Mar-Zane, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 17, 2003

25-CA-028670 (N.L.R.B. Nov. 17, 2003)

JD(ATL)76–03
Noblesville, IN

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA DIVISION OF JUDGES

MAR–ZANE, INC.

and CASE 25–CA–28670

INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL UNION 103 a/w
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL–CIO

Belinda J. Brown, Esq.,
for the General Counsel
John Nunley, Vice President
for the Charging Party
James D. Masur II, Esq.,
for Respondent

DECISION

Statement of the Case

MARGARET G. BRAKEBUSCH, Administrative Law Judge. The charge in
Case 25–CA–28670 was filed on April 17, 20031 by the International Union of Operating
Engineers Local Union 103 a/w International Union of Operating Engineers, AFL–CIO,
(the Union). Based upon the allegations contained in Case 25–CA–28670, the Regional
Director for Region 25 of the National Labor Relations Board (herein the Board) issued
a Complaint and Notice of Hearing on August 25, 2003. The complaint alleges that
Mar–Zane, Inc. (Respondent) violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act) by failing and refusing to bargain collectively with the Union as
the exclusive collective bargaining representative of its employees. Specifically, the
complaint alleges that Respondent failed and refused to provide to the Union requested
information that is necessary and relevant to the Union’s performance of its duties as
the exclusive collective bargaining representative. Respondent filed a timely Answer
and a First Amended Answer denying the essential allegations.
1 All dates are 2003 unless otherwise indicated.

JD(ATL)76–03

A hearing on these matters was conducted before me in Indianapolis, Indiana on
October 2, 2003, at which all parties had the opportunity to present testimony and
documentary evidence, to examine and cross–examine witnesses, and to argue orally.
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On the entire record, including my observation of the demeanor of the witnesses,
and after considering the pre–trial briefs filed by the General Counsel and Respondent, I
make the following:

Findings of Fact
I. Jurisdiction
Respondent, a corporation, with an office in Noblesville, Indiana and facilities in
Noblesville, Indiana and Indianapolis, Indiana is in the business of manufacturing and
producing asphalt. Annually Respondent, in conducting its business operations,
purchases and receives at its Indianapolis, Indiana facility goods valued in excess of
$50,000 directly from points outside the State of Indiana. 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. Background

Respondent’s Executive Vice–President Nick Little testified that Respondent has
been in the business of manufacturing asphalt and concrete since sometime in the
1940’s or 1950’s. Respondent maintains its corporate headquarters in Zanesville, Ohio.
As a subsidiary, Respondent is the manufacturing arm for Shelly and Sands. While
Shelly and Sands secures the contracts with public entities and private contractors for
the manufacture of asphalt, Respondent manufactures the actual product. Out of
Respondent’s 26 manufacturing plants, only five are unionized. Respondent operates
three unionized plants in Ohio and two in Indiana.

On November 23, 1990, the Board certified2 the Union as the exclusive collective
bargaining representative for all plant operators and loader operators at Respondent’s
Noblesville, Indiana facility. On January 2, 1991, Respondent and the Union entered
into a collective bargaining agreement adopting the existing agreement between the
Union and the Indiana Constructors, Inc., Labor Relations Division, herein Indiana
Constructors. The agreement provides that Respondent recognizes the Union as the
sole and exclusive bargaining representative for and on behalf of Respondent’s
employees within the territorial and occupational jurisdiction of the Union. The Union’s
2 The certification was based upon the Union’s having received a majority of ballots counted in a
November 13, 1999 election. Of approximately two eligible voters, two votes were cast for the
Union.
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Local Vice–President and Business Agent John Nunley testified that the 1991
agreement has remained in effect since 1991 without any additional signed agreements
between the Union and Respondent. The terms of the agreement allow for the
continuation of the agreement or a “roll–over” when there is no timely notification of
termination or modification. By becoming signatory to the agreement between the
Union and the Indiana Constructors, an employer is required to utilize the Union’s
referral procedures for work performed within the 33 counties of the Union’s
jurisdictional area. As Nunley testified, Union members cannot solicit their own work but
must depend upon the employers’ utilization of the referral procedure.
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The agreement between the Union and the Indiana Constructors provides that
the agreement covers highway construction, heavy construction and railroad
contracting, and local production of materials, as well as all job site equipment repairs
and maintenance, and other job site work. The agreement however, does not cover job
site repair or maintenance performed by warranty and specialized mechanics that are
not employees of the Respondent.

The parties stipulated that since 1994, when Respondent established its
Kentucky Avenue manufacturing facility in Indianapolis, employees represented by the
Union who have been dispatched to the Kentucky Avenue facility have performed work
at the Noblesville facility. The parties further stipulated that employees represented by
the Union and dispatched to work at the Noblesville facility have performed work at the
Kentucky Avenue facility. The record reflects that as early as May 13, 1994, the Union
referred an employee to work at Respondent’s Kentucky Avenue facility.

Little testified that employees at both Respondent’s Noblesville and Kentucky
Avenue facilities are paid according to the wage rates of the agreement between the
Union and the Indiana Constructors. Additionally, Respondent deducts union dues and
makes health and welfare and pension contributions for its employees at the Kentucky
Avenue facility. Respondent further stipulated that since the inception of the Kentucky
Avenue facility, it has staffed the facility with employees provided by the Union and it
has applied the terms and conditions of the agreement between the Union and the
Indiana Constructors.

The record reflects that the bargaining units at both the Noblesville facility and
the Kentucky Avenue facility contain a plant operator, loader operator, and foreman.
Little testified that the three employees in both plants perform “pretty much the same
kind of work.” As foreman for the Kentucky Avenue facility, Earnest Rotert is
responsible for overseeing the daily operation of the asphalt production. Plant Operator
Tom McDowell works primarily inside the plant and operates the equipment and
operates the manufacturing process by computer. Loader Operator Scott Rotert
primarily operates a rubber–tired loader to place materials such as sand and stone into
the hopper for mixing the asphalt. Rotert testified that as plant foreman, he daily
performs the same work as McDowell and Scott Rotert. He also testified that he orders
materials and repairs anything in the manufacturing process that needs repair. Both
Rotert and Noblesville plant foreman Richard McGill testified that they have performed
work at both facilities.
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B. Respondent’s Reconstruction of its Indiana Facilities

Little testified that Respondent is required to meet the standards set by the
Environmental Protection Agency, herein EPA, with respect to air emissions and other
environmental concerns. Most of Respondent’s plants are 20 to 30 years old. Rather
than spending two to three million dollars for a new plant, Respondent has upgraded
two to three of its plants each year. Respondent usually schedules the upgrade during
the winter season when road construction is down and during the period when
temperatures prohibit production. Little estimated that normally Respondent’s plants
operate only from March to December of each year with a shut down or layoff period
from the end of December until February.
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Little testified that approximately two to three years ago, Respondent converted
the Noblesville plant from a “batch” plant to a “drum” plant. The conversion process
involved the installation of an 8 by 15 foot aluminum drum at a cost of approximately
$300,000. The conversion occurred during the winter months and Respondent brought
in employees from its Zanesville, Ohio facility to perform the plant’s upgrade.
Respondent asserts and there is no record evidence that the Union filed any grievance
concerning the upgrade work on the Noblesville facility.

In approximately January and February of 2003, Respondent upgraded the
Kentucky Avenue facility to meet EPA standards and to reduce the cost of the
manufacturing process. In his testimony, Little described the upgrade to include such
processes as: replacing the old horizontal container tanks with vertical tanks, replacing
valves and pipes, constructing a new “Bayhouse”, as well as adding a new dryer and a
new style burner. Respondent also incorporated some of its old equipment with the
newly constructed portions of the plant. The new equipment was manufactured at the
Zanesville’s facility in 2002 and later installed by Zanesville employees at the Kentucky
Avenue facility over the course of a six to eight week period in 2003. Little testified that
the expense of the upgrade was approximately $400,000 to $500,000. He testified that
most of the people brought in from Zanesville for the upgrade were supervisors and that
the three union employees at the facility also worked on the upgrade.

Plant Foreman Rotert recalled that there were approximately ten additional
employees who worked at the Kentucky Avenue facility during Winter 2003. Rotert
operated a backhoe during the construction process and the new employees on the job
site operated a crane and a man–lift. Little explained that four 20 thousand gallon tanks
replaced the old horizontal tank. In order to replace the tanks, Respondent used such
heavy equipment as a crane and backhoe. While Little could not recall whether a union
employee or a Zanesville employee ran the backhoe, he recalled that a Zanesville
employee operated the crane.

The agreement between the Union and the Indiana Constructors sets out a listing
of wage rates as well as health and welfare and pension benefits that must be paid by
the employer for specific machines and equipment. The agreement also provides that
all equipment for which classifications and wage rates have been established in the
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agreement shall be manned, when operated, by employees in the bargaining unit and
paid the rates as specified in the agreement. Included among the list of over 100
machine and equipment classifications are the following: crane or derrick with any
attachment including clamshell, dragline, shovel, backhoe, etc., cherry picker under 15
tons, backhoe on farm type tractor, bulldozer, and forklift. 5
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C. The Union’s Response to the Construction

Nunley testified that he left his office early on February 21 to visit five of the
asphalt plants in his jurisdiction. When he drove onto the premises of the Kentucky
Avenue facility he saw approximately 9 green trucks that he described as Respondent’s
utility trucks. He also saw someone operating a 40–ton crane3. Nunley did not
recognize the individual as one of his union members. Nunley approached the
individual and handed him his union card. Nunley recalled saying: “Here’s my union
card. Where is yours?” The man responded that he didn’t need a union card because
he was a “company man.” When Nunley saw other individuals operating equipment on
the site, he attempted to contact Matt Kelly. Little testified that as Shelly and Sands’
Indiana Area Manager, Kelly is responsible for bidding the work. Little testified without
contradiction that Respondent’s managers report to Jerry Taylor who is over all of
Respondent’s plants and who is located in the Zanesville corporate office. Nunley
however, testified that since had been a business agent working with Respondent, he
has always called Kelly or Kelly’s predecessor if he had any problems or needed to talk
with Respondent about upcoming work.

When Nunley could not reach Kelly on his office phone or cell phone, Nunley
contacted his own office and requested that his office fax a grievance to Respondent’s
Noblesville office. Respondent admits that on February 21, the Union filed a grievance
concerning the Kentucky Avenue facility. The grievance asserts that Page 15, Section
19 of the collective bargaining agreement was not followed because:

On February 21, 2003, work was being performed without employees covered by
the Heavy Highway Agreement between Mar–Zane and the Operating Engineers
Local 103. We are asking that operators be employed and made whole for all
back hours, wages and fringe benefits covered by the Heavy Highway
Agreement.

Nunley testified that after filing the grievance he went back to the facility
numerous times during the course of the construction work. Without contradiction,
Nunley testified that during the period between the first of the year and March 27,
Respondent never requested a referral for employees from the Union.

Nunley recalled that he was finally able to talk with Kelly on the Monday following
the filing of the grievance. Kelly acknowledged receipt of the grievance but told Nunley
that he would have to get back with him. Nunley explained to Kelly that the construction
3 Nunley explained that normally a loader was the only heavy equipment used at the facility. On
that day however, he observed the use of a crane, backhoe and a bobcat.
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work being performed was covered by Respondent’s agreement with the Union. Nunley
discussed the grievance with Kelly when they met for lunch on March 4. During their
lunch meeting as well as in later conversations, Nunley explained to Kelly what was
necessary to resolve the grievance. Nunley told Kelly that the Union wanted pay for six
Union employees based upon Plant Foreman Rotert’s hours for the duration of the
project. When Nunley called Kelly on March 18 to get more information as to how
Respondent would handle the paperwork on the payment to the employees, Kelly told
him that Little wanted to discuss the grievance with him.
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Nunley testified that when he met with Little on March 26, he told Little what he
understood to be the resolution of the grievance that was worked out with Kelly. Little
explained that Kelly did not have the authority to make such an offer. Nunley described
his meeting with Little as their reaching an “agreement to disagree”. Nunley suggested
that Respondent might want to consider mediation rather than arbitration as a faster
means of resolving the grievance. Little told Nunley that he would discuss the matter
with Respondent’s attorneys. Nunley recalled that at the end of the meeting, he told
Little that he would send Respondent an information request concerning the grievance.

Respondent stipulates that by letter dated March 27, the Union presented the
Respondent with an information request. It is without dispute that in his March 27th
letter, Nunley requested the following information relevant to the February 21 grievance:

Payroll records including all hours worked for all personnel involved in the
maintenance and rebuilding of Plant #16 in Indianapolis, Indiana from the first
day of the rebuilding until its completion.

Respondent does not deny that since about March 27, Respondent has not
provided the information requested by the Union.

III. Analysis and Conclusions

A. Issues

Based upon the entire record including Respondent’s Answer and its First
Amended Answer, the following issues require resolution:

1. Whether the unit as described in the existing collective bargaining
agreement between the Union and the Indiana Constructors constitutes
an appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act?
2. Whether the Union is the exclusive collective bargaining representative of
the Kentucky Avenue employees?
3. Whether the Union is entitled to the information sought in its March 27,
2003 request?
4. Whether Respondent’s failure and refusal to provide the information
requested by the Union on March 27 constitutes a violation of Section
8(a)(1) and (5) of the Act.
5. Whether the General Counsel is foreclosed from offering evidence
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relating to discussions concerning settlement of the February 21
grievance?

B. Unit Appropriateness and the Union’s Status as
Exclusive Collective Bargaining Representative 5
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In the Complaint, General Counsel alleges that the unit as defined in paragraph
numbers 1,3, 4, 5, 6, 7, and 10 of the existing4 collective bargaining agreement between
the Union and the Indiana Constructors is an appropriate unit for purposes of collective
bargaining within the meaning of Section 9(b) of the Act. The complaint also alleges
that since about January 2, 1991, the Union has been the exclusive collective–
bargaining representative of the Unit. In both the original answer and the first amended
answer, Respondent denies unit appropriateness and denies that the Union is the
exclusive collective bargaining representative of the Unit. In its first amended answer,
Respondent adds:

Respondent further states that the presumptive unit at Respondent’s
facility consists of 3–4 employees engaged in asphalt production; that the Union
does not appear to serve as representative of said unit, and, consequently, no
Collective Bargaining Agreement proviso obtains. Further, the provisions of the
Collective Bargaining Agreement allegedly excludes from its coverage the type of
work for which the Union sought information; in addition its scope does not
include those employees for whom the Union seeks information.

In its brief, Respondent acknowledges that the Union was initially certified for
Respondent’s Noblesville facility’s unit of plant operators and loader operators as
defined by the Act. Respondent further confirms that it has agreed to the terms of, and
has applied, a collective bargaining agreement with respect to its Noblesville
employees. Respondent argues however, that the “certification specifically excludes
any other employees, other than those of Respondent’s loaders and loader operators.”

There is no dispute that the Union was certified in 1991 as the exclusive
collective bargaining representative for all plant operators and loader operators at
Respondent’s Noblesville, Indiana facility. On January 2, 1991, Respondent signed a
written agreement with the Union and agreed to adopt and to be bound by the terms of
the agreement between the Union and the Indiana Constructors. The record contains
no evidence that since January 2, 1991, Respondent has failed to follow the terms and
conditions of that agreement. There is no evidence that Respondent has not paid the
wage rates as required by the agreement or that it has failed to contribute to the Union’s
health and welfare plan or the pension plan. The Union however, does not contend that
it has ever been certified to represent employees at the Kentucky Avenue facility.
Nunley admitted that there has been neither an election nor a card showing of interest
for recognition. Respondent admits however, that since the inception of the Kentucky
Avenue facility, Respondent has staffed the facility with employees provided by the
4 The agreement, received into evidence as Joint Exhibit Number 2, is effective from April
1, 1999 through March 31, 2004.
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Union and has applied the terms and conditions of the collective bargaining agreement
between the Union and the Indiana Contractors.

General Counsel has further demonstrated that the six employees working at the
two facilities share a community of interest. Admittedly, the employees share similar
wages and their pay is based upon the collective bargaining agreement’s wage
schedule. Additionally, the employees share the same health and welfare and pension
plans. At both facilities, the employees are responsible for the production of asphalt.
Little acknowledged that the three employees perform “pretty much” the same kind of
work. While each of the six employees may have different responsibilities for their
respective plants, there is evidence that employees also perform each other’s duties.
Both Rotert and McGill testified that they have performed work at both the Noblesville
and Kentucky Avenue facilities even though assigned to only one of the facilities. More
significantly, Respondent stipulated that since 1994 and the establishment of the
Kentucky Avenue facility, employees dispatched to the Kentucky Avenue facility have
performed work at the Noblesville facility and employees dispatched to the Noblesville
facility have performed work at the Kentucky Avenue facility.
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In its decision in Central Washington Hospital, 303 NLRB 404 (1991), the
Board affirmed the administrative law judge in finding the appropriateness of a disputed
bargaining unit. In dismissing the employer’s contention that the unit was inappropriate,
the judge cited the Board’s earlier decision in Morse Shoe, Inc., 227 NLRB 391, 394
(1976), where the six–month limitation period in Section 10(b) of the Act was found to
preclude a respondent from questioning the unit appropriateness where voluntary
recognition occurred more than 6 months before the conduct giving rise to the unfair
labor practice charge. Inasmuch as the disputed units had been certified or voluntarily
recognized for several years and embodied in several successive collective bargaining
agreements, the judge as affirmed by the Board, found that the respondent was
precluded from defending against the pending complaint on the ground that the units
were inappropriate.

In Tahoe Nugget, Inc., 227 NLRB 357 (1976), enfd. 584 F2d 293 (9th Cir. 1978),
cert. denied 442 U.S. 921 (1979), the Board cited not only an earlier Supreme Court
decision,5 but also reiterated its earlier holding6 that a respondent may not defend
against a refusal–to–bargain allegation on the ground that the original recognition,
occurring more than 6 months before charges had been filed in the proceeding raising
the issue, was unlawful. In a more recent decision, the Board noted that Section 10 (b)
of the Act precludes the Government from prosecuting an employer or union for an
unfair labor practice that allegedly occurred more than 6 months before an unfair labor
practice charge was filed. According, the employer risks no penalty by asserting that it
acted unlawfully in recognizing a union, if it waits until after the statute of limitations has
run before making this claim. The Board also noted that under the Board doctrines
upheld by the Supreme Court, such an employer would also derive no benefit from such
5 Bryan Manufacturing, 362 U.S. 411 (1960).
6 Nord Bros. Ford, Inc., 220 NLRB 1021 (1975).
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an admission, because its silence for 6 months creates the presumption that the union
was lawfully recognized. See Pekowski Enterprises, Inc. 327 NLRB 413, 425 (1999).

Respondent admits that it has applied and continues to apply the terms of the
collective bargaining agreement to the Kentucky Avenue employees. By its very
conduct, Respondent has treated, and continues to treat the Union as the exclusive
collective bargaining representative of both its Noblesville and Kentucky Avenue facility
employees. Accordingly, Respondent has presented no valid basis for denying the unit
appropriateness or the representational status of the Union. Accordingly, finding no
evidence to the contrary and inasmuch as there is a presumption of lawful recognition, I
find the Union to be the exclusive bargaining representative for the unit as defined in the
collective bargaining agreement. Further, I find the represented unit to be appropriate.
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C. Whether the Union is Entitled to the Requested Information and
Whether the Respondent Has violated Section 8(a)(5) and (1)
of the Act By Its Failure to Provide the Requested Information

Respondent concedes that it is “axiomatic that a union is entitled to information
which is relevant to its functioning as a representative of employees within any unit for
which it is authorized, through certification or otherwise, to act as a collective bargaining
representative.” Respondent argues however, that the requested information pertains
to Respondent’s “non–unit employees” at its Indianapolis location. Respondent further
contends that the collective bargaining agreement specifically excludes job site repair or
maintenance performed by warranty and specialized mechanics that are not employees
of Respondent. Accordingly, Respondent argues that the information sought by the
Union has no relevance to the performance of the union’s responsibilities to administer
the collective bargaining agreement’s provisions and is thus relevant only to
Respondent’s non–unit related activities. Respondent contends, “There is simply no
basis for the information request whatsoever.”

Respondent is correct that while a union is not required to show the precise
relevance of the requested information to bargaining unit issues, the union must show
that the information is relevant when the request is for information outside the
bargaining unit. See Proctor & Gamble Mfg. Co. v. NLRB, 603 F2d 1310, 1315 (8th
Cir. 1979, Curtis–Wright Corp., 145 NLRB 152 (1963), enfd. 347 F2d 61, 69 (3rd Cir.
1965). In N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 87 S. Ct. 565 (1967), the
Court dealt with the issue of an employer’s obligation to provide information to the union
when there had been no arbitrator’s decision as to the relevancy of the requested
information. The Court upheld a Board ruling that an employer must turn over
information requested by a union to determine whether or not to proceed with a
grievance. In affirming the Board, the Court noted that the information request is
subject to a discovery type standard which has nothing to do with the merits of the
grievance. There only needs to be “the probability that the desired information was
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.” Acme Industrial, 385 U.S. at 437. In an earlier decision, the Board
dealt with an employer’s failure to provide information concerning non–unit employees.
In finding a violation of Section 8(a)(5) of the Act, the Board noted that the primary issue
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was whether the requested information has relevance to any legitimate union need.
The Board further explained that a liberal discovery type of standard is applied when
evaluating the issue of relevance. Brazos Electric Power Cooperative, Inc., 241
NLRB 1016, 1018, (1979). The Board has continued to use a broad, discovery–type
standard in determining relevance in information requests and does not pass on the
merits of a union’s claim of breach of a collective bargaining agreement in determining
the whether information relating to the processing of a grievance is relevant. Cannelton
Industries, Inc., 339 NLRB No. 124, slip op. at 14. (2003).
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In her brief, Counsel for the General Counsel cites the Board’s decision in
Brooklyn Union Gas Company, 220 NLRB 189 (1975) wherein the Board affirmed the
administrative law judge in finding that the employer unlawfully failed to provide
information to the union. As a defense, the employer asserted that the union did not
need information concerning job duties and compensation of non–unit employees and
that any information would be irrelevant to any proper arbitration proceeding. Citing
Hollywood Brands, Inc., 142 NLRB 304 (1963), Goodyear Aerospace Corporation,
157 NLRB 496 (1966), and Northwest Publications, Inc., 211 NLRB 464 (1974), the
judge noted that an employer may be required to furnish a union with information about
the employer’s employees working at another plant and outside the bargaining unit or
about supervisors and salaried technicians who are clearly outside the scope of the
bargaining unit or the union’s representation.

It has also been found that information requested to enable the union to assess
whether the respondent has violated the collective bargaining agreement by contracting
out bargaining unit work and, accordingly, to assist the union in deciding whether to
resort to the contractual grievance procedure, is relevant to the union’s representative
status and responsibilities. AK Steel Corp., 324 NLRB 173, 184 (1997), Island Creek
Coal Co., 292 NLRB 480, 491 (1989), enfd. 899 F2d 1222 (6th Cir. 1990).

Respondent argues that denial of the requested information is in conformity with
longstanding Board law. In support of its argument, Respondent cites the Board’s ruling
in United Technologies Corp., 274 NLRB 1069 (1985) where the union sought
information concerning employees in a summer program. Respondent argues that in
the instant matter, Respondent’s “early 2003 construction activities had no material
affect on the terms and conditions of employment on the unit employees, numbering at
most three or four.” Respondent thus argues that it had no obligation whatsoever to
bargain with the Union over the use of non–Union, temporary, employees to perform
construction activities. In United Technologies Corp., the employees in the summer
help program were not employees represented by the union and the union had in fact
disclaimed any interest in representing them. Additionally, the Board further noted that
it viewed the summer help program as entirely discretionary and any change in the
program was entirely within the control of the employer. The Board found that the
program was not a mandatory subject of bargaining and thus the employer had no
obligation to bargain about the program or to provide information to the union about the
program. In its brief, Respondent also cites Federated Publications, 275 NLRB 46
(1985), where the employer refused to provide the union with information about
advertising employees who were not represented by the union. The Board noted that
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there had been no determination through the grievance and arbitration procedure that
the union represented the employer’s advertising employees and the General Counsel
conceded that the union was not entitled to the information in the absence of such a
determination.
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I find both of these cases distinguishable from the instant circumstances. In the
matter at issue, the Union requested the payroll records including all hours worked for
all personnel involved in the maintenance and rebuilding of the Indianapolis plant from
the first day of the rebuilding until its completion. The March 27, 2003 information
request followed the Union’s February 21, 2003 grievance in which the Union asserted
that Respondent was performing work without using employees covered by the parties’
collective bargaining agreement. There is testimonial evidence and Respondent does
not dispute that Respondent used some of the bargaining unit employees to perform the
work in question. Respondent contends that the Union has no right to inquire about the
work in issue because the collective bargaining agreement specifically excludes the
work and because non–unit employees performed it. The very essence of the
grievance is the question as to whether Respondent failed to utilize bargaining unit
employees as required under the collective bargaining agreement. Thus, the union’s
request for information for the pay and the hours worked for all personnel on the job
relates to the issue of whether work was performed without using bargaining unit
employees in violation of the collective bargaining agreement and related to the
previously filed grievance. The relevance of the information is not diminished by the
fact that the Union had already filed the grievance prior to its information request. The
Board has held that the duty to supply information extends to a request for material to
prepare a grievance for arbitration. See Chesapeake & Potomac, 259 NLRB 225, 227
(1981), St. Joseph’s Hospital (Our Lady of Providence Unit), 233 NLRB 1116, 1119
(1977). The information need not be dispositive of the issues of the parties, it need only
have some bearing on it. Pfizer, Inc., 268 NLRB 916, 918 (1984). An employer must
furnish information that is of even probable or potential relevance. Conrock Co., 263
NLRB 1293, 1294 (1982). Whether the information that the Union seeks will be
sufficient to prevail in an arbitration procedure, it is arguably relevant information that
may aid the arbitral process and is therefore relevant. Acme Industrial, 385 U.S. at
438.

Once the initial showing of relevance has been made, “the employer has the
burden to prove a lack of relevance…or to provide adequate reasons as to why he
cannot, in good faith, supply such information. San Diego Newspaper Guild Local 95
v. NLRB, 548 F2d 863, 867 (9th Cir. 1977). In the instant case, Respondent has neither
argued nor demonstrated a “legitimate and substantial” concern for confidentiality
interests that would be compromised by disclosure. Detroit Edison v. NLRB, 440 U.S.
301, 315, 318–320, 99 S. Ct. 1123 (1979). Roseburg Forest Products, 331 NLRB
999, 1001 (2000). Accordingly, Respondent has not met its burden of demonstrating
that the requested information is not relevant nor has it demonstrated adequate reasons
as to why it cannot, in good faith, supply such information.

The Board has long determined that in assessing the relevance of the
information, it will not pass on the merits of the union’s claim that the employer
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breached the collective bargaining agreement and thus the Union need not demonstrate
that the contract has been violated in order to obtain the desired information. See
Island Creek Coal, Co., supra at 487. The requested information in issue is of
sufficient relevance and bears upon the Union’s pursuit of its grievance and its
preparation for arbitration. Accordingly, I find that Respondent violated Section 8(a)(5)
of the Act by failing and refusing to provide the information requested in the Union’s
letter of March 27, 2003.
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D. Whether General Counsel Is Precluded from Offering Evidence
Concerning the Settlement of the February 21, 2003 Grievance

At the commencement of the trial, Respondent filed a motion to exclude the
introduction of settlement discussion–related evidence. In support of its motion,
Respondent cited portions of Counsel for the General Counsel’s pre–trial brief
referencing communications, conversations, purported agreements, settlement offers,
proposals and counter–proposals concerning the February 21, 2003 grievance. In its
motion, Respondent argues that such communications to resolve a disagreement are
patently inadmissible and that General Counsel should be foreclosed from offering
evidence relating to settlement discussion, and such references should be stricken from
the record entirely. In further support of its motion, Respondent additionally argues that
such information has no relevance on the matter at issue because the Union’s request
for information is in issue and not the merits of the Union’s grievance. During the course
of the trial, Respondent’s counsel objected to Union Vice–President Nunley’s testimony
concerning his discussions with Respondent’s representatives about settlement or
resolution of the outstanding grievance. Counsel argued that the grievance underlies
the charge that led to the complaint in this matter. Counsel for the General Counsel
maintains that it was only Respondent’s failure to provide information to the Union that
led to the complaint.

Rule 408 of the Federal Rules of Evidence provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim, which was disputed as to
either validity or amount, is not admissible to prove liability for or invalidity of the
claim or its amount. Evidence of conduct or statements made in compromise
negotiations is likewise not admissible.

The rule further provides however:

This rule does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of compromise
negotiations. This rule also does not require exclusion when the evidence is
offered for another purpose such as proving bias or prejudice of a witness,
negativing a contention of undue delay or proving an effort to obstruct a criminal
investigation or prosecution.

Nunley’s testimony concerning his discussions with Kelly and Little about
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resolving the grievance was not excluded. The record reflects that Nunley’s discussions
concerning the grievance occurred prior to the Union’s request for information. There
was no testimony offered concerning conversations or communications about resolving
the alleged unfair labor practice of Respondent’s failure to provide information in
response to the Union’s March 27, 2003 request. Accordingly, Respondent’ motion is
denied.
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Conclusions of Law

1. Respondent, Mar–Zane, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

2. The International Union of Operating Engineers Local Union 103 a/w
International Union of Operating Engineers, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.

3. At all times material herein, the International Union of Operating Engineers
Local Union 103 a/w International Union of Operating Engineers, AFL–CIO has been
the exclusive representative for purposes of collective bargaining of the unit as defined
in paragraph numbers 1, 3, 4, 5, 6, 7, and 10 of the existing collective bargaining
agreement between the International Union of Operating Engineers Local Union 103
and the Indiana Constructors, Inc., Labor Relations Division.

4. Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide
the Union with requested information that is relevant and necessary for the Union to
fulfill its role as the collective–bargaining representative of the unit employees.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.

The Respondent having unlawfully failed to provide the Union with certain
information, it must supply the Union with that information.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended7

ORDER

The Respondent, Mar–Zane, Inc., Indianapolis, Indiana, its officers, agents,
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain collectively with the Union by failing to provide
the Union with requested information that is relevant and necessary for the Union to
fulfill its role as the collective–bargaining representative of the unit employees.
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(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights to organize and bargain
collectively or to refrain from such activities.

2. Take the following affirmative action necessary to effectuate the policies of
the Act.

(a) Provide the Union with the information that it requested but that
was unlawfully withheld.

(b) Within 14 days after service by the Region, post at its Noblesville,
Indiana and Indianapolis, Indiana facilities, copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or
closed 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 March 27, 2003.

(c) 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.

Dated, Washington, D.C.

___________________________________
Margaret G. Brakebusch
Administrative Law Judge
8 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall
read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board 5
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An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain collectively with the International Union of Operating Engineers Local
Union 103 a/w International Union of Operating Engineers, AFL–CIO, by failing and refusing to provide to
that Union information it requested on March 27, 2003, said information being relevant and necessary to the 20
Union for those of you for whom that Union is your collective bargaining representative.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.

WE WILL promptly furnish the Union with the information that we previously failed and refused to provide in
the manner set forth in the remedy section of the decision.

MAR-ZANE, INC. 30
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(Employer)

Dated __________________ By: ___________________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret–ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 40
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575 N. Pennsylvania Street, Room 238, Indianapolis, IN 46204–1577
(317) 226–7382; Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (317) 226–7413.

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