E.I. Du Pont de Nemours and Company

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 178 (N.L.R.B. 2018)

366 NLRB No. 178
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
E.I. Du Pont de Nemours and Company and Ampthill
Rayon Workers, Inc., Local 992, International
Brotherhood of Du Pont Workers. Case 05–CA–
101359
August 27, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
The sole issue before the Board is whether Respondent
E.I. Du Pont de Nemours and Co. violated Section
8(a)(5) and (1) of the Act by failing to provide certain
information related to supervisors that the Union had
requested for the purpose of evaluating whether to arbi-
trate an employee’s discharge.1 Contrary to the judge and
our dissenting colleague, we find that the Union’s re-
quest for information on the safety violations and at-
tendant discipline issued to five supervisors was relevant
and reasonably necessary to the Union’s performance of
its function as a bargaining representative. We therefore
reverse the judge’s finding that the Respondent did not
violate the Act by failing to respond to paragraph 11 of
the Union’s February 27, 2013 request for information as
it pertains to supervisors.2
Background
The Respondent manufactures synthetic fibers and re-
lated products and has a longstanding collective-
bargaining relationship with the Charging Party Ampthill
Rayon Workers, Inc., International Brotherhood of Du
Pont Workers (the Union), which represents certain pro-
duction and maintenance employees at its Spruance facil-
ity in Richmond, Virginia. In addition to their collective-
bargaining agreement, which contains a griev-
ance/arbitration provision, the parties have agreed to
workplace policies set forth in a Site Administration

1 On February 20, 2014, Administrative Law Judge Donna N. Daw-
son issued the attached decision. The General Counsel filed exceptions
and a supporting brief, and the Respondent filed an answering 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, and conclusions only to the extent consistent with this Deci-
sion and Order.
2 We have amended the judge’s conclusions of law and remedy con-
sistent with our findings and legal conclusions herein. We shall modify
the judge’s recommended Order to conform to our findings, and to the
Board’s standard remedial language, as set forth in full below. We
shall also substitute a new notice to conform to the Order as modified
and in accordance with our decision in Durham School Services, 360
NLRB 694 (2014).
Manual (SAM). Section D-5 of the SAM, entitled “Dis-
charge Reasons,” sets forth “Guidelines” describing two
categories of conduct for which bargaining unit employ-
ees could be subject to discharge:
 Failure to meet standards of performance on a con-
tinuing and satisfactory basis can subject an em-
ployee to discharge. This includes unsatisfactory
performance and/or unsatisfactory attendance due
to unexcused absences. Unsatisfactory fitness can
subject an employee to discontinuance.
 An act of serious misconduct can sub-
ject an employee to discharge. This is
an action that is a flagrant violation of
Plant rules, policies, or unacceptable
conduct
The second bullet point is followed by a non-exclusive
list of examples of “serious misconduct.” The two rele-
vant to this case are:
Flagrant safety violation- a violation (either deliberate
or an error) of a safety rule, procedure, or safety judg-
ment that could (or did) result in serious injury. Exam-
ples of this action might be (but are not limited to) vio-
lation of the Lockout Procedure, violation of the Tank
and Vessel Entry Procedure, or a rule violation that se-
riously jeopardizes a person’s safety and health.
. . . .
Sleeping- the act of sleeping during work time either on
the job assignment or away from it. Casual dozing dur-
ing work time is also not allowed and, if observed, will
be handled as a performance/safety problem through
use of the Development Procedure. Repeat violations
of this standard (casual dozing) could eventually result
in discharge through continued unsatisfactory perfor-
mance.
Next, Section D-7 of the SAM gives guidance on a de-
velopment procedure akin to progressive discipline, ap-
plicable to bargaining unit employees. It provides for
different levels of discipline commensurate with the se-
verity of the violation. For a severe violation, immediate
discharge may be recommended, or the employee may be
taken to any step in the development procedure. For
lesser violations, four progressive disciplinary steps may
precede the decision to recommend discharge:
“INFORMAL REPRIMAND, SPECIAL CONTACT, PRE-
PROBLEM CONTACT, PROBLEM CONTACT, AND
DISCHARGE.” The SAM D-5 and SAM D-7 do not
apply to exempt employees such as supervisors, but it is
undisputed that supervisors must adhere to all of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
safety policies and standards of conduct described in
SAM D-5.
Serious safety and misconduct infractions by both bar-
gaining unit employees and supervisors are investigated
through the Respondent’s site review process. The rele-
vant management representatives in the area present their
findings and recommendations for discipline in a site
review report, also known as a “site review presenta-
tion,” to a site review team made up of the plant manager
and his administrative staff. The team then makes the
final determination whether or not to support the area’s
recommendation to discharge or discipline the employee.
The Union is not involved in the site review process or
the meeting in which the report is presented. During the
grievance procedure, however, the Union is provided
with a document entitled: “Site Review Presentation,”
which contains a summary of the incident and the Re-
spondent’s reasons for disciplining the employee.
Employee Lewis’s Discharge
James Lewis worked as a windup operator in the area
in which the Respondent manufactured the product
Tyvek. Part of the windup operation includes a process
referred to as “roll doffing.” A windup operator oversees
this process, during which a full roll of product switches
places with an empty roll, and the sheet of product is cut
and transferred onto the empty roll before the entire pro-
cess begins again. After the transfer, the operator must
perform the “Tag, Lock, Clear, and Try” (TLCT) safety
procedure, also known as the “Lockout” procedure.
In December 2012 Lewis volunteered to work a sec-
ond consecutive 8-hour shift following his regularly
scheduled shift. During that second shift he fell asleep
several times. Upon awakening the second time, he
prematurely performed a step in the windup operation,
firing a hot knife into a full roll of Tyvek before the rolls
had switched places, resulting in a substantial loss of the
Respondent’s product. Based on this event, the area
management conducted a site review and prepared a site
review report with the recommendation to “suspend with
intent to discharge.” Later that month, the Respondent
verbally discharged Lewis and provided the Union with a
Site Review Presentation dated December 17, 2012. In
it, the Respondent listed its reasons for discharging Lew-
is in two main bullet points and one indented sub-bullet
point:
 Failure to meet standards of performance on a con-
tinuing and satisfactory basis can subject an em-
ployee to discharge. This includes unsatisfactory
performance and/or unsatisfactory attendance in-
cluding unexcused absences. Unsatisfactory fitness
can subject an employee to discontinuance.
 Operator failed to properly follow SP-
2316- Line 2 Windup Operation.
 Sleeping - the act of sleeping during work time
either on the job assignment or away from it.
Casual dozing during work time is also not al-
lowed and, if observed, will be handled as a per-
formance/safety problem through use of the De-
velopment Procedure. Repeat violations of this
standard (casual dozing) could eventually result
in discharge through continued unsatisfactory
performance.
The two main bullet points reproduced language from two
categories of conduct described in the SAM D-5 for which
an employee could be discharged. The indented sub-bullet
point referred to “SP-2316- Line 2 Windup Operation,” the
standard practice/procedure for operating the equipment that
Lewis handled.
Underneath the bullet-pointed reasons for his dis-
charge, Lewis’s Site Review Presentation compared the
standard steps in the roll doffing cycle to the actual chro-
nology of events leading to Lewis’s error, demonstrating
that Lewis had performed a step in the roll doffing pro-
cess out of sequence. The final section of the Site Re-
view Presentation summarized Lewis’s other perfor-
mance issues in 2012, showing his progression through
the following developmental procedure steps: Informal
Reprimand, Special Contact, Pre-Problem Contact, and
placing him in Problem Contact, the final stage before
discharge. The report concluded by recommending that
Lewis be suspended with the intent to discharge.
On January 8, 2013, the Union filed a formal grievance
over Lewis’s discharge, to the effect that Lewis made an
error by falling asleep while in the process of doffing.
The Respondent denied the grievance on January 11.
The Union notified the Respondent’s labor relations
manager, Bruce Harris, that it intended to arbitrate Lew-
is’s grievance. In connection with its intention to arbi-
trate, on February 27, 2013, the Union requested infor-
mation relating to flagrant safety violations and sleeping
violations by bargaining unit employees. The judge
found that the Respondent unlawfully delayed and failed
to produce responses to these requests.3

3 We adopt the judge’s conclusions, in the absence of exceptions,
that the Respondent violated the Act by unreasonably delaying and
failing to provide complete information responding to the Union’s
information request pars. 6, 7, and the portion of par. 11(b) pertaining
to bargaining unit employees. Board’s Rules and Regulations Sec.
102.48. In the absence of exceptions, we also adopt the judge’s rejec-
tion of the Respondent’s affirmative defense that the Board, the Re-
gional Director, and the administrative law judge had no authority to
E.I. DU PONT DE NEMOURS & CO. 3

proceed in this case because the Board lacked a quorum, but on differ-
ent grounds. After the judge issued her decision, the Supreme Court
found that the Board lacked a quorum at the time the complaint issued
because the President’s recess appointments were not valid. NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014). This ruling, however, did not
affect the Board’s authority in the manner claimed by the Respondent.
The authority of the General Counsel to investigate unfair labor prac-
tice charges, and to issue and prosecute unfair labor practice com-
plaints, is derived directly from the language of the National Labor
Relations Act, not from any ‘power delegated’ by the Board. Accord-
ingly, the presence or absence of a valid Board quorum has no bearing
on the General Counsel’s prosecutorial authority. See Pallet Compa-
nies, Inc., 361 NLRB 339, 339 (2014), enfd. 634 Fed.Appx. 800 (D.C.
Cir. 2015). Moreover, on July 18, 2014, a fully confirmed five-member
Board ratified all administrative and personnel decisions made from
January 4, 2012 to August 5, 2013, and expressly authorized Judge
Dawson’s appointment. As the Board stated in its Minute of Board
Action (available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3302/7–18–14.pdf), it took this action in an effort to resolve any con-
tinuing uncertainty regarding various actions taken during the time the
Board lacked a quorum. See also Stahl Specialty Co., Case 17-CA-
088639, 2016 WL 1566615 (NLRB April 15, 2016) (“In our view, this
[July 18, 2014] ratification resolves any uncertainty regarding Judge
Dawson’s appointment as an administrative law judge”).We note, how-
ever, that on March 21, 2017, the Supreme Court held in NLRB v.
Southwest General., Inc., d/b/a Southwest Ambulance, 137 S.Ct. 929
(2017) that, under the Federal Vacancies Reform Act of 1998, Acting
General Counsel Lafe Solomon’s authority to take action as Acting
General Counsel ceased on January 5, 2011, after the President nomi-
nated him to be General Counsel. Id. at 944. We need not consider this
issue because the Respondent never questioned the Acting General
Counsel’s authority under the FVRA or timely raised the issue with the
Board. See SW General, Inc. v. NLRB, 796 F.3d 67, 83 (D.C. Cir.
2015), affd. 137 S.Ct. 929. However, even if the Respondent had raised
the issue, events subsequent to the issuance of the complaint on June
27, 2013, rendered moot any potential argument that Solomon’s lack of
authority after his nomination precludes further litigation in this matter.
Specifically, on May 25, 2016, General Counsel Richard F. Griffin, Jr.,
issued a Notice of Ratification in this case that states, in relevant part,
I was confirmed as General Counsel on November 4, 2013.
After appropriate review and consultation with my staff, I have
decided that the issuance of the complaint in this case and its con-
tinued prosecution are a proper exercise of the General Counsel’s
broad and unreviewable discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate
court ruling in SW General. Rather, my decision is a practical re-
sponse aimed at facilitating the timely resolution of the charges
that I have found to be meritorious while the issues raised by SW
General are being resolved. Congress provided the option of rati-
fication by expressly exempting “the General Counsel of the Na-
tional Labor Relations Board” from the FVRA provisions that
would otherwise preclude the ratification of certain actions of
other persons found to have served in violation of the FVRA. [SW
General, Inc. v. NLRB, 796 F.3d 67, 78 (D.C. Cir. 2015)] (citing 5
U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and
continued prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to
continue prosecution of this matter, we would reject as moot any poten-
tial challenge to the actions taken by Solomon as Acting General Coun-
sel after his nomination on January 5, 2011.
The issue currently before us, however, involves para-
graph 11 of the Union’s requests for information, which
asked for “[a]ll documents relating to the safety viola-
tions, including site incident reports, site reviews, and
other like investigative and/or disciplinary records,”
committed by five named supervisors. Paragraph 11(a)
requested “the discipline, if any, and the written record of
such, administered to each of these supervisors for the
actions in question.” Paragraph 11(b) requested the writ-
ten policy, if any, applicable to supervisors regarding
TLCTs.
The Respondent refused to produce the requested in-
formation relating to the supervisors, stating that it was
irrelevant because the Union did not represent exempt
employees. The Union explained that it needed the in-
formation in order to evaluate how the named supervi-
sors were treated in comparison with Lewis, because
employees had observed them committing serious safety
violations, and the Union was aware that the supervisors
were not terminated, despite being subject to the same
safety rules as bargaining unit employees. By letter of
March 28, 2013, the Respondent supplemented its previ-
ous response to the Union’s request paragraph 11 without
providing any documents, stating that “the Union does
not represent these employees and the case of relevancy
has not been made convincingly by the Union.”
The judge found that the Respondent’s failure to pro-
duce information pertaining to supervisors in response to
paragraph 11 did not violate Section 8(a)(5) and (1) be-
cause the General Counsel failed to show that Lewis was
terminated for safety violations, and thus, the Union did
not meet its burden to show that the requested infor-
mation was relevant to Lewis’s discharge. The judge
determined that Lewis was discharged, not because of
safety concerns, but because of (1) continued perfor-
mance problems; and (2) sleeping on the job. She further
reasoned that “[m]y finding [as to why Lewis was dis-
charged] is especially germane to the Union’s burden to
establish the relevancy of supervisory information re-
quests.” The General Counsel excepts, claiming that the
judge improperly assessed the actual reasons for Lewis’s
discharge instead of determining whether the Union had
established that the requested information was relevant.
He further asserts that the Union established the rele-
vance of the requested information, based on its need for
comparative data on supervisors disciplined for violating
safety policies in order to evaluate Lewis’s grievance and
decide whether to proceed with arbitration. For the rea-
sons that follow, we agree with the General Counsel that
the requested information is relevant and should be pro-
duced, and we reject our dissenting colleague’s contrary
view.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Discussion
An employer is obligated under the Act to supply in-
formation requested by the union that is potentially rele-
vant and would be of use to the union in fulfilling its
responsibilities as the employees’ bargaining representa-
tive. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–
436 (1967); Postal Service, 332 NLRB 635, 635 (2000).
Information pertaining to employees within the bargain-
ing unit is presumptively relevant. Where the infor-
mation requested is not presumptively relevant, it is the
union’s burden to demonstrate relevance. In determining
relevance, the Board uses a “liberal, discovery-type
standard” that requires only that the requested infor-
mation have “some bearing upon” the issue between the
parties and be “of probable use to the labor organization
in carrying out its statutory responsibilities.” Public Ser-
vice Co. of New Mexico, 360 NLRB 573, 574 (2014);
Postal Service, 332 NLRB at 636. This broad discovery
standard protects the obligations of a bargaining repre-
sentative. Acme Industrial, supra at 437–438. Generally,
information that aids any stage of the arbitral process is
relevant and should be provided. Pennsylvania Power
Co., 301 NLRB 1104, 1105 (1991). The goal of such
information exchange is “to encourage resolution of dis-
putes, short of arbitration hearings, briefs, and decision
so that the arbitration system is not ‘woefully overbur-
dened.’” Id. (citing Acme Industrial, supra). And should
arbitration be invoked, it will be facilitated “by permit-
ting a union access to a broad scope of potentially useful
information.” Shoppers Food Warehouse, 315 NLRB
258, 260 (1994).
The Union’s burden to show the relevance of infor-
mation requests pertaining to employees outside the bar-
gaining unit is “not exceptionally heavy.” A-1 Door &
Building Solutions, 356 NLRB 499, 500 (2011). It re-
quires demonstrating a reasonable belief supported by
objective evidence that the requested information is rele-
vant, unless the relevance of the information should have
been apparent to the Respondent under the circumstanc-
es. Disneyland Park, 350 NLRB 1256, 1258 (2007);
Shoppers Food Warehouse, 315 NLRB at 259. Potential
or probable relevance is sufficient as long as it is based
on more than a mere suspicion. Postal Service, 332
NLRB at 636; Postal Service, 310 NLRB 391, 391
(1993) (requiring “a logical foundation and a factual ba-
sis” for information requests relating to persons outside
the bargaining unit); cf. Postal Service, 310 NLRB 701,
702–703 (1993). The Board does not pass on the merits
of the union’s claim that the employer breached the col-
lective-bargaining agreement or committed an unfair
labor practice, and the information that triggered the un-
ion’s request may be based on hearsay and need not be
accurate or ultimately reliable. Shoppers Food Ware-
house, 315 NLRB at 259–260; Reiss Viking, 312 NLRB
622, 625 (1993).
A.
As a threshold matter, before applying our liberal dis-
covery-type standard, we find that the judge improperly
considered the merits of Lewis’s grievance by determin-
ing the Respondent’s true reason for Lewis’s discharge
instead of analyzing whether the Union had demonstrat-
ed the relevance of its information requests based on the
information available to it at the time. It is axiomatic
that the Board does not evaluate the merits of the union’s
contractual claim in determining relevance. Acme Indus-
trial Co., 385 U.S. at 437–438. Likewise, we have held
that “[i]t is neither necessary nor proper to address the
merits of the parties’ conflicting contentions of the rea-
son or reasons concerning [the employee’s] discharge.
The reason for [his] discharge is a matter to be resolved
in a grievance, if it is pursued, or arbitration.” Southern
California Gas Co., 346 NLRB 449, 455 (2006). For
example, the Board may not speculate on an employer’s
potential defenses in an arbitration proceeding. Pennsyl-
vania Power Co., 301 NLRB at 1105. And even an em-
ployer’s promise that it will not raise a particular defense
at an arbitration proceeding does not render irrelevant a
union’s request for information relating to that defense.
Conrock Co. 263 NLRB 1293, 1294 (1982), enfd. mem.
735 F.2d 1371 (9th Cir. 1984).
Here, although the judge found that there was “some
relevant dispute” on the reason for Lewis’s discharge,
she accepted Labor Relations Manager Harris’s testimo-
ny that because the Site Review Presentation did not spe-
cifically refer to the SAM, Lewis was not discharged for
a flagrant or other safety violation or TLCT infraction.
Based on that testimony and her review of the Site Re-
view Presentation, the judge concluded that the Re-
spondent discharged Lewis because of his continued
progressive discipline and the final sleeping incident, and
not for safety reasons. She found the Union’s claim that
it never knew the reasons for Lewis’s discharge to be
inconsistent with the Site Review Presentation itself.
We disagree with the judge’s finding (and the view of
our dissenting colleague) that the Site Review Presenta-
tion clearly shows that a safety violation did not contrib-
ute to Lewis’s discharge. The Site Review Presentation
summarizes an investigation from which the Union was
excluded, and refers to several possible reasons for dis-
charge, each of which has some bearing on safety.
Moreover, there is no evidence that Harris or anyone else
in management explained to the Union the Respondent’s
reasons for Lewis’s discharge, or discussed its interpreta-
tion of the Site Review Presentation. By accepting the
E.I. DU PONT DE NEMOURS & CO. 5
Respondent’s position, the judge effectively foreclosed
the Union’s opportunity to challenge the Respondent’s
stated reasons, or to test their legitimacy. See, e.g.,
Southern California Gas Co., 346 NLRB at 455 (union is
entitled to challenge the employer’s reasons for discharg-
ing employee); Postal Service, 337 NLRB 820, 822
(2002) (finding union’s information request relevant and
necessary for the union to determine legitimacy of Re-
spondent’s actions). This is an important part of the Un-
ion’s duty to fairly represent bargaining unit employees.
Cf. Newport News Shipbuilding & Dry Dock Co., 236
NLRB 1470, 1471 (1978) (union violated Sec.
8(b)(1)(A) by accepting employee’s discharge based al-
most solely on the employer’s explanation and failing to
respond to employee’s request for appeal), enfd. in rele-
vant part, 631 F.2d 263, 269 (4th Cir. 1980); Service
Employees Local 579 (Beverly Manor Convalescent Cen-
ter), 229 NLRB 692, 695–696 (1977) (finding union
breached its duty of fair representation by failing to in-
quire into the validity of the employer’s stated reason for
discharge and willingly accepting employer’s evaluation
of employee). Regardless of how the employer frames
the issue, “‘a union has the right and the responsibility to
frame the issues and advance whatever contentions it
believes may lead to the successful resolution of a griev-
ance.’” Pennsylvania Power Co., 301 NLRB at 1105.
Accordingly, we find that the judge erred in placing
the burden on the Union to prove “that Lewis was dis-
charged for violating a safety policy, including the TLCT
procedure,” instead of evaluating the Union’s infor-
mation request based on the information the Union was
given, and the reasonableness of the Union’s belief that
this information was relevant, as analyzed below.
B.
We find that the Union has met its burden to show that
its information request paragraph 11 satisfied the Board’s
relevance standard. The issue is whether the Union had a
reasonable belief supported by objective evidence that
information relating to the safety violations and disci-
pline issued to five supervisors was relevant, and wheth-
er that information would be of use in deciding whether
to arbitrate Lewis’s discharge. The judge did not make
this analysis, contradicted her own findings of fact, and,
as discussed above, improperly addressed the merits by
substituting her view of the reasons for Lewis’s dis-
charge.
We find that the Site Review Presentation, on its face,
is sufficiently related to safety concerns and that the Un-
ion therefore had a reasonable basis for its information
request. The judge’s conclusion that “the site review
does not include or even reference a flagrant or other
safety violation, or TLCT infraction, as a reason for ter-
mination” contradicts her initial finding that the site re-
view process which Lewis underwent is used for serious
safety and misconduct violations, including those involv-
ing TLCT. The Site Review Presentation indicates that
Lewis performed the “Try” step in the TLCT process
prematurely. We disagree with the judge, however, that
the premature performance of the TLCT procedure
means that TLCT was not implicated. The SP-2316—
Line 2 Windup Operation includes the TLCT procedure,
and performing part of TLCT prematurely would reason-
ably be construed as a violation of the “Lockout” proce-
dure, which is listed as an example of a flagrant safety
violation in the SAM D-5. The judge found that the
standard practice/procedure for the windup operation
“implicitly involves safety,” but concluded to the contra-
ry that Lewis was not terminated for a safety violation,
crediting Harris’ testimony that a TLCT violation or fla-
grant or other safety violation would have been refer-
enced on the site review. Further inconsistencies include
the judge’s numerous findings that establish a relation-
ship between Lewis’s discharge and the Respondent’s
safety policies:
First, the judge found that although SAM D-5 and the
D-7 do not apply to supervisors, “there is no dispute that
the Spruance Plant supervisors must still adhere to all of
the Respondent’s safety polices [sic] and standards of
conduct which are described in the SAM D-5. This in-
cludes the more serious acts of misconduct set forth in
the SAM D-5 (e.g., flagrant safety and sleeping viola-
tions).”4 Second, SAM D-5, quoted verbatim as a reason
for Lewis’s discharge, describes “casual dozing” as a
“performance/safety problem” (emphasis added). Third,
the judge rejected Labor Relations Manager Harris’s
opinion that falling asleep at or near moving machinery
would not pose a safety threat.
The Union had a reasonable belief supported by objec-
tive evidence that the information it requested pertaining
to supervisors was relevant. It had objective evidence
from meetings on safety incidents, Serious Site Incident
reports, publicized by computer throughout the plant, and
from employee witnesses, that supervisors had violated
the Respondent’s safety policies without being dis-
charged. It is undisputed that the supervisors named in
the Union’s information requests had performed bargain-

4 In light of her finding that supervisors are subject to all of the safe-
ty policies set forth in SAM D-5, we find that the judge erroneously
distinguished cases in which the Board found relevant requests for
information concerning supervisors who violated the same rule or poli-
cy applicable to unit employees. See, e.g., E.I. du Pont & Co., 346
NLRB 553, 553 (2006), enfd. 489 F.3d 1310 (D.C. Cir. 2007); Postal
Service, 332 NLRB 635, 646 (2000); Postal Service, 309 NLRB 309,
312 (1992); Postal Service, 289 NLRB 942 (1988), enfd. 888 F.2d
1568 (11th Cir. 1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ing unit work during strike preparation training in July or
August 2012. Accordingly, they were subject to exactly
the same rules as bargaining unit employees, in addition
to the safety standards generally applicable to supervi-
sors.
The Union explained to the Respondent that it needed
the information pursuant to the parties’ past practice of
presenting comparison cases in arbitrations. Like the
judge, we reject the Respondent’s argument that it only
uses discharges pursuant to progressive discipline in
comparison cases. The fact that supervisors may be dis-
ciplined differently than bargaining unit members does
not make the Union’s information request irrelevant, if
both supervisors and unit employees are subject to the
same rules. The Board has rejected an employer’s de-
fense, similar to the Respondent’s arguments here, that
its supervisors were “judged by different criteria and,
therefore are not similarly situated for purposes of disci-
pline,” and that they “did not have comparably poor past
discipline records.” Postal Service, 301 NLRB 709, 712
(1991), enfd. mem. 980 F.2d 724 (3d Cir. 1992). The
Board found that such differences may be brought to the
arbitrator’s attention, and that the requested information
“need not necessarily be dispositive of the issues be-
tween the parties, it need only have some bearing on it.”
Id. Thus, a lack of progressive discipline for supervisors
does not preclude finding that the Union’s information
request No. 11 “has some bearing on the determination
of whether [the] employee[] ha[s] been treated harshly,
unjustly, or disparately,” and would be of assistance to
the Union in determining whether, and how best to repre-
sent Lewis in arbitration, if at all. Postal Service, 289
NLRB 942, 943 (1988), enfd. 888 F.2d 1568 (11th Cir.
1989); see also Holiday Inn on the Bay, 317 NLRB 479,
481 (1995); Pfizer, Inc., 268 NLRB 916, 919 (1984)
(“the evenhanded application of work rules for discipline
purposes is a fundamental principle of industrial jus-
tice”), enfd. 763 F.2d 887 (7th Cir. 1985). We find that
the Union met its burden to demonstrate that the infor-
mation it requested was relevant and necessary to evalu-
ate Lewis’s case.
Conclusion
In refraining from reviewing the merits of Lewis’s
case, we do not pass judgment on the employee’s con-
duct or work record, but act in aid of the arbitral process,
which is the cornerstone of industrial peace. Steelwork-
ers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578
(1960). Based on the Site Review Presentation, and the
entire record herein, we find a “probability that the de-
sired information was relevant, and that it would be of
use to the [U]nion in carrying out its statutory duties and
responsibilities.” Acme Industrial Co., 385 U.S. at 437.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraphs 3 and 4 and de-
lete paragraph 5 of the administrative law judge’s Con-
clusions of Law.
“3. The Respondent has committed an unfair labor
practice in violation of Section 8(a)(5) and (1) of the Act
by failing and refusing to fully furnish to the Union the
relevant information requested in paragraphs 6, 7, and 11
of its February 27, 2013 information request.
“4. The Respondent has committed an unfair labor
practice in violation of Section 8(a)(5) and (1) of the Act
by delaying and refusing to promptly provide to the Un-
ion the relevant information requested in paragraphs 6, 7,
and 11 of its February 27, 2013 information request.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, we shall
order the Respondent to cease and desist from refusing to
bargain collectively and in good faith with the Union by
delaying and refusing to provide the information it needs
to represent unit employees. We shall order the Re-
spondent to timely and completely supply the Union with
all of the information responding to the Union’s February
27, 2013 requests paragraphs 6, 7 and 11, that is neces-
sary for the Union to perform its responsibilities as the
bargaining representative for unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, E.I. Du Pont de Nemours and Company,
Richmond, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Ampthill
Rayon Workers Union, Inc., Local 992, International
Brotherhood of Du Pont Workers (the Union) as the ex-
clusive collective-bargaining representative of the em-
ployees described in Article I Section 1 of the collective-
bargaining agreement between the Respondent and the
Union effective from September 1, 2012 until September
1, 2015, by failing and refusing to fully furnish the Union
with all of the information that is relevant and necessary
to the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(b) Refusing to fully furnish to the Union all of the in-
formation requested in paragraphs 6, 7, and 11 of the
Union’s February 27, 2013 information request relating
to the termination of James Lewis.
E.I. DU PONT DE NEMOURS & CO. 7
(c) Delaying and refusing to promptly provide all of
the information requested in paragraphs 6, 7, and 11 of
the Union’s February 27, 2013 information request relat-
ing to the termination of James Lewis.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Furnish to the Union in a timely and complete
manner all of the information requested in paragraphs 6,
7, and 11 of the Union’s February 27, 2013 information
request relating to the termination of James Lewis.
(b) Within 14 days after service by the Region, post at
its Spruance facility in Richmond, Virginia, copies of the
attached notice marked “Appendix.”5 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 27, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
(d) Substitute the attached notice for that of the ad-
ministrative law judge.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member

5 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.”
______________________________________
Lauren McFerran, Member
______________________________________
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER EMANUEL, dissenting in part.
The issue in this case is whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
comply with the Union’s request for information regard-
ing alleged safety violations by supervisors. The Union
sought the information in connection with its grievance
over the discharge of unit employee James Lewis. Be-
cause the requested information concerns nonunit em-
ployees, it is not presumptively relevant; instead, the
burden is on the Union to demonstrate a reasonable be-
lief supported by objective evidence that the information
was relevant to the Union’s role as bargaining repre-
sentative. Disneyland Park, 350 NLRB 1256, 1257-1258
(2007); Shoppers Food Warehouse Corp., 315 NLRB
258, 259 (1994). Contrary to my colleagues, I agree with
the judge that the Union failed to carry that burden, and
therefore I would dismiss the allegation.1
As an initial matter, my colleagues argue that the judge
erred in determining the reason for Lewis’s discharge
(and concluding that it was not for safety violations) ra-
ther than analyzing whether the Union demonstrated rel-
evance based on what it knew at the time of the request.
In my view, the judge would lack an adequate factual
basis for assessing relevance without first determining
whether a violation of the Respondent’s safety policies
played a role in Lewis’s termination. Nevertheless, I
need not decide whether the judge erred in this respect.
Even analyzing relevance based on the information
known to the Union at the time of the request, the record
fails to show the relevance of supervisory safety viola-
tions.
The grievance filed on Lewis’s behalf—the very foun-
dation of the information request—made no mention of
any alleged safety violation. Rather, it merely put for-
ward mitigating factors for Lewis’s falling asleep and
requested lenience, while conceding that Lewis was al-
ready on Problem Contact status—the step just before

1 I join my colleagues in adopting the judge’s conclusions, in the ab-
sence of exceptions, that the Respondent unlawfully delayed in provid-
ing and failed to provide requested information regarding unit employ-
ees. I also join my colleagues in rejecting the Respondent’s challenges
to the authority of the Board, the Regional Director, and the administra-
tive law judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
discharge in the progressive discipline process—at the
time. Most critically, the Respondent’s Site Review
Presentation gave the Union clear notice that Lewis was
not discharged for a safety violation, but for his contin-
ued performance problems; under “Discharge Reasons,”
it cited his “[f]ailure to meet standards of performance on
a continuing and satisfactory basis,” followed by “the act
of sleeping during work time.” The Site Review did not
list safety violations as a reason for the discharge, and
the judge specifically credited Labor Relations Manager
Bruce Harris’s testimony that when an employee is dis-
ciplined for a flagrant safety violation, it is specifically
referenced as such on the Site Review. The absence of a
reference to safety, together with the specific references
to performance standards and sleeping, clearly would
have indicated to the Union that the latter were the rea-
sons for the discharge. Under these circumstances, the
Union could not have possessed a “reasonable belief
based on objective evidence” that the requested infor-
mation regarding supervisory safety violations was rele-
vant. I therefore dissent.
Dated, Washington, D.C. August 27, 2018
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with
Ampthill Rayon Workers, Inc., Local 992, International
Brotherhood of Du Pont Workers (the Union) as the ex-
clusive collective-bargaining representative of the em-
ployees described in Article I Section 1 of the collective-
bargaining agreement between the Respondent and the
Union effective from September 1, 2012 until September
1, 2015, by delaying and failing and refusing to fully
furnish the Union with information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of our unit em-
ployees.
WE WILL NOT refuse to fully furnish to the Union all of
the information requested in paragraphs 6, 7, and 11 of
the Union’s February 27, 2013 information request relat-
ing to the termination of James Lewis.
WE WILL NOT delay and refuse to promptly provide to
the Union all of the information requested in paragraphs
6, 7, and 11 of the Union’s February 27, 2013 infor-
mation request relating to the termination of James Lew-
is.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely and complete
manner all of the information requested in paragraphs 6,
7, and 11 of the Union’s February 27, 2013 information
request relating to the termination of James Lewis.
E.I. DU PONT DE NEMOURS AND COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-101359 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half St. S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.
Timothy P. Bearese, Esq. and Patrick J. Cullen, Esq., for the
General Counsel.
Christopher M. Michalik, Esq. and Summer Speight, Esq.
(McGuireWoods, LLP), of Richmond, Virginia, for the Re-
spondent.
Kenneth Henley, Esq., of Bala Cynwyd, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
E.I. DU PONT DE NEMOURS & CO. 9
was tried in Richmond, Virginia, on September 25, 2013. The
Charging Party, Ampthill Rayon Workers, Inc., International
Brotherhood of DuPont Workers (the Union) filed a charge in
this matter on March 26, 2013, and a complaint was issued on
June 27, 2013. The complaint alleges that since March 14,
2013, E.I. DuPont de Nemours Company (the Respondent) has
violated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by failing and refusing to provide and failing and
refusing to timely provide information requested by the Union
in connection with a grievance.1 The Respondent filed its time-
ly answer, generally denying any and all unlawfulduct. The
Respondent’s affirmative defense that the National Labor Rela-
tions Board (the NLRB) and its agents lack jurisdiction to pur-
sue this case will be addressed later in this decision.
On the entire record, including my observation of the de-
meanor of the witnesses, and consideration of the briefs filed by
the General Counsel2 and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, has been engaged
in the manufacture of synthetic fibers and related products at its
Richmond, Virginia facility, where it annually sells and ships
products, goods, and materials valued in excess of $50,000
directly to points outside the State of Virginia. The Respondent
admits, 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 Parties
This dispute involves the Respondent’s DuPont Spruance
Plant (Spruance facility) in Richmond, Virginia, where it manu-
factures three of its major products, including Tyvek, Nomex,
and Kevlar, across separate operations called, “areas.” Each of
these areas has its own administration and unit/area manager
who report directly to Plant Manager Joseph Internicola (Inter-
nicola). Bruce Harris (Harris) testified on behalf of the Re-
spondent, and at all times material, has been the labor relations
manager and the Respondent’s representative for all matters
dealing with the Union. The Respondent’s counsel is Christo-
pher Michalik, Esq. (Michalik).
The Respondent and the Union have a longstanding collec-
tive-bargaining relationship at the Spruance Plant (since about
1947), with the most recent collective-bargaining agreement
(the Agreement) effective from September 1, 2012, until Sep-
tember 1, 2015. For all relevant time periods, the Union has
been the exclusive collective-bargaining representative of a unit

1 At trial, I granted (without objection) the General Counsel’s mo-
tion to amend the par. 8 of the complaint to add: “[I]n the alternative,
the Respondent has unreasonably and unlawfully delayed in furnishing
the requested information to the Union or provided incomplete re-
sponse to the Union’s request for information,” in violation of Sec.
8(a)(1) and (5). (Tr. 152–153.)
2 For brevity purposes, counsel for the General Counsel will be re-
ferred to as the “General Counsel.”
comprised of “production, maintenance, service and Plant tech-
nical hourly wage roll employees . . .” (U. Exh. 1). 3 Donny
Irvin (Irvin), who testified on behalf of the General Counsel has
been the chairperson of the Union’s grievance committee for
many years. He and the Union’s counsel, Kenneth Henley,
Esq. (Henley), represented the Union in matters relevant to this
case.
As stipulated by the parties, these individuals are their su-
pervisors and/or agents for all times material within the mean-
ing of Section 2(11) and (13) of the Act. (Jt. Exh. 1.)
B. Site Administration Manual Policies
In addition to the Agreement, the parties have bargained and
agreed to policies and standards, included in the various sec-
tions of the Respondent’s Site Administration Manual (SAM).
The SAM D-5 sets forth the reasons for which bargaining unit
employees would be subject to discharge, and provides in rele-
vant part:
 Failure to meet standards of performance on a continu-
ing and satisfactory basis can subject an employee to
discharge. This includes unsatisfactory performance
and/or unsatisfactory attendance due to unexcused ab-
sences. Unsatisfactory fitness can subject an employee
to discontinuance.
 An act of serious misconduct can subject an employee to
discharge. This is an action that is a flagrant violation of
Plant rules, policies, or unacceptable conduct which in-
cludes, but is not limited to, the following:
. . . .
Flagrant safety violation- a violation (either
deliberate or an error) of a safety rule, pro-
cedure, or safety judgment that could (or
did) result in serious injury. Examples of
this action might be (but are not limited to)
violation of the Lockout Procedure, viola-
tion of the Tank and Vessel Entry Proce-
dure, or a rule violation that seriously jeop-
ardizes a person’s safety and health.
. . . .
 Sleeping- the act of sleeping during work time either
on the job assignment or away from it. Casual dozing
during work time is also not allowed and, if observed,
will be handled as a performance/safety problem
through use of the Development Procedure. Repeat
violations of this standard (casual dozing) could
eventually result in discharge through continued un-
satisfactory performance.
(R. Exh. 1).
The development procedure (similar to progressive disci-
pline) for bargaining unit employees is set forth in the Re-

3 Abbreviations used in this decision are as follows: “Tr.” for Tran-
script; “GC Exh.” for General Counsel Exhibit; “R. Exh. for Respond-
ent Exhibit; U. Exh. for Union Exhibit; “Jt. Exh. for Joint Exhibit; “GC
Br.” for General Counsel’s Brief; and “R Br.” for Respondent’s Brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
spondent’s SAM D-7, and reads in pertinent part:
Depending upon the severity of the violation or mistake, an
employee may be taken to any step in the Development Pro-
cedure, or a recommendation may be made for immediate
discharge. Violations or mistakes of a lesser nature should be
processed through the following steps: INFORMAL
REPRIMAND, SPECIAL CONTACT, PRE-PROBLEM
CONTACT, PROBLEM CONTACT, AND DISCHARGE.
(R. Exh. 2.) The problem contact, similar to a probationary
period, is the employee’s last opportunity to prove or correct
his/her performance problem. When an employee’s perfor-
mance does not improve, the last step, suspension with intent to
discharge, is proposed. An employee could be referred for
discharge without the benefit of the development procedure
when the individual has committed an act of serious miscon-
duct.
The SAM D-7 development procedure and the SAM D-5 are
not applicable to exempt employees such as supervisors. How-
ever, there is no dispute that the Spruance Plant supervisors
must still adhere to all of the Respondent’s safety polices and
standards of conduct which are described in the SAM D-5.
This includes the more serious acts of misconduct set forth in
the SAM D-5 (e.g., flagrant safety and sleeping violations).
(Tr. 20–21, 120–121.) Harris initially testified that the Re-
spondent does not have any disciplinary procedures (written or
otherwise) for its supervisors, but instead metes out discipline
to them on a case by case basis. He finally acknowledged,
however, that supervisors can be subject to various types of
discipline such as warnings, suspension, discharge and mone-
tary sanctions, depending on the seriousness of the conduct,
past discipline, work history, and seniority.
C. The Respondent’s Site Review Procedures and
Safety Procedures
The Respondent utilizes an investigative process, called a
site review, to investigate incidents of serious safety and mis-
conduct violations; it is undisputed that not only bargaining unit
employees, but also supervisors, are sent for site review when
they engage in these types of violations. This process culmi-
nates in a site review report presented to a site review team
comprised of the plant manager and his administrative staff.
The site review team makes the determination to either dis-
charge or otherwise discipline the employees sent for site re-
view.4 The Union is not involved in the site review process,
nor is it privy to the discussions that take place during the
presentation meeting.
In the last few years, all violations or errors involving the
Respondent’s “Tag, Lock, Clear, and Try” (TLCT) safety poli-
cy/procedure (referred to in the SAM D-5 as the “Lockout Pro-
cedure”) have been presented for site review. This TLCT pro-
cedure is required of all employees, unit and supervisors alike,
and is a step in the operation of most or all machinery at the
Spruance Plant. Regarding the TLCT safety violations, area
management also prepares Serious Site Incident (SI) reports for

4 Irvin testified that unit member site reviews result in either a dis-
charge or “problem write-up.” (Tr. 63.)
each violation, which are publicized via computer for everyone
in the Spruance Plant to see. Irvin testified that the Union
learns of these incidents through witnesses, affected unit em-
ployees, SI reports; and/or from supervisors who discuss them
in beginning of shift meetings (referred to as “rackup” meet-
ings). (Tr. 23–26.)
D. Discharge of James Lewis
In December 2012, the Respondent verbally discharged unit
employee, James Lewis (Lewis), a windup operator in the
Tyvek area, based on a site review presentation (also referred to
as site review report) and recommendation to “[s]uspend with
intent to discharge.” The Respondent typically does not issue
written termination notices. On December 17, 2012 (prior to
his discharge), the Respondent prepared a summary/report of its
reasons for terminating Lewis, entitled, “Site Review Presen-
tation.” According to this report, the SAM “D-5 Discharge
Reasons” listed under “Policy/Procedure Violated” were:
 Failure to meet standards of performance on a continu-
ing and satisfactory basis can subject an employee to
discharge. This includes unsatisfactory performance
and/or unsatisfactory attendance due to unexcused ab-
sences. Unsatisfactory fitness can subject an employee
to discontinuance.
 Operator failed to properly follow SP-2316-
Line 2 Windup Operation.
 Sleeping- the act of sleeping during work time either on
the job assignment or away from it. Casual dozing dur-
ing work time is also not allowed and, if observed, will
be handled as a performance/safety problem through use
of the Development Procedure. Repeat violations of this
standard (casual dozing) could eventually result in dis-
charge through continued unsatisfactory performance.
(Jt. Exh. 1-A, p. 2.) These reasons were taken verbatim from
the SAM D-5 discussed above. The “SP-2316-Line 2 Windup
Operation” refers to the standard practice/procedure for operat-
ing the equipment used in the operation, a part of which is the
“Roll Doffing Cycle.” The Site Review Presentation includes a
detailed description, with illustration, of the steps involved in
the roll doffing cycle, including the TLCT or lockout procedure
required towards the end of the cycle. It also includes a chro-
nology of the incident leading to Lewis’ discharge and an over-
view of Lewis’ 2012 work performance (consisting of a sum-
mary of his development/discipline progression from April
2012 to the problem stage in November 2012 and an unsatisfac-
tory performance rating in October 2012). (Tr. 30–31; Jt. Exh.
1-A.)
There is no dispute regarding the incident leading to Lewis’
site review. In summary, after Lewis successfully completed
an 8-hour shift on December 9, 2012, he volunteered to work
an additional 8 hours on the next shift. During this second
shift, he fell asleep several times. The second time that he fell
asleep, he was awakened by a series of bells, and prematurely
engaged what is called a hot knife, which fired into a full mill
roll of product (Tyvek) too soon. This error caused the ma-
E.I. DU PONT DE NEMOURS & CO. 11
chine to go into “sheet break,” or rather, to continue to make
sheet (or product) and create wasted product.5 Although Lewis
did not recall, the report states that managers and employees
observed him falling asleep again, in a chair, while other em-
ployees attempted to salvage the product. (Tr. 76, 102–106; Jt.
Exh. 1-A, pp. 8–9.)
There is, however, some relevant dispute as to the reasons
for Lewis’ discharge. Irvin testified that the site review report
was not clear as to the reasons for Lewis’ termination, as it
contained multiple violations, including TLCT and other seri-
ous or flagrant safety policy/procedure violations. He also
testified that management never told the Union or Lewis the
reason or real reason for termination. (Tr. 32, 75–76, 86.)
Harris, on the other hand, testified that the Respondent’s per-
formance-based reasons for discharging Lewis were made clear
in the site review report, and were two-fold: (1) he had already
progressed all the way through the development procedure to
the problem phase, and “did not respond appropriately to regain
satisfactory performance,” and (2) he had a “culminating
event,” sleeping, “and that’s when we decided to terminate
him.” (Tr. 129–130.) He asserted that Lewis was not dis-
charged for violating any of the flagrant, serious or other safety
procedures, including the TLCT policy, and that the Union had
not raised these safety issues in the step three grievance meet-
ing.
I find that Irvin’s assertion that he and the Union never knew
the reasons or real reason why Lewis was terminated is clearly
inconsistent with the site review report, if not somewhat disin-
genuous. Based on my review of this report, and no other evi-
dence to the contrary, I find the Respondent accepted the area’s
recommendation to terminate Lewis because of his continued
progressive discipline and the final sleeping incident (causing
the sheet break error). (Tr. 106–107, 110; Jt. Exh. 1-A.) The
second page of the report sets forth two main “Discharge Rea-
sons,” as set forth above. As shown, Lewis’ failure to follow
the SP-2316- Line 2 Windup Procedure is a sub-
bullet/paragraph underneath the primary reason for discharge-
“[f]ailure to meet standards of performance on a continuing and
satisfactory basis can subject an employee to discharge . . .
[including] unsatisfactory performance and/or unsatisfactory
attendance . . .” Thus, the failure to properly follow the stand-
ard procedure for the windup operation is cited as a continued
performance reason. The second discharge reason, also taken
verbatim from the SAM D-5, is “[s]leeping.” Even though the
sleeping violation states that, “[c]asual dozing . . . if observed,
will be handled as a performance [or] safety problem through
use of the Development Procedure,” a review of the site review
report in its entirety supports the Respondent’s view, and Har-
ris’ testimony, regarding the reasons for termination. This is
quite evident by the inclusion of Lewis’ progressive disci-

5 Normally, the operator makes sure the roll is full and ready to
“doff off,” which is to oversee the process in which the full mill roll
and an empty core/roll rotate 180 degrees, so that they in effect switch
sides. It is after this rotation is complete that a hot knife fires into a
sheet completing the transfer (the sheet is blown onto the empty
core/roll). Then, operator must perform the TLCT or lock out proce-
dure. (Tr. 102–105; Jt. Exh. 1-A.)
pline/development through the problem stage.
I credit Harris’ testimony that in the past, when an employee
has been disciplined for a flagrant safety or TLCT violation, it
is specifically referenced as such, along with that portion of the
SAM D-5.6 Irvin did not refute this point. Here, the site re-
view does not include or even reference a flagrant or other safe-
ty violation, or TLCT infraction, as a reason for termination.
The background description of the TLCT/lock out procedure as
one of the steps in the doffing cycle, and the undisputed testi-
mony that the overall standard practice/procedure for the
windup operation implicitly involves safety, does not support
Irvin’s testimony (or Union’s belief) that a safety violation was
a basis for Lewis’ discharge. Harris’ testimony is consistent
with the chronology of events in the site review, showing that
Lewis had not even reached the TLCT/lockout requirement
stage of the doffing cycle when he prematurely initiated the hot
knife and sheet break. (R. Exh. 1, Jt. Exh. 1-A, pp. 4–9.)
Moreover, the formal grievance reflects that the Union was
fully aware that Lewis was in the problem stage at the time of
the site review, and had been discharged for sleeping. The
grievance only references Lewis’ falling asleep on the job and
progressive discipline to the problem stage. It does not mention
safety violations or reflect any confusion it may have had about
the reasons for Lewis’ discharge. (Jt. Exh. 1-B.) Accordingly,
I find the Respondent terminated him because of his continued
performance problems and the sleeping incident which caused
the sheet break, and not because of safety concerns.
E. Lewis Discharge Grievance and the Union’s Initial Febru-
ary 27 Information Request
On January 8, 2013, the Union filed a formal grievance over
Lewis’ discharge. Plant Manager Internicola denied the griev-
ance on January 11. On January 28, Grievance Chairman Irvin
notified the Respondent’s labor relations manager, Harris, that
the Union intended to arbitrate Lewis’ grievance. At the time
of trial, Lewis’ discharge had not gone to arbitration, as Irvin
contended that the Union needed the information requested to
help determine whether or not to arbitrate (Jt. Exhs. 1-B to 1-
D).
On February 27, the Union’s counsel, Henley, sent the Re-
spondent’s counsel, Michalik, an email requesting information
“necessary for the Union to prepare for and present its case” in
the discharge of Lewis. Although the Union requested 11 sets
of documents in its request, the parties agree that only the re-
quests reflected in paragraphs 6, 7, and 11 are at issue in this
case. These requests read as follows:
6. Beginning on January 1, 2002 and continuing to
December 31, 2012, for each employee who engaged in
conduct considered by the Respondent to be a flagrant
safety violation or a violation of the sleeping policy, pro-
vide the name of the employee, the date of the conduct, the

6 Although I found Harris to be somewhat evasive when he testified
about the Company’s practices (or lack thereof) for supervisory disci-
pline, and disagreed with his opinion that falling asleep at or near mov-
ing machinery would not pose a safety threat, his testimony regarding
the Company’s reasons for termination are overwhelmingly supported
by the evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
nature of the conduct, the discipline administered and the
employee’s disciplinary status at the time of the disci-
pline[.]
7. Provide all information that was considered by the
Respondent in making its decision to discharge Mr. James
Lewis that concerns how other employees were treated in
terms of discipline who engaged in flagrant safety viola-
tions or sleeping violations.
11. All documents relating to the safety violations, in-
cluding site incident reports, site reviews, and other like
investigative and/or disciplinary records, committed by the
following supervisors: Lauren Ramos, Steve Sharwisky,
Jim Davenport, Kevin Saunders, and Keith Estes. These
actions were committed sometime in 2012 or 2013.
a. Also provide the discipline, if any, and the written
record of such, administered to each of these supervisors
for the actions in question.
b. Also provide the written policy from the SAMS
Manual regarding TLCT’s that [were] in effect from
1/1/12 through the present. If there is a separate policy re-
garding TLCT’s that you allege applies to supervision dur-
ing that time period, please provide a copy of that policy
and the date (including the written record) of when it
[went] into effect.
Henley also asked that the information be provided by March
14, 2013, and that Michalik not hesitate to contact him if he had
any questions regarding the request. (Jt. Exh. 1-E.)
F. Henley’s March 7, 8, and 15 Emails to Michalik and Micha-
lik’s March 18 Response
On March 7, via email to Michalik, Henley stated that since
he had not heard back from him (Michalik) regarding the Un-
ion’s settlement offer, he was renewing his request for infor-
mation previously sent on February 27. He also asked when he
could expect to hear back regarding the requested information.
(Jt. Exh. 1-H.) On March 8, Michalik acknowledged receipt of
Henley’s March 7 email, but did not indicate when the Re-
spondent would provide responses to the information request.
On March 15, Henley sent another email to Michalik stating
that while he understood the parties were discussing a possible
resolution of the “James Lewis matter,” he still expected him to
provide the information requested on February 27, or he would
file a charge with the NLRB. On Monday, March 18, Michalik
responded that he understood the Respondent either had already
provided information, or would be doing so on March 18. (Jt.
Exh. 1-H.)
G. The Respondent’s March 14 Response to the Union’s In-
formation Request and Henley’s March 20 Email to Michalik
Explaining Relevance
In the meantime, on March 14, Labor Relations Manager
Harris provided Grievance Committee Chairperson Irvin, with
the Respondent’s written responses (in red type next to each
par.) along with some documentation. Next to paragraphs 6
and 7, the Respondent wrote “TBD” (to be determined). Next
to paragraph 11, the Respondent wrote “Irrelevant.” It is un-
disputed that Harris told Irvin that he was still gathering infor-
mation regarding paragraphs 6 and 7, and “that it was awful
broad.” Regarding paragraph 11, Irvin testified that Harris told
him, “you’re not going to get the information, you don’t repre-
sent exempts.” Irvin testified that he responded, “. . . it’s a
comparison case; I need to see D-5. . . D-5 is very broad7; I
need to find out how these managers were treated in their site
review,” in comparison to Lewis. He said that Harris told him
“[w]e’re not going to give you any information . . . we’re not
going to tell you how we treat the managers,” to which Irvin
replied that he needed to see their site reviews so he could see
“. . . how—why their violation was less severe than Mr. Lewis’
violation . . . so could you give me the information minus the
discipline?” Harris said that the Respondent would not furnish
any supervisor records. (Tr. 46, 59.) Harris did not contradict
Irvin’s version of this discussion.
After Henley reviewed the responses provided to Irvin, he
notified Michalik by email on March 20 that the Union disa-
greed with the Respondent’s position that the information relat-
ing to certain supervisors in paragraph 11 was irrelevant. He
explained that since the Respondent acknowledged that,
. . . supervisors are subject to the same safety rules as employ-
ees, particularly with regard to the serious safety violations the
named supervisors in paragraph 11 are believed to have
committed . . . how the Respondent treated these employees
as a result of those violations relates directly to how the Re-
spondent should have treated James Lewis.
Henley advised that the Union was still entitled to the infor-
mation requested. (Jt. Exh. 1-H.)
H. The Respondent’s Updated March 28 Response to the Un-
ion’s Information Request and Henley’s April 5 Email to
Michalik Explaining Relevance
On March 28, Harris met and provided Irvin with updated
responses to paragraphs 6, 7, and 11. The Respondent amended
its response to paragraph 6 to: “Mr. Lewis was progressed
through each step of the disciplinary/development policy for a
variety of unacceptable performance concerns. Comparison
cases include anyone who has been involved in or put through
progressive discipline steps.” The Respondent’s amended re-
sponse to paragraph 7 was, “See response to Number 6.” It did
not, however, provide any documentation responsive to para-
graphs 6 and 7. Irvin testified that upon receipt of the updated
responses, he told Harris that, “. . . this is ridiculous . . . we
have always gotten comparison cases in the past…you keep a
spreadsheet,” and that Harris replied, “ . . . that’s what you’ve
got; that’s what I’m giving you.” He explained that the Re-
spondent had long maintained a spreadsheet/grid listing all
discharge and problem stage cases, the discipline status, and the
reason for discipline/discharge, and had provided the Union
with this information in other grievance cases. Irvin stated that
he told Harris that in connection to paragraph 7, he needed to
find out “what the Respondent compared Mr. Lewis to, since
[he] personally knew that they had never fired anybody for
sleeping.” (Tr. 47–48, 51; Jt. Exh. 1-G.)

7 Here, “D-5” refers to the SAM D-5 discussed above.
E.I. DU PONT DE NEMOURS & CO. 13
The Respondent expanded its previous answer to paragraph
11 to: “(Irrelevant—The exempt employees listed are not part
of the bargaining unit, therefore, the union does [not] represent
these employees and the case of relevancy has not been made
convincingly by the union.).” Irvin verbally reiterated that he
needed the documents because these managers had engaged in
“D-5 violations,” as had Lewis. He contended that Harris
asked why he (Irvin) was bothering with the arbitration since
Lewis was not a “model employee.” Irvin replied that he had a
duty to fairly represent Lewis, and that it was not clear in the
site review “of what he was discharged for.” (Tr. 52). Harris
did not deny these March 28 discussions with Irvin concerning
paragraphs 6, 7, and 11.
On April 5, Henley emailed Michalik, renewing the Union’s
request for documentation responsive to paragraphs 6, 7, and 11
and explaining why they were relevant. Regarding paragraph
7, Irvin stated that the answer was “non-responsive,” and that
“[s]uch consideration of specific comparison cases . . . is re-
quired by the Respondent’s own written procedures for making
the decision to discharge and has been a matter for which evi-
dence has been presented by both the Respondent and the Un-
ion in past arbitration cases.” He also asked Michalik to let him
know if there was no information responsive to paragraph 7.
He provided a similar explanation for paragraph 6, asking that
the Respondent furnish the information even if it had not been
in Lewis’ case. Henley stated that the requests in paragraph 11
were relevant to compare how the supervisors, who were sub-
ject to the same safety rules as unit employees, had been treated
for committing safety violations similar to the one allegedly
committed by Lewis. (Jt. Exh. 1-I.)
I. The Respondent’s September 23 Response to the Union’s
February 27 Request
The Respondent did not provide any additional responses or
information until September 23, when Harris left a package of
documents for Irvin, generally marked as responses to requests
6 and 7. (Tr. 53.) This package included four site reviews;
however, Irvin testified that this was not a complete response in
that the Union had requested “all” comparison cases from 2002
through 2013. Irvin asserted that he knew there were many
more cases which were potentially responsive to the paragraphs
6 and 7 because he had processed all of the proposed discharge
cases in the last 5 years. I credit Irvin’s testimony in this re-
gard. Although Harris established his own search criteria as
described below, he did not refute Irvin’s estimate of the num-
ber of cases processed, or otherwise claim that the four site
reviews were completely responsive to the requests. (Tr. 54,
57.)
Instead, Harris testified that he found the four comparative
site reviews submitted in response to paragraphs 6 and 7 by
searching his site review files from 2008 to the present for “all
cases of either progressive discipline, which a unit employee
was progressed all the way through every step of the develop-
ment procedure [from the pre-problem stage through dis-
charge], or in the case of where a unit employee was taken for
site review for sleeping.” He did not include cases resulting in
settlements, and excluded incidents which did not result in a
site review or a lesser form of discipline. Although he recalled
telling Irvin these requests were too broad, neither he nor
Michalik requested that the Union narrow the scope or
timeframe as he (Harris) had sometimes done in the past. (Tr.
45.) He also confirmed that the Union never agreed to limit the
scope or timeframe of the information requests, and that he
gave the Union what “[he] thought was relevant.” 8 (Tr. 126–
128, 138–140.)
Irvin testified that paragraphs 6 and 7 pertained to “very rel-
evant” comparative information that the Respondent typically
provided, and was actually supposed to consider before dis-
charging anyone. He claimed this information would assist the
Union in determining whether to “arbitrate or not.” It is undis-
puted that the Respondent never asked for any clarification,
indicated any confusion or requested any extended period of
time regarding these requests.
Regarding paragraph 11, Irvin testified that pursuant to the
site review, Lewis “was discharged for violating the standard
practice procedure, which involved safety implications
. . . [t]here’s one set of safety standards for the whole plant site,
and we knew that these managers had . . . recently violated the
TLCT policy” which could lead to a SAM D-5 discharge. He
asserted that the Union had attempted to limit their information
request to what they considered to be serious safety or sleeping
policy violations which might result in a SAM D-5 automatic
discharge. (Tr. 62.) He further testified that in late July or
August of 2012, the supervisors named in paragraph 11 had
engaged in “strike preparation training,” performing the same
work as unit employees, i.e., operating the same machinery
pursuant to the “exact standard practices.” He learned the
names of these supervisors from unit employees who had actu-
ally witnessed their TLCT violations (e.g., failing to lock
equipment), and obtained additional information through SI
reports and shift “rackup” meetings. He knew these supervi-
sors had not been terminated since they continued to work at
the Spruance Plant. (Tr. 35–39, 40–42, 82.) Harris did not
attempt to search any files for supervisors. Harris maintained
this information was not relevant to a unit employee’s griev-
ance, but acknowledged that some managers had performed
unit work for strike preparation sometime in the summer of
2012. He said they were not disciplined to his knowledge, but
did not deny that they were sent for site review for violating the
TLCT policy (Tr. 132).

8 Irvin initially testified that he believed that the attorneys for the
parties may have discussed narrowing the time frame for the requested
information from 10 to 5 years, but there is no evidence in the record
that any such discussions or agreements between the parties’ counsel
took place. In addition, Irvin later admitted that he might have been
confusing conversations between the parties’ counsel in this case with
another case. (Tr. 45, 55, 58) .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
III. DISCUSSION AND ANALYSIS9
A. Legal Standards
It is well established that an employer has a statutory obliga-
tion to provide requested information to a union that is poten-
tially relevant in fulfilling the union’s responsibility as the em-
ployees’ bargaining representative, including its responsibilities
regarding the processing of grievances and arbitrations. NLRB
v. Truitt, Mfg. Co., 351 U.S. 149 (1956); NLRB v. Acme Indus-
trial Co., 385 U.S. 432, 435–436, 438 (1967). Generally, in-
formation concerning wages, hours, and terms and conditions
of employment for unit employees is presumptively relevant to
the union’s role as exclusive collective-bargaining representa-
tive, and must be provided. See Southern California Gas Co.,
344 NLRB 231, 235 (2005); Curtis-Wright Corp., 145 NLRB
152 (1963), enfd. 347 F.2d 61 (3d Cir. 1965). Presumptively
relevant information sought by a union also includes infor-
mation regarding discipline of bargaining unit employees. Dish
Network Service Corp., 339 NLRB 1126, 1134 (2003) (citing
Booth Newspapers, Inc., 331 NLRB 296, 299–300 (2000).
By contrast, requests for information concerning employees
outside the bargaining unit, such as supervisors, are not pre-
sumptively relevant. Thus, the union bears the burden of estab-
lishing relevance. United States Testing, 324 NLRB 854, 859
(1997), enfd. 160 F.3d 14 (D.C. Cir. 1998); Reiss Viking, 312
NLRB 622, 625 (1993); Shoppers Food Warehouse Corp., 315
NLRB 258, 259 (1994); Associated General Contractors, 242
NLRB 891, 894 (1979), enfd. 633 F.2d 766, 770 (9th Cir.
1980). A union must offer “more than mere suspicion for it to
be entitled to the information.” See Sheraton Hartfort Hotel,
289 NLRB 463, 464 (1988). However, the “[t]he Board uses a
broad, discovery-type standard in determining relevance in
information requests.” Shoppers Food Warehouse, 315 NLRB
at 259; NLRB v. Acme Industrial Co., supra at 437; United
States Testing, supra; Postal Service, 310 NLRB 391, 394
(1993). In this regard, the Board does not rule on the merits,
and the union is not required to demonstrate that information is
accurate, not hearsay, or even, ultimately reliable. Postal Ser-
vice, 337 NLRB 820, 822 (2002). Therefore, the information
requested must have some bearing on the issue between the

9 In its answer, the Company raised the affirmative defense that the
Board, the Regional Director, and the administrative law judge lacked
the authority to proceed in this case because the Board lacked a quorum
required by the NLRA. The Board has acknowledged the United States
Court of Appeals for the District of Columbia Circuit’s conclusion that
the President’s recess appointments to the Board were not valid. See
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) (petition for
certiorari filed April 25, 2013). However, the Board has noted that
same Court’s acknowledgement that its decision was in conflict with
rulings of at least three other courts of appeals. See Evans v. Stephens,
387 F.3d 1220 (11th Cir. 2004), cert. denied 544 U.S 942 (2005); U. S.
v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d
704 (2d Cir. 1962). In addition, the Board has determined that while
the question regarding the validity of the recess appointments remains
in litigation, and is pending a definitive resolution, it will continue to
fulfill its responsibilities under the Act. See Bloomingdale, Inc., 359
NLRB 953 (2013); ORNI 8, LLC, 359 NLRB No. 87 (2013) (not re-
ported in Board volumes). Accordingly, I reject this affirmative de-
fense.
parties, but does not have to be dispositive. Disneyland Park,
350 NLRB 1256, 1257 (2007); Postal Service, supra. When
information about supervisory personnel is requested, a union
must communicate the reason for the relevance of that infor-
mation to the employer, unless the relevancy is apparent. Dis-
neyland Park, supra.
An unreasonable delay in furnishing such information is as
much of a violation of Section 8(a)(5) and (1) of the Act as a
refusal to provide the information. Monmouth Care Center,
354 NLRB 11, 51 (2009), reaffirmed and incorporated by ref-
erence, 356 NLRB 152 (2010), enfd. 672 F.3d 1085 (D.C. Cir.
2012). It is well established that the duty to furnish requested
information cannot be defined in terms of a per se rule. Good
Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). Rather,
what is required is a reasonable good-faith effort to respond to
the request “as promptly as circumstances allow.” Id. See also
Woodland Clinic, 331 NLRB 735, 737 (2000). In evaluating
the promptness of an employer’s response, the Board considers
the complexity and extent of the information sought, its availa-
bility, and the difficulty in retrieving the information. West
Penn Power Co., 339 NLRB 585, 587 (2003), citing Samaritan
Medical Center, 319 NLRB 392, 398 (1995), enfd. in relevant
part 394 F.2d 233 (4th Cir. 2005).
B. Respondent Violated Section 8(a)(5) and (1) of the Act in
Failing to Provide Complete Information Responsive to Para-
graphs 6 and 7
I find that the information sought by the Union in paragraphs
6 and 7 involving disciplinary records for bargaining unit em-
ployees was in furtherance of its representative role in the
grievance of Lewis, and was therefore presumptively relevant
to its legal responsibilities associated with that role. See Postal
Service, 332 NLRB at 635. The Union has no burden to show
relevance, and the Respondent has an obligation to provide
complete responses to paragraphs 6 and 7 of the Union’s Feb-
ruary 27 requests. The Union requested information regarding
other bargaining unit employees who, from January 1, 2002 to
December 31, 2012, had engaged in conduct considered to be a
flagrant safety policy or sleeping policy violation. Paragraph 6
also requested the nature of the conduct, the discipline adminis-
tered and the employee’s disciplinary status. On March 28, the
Respondent noted since Lewis had been “progressed through
each step of the disciplinary/developmental policy for a variety
of unacceptable performance concerns,” comparison cases in-
cluded those in which a unit employee had “been involved in”
or “put through progressive discipline steps.” (Jt. Exh. 1-G). I
find that the Respondent’s definition of what should be relevant
would include (and should have included) the information
about bargaining unit employees which the Union requested in
paragraphs 6 and 7. When the Respondent finally provided the
four site review packages on September 23, they were not fully
responsive to the Union’s requests. In fact, Harris’ testimony
reflects that he further limited the Respondent’s responses from
cases in which unit employees had been “involved in or [em-
phasis added] put through progressive discipline steps,” to just
those cases in which employees had progressed through every
stage of the process (pre-problem to discharge) and/or had been
taken to site review for sleeping. There is no evidence in the
E.I. DU PONT DE NEMOURS & CO. 15
verbal exchanges between Irvin and Harris, or the email ex-
changes between the parties’ attorneys, that the Respondent
ever expressed any misunderstanding about, or requested clari-
fication of or raised objections to, the scope of the requests or
relevancy of flagrant safety violations.
The Respondent now argues that the Union’s requests in par-
agraphs 6 and 7 are overly broad and not reasonably necessary
to process Lewis’ arbitration because Lewis was not terminated
for violating any flagrant or other safety procedures. I do not
accept these arguments regarding bargaining unit employees.
First, I agree with the General Counsel that these objections are
untimely, given that the Respondent had not, in the seven
months between the initial request and the trial, raised them or
requested that the Union narrow the scope or time frame for its
requests. It is well settled that an employer has an obligation to
seek clarification of an ambiguous or overbroad request.
Keauhou Beach Hotel, 298 NLRB 702, 702 (1990). Further, to
the extent that the Respondent never voiced these objections
prior to the trial, they were not timely raised so as to allow the
Union an opportunity to modify its requests or seek the infor-
mation through other documents. See Pulaski Construction
Co., 345 NLRB 931, 937–938 (2005) (the respondent had the
obligation to raise and discuss with the union any arguments
that a request was burdensome or raised confidentiality con-
cerns).
In its brief, the Respondent has relied on Equitable Gas Co.,
227 NLRB 800, 802 (1977), and Pfizer, Inc., 268 NLRB 916,
919 (1984), to show lack of relevance. I find this reliance is
misplaced. In Equitable Gas Co., supra, the Board found the
Union was not entitled to absentee records for all bargaining
unit employees because they were totally unrelated to its repre-
sentative role. The grievant’s suspension in that case was based
on “willful misconduct” in calling in sick after being denied
vacation leave, and not because of his absenteeism record.
Further, the Board in that case allowed the rather broad request
for absentee records of unit employees in another grievance
about chronic absenteeism. Here, Lewis was terminated for his
progression through the development stages and falling asleep
while performing his job. The Respondent admits in this case
that it considers prior discipline of bargaining unit employees
who commit acts of serious misconduct, and the Union ex-
plained that it needed these records to compare cases of other
bargaining unit employees. In Pfizer, Inc., supra, the question
before the Board was whether information requested of em-
ployees in another bargaining unit was relevant, and thus the
union had a greater relevance burden than in this case. Never-
theless, this case turned on an information request related to
bargaining unit employees, who worked side by side, under the
same broad rules of conduct and progressive discipline, regard-
less of which union represented them. In addition, the Re-
spondent here, unlike the employers in Equitable Gas Co.,
supra, and Pfizer, Inc., supra, never raised this objection to the
Union.
Moreover, for the reasons stated above, I find the Respond-
ent should have provided the requested information for the time
period requested. Consequently, I find the Respondent violated
Section 8(a) (5) and (1) of the Act when it failed to provide full,
complete responses to the presumptively relevant requests for
information in 6 and 7.
C. The Respondent Violated Section 8(a)(5) and (1) of the Act
in its Unreasonably Delay in Providing Information Responsive
to Paragraphs 6 & 7
I find the Respondent’s delay of almost seven months in
providing documentation responding to the Union’s inquiry in
paragraphs 6, 7 is an independent violation of Section 8(a)(5)
and (1) of the Act. As stated, an employer is required to furnish
relevant information, requested by a Union, in a timely fashion.
Overnight Transportation Co., 330 NLRB 1275 (2000); Mon-
mouth Care Center, supra at 354. In the instant case, the Re-
spondent failed to provide any explanation or argument to justi-
fy an almost seven month delay, as discussed above. Harris did
testify that he did not search for any documents before 2008
because “he ran out of time,” but there is no evidence whatso-
ever to support his claim. He had almost seven months, and
never once actually requested an extension of time. (Tr. 140.)
In fact, the Respondent never requested any kind of accommo-
dation or narrowing of the scope of the request. The burden of
formulating a reasonable accommodation is on the employer.
United States Testing Co. v. NLRB, supra at 21. As discussed
above, on May 28, the Respondent only provided its determina-
tion of what a relevant response would be; it failed to provide
any documentation. Finally, after almost seven months, the
Respondent provided incomplete/insufficient responses. In this
regard, the Board has found delays of 5 weeks and 2 months to
be excessive. See Postal Service, 308 NLRB 547, 550 (1992),
Postal Service, 310 NLRB 530, 536 (1993). And, as the Gen-
eral Counsel points out, the delay in this case far exceeds the
one-month delay that the Board found reasonable in Woodland
Clinic, 331 NLRB 735, 737 (2000). Furthermore, I reject the
Respondent’s argument that the Union suffered no harm from
delay because of its own delay in filing the grievance and arbi-
tration notice.
D. The Respondent Violated Section 8(a) (5) and (1) of the Act
in Failing to Provide and Delaying Providing Information Re-
sponsive to Paragraph 11(b)
The first sentence in paragraph 11(b) requested the written
policy from the SAMS Manual “regarding TLCT’s that [were]
in effect from 1/1/12 through the present.” The Union also
asked the Respondent to provide any separate policy, if any,
regarding TLCT’s that applies to supervision during that time
period, which will be addressed below. The first part of para-
graph 11(b) pertains to the SAMS Manual policies governing
bargaining unit employees, and is presumptively relevant.
Furthermore, there is no evidence that the Respondent provided
the requested information responsive to this request, denied
having it or requested clarification so as to allow the Union an
opportunity to modify its request. Therefore, for the same rea-
sons set forth in sections B and C of this decision, I find the
Respondent violated the Act when it failed to respond to para-
graph 11 (b) relating to unit members.
E. The Respondent Did Not Violate Section 8(a)(5) and (1) of
the Act When it Failed to Provide Information relating to Su-
pervisors in Paragraph 11
The General Counsel asserts that the Union ‘s request for in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
formation about supervisor discipline and violation of safety
policies is relevant because Lewis was terminated for violating
the same safety policies as those violated by the named
supervisors, particularly the TLCT policy. The Respondent
argues that such information is not relevant because the Union
does not represent supervisors, and further, because Lewis was
not discharged for violating any safety policies. I have already
decided that the General Counsel has failed to show that Lewis
was terminated for safety violations. My finding (as to why
Lewis was discharged) is especially germane to the Union’s
burden to establish the relevancy of supervisory information
requests.
As set forth above, the Union has a burden to show relevan-
cy in this case. Further, the Board has consistently held that an
employer has an obligation to provide information regarding
disparate treatment between unit employees and supervisory
personnel when the union has shown that the two groups were
subject to a common rule or prohibition and has shown a rea-
sonable belief of the disparate treatment based on objective
evidence. Postal Service, 332 NLRB 635, 635 (2000). The
Board has also rejected arguments by employers that superviso-
ry disciplinary information is generally irrelevant because su-
pervisors and unit employees are not subject to the same disci-
plinary criteria. See Postal Service, 289 NLRB 942, supra.
The General Counsel relies on several cases to show that the
Union has established the relevance of information concerning
the Respondent’s supervisors who violated its safety policy.
However, these cases are easily distinguishable in that they
required a showing that the supervisors violated the same or
common rule as the unit employees. In Postal Service, 289
NLRB 942, 934 (1988), the Board concluded that the Union
was entitled to disciplinary records of supervisors who had
violated the same gambling prohibition which applied equally
to supervisors and unit employees. Similarly, in Postal Service,
332 NLRB 635, supra, the Board held that the Union estab-
lished relevance of information requests pertaining to a super-
visor’s discipline under an attendance policy applicable to su-
pervisors and unit employees. In E.I. du Pont & Co., 346
NLRB 553, 553 (2006), the Board found that the union’s in-
formation request regarding supervisor discipline was relevant
where the supervisor, involved in an altercation with the unit
employee, was subjected to an investigation pursuant to the
employer’s “People Treatment” policy because the policy ap-
plied to both supervisors and unit employees. Id at 583. See
also Postal Service, 309 NLRB 309, 312 (1992) (relevancy
found where supervisor and employee violated the “same”
falsification of documents prohibitions applicable to both);
Postal Service, 332 NLRB 635 at 646 (relevancy found where a
supervisor violated the same attendance policies applicable to
unit and supervisory personnel). The common thread in these
cases was that the supervisors and unit employees were not
only subject to a common rule or prohibition, but that the unit
employees were actually disciplined for violating the same or
common rule as the supervisors. Even if the Union in this case
shows sufficient objective evidence that the named supervisors
possibly violated the TLCT safety policy or other flagrant safe-
ty policies applicable to supervisors and unit members at the
Spruance Plant (and were not disciplined or terminated), it has
not shown that Lewis was discharged for violating a safety
policy, including the TLCT procedure.10 It is not enough that
the named supervisors violated (or may have violated) one of
Respondent’s policies applicable to both supervisors and bar-
gaining unit employees, nor is it enough that Lewis violated a
policy or procedure which tangentially involved safety. There-
fore, the General Counsel has failed to establish that the Un-
ion’s requests for information regarding supervisors in para-
graph 11 were relevant (i.e., that Lewis and the named supervi-
sors engaged in similar conduct in violation of the same or
common rule/prohibition).
Consequently, I find that the Respondent did not violate Sec-
tion 8(a)(5) and (1) when it refused to provide information
pertaining to the supervisors in response to paragraph 11 of the
Union’s February 27, 2013 requests, and recommend that the
complaint charges relating to this allegation be dismissed.
Since the General Counsel has not met the relevancy stand-
ard required for supervisory information requests, it is unneces-
sary to address other arguments presented by the Respondent
regarding its refusal to provide documents pertaining to super-
visors.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has committed an unfair labor practice in
violation of Section 8(a)(5) and (1) of the Act by failing and
refusing to fully furnish the relevant information to the Union
in its February 27, 2013 information requests, paragraphs 6 and
7 and part of paragraph 11(b) pertaining to the SAM D-5 for
bargaining unit employees.
4. The Respondent has committed an unfair labor practice in
violation of Section 8(a)(5) and (1) of the Act by delaying and
refusing to promptly provide the relevant information to the
Union in its February 27, 2013 request for information, para-
graphs 6 and 7 and part of paragraph 11(b) pertaining to the
SAM D-5 for bargaining unit employees.
5. The Respondent has not committed an unfair labor prac-
tice in violation of Section 8(a)(5) and (1) of the Act by failing
and refusing to furnish information requested by the Union in
its February 27, 2013 request for information, paragraph 11
pertaining to supervisory personnel.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular, I recommend that Respondent
shall cease and desist from refusing to bargain collectively and

10 It is not relevant at this point, but I will note that the Union’s be-
lief (contrary to the Company’s argument) that the named supervisors
in par. 11 had violated the TLCT/lock out policy was supported by
undisputed objective evidence (contrary to the Company’s argument)
that unit employees had witnessed the supervisor’s alleged misconduct.
See Postal Service, 332 NLRB 635, supra (where this type of objective,
hearsay evidence was sufficient).
E.I. DU PONT DE NEMOURS & CO. 17
in good faith with the Ampthill Rayon Workers Union, Inc.,
Local 992, International Brotherhood of Dupont Workers (Un-
ion) by refusing to provide the information it needs to represent
unit employees. Additionally I recommend that the Respondent
immediately supply the Union with all information requested in
the Unions information requests dated February 27, paragraphs
6, 7 and 11(b) pertaining to bargaining unit employees and
which is necessary for the Union to perform its responsibilities
as the bargaining representative for unit employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, E.I. du Pont De Nemours and Company,
Richmond, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith with
Ampthill Rayon Workers Union, Inc., Local 992, International
Brotherhood of Dupont Workers (the Union) by refusing to
provide the presumptively relevant information it needs to rep-
resent bargaining unit employees.
(b) Refusing to furnish the information to the Union of all of
the information in the Union’s February 27 requests, para-
graphs 6, 7, and 11(b) pertaining to bargaining unit employees.
(c) Refusing to promptly and without delay to furnish all of
the information in the Union’s February 27 requests, para-
graphs 6, 7, and 11(b) pertaining to bargaining unit employees.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Promptly furnish the Union with the full information it
requested on February 27, 2013, in paragraphs 6, 7, and 11(b)
pertaining only to bargaining unit employees.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of the Administrative Law Judge’s
Order, what steps have been taken to comply with the Order.
(c) Within 14 days after service by Region 5, post at the
Spruance Plant in Richmond, Virginia, a copy of the attached
notice marked “Appendix.” 12 Copies of the notice, on forms
provided by the Regional Director for Region 5, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-

11 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
12 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.”
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since February 27, 2013.
(d) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 20, 2014
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 Ampthill
Rayon Workers, Inc., Local 992, International Brotherhood of
Dupont Workers by refusing to furnish it or delaying in furnish-
ing it with information it requests such as that contained in its
February requests, paragraphs 6, 7 and 11 (b), pertaining to
bargaining unit employees, about the termination of James
Lewis.
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 Section 7 of the Act.
WE WILL furnish Ampthill Rayon Workers, Inc., Local 992,
International Brotherhood Of Dupont Workers with the infor-
mation it requested in paragraphs 6, 7, and 11 (b) of its Febru-
ary 27, 2013 request pertaining to bargaining unit employees.
E.I. DU PONT DE NEMOURS AND COMPANY
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/05-CA-101359 or by using the QR
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
code below. Alternatively, you can obtain a copy of the deci-
sion from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.