Mobil Exploration & Production

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1179 (N.L.R.B. 1989)

MOBIL EXPLORATION & PRODUCTION
Mobil Exploration and Production U.S. and West
Coast Independent Union . Case 31-CA-17175
July 31, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On February 27, 1989, Administrative Law
Judge Jay R. Pollack issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge 's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mobil Ex-
ploration and Production U.S., State of California,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We correct an inadvertent factual error by the judge concerning the
requested information . The Respondent did in fact offer to supply to the
Union the wage survey in a redacted form in regard to the Respondent's
roustabout job classification rather than in regard to the Union's mileage
proposal , as stated by the judge.
2 We agree with the judge's determination that the wage survey was
not confidential as averred by the Respondent . We note that the Re-
spondent neither produced evidence that it made a pledge of confidential-
ity to Exxon Corporation which prepared the survey in 1987, nor did the
Respondent call any Exxon official to testify as to the confidential nature
of the survey or that the survey was given to the Respondent under a
pledge of confidentiality.
Ami Silverman, Esq., for the General Counsel.
Barbara M. Scheper, Esq. (Latham & Watkins), of Los
Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R . POLLACK, Administrative Law Judge . I heard
this case in trial at Los Angeles, California , on August
16, 1988 . On May 18 , 1988, West Coast Independent
Union (the Union) filed a charge alleging that Mobil Ex-
ploration and Production U.S. (Respondent) committed
certain violations of Section 8(a)(5) and ( 1) of the Na-
1179
tional Labor Relations Act (the Act). On June 30, 1988,
the Regional Director for Region 31 of the National
Labor Relations Board issued a complaint and notice of
hearing against Respondent, alleging that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
furnish certain information allegedly relevant to the May
and June 1988 collective bargaining between Respondent
and the Union . Respondent filed a timely answer to the
complaint, denying all wrongdoing.
The parties have been afforded full opportunity to
appear, to introduce relevant evidence, to examine and
cross-examine witnesses , and to file briefs. On the entire
record, from my observation of the demeanor of the wit-
nesses, and having considered the posthearing briefs of
the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent , a Delaware corporation , has been en-
gaged in drilling for oil at various locations in the State
of California . During the 12 months prior to issuance of
the complaint, Respondent sold and shipped goods and
products valued in excess of $50,000 directly to custom-
ers located outside the State of California. Accordingly,
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The parties stipulated and I find that at all times mate-
rial herein the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent and the Union have been party to a series
of collective-bargaining agreements , the most recent of
which was scheduled to expire on June 15, 1988 . Negoti-
ations began on May 3 for a new agreement.
At the negotiations the Union was represented by
Donald Ford and Respondent was represented by Scott
Brase and George Transier. At the preliminary meeting
the Union presented 71 proposals . Proposal number 47
was a union request for the payment of home-to-work
mileage reimbursement ,'a matter the Union had given up
in the last agreement. Respondent resisted this proposal
and no agreement on it was reached.
One of Respondent's proposals presented at the May 3
negotiation session dealt with the elimination of the job
classification of roustabout III because it was "over-com-
petitive and unnecessary." Respondent admitted to the
Union that in drafting its proposal , it relied on informa-
tion contained in a comparative wage survey as to the
practices of other employers. The Union requested to ex-
amine the entire survey . However Brase did not have a
copy of the survey with him. He promised to locate the
survey and consider the request in light of the company's
confidentiality concerns.
Brase testified that Respondent 's agents "scanned the
wage survey" before making this proposal but that the
survey was outdated . According to Brase, the survey
295 NLRB No. 143
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was "not the least bit" important to Respondent's deci-
sion-making process . Brase testified that Respondent pro-
posed to drop this job classification "independently of
the survey."
At the end of the May 4 meeting , Brase withdrew Re-
spondent's proposal concerning elimination of the roust-
about III classification.
On May 6 or 7, Ford met informally with Brase in
Brase's office . Brase conditionally offered to reveal the
wage survey contents on how other companies defined
and paid roustabout employees. Ford said he would
accept the information but would continue to insist on
the entire survey. Ford asked whether the survey re-
vealed if other companies paid home -to-work mileage.
Brase pulled out the survey and leafed through it. Ac-
cording to Ford, Brase stated that the wage survey
showed that only one oil company paid such mileage re-
imbursement. According to Brase he said, "It appears
that some companies pay mileage and some don't. It ap-
pears that the predominant issue here is that companies
are turning away from paying it. Most of them do not
pay it." The wage survey was not mentioned when Re-
spondent refused to reinstate the mileage reimbursement
at the first negotiation session . Rather Respondent re-
fused to pay the mileage because it was "an administra-
tive nightmare."
On May 13, Ford began negotiations by requesting the
entire 1987 wage survey. Brase formally denied the re-
quest . Brase explained that the denial was "on the basis
of confidentiality of proprietary data-we're unwilling to
give it to you and unable to give it to you." A proposal
to eliminate the roustabout III classification was offered
at this meeting and again the Union requested to see the
survey. Respondent refused again claiming that the
survey was confidential.
At that May 13 meeting, the parties reached tentative
agreement on a new contract . The employees voted
against ratification on May 18. That same day Ford filed
the instant charge seeking the wage survey. The parties
resumed negotiations on June 9 and reached agreement
that day. This agreement was ratified by the employees
on June 16. Ford asked during the June 9 negotiations
whether Respondent based its decision to deny home-
work mileage payments on its review of the survey.
Transier answered no. Transier explained that on June 8,
he personally conducted his own telephone survey. He
then reiterated that Respondent did not want the admin-
istrative burden of these payments.
Respondent has continued to withhold the requested
information . Notwithstanding Respondent's failure to
provide the requested information , the parties have
reached agreement and executed their new contract.
B. Contentions of the Parties
The General Counsel contends that Respondent is ob-
ligated under Board law to provide the Union with a
copy of the wage survey . In support of this argument,
General Counsel contends that Respondent's inherent re-
liance on the survey created a duty to provide it upon
the Union's request.
Respondent argues that the Union did not establish the
relevancy of the survey. Secondly, Respondent argues
that it offered the information in an edited form and that
the Union refused but did not give Respondent the op-
portunity to provide the information in a mutually satis-
factory form . Thirdly, Respondent contends that the re-
quest was not based on any need but was merely de-
signed to harass Respondent.
The General Counsel replies that the Union is not re-
quired to accept the information in redacted form but
has a right to correlated wage data . Finally, General
Counsel contends that the confidentiality claim must fail,
or in the alternative , that confidentiality can be protected
without diminishing the Union 's rights.
C. Analysis and Conclusions
It is well settled that an employer has a statutory duty
to provide a union , on request , with relevant information
the union needs for the proper performance of its duties
as a collective -bargaining representative . NLRB v. Acme
Industrial Co., 385 U.S. 432, 435-436 (1967); Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). In determining
whether an employer is obligated to supply particular in-
formation , the question is only whether there is a "prob-
ability that the desired information is relevant , and that it
would be of use to the union in carrying out its statutory
duties and responsibilities ." NLRB v. Acme Industrial
Co., supra at 437. As the Supreme Court has stated, the
disclosure obligation is measured by a liberal "discovery-
type standard ," not a trial-type standard, of relevance.
Ibid . Where the requested information deals with infor-
mation pertaining to employees in the unit which goes to
the core of the employer-employee relationship , said in-
formation is "presumptively relevant ." Shell Development
Co. v. NLRB, 441 F.2d 880 (9th Cir . 1971). Where the
information is presumptively relevant, the employer has
the burden of proving lack of relevance. Prudential In-
surance Co., 412 F.2d 77 (2d Cir. 1969). "But where the
request is for information with respect to matters occur-
ring outside the unit, the standard is somewhat narrower
... and relevance is required to be somewhat more pre-
cise.... The obligation is not unlimited . Thus, where
the information is plainly irrelevant to any dispute there
is no duty to provide it." Ohio Power Co., 216 NLRB
987, 991 (1975); Doubarn Sheet Metal, 243 NLRB 821,
823 (1979). Thus, where the requested information deals
with matters outside the bargaining unit, the union must
establish the relevancy and necessity of its request for in-
formation . San Diego Newspaper Guild Local 95 v. NLRB,
548 F. 2d 863 (9th Cir. 1977).
In General Electric Co., 188 NLRB 920 (1971), the
Board held that the employer was obligated to furnish
the union with all the information requested upon which
the employer relied including a comparative wage
survey of the employer 's competitors . See 188 NLRB at
921. In General Electric Co., 192 NLRB 68 (1971), the
Board rejected the employer 's defense that it had not
specifically relied on the wage survey:
[I]t is illogical that the Company had in its posses-
sion wage surveys of comparable employers in the
area and yet did not rely, directly or indirectly, on
such surveys in concluding its "rate structure was
MOBIL EXPLORATION & PRODUCTION
proper." We deem it specious to argue, therefore,
that by not citing or proclaiming any reliance on
such data , it should be not required to furnish such
information or that there was not general reliance
on such data... .
In this case, in addition to the inherent reliance on
such a wage survey , Brase made reference to the wage
survey in arguing against the Union's mileage proposal
and in arguing for the deletion of the roustabout III job
classification . Under the General Electric cases, little
weight should be given to Respondent 's claims pendente
lite, that the survey was not the least bit important to
Respondent 's position . Accordingly, I find that the Gen-
eral Counsel has established the relevancy of the request-
ed information.
While Respondent argues that the information was
privileged and confidential , it offered no evidence in sup-
port of that claim . In General Electric Co., 188 NLRB
910 (1971), the Board rejected the defense that the infor-
mation was secured under a pledge of confidentiality:
The Board and the Court have held that wage data
... must be given by an employer to a union bar-
gaining representative in order to render collective
bargaining effective [citations omitted] . . . it has
also been held that the argument that the data
sought is confidential cannot serve as a shield to
protect an employer from the consequences of his
refusal to divulge such information.
In Texas Instruments, 247 NLRB 253 ( 1980), the Board
held that an unsolicited promise of confidentiality re-
garding area wage surveys is insufficient to act as a
waiver of an employer 's responsibility under the Act to
bargain in good faith with a union . Citing General Elec-
tric Co. v. NLRB, 466 F.2d 1177, 1185 (6th Cir. 1972),
enfg . 184 NLRB 407 (1970); 188 NLRB 911 (1971); 188
NLRB 919 (1971); 192 NLRB 68 (1971).
Even where claims of confidentiality are supported by
evidence, the Board has allowed such information to be
furnished to the union , subject to bargaining regarding
the conditions under which the bona fide confidentiality
of the information may be protected from unauthorized
viewers . E. I du Pont & Co., 276 NLRB 335 (1985).
I cannot find any evidence to support Respondent's
claim of confidentiality. In any event , the parties may
bargain regarding the conditions under which the infor-
mation may be protected from unauthorized viewers.
Further, I find no merit in Respondent 's argument that
the Union failed to give it an opportunity to provide the
information in a satisfactory form. While Brase made a
conditional offer of the information on mileage, he made
no offer regarding the roustabout information . Most im-
portant, no information was provided. A union need not
waive its rights to information in order to obtain partial
compliance with the Act. I also find no merit in Re-
spondent's contention that the request was merely for
harassment . While the Union is entitled to the informa-
tion, there is no obligation on either party to change its
bargaining position . The obligation to bargain does not
compel either party to agree to a proposal or require the
making of any concession. Thus, whether the informa-
1181
tion supported Respondent 's arguments or not, Respond-
ent was not required to change its position on mileage or
roustabouts . Ford continued to bargain without the infor-
mation and reached tentative agreement . Thereafter,
Ford renewed his efforts to get the information after the
tentative agreement was rejected by the employees. Ford
again reached agreement without the information. Such
conduct reflects the reality of bargaining and does not
amount to a waiver or evidence of harassment.
Accordingly , I find that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to furnish the area
wage survey information requested by the Union.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act. Accordingly,
Respondent will be ordered , on request , to furnish the
Union with the requested information.
CONCLUSIONS OF LAW
1. Respondent Mobil Exploration and Production U.S.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. West Coast Independent Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By refusing to furnish the Union with information
necessary and relevant to the negotiation of its collec-
tive-bargaining agreement with Respondent , Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, Mobil Exploration and Production
U.S., State of California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with West Coast
Independent Union , by refusing to furnish relevant infor-
mation on request.
(b) In any like or related manner violating Section
8(a)(5) and (1) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish , on request , to the Union a copy of the rel-
evant portions of the area wage survey requested by the
Union during the 1988 negotiations.
' 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 pur-
poses.
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Post at its offices, and at all facilities in California
where notices to employees are customarily posted,
copies of the attached notice marked "Appendix."a
Copies of the notice , on forms provided by the Regional
Director for Region 31, after being signed by its author-
ized representative , shall be posted immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places , including all places where notice to employ-
ees are customarily posted . Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
2 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 Nation-
al 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."
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with West
Coast Independent Union, by refusing to furnish relevant
information on request.
WE WILL NOT in any like or related manner violate
Section 8(a)(5) and (1) of the Act.
WE WILL furnish, on request, to the Union a copy of
the relevant portions of the area wage survey requested
by the Union during the 1988 negotiations.
MOBIL EXPLORATION AND PRODUCTION U.S.
* U.S. GOVERNMENT PRINTING OFFICE : 1992 312-470/60002