Legal Services of Northern California

National Labor Relations Board - Board Decisions

May 16, 2008

352 N.L.R.B. 474 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 66
474
Legal Services of Northern California and Northern
United Legal Assistance Workers, National Or-
ganization of Legal Services Workers, UAW Lo-
cal 2320.1 Case 20–CA–32863
May 16, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On August 7, 2006, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the stipulated record in light of the ex-
ceptions and briefs, and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.2
The complaint in this case alleges that the Respondent
violated Section 8(a)(5) of the Act by failing to provide
the Union with a requested copy of a separation agree-
ment between the Respondent and employee Kimberley
Dovey. The Respondent argued that it did not have to
provide the separation agreement because the agreement
did not involve a term or condition of employment, and,
in any event, it was privileged as confidential. The judge
recommended dismissing the complaint. Although the
judge rejected the Respondent’s confidentiality defense,
he found that the Union failed to establish that the docu-
ment was relevant to the collective-bargaining process,
or to the Union’s role as collective-bargaining represen-
tative, because the document’s sole purpose was to settle
a potential private tort claim between Dovey and the Re-
spondent.
For the reasons set forth below, we reverse the judge
and find that the separation agreement was relevant to the
Union’s role as collective-bargaining representative. In
addition, for the reasons stated by the judge, we find that
the separation agreement was not a confidential docu-
ment, privileged from disclosure.3 Accordingly, we find
that the Respondent violated Section 8(a)(5) by failing to

1 The caption has been amended to reflect the correct name of the
Charging Party.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondent did not except to this finding.
provide the Union with a copy of the separation agree-
ment.
Facts4
The Respondent and the Union are parties to a collec-
tive-bargaining agreement in effect from February 24,
2004, to February 29, 2008. The collective-bargaining
agreement contains, among other things, provisions gov-
erning separation from employment, including specific
guidelines for severance in the event of a layoff.
On July 15, 2005,5 unit employee Dovey and the Re-
spondent entered into a separation agreement. On July
29, Union President Laurel Blankenship wrote the Re-
spondent stating that Dovey had resigned due to “the
unbearably stressful work environment there. The Union
was neither informed nor involved in this negotiation.”
Blankenship’s letter requested “any and all documents
signed by [the Respondent] and/or employee Kim Dovey
(signed during July 2005) regarding termination of her
employment, severance pay, and/or release of claims.”
Blankenship’s letter also stated that, because the separa-
tion agreement was made without the Union’s knowl-
edge, the Respondent’s conduct may constitute unlawful
“direct dealing.”6
The Respondent did not provide the Union with the re-
quested separation agreement.7 Instead, on August 15,
the Respondent’s executive director, Gary Smith, e-
mailed Blankenship stating that Dovey had voluntarily
terminated her employment, and that the Respondent had
not engaged in any direct dealing with Dovey over the
terms or conditions of her employment.
In a September 12 letter to Smith, and in an e-mail sent
him the same date, Blankenship repeated the Union’s
request for “copies of any and all documents signed by
[the Respondent] and/or Kim Dovey (signed during July
2005) regarding termination of her employment, sever-
ance pay relating to her termination of employment,
and/or release of claims.” By e-mail on September 20,
Smith responded that “[a]s I stated in my e-mail-message
of August 15 . . . [the Respondent] has not executed any
agreements with Kim Dovey (or any other [union] mem-
ber) pertaining to the terms or conditions of their em-
ployment.”

4 The parties stipulated to the facts in this case.
5 All dates are 2005, unless otherwise specified.
6 The letter further inquired whether the Respondent negotiated indi-
vidual separation agreements with other employees within the previous
2 years, and requested copies of any such documents. That additional
information is not encompassed by the instant 8(a)(5) charge.
7 Although the complaint refers to the “severance agreement” be-
tween the Respondent and Dovey, the document, submitted under seal
to the judge, is entitled “Separation Agreement.”
LEGAL SERVICES OF NORTHERN CALIFORNIA 475
The Judge’s Decision
Although the separation agreement was not provided
to the Union, a copy was submitted under seal to the
judge, who examined it in camera. In his decision, the
judge made the following findings with respect to this
document:
1. The document is titled “Separation Agreement;” 2.
it constitutes Dovey’s resignation; 3. it recites that she
has been paid her earned salary, vacation pay and any
other amounts owed through the termination date; 4. it
provides for a lump sum in exchange for a release of
any tort claims arising from her employment, listing
various statutes and common-law theories which might
support such a claim; 5. it includes a limited nondisclo-
sure clause barring her from advising others concerning
the terms of the agreement, along with certain excep-
tions, such as being required by law to disclose its
terms and also allowing her to disclose those terms to
her spouse, her attorney, her accountant and any other
professional advisor who might need the information.
It provides Respondent with a legal remedy if she were
to breach the nondisclosure clause. [Footnote omitted.]
In determining whether the Respondent’s refusal to
furnish the Union with a copy of the separation agree-
ment violated Section 8(a)(5), the judge first considered
whether the separation agreement was relevant to either
the collective-bargaining process or to the Union’s role
as the employees’ collective-bargaining representative.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). He found
that it was not. The judge reasoned that the Union did
not have a bargaining purpose for requesting the infor-
mation because the collective-bargaining agreement did
not expire until 2008. The judge also found that the Un-
ion’s information request did not cite to a valid contract-
policing purpose, finding no evidence that any employee
had complained about any matter relating to Dovey’s
separation from employment. The judge then found that
the Union’s information request did not demonstrate a
valid representational purpose. The judge noted that
although the Union’s request cited to a vague direct deal-
ing allegation, the details of such allegations were never
explained. In addition, the judge found that there was no
evidence that the Union sought to represent Dovey in
negotiating the separation agreement.
Finding that the Union had failed to establish a con-
tractual or representational purpose for requesting a copy
of the separation agreement, the judge posited that the
Union was seeking to review Dovey’s waiver of a tort
claim, which formed the basis for her separation from
employment with the Respondent. The judge stated that
the separation agreement functioned as a waiver of this
tort claim, for which Dovey received compensation from
the Respondent, and its purpose was outside the Union’s
representational purview. As stated by the judge,
“[O]nce [Dovey] decided to waive her tort claim, [the
only issue] was to negotiate an amount that would satisfy
her personal sense of how she had been wronged. That is
not a wage or term and condition of employment and no
party has cited to a case holding that it is.” On this basis,
the judge concluded that the Respondent did not violate
Section 8(a)(5) by failing to provide the Union with a
copy of the separation agreement.
The Parties’ Positions
In their exceptions, the General Counsel and the
Charging Party argue that the judge relied on facts out-
side the stipulated record in finding that: Dovey suffered
a tort; she chose not to consult with the Union over that
tort claim; and she independently negotiated the separa-
tion agreement with the Respondent. The General Coun-
sel argues that although the Respondent inserted and ar-
gued these facts in its position paper, they were not part
of the stipulated record, and thus there is no factual basis
to find that the separation agreement’s purpose was to
waive a private tort claim between Dovey and the Re-
spondent.
The General Counsel also argues that the judge erred
in finding that the separation agreement was not pre-
sumptively relevant to the Union’s duty to police the
terms of the collective-bargaining agreement. The Gen-
eral Counsel argues that the agreement involves manda-
tory subjects of bargaining, including Dovey’s waiver of
her rights under the collective-bargaining agreement and
the National Labor Relations Act. The General Counsel
urges the Board to find that the judge erred in concluding
that the Respondent did not violate Section 8(a)(5) by
refusing to provide the Union with a copy of the separa-
tion agreement.
In its answering brief, the Respondent acknowledges
that the judge restated certain facts from its position
statement, but argues that the judge did not rely on facts
outside the stipulated record, and that the intent of the
separation agreement to serve as a waiver of a tort claim
is evident from the document itself. The Respondent
further contends that the separation agreement did not
specifically include a waiver of Dovey’s rights under the
NLRA. The Respondent concludes that the judge cor-
rectly found that the separation agreement was a private
release of a tort claim between Dovey and the Respon-
dent, and that the Union failed to show any legitimate
representational purpose for its request for a copy of the
document.
As explained below, we find, contrary to the judge,
that the Respondent was obligated to provide the Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
with a copy of the requested separation agreement, and
its refusal to do so violated Section 8(a)(5) of the Act as
alleged.
Discussion
Upon request, an employer must provide relevant in-
formation necessary for the union to effectively represent
employees under the terms of a collective-bargaining
agreement. NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967). Terms affecting mandatory subjects of
bargaining are considered relevant. Id. Where informa-
tion is relevant to a union’s performance of its role as
collective-bargaining representative, the Board will find
that an employer violates the Act by failing to provide it.
Transcript Newspapers, 286 NLRB 124 (1987), enfd.
856 F.2d 409 (1st Cir. 1988) (employer unlawfully re-
fused to provide unions with a copy of its sales agree-
ment, which was relevant to unions’ roles as collective-
bargaining representatives).
Here, the document submitted under seal to the judge
includes an explicit waiver of Dovey’s rights under the
collective-bargaining agreement. As the Board has pre-
viously found, an employer violates the Act when it re-
quires or solicits employees to waive their rights under a
collective-bargaining agreement without the union’s
knowledge or assent. See generally Resco Products, 331
NLRB 1546, 1547–1548 (2000) (finding that employer
violated Section 8(a)(5) by requiring that employees
waive, without union’s knowledge or consent, contrac-
tual vacation pay benefits). See also Kaiser-Permanente
Medical Care Program, 248 NLRB 147 (1980) (em-
ployer violated the Act by soliciting employees to waive
their contractual right to overtime pay in exchange for
preferred work schedules). Accordingly, the Respondent
is required to provide the Union with a copy of this in-
formation.8
We therefore find that the separation agreement exe-
cuted between Dovey and the Respondent affects manda-
tory subjects of bargaining, and constitutes information
that is relevant to the Union’s role as the employees’
collective-bargaining representative. Thus, the Respon-
dent violated Section 8(a)(5) by refusing to provide the
Union with a copy of the separation agreement.

8 Because we find that the separation agreement is relevant because
of its waiver of rights under the collective-bargaining agreement, we
find it unnecessary to address the judge’s finding that the separation
agreement is not presumptively relevant. We similarly find it unneces-
sary to address the General Counsel’s and Union’s contention that the
judge relied on facts outside of the stipulated record in finding the
agreement not presumptively relevant.
ORDER
The National Labor Relations Board orders that the
Respondent, Legal Services of Northern California, Sac-
ramento, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union,
Northern United Legal Assistance Workers, National
Organization of Legal Services Workers, UAW Local
2320, by failing and refusing to provide the Union with
the information requested by its letters dated July 29 and
September 12, 2005, and its e-mail dated September 12,
2005.
(b) 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) Promptly furnish the Union with the information it
requested in its letters of July 29 and September 12,
2005, and its e-mail dated September 12, 2005.
(b) Within 14 days after service by the Region, post at
its Sacramento, California office copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any material. In the event that,
during the pendency of these proceedings, the Respon-
dent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of this notice to
all employees employed by the Respondent at any time
since July 29, 2005.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.

9 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.”
LEGAL SERVICES OF NORTHERN CALIFORNIA 477
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 the
Union, Northern United Legal Assistance Workers, Na-
tional Organization of Legal Services Workers, UAW
Local 2320, by failing and refusing to provide the Union
with the information requested by its letters dated July 29
and September 12, 2005, and its e-mail dated September
12, 2005.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL promptly furnish the Union with the informa-
tion it requested in its letters of July 29 and September
12, 2005, and its e-mail dated September 12, 2005.
LEGAL SERVICES OF NORTHERN CALIFORNIA
Lucile Lannan Rosen, for the General Counsel.
Mary K. Nebgen (Orrick, Herrington & Sutcliffe), of Sacra-
mento, California, for the Respondent.
Elizabeth Fiekowsky, Regional Organizer, of Cotati, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
has been submitted to the Division of Judges upon a joint mo-
tion of the parties who seek a decision based upon a hearing
waiver and formal stipulation of facts signed on April 28 and
May 25 and 29, 2006. The factual stipulation was signed by all
parties on May 25, 2006. In addition, each party has filed a so-
called “Statement of Position” accompanying the stipulation.
Associate Chief Administrative Law Judge Mary M. Cracraft
granted the motion on June 6, 2006, and assigned the case to
me for decision.
Northern United Legal Assistance Workers, National Or-
ganization of Legal Services, UAW Local 2320 (the Union or
the Charging Party), filed the underlying unfair labor practice
charge on January 20, 2006. The Regional Director for Region
20 issued the complaint on March 23, 2006. It alleges that
Legal Services of Northern California (Respondent) violated
Section 8(a)(5) and (1) of the National Labor Relations Act
(NLRA or the Act) by failing to comply with the Union’s de-
mand to produce the severance agreement (or severance “pack-
age”) between it and its former employee, Kimberley Dovey.
The complaint further asserts that the Dovey severance agree-
ment is “necessary for, and relevant to, the Union’s perform-
ance of its duties as the exclusive collective-bargaining repre-
sentative of the [represented employees].” Respondent’s an-
swer agrees that the Union holds 9(a) status and is the employ-
ees’ exclusive collective-bargaining representative.1 Respon-
dent’s answer, however, denies that the Union requested
Dovey’s separation agreement; it asserts that the Union de-
manded the Dovey separation “package.” It also denies that the
package is necessary for the Union’s performance of its repre-
sentational duties. Affirmatively, it asserts the package to be
confidential.
Pursuant to an order issued by the associate chief administra-
tive law judge, all parties have timely filed briefs in support of
their respective positions. They have been carefully consid-
ered. Based upon the pleadings and the stipulation of facts, I
hereby make the following findings.
Jurisdiction
Based on the stipulation, Respondent, Legal Services of
Northern California, is a California corporation, with an office
and place of business in Sacramento. It provides free legal
services to clients in 23 counties in Northern California. Dur-
ing the 12-month period ending December 31, 2005,2 Respon-
dent’s gross revenues exceeded $250,000, and during the same
period it purchased and received at its Sacramento facility
goods valued in excess of $2500 which originated outside Cali-
fornia. Accordingly, Respondent at all material times, has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. Furthermore, the stipulation
recites that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
The Operative Facts
The stipulation sets forth some of the operative facts. It first
recites that Dovey was a bargaining unit employee until she
agreed to, and executed, the separation agreement on July 15.
It also sets forth the correspondence between the Union and
Respondent which constitutes the demand under scrutiny here
and the manner in which the nature of the demand shifted.
Specifically, on July 29, Laurel Blankenship, the Union’s
president, wrote Respondent’s executive director, Gary Smith,
a letter in which she initially asserted that Dovey’s “severance
package” had been reached without the Union’s knowledge or
involvement. She suggested that Respondent’s conduct may
have breached the good-faith bargaining obligation under Sec-
tion 8(d) of the Act as constituting improper direct dealing over

1 The collective-bargaining contract shows the unit to include staff
attorneys, legal graduate assistants, paralegals, legal secretaries, admin-
istrative support clerks, and receptionists.
2 Unless otherwise noted, all dates are 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD478
matters reserved by law to the Union. Blankenship thereupon
asked for a copy of the “package.”
Smith responded on August 15 by e-mail. Inter alia, he said:
“I have reviewed the concerns raised in [the July 29 letter] in
connection with the resignation of a staff member. Although
issues of confidentiality and the employee’s privacy rights pre-
clude me from discussing the manner in detail, I can assure you
that the employee’s decision was entirely voluntary, and that no
one from [ ] management pressured, requested, or suggested in
any way that the employee resign. After the employee ap-
proached [management] and notified the Managing Attorney
[Herb Whitaker] of her intent to resign, [Respondent] did not
engage in any improper ‘direct dealing’ with an employee
whatsoever with respect to any ‘terms and conditions of em-
ployment.’” He closed by correcting a perceived misimpres-
sion to the effect that one of Respondent’s office managers had
participated in the discussion with the employee concerning her
resignation. He said those discussions were only between the
employee (Dovey) and the managing attorney.
On September 12, Blankenship e-mailed Smith to remind
him that he had not responded to the July 29 request for copies
of the agreement between Respondent and Dovey.
Separately, but also on September 12, Blankenship wrote
Smith, repeating her request for the information demanded in
the July 29 letter. It specifically requested copies of “any and
all documents signed by [Respondent] and/or employee Kim
Dovey (signed during July 2005) regarding termination of her
employment, severance pay relating to her termination of em-
ployment and/or release of claims.” By September 12, it would
appear the Union was no longer asserting that unlawful direct
dealing had occurred, but now it wanted the signed documents
which reflected her termination, her pay and any release of
claims. It ended by asserting that it had “the right to this in-
formation.”
It should be observed here that there is no contention that
Dovey has filed any grievance, much less one concerning her
departure from employment.
Smith replied to both by e-mail on September 20 saying: “As
I stated in my e-mail message of August 15th [Respondent] has
not executed any agreements with Kim Dovey (or any other
[union] member) pertaining to the terms or conditions of their
employment.”
In addition, a document under seal has been presented for my
review, and I have reviewed it in camera. Although not spe-
cifically stated in the stipulation, it would appear that Respon-
dent, at least, and perhaps the General Counsel (but not the
Charging Party) are aware of its contents. Without breaking the
seal of confidentiality, I can make the following observations
about its contents: (1) the document is titled “Separation Agree-
ment”; (2) it constitutes Dovey’s resignation; (3) it recites that
she has been paid her earned salary, vacation pay and any other
amounts owed through the termination date; (4) it provides for
a lump sum in exchange for a release of any tort claims arising
from her employment, listing various statutes3 and common-
law theories which might support such a claim; and (5) it in-
cludes a limited nondisclosure clause barring her from advising

3 The NLRA is not among the statutes listed.
others concerning the terms of the agreement, along with cer-
tain exceptions, such as being required by law to disclose its
terms and also allowing her to disclose those terms to her
spouse, her attorney, her accountant, and any other professional
advisor who might need the information. It provides Respon-
dent with a legal remedy if she were to breach the nondisclo-
sure clause.
Nevertheless, the nondisclosure portion of the agreement is
not reciprocal. It does not in any way bar Respondent from
revealing either the agreement itself or its terms, even if such a
revelation were somehow to negatively impact Dovey. Neither
is there any agreed-upon consequence if it were to do so.
Respondent, like the other parties, filed a position statement
together with the factual stipulation. Although not evidence or
an evidence substitute,4 it nonetheless provides a context for its
defense. In the position statement it observes that Dovey re-
signed because she had become the victim of another em-
ployee’s having revealed certain personnel information about
her. Whether Dovey resigned due to such a happenstance is not
a consideration here.
Nonetheless, the position statement illuminates the reason
for the tort claim waiver set forth in the Dovey separation
agreement. If another employee reveals material in an em-
ployee’s personnel file, whether publicly or only to coworkers,
that conduct may well be grounds for a successful invasion of
privacy suit in tort by the wronged employee under the tort’s
“public disclosure of private facts” or the “intrusion upon one’s
affairs” subcategories. (See any treatise on torts for a full ex-
plication.) In California, the situs of this case, there is a State
constitutional provision which protects its people from such
incursions.5 Respondent was prudent to seek a waiver from
Dovey since it might well have been liable to her, under princi-
ples of respondeat superior, for the injustice committed upon
her by the other employee.

4 Respondent’s brief inappropriately refers to an affidavit provided
to the Regional Office which is not a part of the stipulation. That por-
tion of its brief has not been considered.
5 See art. I, sec. 1 of the California Constitution, the declaration of
rights, which reads: “All people are by nature free and independent and
have inalienable rights. Among these are enjoying and defending life
and liberty, acquiring, possessing and protecting property, and pursuing
and obtaining safety, happiness, and privacy.” See also the various
invasion of privacy statutes which California has legislated and which
provide for a cause of action. Some of its prohibitions are criminal in
nature, such as those against wiretapping. In fact, California Penal
Code § 631, though aimed primarily at communication systems, proba-
bly covers office computer network searches where one merely views
the private material. Sec. 632 is even broader.
A very recent example demonstrating the importance of this privacy
right may be seen in Kearney v. Salomon Smith Barney, 39 Cal. 4th 95;
45 Cal.Rptr.3d 730 2006 WL 1913135 (July 13, 2006), where the Cali-
fornia Supreme Court found the Georgia branch office of a brokerage
house which also does business in California, and which had relied on
Georgia law to permit one-party telephone eavesdropping, to be subject
to the above-cited California law, using the governmental interest
analysis in determining the choice of law to be applied. This, in my
opinion, demonstrates how strongly the California courts will enforce
California privacy rights, reaching even into conduct partially commit-
ted in another state.
LEGAL SERVICES OF NORTHERN CALIFORNIA 479
Legal Analysis
This case arises under the general legal matrix that an em-
ployer must supply, upon appropriate demand, information to
the employees’ statutory representative information which is
relevant to either the collective bargaining or the representa-
tional processes. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956); and NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
See also Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir.
1965), enfg. 145 NLRB 152 (1963). Claims of confidentiality
and privilege can insulate the employer in some circumstances.
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). In that
event, the burden of rebutting the producibility and of proving
confidentiality or privilege is on the employer. E. I. du Pont &
Co., 346 NLRB 553 (2006); Wayne Memorial Hospital, 322
NLRB 100, 104 (1996); Washington Gas Light Co., 273 NLRB
116 (1984); andMcDonnell Douglas Corp., 224 NLRB 881,
890 (1976), and others.
The initial issue is whether the General Counsel has demon-
strated that Dovey’s severance agreement is producible under
ordinary standards.
It is fair to first observe that the Union really didn’t know
what it was seeking when it wrote its initial letter. It was oper-
ating under the belief that something approaching undermining
its status had occurred. It thought that there had been direct
dealing and was seeking evidence of it. As Smith responded,
its view shifted, apparently deciding that it needed the underly-
ing document to determine what had actually happened.6
Smith’s indirect reply did not give the Union much comfort,
though Smith clearly denied that he had encroached into the
field reserved for the collective-bargaining agent. From the
Charging Party’s perspective, Smith’s statement: [“As I stated
in my e-mail message of August 15th . . . [Respondent] has not
executed any agreements with Kim Dovey (or any other [union]
member) pertaining to the terms or conditions of their employ-
ment,”] relied too much on a legal conclusion. There were no
facts to support it, even if Smith was correct. Had Smith told
the Union what the agreement actually accomplished, he would
have stood a better chance of persuading it that he had not in-
terfered with its representative status.
Smith’s reply only generated more interest. Yet, instead of
picking up the phone and explaining their respective interests,
where a resolution might have been reached, each party decided
to remain at distance, standing on their own legal niceties. This
approach is not conducive to a mature relationship. Surely both
sides need to work on improving communications. That failure
took the matter to the Board.
For the Board to order the agreement turned over to the Un-
ion, it must be shown to be relevant to either the collective-
bargaining process or to the Union’s role as the employees’

6 In its brief, the Charging Party has renewed its claim that Respon-
dent’s conduct qualifies as unlawful direct dealing. Since the com-
plaint does not allege such a violation, the issue will not be pursued
here. However, I direct the Union to the first proviso of Sec. 9(a) of the
Act which permits employees to present grievances to their employer
and have them adjusted without the intervention of their bargaining
representative so long as the adjustment is not inconsistent with the
collective-bargaining contract.
collective-bargaining representative. At the outset, it can be
said that there are two types of relevance, presumptive and non-
presumptive. Insofar as normal bargaining matters are con-
cerned, they will be deemed presumptively relevant if they fall
within the parameters of Section 8(d) of the Act as a “wages,
hours or terms and conditions of employment” issue.7 Where
the demand seeks presumptively relevant data the employer is
deemed to understand its obligation promptly to provide such
material. Its failure to do so breaches the 8(d) bargaining obli-
gation unless it can effectively rebut the presumption. Never-
theless, some other legitimately needed information, not pre-
sumptively relevant, might be producible in the same way if the
Union satisfactorily explains that it is pertinent, or if relevance
is evident from circumstances.
Producibility in cases where the Union is seeking to perform
its representational duties becomes a little more problematic
because there are many instances where relevance to that func-
tion is not readily apparent. Generally, the more readily appar-
ent relevant material is that sought by a union to oversee its
collective-bargaining contract or to seek information relating to
a grievance. These usually stay in the realm of self-evident
relevance or its significance can easily be inferred. Where the
information being demanded is actually relevant but its import
is not reasonably discernible from the demand, producibility
becomes problematic, at least until the union specifically dem-
onstrates relevance in the face of the employer’s opposition.
Specifically, see American Stores Packing Co., 277 NLRB
1656, 1659 (1986); Emery Industries, 268 NLRB 824, 825
(1984); Leonard B. Herbert Jr. & Co., 259 NLRB 881, 883
(1981), enfd. 696 F.2d 1120 (5th Cir. 1983); and Western Mas-
sachusetts Electric Co., 228 NLRB 607, 623 (1977), enfd. as
modified 573 F.2d 101 (1st Cir. 1978).
As can be seen, the Union here demanded a copy of Dovey’s
“severance package,” first explaining that it believed it was the
product of an unlawful direct dealing within the meaning of
Section 8(a)(5). Although it seemed to later have moved away
from its “direct dealing” theory, it never explicated its need for
the information.8 It simply claimed it had “the right to this
information.” Yet, rather clearly there was no bargaining pur-
pose, since the contract will not expire until 2008. Therefore,
bargaining for a new contract cannot be presumed. See Emery
Industries, supra. Nor did it cite a contract policing purpose.
No employee had complained and if the Union was concerned
about proper wages being paid, it could simply have asked for
Dovey’s payroll records. Instead, it sought Dovey’s “severance
package” and said nothing about its reasons. That suggests the

7 Sec. 8(d) [Obligation to bargain collectively] “For the purposes of
this section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement or any question arising thereunder, and the
execution of a written contract incorporating any agreement reached if
requested by either party, . . . .” [Emphasis added.]
8 The stipulated record does not describe whether the Union’s posi-
tion shift was ever transmitted to Respondent. If not, Respondent
would have been left to think that direct dealing was the issue, not the
terms of the severance package.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD480
Union seeks the information to carry out its representational
duties. And, of course, that is what the General Counsel’s
complaint-stated theory is. Yet even the General Counsel has
not stated what the Union’s representational purpose is here.
The question raised, therefore is, how does production of
Dovey’s separation agreement have relevance to its duties as
the collective-bargaining representative? There is no evidence
that the Union is seeking to represent Dovey in any dispute. If
the Union sees its duty as representing the whole of the bar-
gaining unit, such a scope has never been stated. One might
surmise that it seeks information concerning Dovey’s waiver of
the tort claim. But that is not a “wage, hour or term and condi-
tion of employment” subject matter. It is only a private affair
between a potential plaintiff and a potential tortfeasor who
happens to be in an employer-employee relationship at the time
the presumed tort occurred. Consequently, the waiver is only
concerned with remedying a matter unrelated to Dovey’s col-
lectively-bargained employment relationship.9 The Union’s
only representational concern is how employment is regu-
lated;10 it can have no concern over a tort which has no connec-
tion to that regulatory plan.
It is Dovey who putatively suffered the tort. Of course she
was free to ask the Union for advice about her tort claim if she
wished, but here she clearly did not think she needed outside
help and chose not to seek it. But Dovey’s only issue, once she
decided to waive her tort claim, was to negotiate an amount that
would satisfy her personal sense of how she had been wronged.
That is not a wage or term and condition of employment and no
party has cited a case holding that it is. My research has not
found one, either. Certainly it is not a payment in exchange for
work.
Therefore, the Union has no duties to perform regarding this
tort, not even how or if, it was remedied. That is a matter be-
tween the plaintiff and the defendant. The Union simply has no
role to play.
Furthermore, the Board has held, as Respondent argues, that
employers do not violate Section 8(a)(5) and (1) of the Act
when they condition receipt of enhanced severance benefits
upon the employee’s execution of a general release of liability.
Specifically, see Phillips Pipe Line Co., 302 NLRB 732 (1991).
There, the Board observed that it had earlier held general re-
leases of liability have too attenuated a link to actual terms and
conditions of employment to constitute, in and of itself, a man-
datory subject of bargaining, citing Borden, Inc., 279 NLRB
396, 399 (1986). It did observe that fact patterns have occurred
where the mandatory and nonmandatory subjects became so
intertwined as to treat the nonmandatory matters as if they were

9 Cf. Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988),
where the Supreme Court held that a union-represented employee’s
wrongful discharge tort complaint, under a theory of retaliation for
filing a workers compensation claim, was not preempted by the Act as
the collective-bargaining agreement was not implicated and did not
need to be interpreted. Similarly here, neither the collective-bargaining
agreement nor the union’s status as the employees’ bargaining agent are
implicated in Dovey’s decision to settle a potential tort claim.
10 See J. I. Case Co. v. NLRB, 321 U.S. 332, 335 (1944). There the
Court observed that a collective-bargaining agreement regulates em-
ployment, comparing it to a trade agreement.
mandatory. Even so, there is no contention that such entan-
gling has occurred here. In fact, the Board has also said that
where the union has not indicated with specificity the relevance
of the material which it seeks, it will not sift through the infor-
mation to determine its relevance. Bendix Corp., 242 NLRB 62
(1979). Indeed, that duty rests with the Union, not the Board.
American Stores Packing Co.; Emery Industries; Leonard B.
Herbert Jr. & Co.; Western Massachusetts Electric Co., all
supra. Also, Bohemia, Inc., 272 NLRB 1128, 1129 (1984).
Similarly, the Charging Party here has failed to describe the
relevance of the material sought with the requisite specificity.
It should also be noted that here, as in BP Exploration
(Alaska), 337 NLRB 887 (2002), the Union insisted upon the
actual document, not the information contained in the docu-
ment. This insistence did not inform Respondent of what the
Union’s purpose was. Respondent believed it had the right to
keep the substance of the agreement private. Aside from
whether its belief was well founded, it also knew that the tort
settlement provision was not something which the Union could
demand as presumptively relevant to any legitimate union pur-
pose or need. It was, therefore, privileged to keep its terms
private until the Union explained its purpose. But the Union
never has; instead, it filed the unfair labor practice charge.
Accordingly, I conclude that Respondent is not obligated to
provide the Dovey “separation package” to the Charging Party.
Neither it nor the General Counsel has demonstrated that its
contents are relevant to any union duty to its represented em-
ployees.
In the event that the Board declines to agree with my find-
ings concerning Respondent’s right to await proof of relevance,
it will then face Respondent’s defense that Dovey’s separation
package need not be disclosed because of its confidential na-
ture. It is therefore appropriate to deal with that issue in order
to avoid a remand on the point. West Penn Power Co., 339
NLRB 585 (2002).
However, Respondent has not presented any facts which
warrant treating the severance package as confidential. The
only fact which even suggests that Dovey wishes her severance
agreement to be confidential is actually one which serves Re-
spondent’s self-interest, not hers. She has been silenced by the
terms of the agreement, but she is not the one to whom the
Charging Party’s demand is directed. She hasn’t been asked
and it is her privacy interest which we must consider, not Re-
spondent’s.
My in camera review of the agreement demonstrates rather
clearly that nothing found therein evidences her desire to keep
the terms of the agreement confidential. It is only Respondent,
the drafter, which asked for nondisclosure—by her, not by it;
the duty the agreement imposes on her is designed not to pro-
tect her, but to protect Respondent. Accordingly, Respondent
does not, because it cannot, point to any privacy interest which
Dovey has sought to protect. Respondent cannot claim to be
Dovey’s protector. It has no standing to do so.
And, since the only confidential interest it is protecting its
own, the burden to demonstrate that the matter is confidential to
it rests upon Respondent. See Detroit Edison Co. and E. I. du
Pont, both supra, and cases cited. It has not met that burden
whatsoever. Similarly, the facts do not demonstrate that Re-
LEGAL SERVICES OF NORTHERN CALIFORNIA 481
spondent has sought to accommodate whatever confidentiality
defense it can muster. See, for example, the type of accommo-
dation made in National Steel Corp., 335 NLRB 747, 748
(2001), cited in E. I. du Pont, supra. There is no evidence that
it has responded to the Union by proposing to supply something
less than the severance agreement itself. I find that curious
since Respondent has carefully parsed the request for the in-
formation as a “package” rather than the agreement itself. It
clearly sees the difference between the underlying material and
the agreement itself. Despite its recognition that there may be
room for providing something less than the agreement itself, it
never made such a proposal. I recognize that may well be the
product of its failing to see beyond the Union’s initial claim
that the separation agreement was improper direct dealing.
Nevertheless, its claim of confidentiality is not factually sup-
ported.
Accordingly, I find that Respondent has failed to demon-
strate that Dovey’s separation agreement is a confidential
document. Therefore, it cannot invoke the defense of confiden-
tiality. To the extent that confidentiality has been raised as an
affirmative defense, it is rejected.
Yet, the fact remains that the Union has failed to demonstrate
that the “separation agreement” is relevant to its duty as the
exclusive collective-bargaining representative of the bargaining
unit employees. The complaint should be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Northern United Legal Assistance Workers, National Or-
ganization of Legal Services, UAW Local 2320 is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove that the sever-
ance agreement between Respondent and its former employee
Kimberly Dovey has any relevance to either collective bargain-
ing or to the Union’s duties as the employees’ collective-
bargaining representative.
4. Respondent has not engaged in the unfair labor practices
as alleged in the complaint.
[Recommended Order omitted from publication.]