offering of an additional
justification for the discharge of its employee, noting that
It is well established that shifting of defenses weakens the
employer’s case, because it raises the inference that the em-
ployer is “grasping for reasons” to justify an unlawful dis-
charge. [Citation omitted.]
Similarly, when the employer in Black Entertainment Televi-
sion, Inc., 324 NLRB 1161 (1997), offered “shifting explana-
tions” of its conduct, the Board observed that
The Board has long expressed the view that when an em-
ployer vacillates in offering a rational and consistent account
of its actions, an inference may be drawn that the real reason
for its conduct is not among those asserted. [Citation omit-
ted.]
In my view, the Company’s failure to raise the issue of con-
fidentiality in its first and second responses to the information
request cast grave doubt on the legitimacy of this defense.
Indeed, the Board has noted that, “the confidentiality claim
must be timely raised and proven before the balancing test is
triggered.” Mission Foods, 345 NLRB 788, 793 (2005). (Em-
phasis added.) The timing of the Company’s assertion of this
defense leads me to draw a strong inference that it is merely a
makeweight reason offered as a means to fend off the General
Counsel’s investigation and complaint. See, for example, De-
sert Toyota, 346 NLRB 118, 121 (2005) (belatedly adding
“makeweight reasons” for employer’s conduct suggests that
employer was “simply making up its defenses as it went
along.”)
In Mission Foods, above, immediately after noting that a
confidentiality claim must be timely raised, the Board observed
that it must also be supported by appropriate proof. It added
that, “a blanket claim of confidentiality will not satisfy the re-
spondent’s burden of proof.” Shortly after deciding Mission
Foods, the Board reiterated this point in River Oak Center for
Children, 345 NLRB 1335, 1336 (2005), holding that
“[b]lanket claims of confidentiality in response to requests for
relevant information are disfavored.” (Citations omitted.)
As stated in Mission Foods, it is the Company’s burden to
present sufficient evidence to support its claim of confidential-
ity. In this case, it has utterly failed to do so. In first raising
this defense, counsel for the Company simply stated that the
contract “is highly confidential.” (GC Exh. 9, p. 2.) By the
same token, the Company’s answer to the complaint merely
claims that the information is “highly confidential.” (GC Exh.
1e), p. 3.) Nowhere, including in the post trial brief, does coun-
sel elaborate on this bare conclusion by explaining the reason-
ing supporting it.
Apart from the failure to present any argument in support of
the asserted confidentiality defense, it would have been more
important for the Company to have presented evidence as to
this key point. At trial, the employer presented a single wit-
ness, the plant manager. Nowhere in his testimony did he raise
any issue regarding the confidentiality of the agreement be-
tween the London bakery and Worldwide Logistics. Indeed,
neither the term “confidential” nor any of its derivatives or
synonyms was mentioned in Baird’s testimony. The Board
holds that, “[t]he party asserting privacy or confidentiality has
the burden of proof.” River Oaks Center for Children, Inc.,
supra at 1336. The Company has done nothing whatsoever to
meet its burden. I decline to substitute speculation or guess-
work for genuine evidence as to any potential harm to the
Company from disclosure to the Union.17
Based on the utter failure of proof of any significant interest in
confidentiality, coupled with the inferences raised by the tardy
manner in which this issue was raised, I conclude that the Com-
pany does not possess a legitimate or substantial confidentiality
interest that would lawfully preclude compliance with the Un-
ion’s request for the contract with Worldwide Logistics.18
3. The existence of the information
In its request, the Union asked for statistical information that
would shed light on the frequency of backhauling. This in-
cluded the amount of product being shipped by this method, the
price paid to Worldwide Logistics to cover the cost of such
shipments, and the mileage being driven by Worldwide’s driv-
ers while making these deliveries. The Company contends that
the evidence at trial demonstrated that it cannot comply with
these requests because it does not have this information in its
possession. Baird testified to this effect and, as counsel for the
Company observes, “the Union has not presented any contra-
dicting or rebuttal evidence on this matter.” (R. Br. at p. 8.)
There are two difficulties with this argument. First, the evi-
dence showed that some of the most probative information
being sought did exist and was simply discarded by the Com-
pany. Second, the Company failed to conduct a search for the
requested information in a manner consistent with its obliga-
tions under the Act.
It is evident that the most useful information from the Un-
ion’s point-of-view would have been information showing the
amount of baskets of baked goods actually transported from
Owensboro to London by Worldwide’s drivers. The undis-
puted evidence does indicate that the Company did not main-
tain records that directly set forth this information. Baird testi-
fied that the Company prepared records called “load sheets”19
that showed the total amount of product to be shipped between
Owensboro and London, but did not create or possess records
that differentiated between products shipped via the Louisville
depot or products transported directly to London via backhaul.
However, the inquiry cannot simply end there.

17 In this regard, it is noteworthy that there is no evidence that this
Union has ever engaged in conduct harmful to any legitimate company
interest in confidentiality. See Pertec Computer, 284 NLRB 810, 811
(1987), enfd. in pertinent part 926 F.2d 181 (2d Cir. 1991), cert. denied
502 U.S. 856 (1991) (disclosure ordered where, inter alia, “the Respon-
dent has not shown the Union to be unreliable in respecting confidenti-
ality agreements”).
18 Because of this failure of proof, I need not reach the balancing of
interests portion of the Board’s test. In addition, I need not comment
further on the failure of the Company to make any attempt at accom-
modation of the Union’s need for the information. See Borgess Medi-
cal Center, 342 NLRB 1105, 1106 (2004) (“[t]he burden of formulating
a reasonable accommodation is on the employer”).
19 An example of one of these load sheets is found at R. Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD398
Baird testified that, in addition to load sheets containing the
total amount of products shipped from Owensboro to London,
the Company also maintained “transport sheet” forms that con-
tained a schematic diagram of each transport trailer.20 When
goods were shipped from Owensboro to London, these trans-
port sheets were annotated with information showing the pre-
cise amount of product contained in the trailer. Counsel for the
General Counsel examined Baird regarding the impact of com-
paring the load sheets with the transport sheets:
COUNSEL: [I]f somebody had the load sheet for Lon-
don for [a particular day] and had the transport sheet from
the driver who is driving the product for London to the
[Louisville] depot, could they not compare those two and
see what is left over and thereby determine what, if any-
thing, was backhauled directly from Owensboro to Lon-
don?
BAIRD: If you have that paperwork, theoretically you
could do that. [Tr. 112.]21
Thus, while it may be correct that the Company did not cre-
ate a single piece of paper that showed the amount of product
being backhauled, it did produce two pieces of paper which,
when compared to each other, would reveal much of the desired
information regarding the extent of the backhauling.
While the Company created these probative documents, it
did not preserve them. Baird testified that it was routine corpo-
rate practice to destroy both load sheets and transport sheets 7
days after the deliveries were made. The uncontroverted evi-
dence as to this point partially explains why the Company
could not provide the entire record of load and transport sheets
for the period of time requested by the Union. Unfortunately,
after receiving the Union’s information request on October 11,
the Company simply chose to continue its routine practice of
destroying these documents 7 days after delivery of the goods.
Counsel for the Union explored this point with Baird:
COUNSEL: Despite getting this request from the Union
on October 11, 2005, requesting that information, you kept
throwing the documents away, did you not?
BAIRD: Yes, I would say that is correct.
COUNSEL: You have continued to throw away the
documents which would have provided an answer to that
request to date?
BAIRD: We continued with our normal procedure, yes.
[Tr. 124.]
I note that the Company drafted its first response to the Un-
ion’s information request on November 22, exactly 6 weeks
after the request was given to Baird. Had it chosen to preserve
the load and transport sheets once it was aware of the Union’s
request, it could have provided the Union with those reports
covering a substantial period of time. This would have greatly
aided the Union in evaluating the quantity of backhauling and

20 An example of one of these transport sheets is found at R. Exh. 4.
21 Counsel for the Company acknowledged the accuracy of this tes-
timony in his brief. (R. Br. at 6.) Baird also testified that the Company
never dispatched more than one truck per day to Louisville for the
purpose of cross-docking with London. As a result, the calculations
involved are quite straightforward.
would have represented a significant effort to comply with the
Company’s statutory obligation. As counsel for the Union
notes:
Although the Employer maintains that the records no longer
exist, this cannot absolve it from its violation. For one thing,
on any given day, seven days worth of records exist . . . . As
of October 11, 2005 the Employer was on notice that the Un-
ion sought this information; therefore, for the Employer to
continue disposing of its sole copy of the paperwork contain-
ing this information with knowledge that it was the subject of
an information request cannot be excused. Even had the Em-
ployer disputed the relevance of the information, it was aware
that it was sought and at that point was under an obligation to
preserve the information pending determination of its rele-
vance. [CP Br. at 9–10.]
I agree with this reasoning. By knowingly continuing to de-
stroy documents containing key information being sought by
the Union, the Company manufactured its inability to produce
those records. It requires no citation to authority to conclude
that an employer cannot defend against an alleged violation of
Section 8(a)(5) by pleading that it is unable to produce the re-
cords that it knew were being sought because it threw them in
the trash bin.
In my view, an equally important difficulty with the Com-
pany’s defense based on lack of possession of the requested
information relates to the Company’s strikingly incomplete
effort to locate and obtain that information. The Board requires
far more than a mere cursory search effort. In particular, it is
apparent from the evidence presented that the Company made
no effort to determine whether the statistical data requested
could be retrieved from its computerized databases. Baird testi-
fied that the Owensboro-to-London load sheets are generated
by a computer located at another location and subsequently
downloaded and printed at Owensboro. A glance at the sample
load sheet introduced into the record confirms that it is a com-
puter printout from something called the “Distribution Man-
agement System.” (R. Exh. 3.)
While Baird readily agreed that the load sheets are computer
generated, he also made it very clear that the Company had
done nothing to determine whether the information sought by
the Union could be retrieved from that system. Counsel for the
Union thoroughly explored this point with Baird:
COUNSEL: Okay. It is just a simple question. Has
anybody checked o see if that—today, that information
remains in the computer that originally generated it?
BAIRD: No, I am not aware.
COUNSEL: Never made any effort to determine
whether those records could still be printed out again be-
cause the information is still on a hard drive somewhere?
BAIRD: I would say that is true. [Tr. 126.]
Indeed, the total inadequacy of the Company’s effort to lo-
cate and provide the information in its possession was illus-
trated by the fact that it chose to call Baird as its only witness,
despite Baird’s blithe admission that “I am not a computer per-
son, by any means.” (Tr. 126.)
EARTHGRAINS CO. 399
Because the uncontroverted evidence demonstrates that the
Company has maintained relevant records on an electronic
database and failed to make any effort whatsoever to locate and
retrieve those records, I find that it failed to meet its statutory
obligation.
Beyond this lies another failure. The Board has clearly ar-
ticulated a requirement that an employer faced with a request
for relevant information may not arbitrarily limit its search to
its own corporate premises. Where appropriate, the statutory
duty includes the duty to seek the information from its parent
company, its sister subsidiaries, and even its subcontractors.
Several examples illustrate the breadth of the duty involved.
In United Graphics, 281 NLRB 463 (1986), the union sought
information regarding non-bargaining unit employees supplied
to the company by a subcontractor. In response, the company
contended that it did not possess this information regarding
persons whom it did not employ. The Board rejected this de-
fense, holding that
[T]here is no evidence that the Respondent has requested [the
subcontractor] to provide it with the information that the Un-
ion has sought. The Respondent thus has failed to demon-
strate that such information is unavailable. [Footnotes omit-
ted. Id. at 466. ]
The Board rejected a similar defense in Arch of West Vir-
ginia, Inc., 304 NLRB 1089 (1991), citing United Graphics,
and observing that:
[T]he Respondent has not shown that it has requested any in-
formation from its parent corporation and sister subsidiaries
and that they have refused to provide the Respondent with
such additional information. Under these circumstances, the
Respondent has failed to demonstrate that such information is
unavailable. [Id. 1089 at fn. 1.]
See also Public Service Co. of Colorado, 301 NLRB 238,
246–247 (1991) (the 8(a)(5) violation where company failed to
request information from its subcontractor).
An interesting discussion of the scope of the Board’s prece-
dents regarding an employer’s duty to make a thorough search
for relevant requested information is found in Congreso de
Uniones Industriales de Puerto Rico v. NLRB, 966 F.2d 36 (1st
Cir. 1992). In that case, the Board had declined to require an
employer to obtain a copy of a contract that was within the
possession of its parent company. The Court of Appeals re-
versed, noting that
[W]e do not see how the Board can square its decision here
with a substantial line of Board authority requiring an em-
ployer, confronted with an information request, to make rea-
sonable efforts to obtain the relevant information from an-
other corporation, such as a parent company. [Citations, in-
cluding those to Arch of West Virginia and United Graphics,
omitted.] Id. at 37.]
In particular, the Court quoted from another Board decision,
Firemen & Oilers Local 288 (Diversy Wyandott), 302 NLRB
1008, 1008–1009 (1991), where it was held that
[W]e have extended the employer’s duty to supply relevant
information during grievance processing to situations where
that information is not in the employer’s possession, but
where the information likely can be obtained from a third
party with whom the employer has a business relationship that
is directly implicated in the alleged breach of the collective-
bargaining agreement.
On remand from the Court of Appeals, in a decision issued
under a different caption, the Board concurred in the Court’s
analysis of its own precedents. Rice Growers Assn., 312 NLRB
837 (1993).
In the case before me, the Company claims that it does not
possess the information sought by the Union but has made no
showing whatsoever that it has requested that information from
its parent company, Sara Lee Bakery Group, Inc.,22 its sister
subsidiary at London, or its subcontractor, Worldwide Logis-
tics. As I have indicated, it is entirely possible that computer
databases at other affiliated locations contain some or all of the
desired information. It is also reasonable to infer that the sub-
contractor could possess such information as it could certainly
be expected to keep records regarding the miles traveled by its
drivers, the quantity of goods hauled, and the amounts charged
for its services. Furthermore, Baird conceded that Worldwide
may also maintain other records, such as driver logbooks, that
could be probative. When asked whether such logs may exist,
Baird replied, “well, that would be a question for Worldwide,
but I would think so.” (Tr. 117.)
In sum, I conclude that the Company’s defense that it does
not possess much of the statistical information being sought is
unavailing because the Company utterly failed to conduct a
good-faith inquiry to determine whether it possesses such re-
cords in electronic form, whether its parent company possesses
the records, whether its sister facilities in London and Louis-
ville have them, or whether its subcontractor has those types of
records or similar information related to the Union’s request.
This failure to conduct a reasonable inquiry constituted a viola-
tion of Section 8(a)(5) of the Act.
4. The Union’s alleged waiver
In its answer to the complaint, the Company raised a de-
fense, claiming that
The Union waived its right to insist on production of the dis-
puted information because the Company offered to negotiate
with the Union to accommodate its needs, and the Union did
not engage in such negotiations. [GC Exh. 1(e), p. 3.]
Although the Company has not addressed this defense in its brief, I
will comment on it.
The Company’s only witness, Baird, never testified that the
Company made any offer, verbal or written, to negotiate with
the Union regarding the information requested by letter on Oc-
tober 11. The only conceivable offer must therefore be con-

22 This is true despite the active role of the parent company in this
case. For example, the initial response to the Union’s information
request was sent by Sara Lee Bakery Group’s associate chief counsel
on Sara Lee letterhead. (GC Exh. 7.) And, the brief filed by counsel
for the employer is captioned, “Post-Hearing Brief of Sara Lee Bakery
Group, Inc.” (R. Br. at 1.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD400
tained in either of the Company’s written responses to the Oc-
tober 11 letter.
The first response, prepared by Sara Lee’s associate chief
counsel, made no explicit offer to discuss the information re-
quest. It concluded with this flat assertion: “For the reasons
stated above, we decline to provide you with the documentation
that you have requested. If you have additional questions per-
taining to this matter, please contact me.” (GC Exh. 7, p. 2.)
The second and final response was drafted by counsel for the
Company. It provided a small portion of the information re-
quested and gave its reasons for refusing to provide the remain-
ing items. Once again, it contained no explicit offer to negoti-
ate. The letter concluded with this language:
We believe that the information contained in this letter satis-
fies the Company’s obligation to respond to your information
request. As always, the Company remains willing to negoti-
ate with your Union as to any additional information you may
contend you need to carry out your duty to represent members
of the Owensboro bargaining unit. [GC Exh. 9, p. 2.]
Very recently, Board Member Liebman had occasion to
comment on the assertion of a similar claim of waiver. In
Northern Indiana Public Service Co., 347 NLRB 210 (2006),
the employer raised a defense of confidentiality and contended
that it had made a satisfactory offer to accommodate the Un-
ion’s need for the information. In her dissenting opinion in that
case, Member Liebman noted,
[The employer] argues only that it met its duty to accommo-
date by ending its letter with “Please contact me if I can be of
further assistance in this matter.” Not surprisingly, [the em-
ployer] has provided no support for the proposition that such a
formal pleasantry constitutes a legally adequate offer of ac-
commodation, and the majority does not contend that it suf-
fices. [Id. 222 fn. 19.]
In this case, the similar formal pleasantries are even less per-
suasive. The example quoted by Member Liebman at least
referred to further assistance in “this matter.” By contrast, the
closing remarks in the final response from the Company spe-
cifically referred to “additional information you may contend
you need.” I find it evident that these remarks were mere
pleasantries devoid of substantive meaning, and simply repre-
sented an offer to respond to any new requests for information
by the Union. Neither written response by the Company con-
tained any offer to negotiate regarding the information already
being sought by the Union.
Because the Company never offered to negotiate regarding
the Union’s information request of October 11, the Union could
not, and did not, waive its right to seek that information.
5. The issue of unreasonable delay
After initially denying all of the Union’s requests for infor-
mation, the Company eventually relented so far as to provide
the identifying information about Worldwide Logistics that had
been requested. The request had been made on October 11,
2005. The information was provided on February 14, 2006,
slightly over 4 months after it was requested. The General
Counsel contends that this constituted a violation of the Act as
it represented an unreasonable delay in responding to the Un-
ion’s request.
Regarding an employer’s duty in this sphere, the Board
holds:
An employer must respond to the information request in a
timely manner. An unreasonable delay in furnishing such in-
formation is as much of a violation of Section 8(a)(5) of the
Act as a refusal to furnish the information at all. [Citations
omitted.]
Amersig Graphics, Inc., 334 NLRB 880, 885 (2001). The
Board recently summarized the standard that it employs in as-
sessing a claim of unreasonable delay:
In determining whether an employer has unlawfully delayed
responding to an information request, the Board considers the
totality of the circumstances surrounding the incident. Indeed,
it is well established that the duty to furnish requested infor-
mation cannot be defined in terms of a per se rule. What is
required is a reasonable good faith effort to respond to the re-
quest as promptly as circumstances allow. In evaluating the
promptness of the response, the Board will consider the com-
plexity and extent of information sought, its availability and
the difficulty in retrieving the information. [Internal quotation
marks and citations omitted.]
West Penn Power Co., 339 NLRB 585, 587 (2003), enf. in
pertinent part 349 F.3d 233 (4th Cir. 2005).
In this case, application of this analytic test is simple. The
information being sought, the identity and contact information
for Worldwide Logistics, was easily available, probably
through a simple telephone call from the Owensboro bakery to
the London bakery. There is no reason offered for the delay. I
find that the Company’s provision of the information 4 months
after it was requested was an unreasonable delay in responding
to a simple, straightforward request. As such, it constituted a
violation of the Act.23
CONCLUSIONS OF LAW
1. By failing and refusing to provide relevant information re-
quested by the Union on October 11, 2005, the Company has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
2. By unreasonably delaying its provision of other relevant
information requested by the Union on October 11, 2005, the
Company has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.

23 Compare to Island Creek Coal Co., 292 NLRB 480, 491 (1989),
enf. 899 F.2d 1222 (6th Cir. 1990), where the Board found a 2-month
delay in providing production forecasts to be an unreasonable delay.
EARTHGRAINS CO. 401
In particular, having found that the Company failed to take
several steps that are reasonably designed to comply with the
Union’s information request, I will order them to take these
measures to locate and furnish the information being sought.24
I will direct that the Company make a diligent search of all
computerized databases maintained by the Owensboro bakery,
the London bakery, the parent organization, and any other rele-
vant related corporate entities in order to locate and provide the
information sought by the Union. I will further direct that the
Company file a certification by an official with supervisory
responsibilities in the Company’s information technology area
describing the nature and extent of this search and the outcome
of it. I will also direct that the Company request the informa-
tion being sought by the Union from its parent company, its
appropriate sister subsidiaries, and from Worldwide Logistics
and, if necessary, from its parent company, UPS Supply Chain
Logistics. Once again, I will order that the Company provide a
certification that it has made these requests and a description of
the results.
One further matter must be addressed. Counsel for the Gen-
eral Counsel has requested additional extraordinary remedies;
namely that the Company be ordered to “post an appropriate
notice to its employees at all of its facilities and mail said no-
tice to all of its employees.” (GC Br. at. 10.) Frankly, I am
perplexed at the nature of this request for a very broad remedy
involving approximately 50 nationwide locations and many
employees. Neither at the trial of this matter nor in the posttrial
brief does counsel for the General Counsel provide any expla-
nation of the need for such extraordinary relief. Nor does he
cite any authority that would justify these forms of relief in the
circumstances presented.
I recognize that this employer has previously been found to
have violated the information requirements of Section 8(a)(5)
of the Act. See: Earthgrains Baking Cos., 327 NLRB 605
(1999). However, that case involved a failure to provide pric-
ing information at one facility located in California. Counsel
for the General Counsel does not cite any other indicia of a
pattern of unlawful behavior. In my view, this case is similar
to, albeit far less compelling than, the situation discussed by the
Board in Beverly Health & Rehabilitation Services, 339 NLRB
1243 (2003). In that case, the employer had numerous prior
instances of unlawful conduct. Nevertheless, the Board de-
clined to impose the sort of extraordinary remedies suggested
here, noting that, “this case involves discrete violations at an
individual facility. . . traditional remedies are [those] war-
ranted.” Id. at 1244. I reach the same conclusion here, finding
that the posting of a notice at the Owensboro bakery is well
calculated to achieve the remedial purpose being sought by
counsel for the General Counsel.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25

24 In drafting this portion of my recommended order, I will adapt
language used by the Board in a similar situation in Garcia Trucking
Service, 342 NLRB 764 fn. 1 (2004).
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondent, the Earthgrains Company, Owensboro,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Chauffeurs, Team-
sters and Helpers Local Union No. 215, a/w International
Brotherhood of Teamsters (Local 215) by refusing to furnish
Local 215 with the information requested in paragraphs 2, 3, 4,
and 5 of the request dated October 11, 2005.
(b) Refusing to bargain collectively with Local 215 by un-
reasonably delaying its response to the information requested in
paragraph 1 of the request dated October 11, 2005.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish Local 215 with the information within its posses-
sion that was requested in paragraphs 2, 3, 4, and 5 of the re-
quest dated October 11, 2005, make a reasonable effort to se-
cure any unavailable information, and, if any information re-
mains unavailable, explain and document the reasons for its
continued unavailability.
(b) Within 21 days of the date of this Order, file with the Re-
gional Director for Region 25, a sworn certification of a super-
visory official with responsibilities in the area of information
technology, setting forth the efforts made to retrieve the infor-
mation requested by Local 215 in its letter of October 11, 2005,
from the Company’s computerized and electronic databases.
(c) Within 21 days of the date of this order, file with the Re-
gional Director for Region 25, a sworn certification of a re-
sponsible company official setting forth the efforts made to
obtain the information sought by Local 215 in its letter of Oc-
tober 11, 2005, from its parent company, Sara Lee Bakery
Group, Inc., its appropriate sister subsidiaries including the
facility located in London, Kentucky, and from its contracting
party, Worldwide Logistics, and, if necessary, from its parent
company, UPS Supply Chain Logistics.
(d) Within 14 days after service by the Region, post at its facil-
ity in Owensboro, Kentucky, copies of the attached notice
marked “Appendix”26 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD402
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since October 11, 2005.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply. To the extent appropriate,
this certification may incorporate by reference the additional
certifications required in paragraphs 2(b) and 2(c) above.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT refuse to bargain collectively with Chauffeurs,
Teamsters and Helpers Local Union No. 215, a/w International
Brotherhood of Teamsters (Local 215) by failing and refusing
to provide relevant information requested by Local 215.
WE WILL NOT refuse to bargain collectively with Local 215 by
unreasonably delaying our provision of relevant information
requested by Local 215.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL promptly furnish Local 215 with all of the informa-
tion requested in its October 11, 2005 information request let-
ter. If we are unable to locate any of the information requested,
WE WILL explain and document the reasons for the unavailabil-
ity of such information.
THE EARTHGRAINS COMPANY