Plough, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1982

262 N.L.R.B. 1095 (N.L.R.B. 1982)

PLOUGH, INC.
Plough, Inc. and International Chemical Workers
Union Local No. 194. Case 26-CA-8664
July 21, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 31, 1981, Administrative Law
Judge Hutton S. Brandon issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional L,abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
The issue here is whether Respondent violated
Section 8(a)(5) and (1) of the Act by refusing, as
requested, to furnish the International Chemical
Workers Union Local No. 194, herein called the
Union, with the following information:
(1) "a complete list of all chemical . . . sub-
stances in use in this plant by [their] generic
and trade names . . . along with any hazard-
ous warnings or instructions associated with
these substances, including material hazard
sheets ... " and (2) ". . . the results of all
physicals taken by employees in the various
departments dating back to May 13, 1975."
The Administrative L,aw Judge found that all of
the information requested by the Union was clearly
relevant and necessary to the Union in fulfilling its
representative functions. He found no merit to Re-
spondent's claim that it was not obligated to pro-
vide a list of all chemical substances because it
would contain data of a confidential, proprietary,
and/or trade secret nature, finding instead that Re-
spondent's "tear of disclosure" was "unsubstantiat-
ed" given that the Union was only seeking a list of
chemicals and not formulas or ratios of chemicals
within products. He also found no merit to Re-
spondent's other claim that the Union had, under
the collective-bargaining agreement, waived its
right to all of the requested information and that it
would be too burdensome and costly for Respond-
ent to provide the chemical information. He there-
fore found that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to provide the infor-
mation concerning the chemicals.
262 NLRB No. 141
With regard to the requested "results of all phy-
sicals," the Administrative Law Judge found merit
to Respondent's defense that, under the particular
circumstances of this case, the concern over the
confidentiality of medical records outweighed the
potential benefit to the Union of having the results
of the physical examinations. He found that the re-
quested information would lose much of its value if
all of the identifying data were deleted. On the
other hand, Respondent had been providing the
Union with a summary of occupational illnesses, as
set out on a form provided by the Occupational
Safety and Health Administration (OSHA). He
found that this summary would tend to serve the
same purpose as the requested information. He
therefore found that Respondent did not violate
Section 8(a)(5) and (1) of the Act when it refused
to provide the results of physicals.
At the time of the Administrative Law Judge's
Decision, the Board had not yet issued its decisions
in Minnesota Mining and Manufacturing Company,'
and two companion cases, Borden Chemical, a Divi-
sion of Borden, Inc.,2 and Colgate-Palmolive Compa-
ny. 3 In those cases the Board established the re-
spective rights and obligations of the parties for the
disclosure of health and safety information. The
Board specifically found that information like that
requested here was relevant to the union's function
as the employees' collective-bargaining representa-
tive. The Board also recognized its obligation
under Detroit Edison Co. v. N.L.R.B. 4 to balance
the union's need or the health and safety informa-
tion against the legitimate concerns of the respond-
ent. These cases are controlling here, since they in-
volve virtually identical requests for information,
arising, as here, in the context of a long-time bar-
gaining relationship.s
In Minnesota Mining and Manufacturing Compa-
ny, supra, the Board also found that the respondent
was obligated to furnish a list of chemical sub-
stances, by generic or trade names, similar to the
one requested here." The Union in the instant case
has also requested any warnings or instructions, in-
cluding material hazard sheets. To the extent that
the Union has a right to a list of the chemical sub-
stances it also has a right to any information associ-
ated with the substances.
The Board also recognized, however, a compa-
ny's legitimate concern for protecting confidential,
proprietary, and/or trade secret information from
' 261 NLRB 27 (1Q82).
261 NLRB 64 (1982).
s 261 NLRB 90 (1982).
4 440 U.S. 301 (1979).
6 The Union here has represented certain of Respondent's employees
for over 50 years.
Minnesota Mining and Manufacturing Company. supra
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclosure. As in the controlling cases, the Re-
spondent here has asserted a legitimate and substan-
tial justification which, on its face, could possibly
require a finding that Respondent need not disclose
some information, or at least not unconditionally
disclose it. We therefore shall revise the Adminis-
trative Law Judge's recommended Order and order
Respondent to turn over to the Union a list of
those chemical substances used by the bargaining
unit to which it asserts no trade secret defense, as
well as any warnings or instructions, including ma-
terial hazard sheets.
With respect to those substances which Respond-
ent claims constitute confidential trade secret infor-
mation, however, we shall, in accord with our de-
cision in Minnesota Mining and Manufacturing
Company, supra, and the procedure set forth there-
in, give the parties themselves an opportunity,
through collective bargaining, to reach some agree-
ment viewed satisfactory by both regarding condi-
tions under which the needed information may be
furnished to the Union with appropriate safeguards
protective of Respondent's confidentiality, propri-
etary, and trade secret interests.
In so doing we recognize, as we stated in Minne-
sota Mining and Manufacturing Company, supra,
that if the Union and Respondent are unable to
reach agreement on a method whereby their re-
spective interests would be satisfactorily protected
these parties may be before us again. If the issue of
whether the parties have bargained in good faith is
presented to us, we will, of course, look to the to-
tality of the circumstance in determining whether
both have bargained in good faith.7 If necessary,
we shall undertake the task of balancing the
Union's right of access to data relevant to collec-
tive bargaining with Respondent's expressed confi-
dentiality concerns in accordance with the princi-
ples set forth in Detroit Edison Co., supra. We be-
lieve, however, that first allowing the parties an
opportunity to adjust their differences best effectu-
ates the Act's policy of maintaining industrial peace
through the resolution of disputes by resort to the
collective-bargaining process.
With respect to the medical confidentiality ques-
tion, we recognized in Minnesota Mining and Man-
ufacturing Company that the employer has a legiti-
mate and substantial interest in ensuring that the re-
lease of medical information not violate the physi-
cian-patient privilege and/or the confidentiality of
individual employee medical reports. In order to
protect employee confidentiality, we ordered re-
spondent to turn over the medical information "to
the extent that that information does not include in-
7 Substantiation of various positions asserted by both parties would ob-
viously be an important element of any such evaluation.
dividual medical records from which identifying
data have not been removed." s The Administrative
Law Judge in the instant case found that the infor-
mation requested here-results of physicals-would
largely lose its value if identifying data were de-
leted. We do not agree. In any event, that is a
judgment best made, not by the Board, but by the
requesting party. We therefore find that Respond-
ent violated Section 8(a)(5) and (1) of the Act by
failing to supply the bargaining agent with the re-
sults of employee physicals in the bargaining unit,
dating from May 13, 1975, to the extent that that
information does not include individual medical
records from which identifying data have not been
removed.9
AMENDED CONCLUSIONS OF LAW
Based on the foregoing, the Board adopts the
Administrative Law Judge's Conclusions of Law,
as modified below:
Substitute the following for Conclusions of Law
5 through 7:
"5. By failing and refusing to provide the Union
with a complete list of chemical substances in use
in the above unit by their respective generic and
trade names-except those substances which consti-
tute proprietary or trade secrets-along with any
hazardous warnings and instructions associated
with the substances, including material hazard
sheets, pursuant to the Union's request, Respondent
has failed and refused to bargain collectively with
the Union and has thereby engaged in, and contin-
ues to engage in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, as
amended.
"6. By failing and refusing to provide the Union
with the results of employee physicals in the bar-
gaining unit, dating from May 13, 1975, to the
extent that such information does not include indi-
vidual medical records from which identifying data
have not been removed, Respondent has violated
Section 8(a)(5) and (1) of the Act, as amended.
"7. The unfair labor practices specified affect
commerce within the meaning of Section 2(6) and
(7) of the Act, as amended."
AMENDED REMEDY
We adopt the Administrative Law Judge's rec-
ommended remedy except for paragraph 2 for
which we substitute the following:
"Having found that Respondent unlawfully re-
fused to provide the Union with information with
8 Minnesota Mining and Manufacturing Company. supra
9 With respect to the other defenses raised by Respondent of waiver,
costliness, and burdensomeness, we adopt the findings of the Administra-
tive Law Judge.
1096
PLOUGH, INC.
respect to the chemical substances used in the bar-
gaining unit and the results of employee physicals,
subject to the limitations previously stated, we shall
require that the Respondent be affirmatively or-
dered to provide the Union with such informa-
tion."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Plough, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(a)
and reletter paragraph I(b) as l(c):
"(a) Refusing to bargain collectively with Inter-
national Chemical Workers Union Local No. 194
as the exclusive bargaining representative of its em-
ployees by refusing to furnish the Union a com-
plete list of all chemical substances in use in the
bargaining unit by generic and trade names-
except those substances which constitute propri-
etary or trade secrets-along with any hazardous
warnings or instructions associated with said sub-
stances, including any material hazard sheets.
"(b) Refusing to bargain collectively with Inter-
national Chemical Workers Union Local No. 194
as the exclusive bargaining representative of its em-
ployees by refusing to furnish the Union with the
results of physicals in the bargaining unit, dating
from May 13, 1975, to the extent that such infor-
mation does not include individual medical records
from which identifying data have not been re-
moved."
2. Substitute the following for paragraph 2(a):
"(a) Furnish the Union, or its designated repre-
sentatives, upon request, the information described
in paragraphs l(a) and (b), above."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
with International Chemical Workers Union
Local No. 194 as the exclusive bargaining rep-
resentative of our employees in the unit listed
below by refusing to furnish the Union with a
complete list of chemical substances in use in
the unit by their generic and trade names-
except those substances which constitute pro-
prietary or trade secrets-along with any haz-
ardous warnings or instructions associated
with such substances including material hazard
sheets.
WE WILL NOT refuse to bargain collectively
with International Chemical Workers Union
Local No. 194 as the exclusive bargaining rep-
resentative of our employees in the unit listed
below by refusing to furnish the Union with
the results of employee physicals in the bar-
gaining unit, dating from May 13, 1975, to the
extent that such information does not include
individual medical records from which identi-
fying data have not been removed. The appro-
priate collective-bargaining unit is:
All production, plant maintenance, machine
shop, warehousing, garage mechanics, ship-
ping, receiving, garage, boiler room, and
printing plant service employees of the
Company at its plants at 3022 Jackson
Avenue, Memphis, Tennessee, 1248 Warford
Street, Memphis, Tennessee, 2491 Mathews
Street, Memphis, Tennessee, and 1178 Pope
Street, Memphis, Tennessee, but excluding
printers, bookbinders, typographers, over-
the-road truck drivers, cafeteria employees,
watchmen, guards, office and clerical em-
ployees, professional and technical employ-
ees and supervisors as defined in the Labor
Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the Act.
WE WILL, upon request, furnish to the
Union the requested information described
above.
PLOUGH, INC.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard before me in Memphis, Tennessee,
on October 29 and 30, 1981. The charge was filed on
October 2, 1980,1 by International Chemical Workers
i All dates are in 1980, unless otherwise stated
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Local No. 194, herein called the Union, and the
complaint was issued on April 15, 1981, alleging that
Plough, Inc., hereinafter called the Respondent or Com-
pany, violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, herein called the Act.
The Respondent's timely filed answer admits certain alle-
gations of the complaint but denies the commission of
any unfair labor practices. The primary issue presented
by this case is whether the Respondent refused to bar-
gain collectively in good faith with the Union by refus-
ing to provide the Union on and after June 10 with in-
formation requested by the Union regarding chemical
substances in use in the plant and the results of physical
examinations of employees. 2
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel, the Re-
spondent, and the Union, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and
place of business in Memphis, Tennessee, where it has
been engaged in the manufacture of consumer health and
beauty aids. In the course and conduct of its business op-
erations, which utilizes plant facilities at a number of
Memphis addresses, the Respondent annually sells and
ships from its Memphis, Tennessee, facilities goods and
materials valued in excess of $50,000 directly to points
outside the State of Tennessee. It also annually purchases
and receives at its Memphis, Tennessee, facilities, prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Tennessee. The
Respondent, by its answer 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. The Respondent's
answer further admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has been the collective-bargaining repre-
sentative of certain of the Respondent's employees for
over 50 years. The collective-bargaining unit in which
the Union is currently recognized is made up of about
450 to 500 employees. The unit, which I find appropri-
ate, is set forth in the most recent collective-bargaining
2 During the hearing, the Respondent and the Union reported an
agreement had been reached with respect to providing the information
pertaining to the results of the physicals. Accordingly, and with due
regard to the General Counsel's opposition to a partial settlement of the
case, I stated on the record that I would be inclined to dismiss the allega-
tion of the complaint pertaining to the refusal to provide the information
on the physicals if the Charging Party sought such dismissal following
actual receipt of the information. 1, nevertheless, allowed the record to
be completed on the issue. The Charging Party in its brief related that
the parties had been unable to commit their agreement to writing. The
Charging Party made no motion to dismiss, and, on the contrary, argued
the merits of the issue in the brief. I conclude the settlement failed and
that the issue is ripe for judgment.
agreement between the Respondent and the Union, effec-
tive from August 15, 1981, through and including August
14, 1984. It is as follows:
All production, plant maintenance, machine shop,
warehousing, garage mechanics, shipping, receiving,
garage, boiler room, and printing plant service em-
ployees of the Company at its plants at 3022 Jack-
son Avenue, Memphis, Tennessee, 1248 Warford
Street, Memphis, Tennessee, 2491 Mathews Street,
Memphis, Tennessee, and 1178 Pope Street, Mem-
phis, Tennessee, but excluding printers, bookbind-
ers, typographers, over-the-road truck drivers, cafe-
teria employees, watchmen, guards, office and cleri-
cal employees, professional and technical employees
and supervisors as defined in the Labor Relations
Act.
The current collective-bargaining agreement, like the
two proceeding collective-bargaining agreements, con-
tains a provision relative to the health and safety of em-
ployees including the maintenance of a health and safety
committee for the promotion of safe, sanitary, and
healthful working conditions. The committee is com-
posed of representatives of both management and the
Union, with the Union portion of the committee made
up of five employee-members. Under the contractually
established procedure, the committee meets with the Re-
spondent once a month except where additional meetings
are requested and approved for the purpose of discussing
health, safety, and sanitary problems.
It is undisputed that on May 13, Terry Teal, an em-
ployee and the then chairman of the Union's health and
safety committee, gave the Respondent's representative
on the committee, Benny Ferrell, who is the Respond-
ent's current manager of physical distribution, a letter re-
questing certain information including, inter alia, specifi-
cally the following:
A complete list of all chemicals [sic] substances in
use in this plant by its generic and trade names is
also necessary, along with any hazardous warnings
or instructions associated with these substances, in-
cluding material hazard sheets.
The committee also requests the results of all physi-
cals taken by employees in the various departments
dating back to May 13, 1975.
Teal testified for the General Counsel that Ferrell took
the letter, looked at it, and told him that he would get
back with him later on it.
It is undisputed that at the next monthly meeting of
the health and safety committee on June 10, Leonard
Gilley, the assistant director of labor relations, responded
to the Union's request and provided certain information.
However, with respect to the request for a list of chemi-
cal substances, Gilley stated, according to Teal, that
trade secrets were involved and he would not "give it
up." However, Gilley did state, still according to Teal,
that there was a list of hazardous chemicals in the office
of William Gooch, the Respondent's director of health
and environmental protection, and Teal could look at
1098
PLOUGH, INC.
that list but he could not have the list. Gilley further ex-
plained that it would be too costly for the Employer to
supply a list of chemical substances and cited, for exam-
ple, the use of salt in the cafeteria which, to comply with
the Union's request, would have to be broken down into
components. Teal replied that the Union just wanted the
chemicals in use at the plant and not what employees
were eating from the cafeteria.
Gilley told Teal that employees could see what was
coming into the plant and could get the information that
way. However, Teal replied that while they could see
some of the drums coming in they were marked with
trade names of the contents and it would be difficult to
get the chemical content from the trade name. In any
event, Gilley did not supply the information requested
regarding the chemicals nor did he promise to subse-
quently supply the information.
With respect to the request for the results of the em-
ployee physicals, Gilley told the committee that that ma-
terial was confidential. Teal testified he then told Gilley
that the Union did not want the names of the employees,
"just the departments and the results where we could
look at it and see which department is having medical
problems, and being absent, maybe they're being sick or
[Note: of ?] what they are working with." Gilley contin-
ued in his refusal, although Gilley testified, without con-
tradiction, that he stated the results of an employee's
physical could be surrendered to a third party upon re-
ceipt of a written release of the employee.
Following the failure of the Respondent to supply the
Union with the requested information regarding chemi-
cals at the June 10 meeting, the Union through its re-
cording secretary at the time, Lavern McCain, wrote the
Respondent a letter dated June 19 in which she noted
that Gilley had orally refused to provide the information
requested by the Union. The letter went on to state that
the Union needed the information "in order to properly
represent our employees in bargaining collectively with
the Company." The letter observed that the Union was
entitled to the information as a matter of law, and re-
newed the "request for that information." Finally, the
letter concluded that, if the Respondent failed to provide
the information within 10 days after receipt of the letter,
the Union would consider the failure as "an outright re-
fusing [sic] to bargain in good faith," and threatened "ap-
propriate action."
Gilley testified that he replied to McCain's letter by
letter dated June 23, sending the letter to McCain's home
address which had appeared on her letter. In the letter,
Gilley claimed that he had supplied the Union with
much of the information requested and stated that the
subject of "chemical substances was discussed." Finally,
the letter stated "the issue of whether or not information
was supplied to the Union's safety committee by Mr.
Gilley is therefore not acknowledged by the Company."
McCain denied receiving Gilley's letter and Teal denied
Ferrell's testimony that he read the contents of the letter
to the union safety committee at one of the subsequent
safety committee meetings."3
3 While not critical to the resolution of the issues here, I would credit
Teal's testimony over Ferrell's claim that Ferrell read the letter to the
committee. Teal impressed me as a candid and honest witness. Ferrell's
It is clear that the Respondent did not provide the
Union with either a list of chemical substances in the
plant or the results of physical examinations at any time
between June 23 and October 1. On the latter date, ac-
cording to the testimony of Jerry Levine, an Internation-
al representative of the Union, a meeting took place be-
tween certain of the union representatives; including
Levine, Horace Perry, then president of the Union, Ron
Stavely, the Union's vice president at the time, McCain,
Gary Meuchel, a former official of the Union, Ralph
Brannon, an International vice president of the Union,
and Company Representatives Gilley and Gooch. Le-
vine's testimony, supported by that of Perry and
McCain, was that at the meeting the Union reiterated the
importance of its receipt of the information regarding the
chemical substances that had been requested on two pre-
vious occasions. Gooch refused to give the Union the list
of chemical substances, saying that this was in the hands
of their legal counsel and they had been informed by
their counsel that this information was proprietary in
nature and could not be provided. According to Levine,
neither Gilley nor Gooch, at this meeting, asked why the
Union needed the information and the Union did not ex-
pressly state a reason other than a reference by Perry to
some experience with toxic fumes which had nauseated
employees on previous occasions. Further, according to
Levine, it was not until the evening of October I that
Gilley telephoned him and asked him for the first time
why the Union thought it was necessary to have a list of
chemicals. Levine explained that the Union had a list on
file at headquarters of the chemicals their people were
exposed to or could be exposed to, and with that knowl-
edge information could be supplied to the employees re-
garding precautions they should take in working with
such chemicals. Levine added that if employees were
subjected to potential diseases as a result of exposure to
various chemicals such exposure could necessitate some
changes in pension plans and retirement plans, sick leave
programs, and absentee control programs. Levine further
told Gilley that there were many areas, including senior-
ity, that could be affected as a result of employee expo-
sure to certain chemicals and the potential harm done to
them. Levine's conversation with Gilley ended with
Levine agreeing to telephone Gilley to discuss the sub-
ject further the following morning.
As arranged, Levine again talked to Gilley on October
2 and Gilley orally provided Levine with a list of some
eight chemicals which were required to be reported by
the Respondent to the Government under applicable
laws and regulation. Gilley further indicated that he
would provide the list of eight chemicals to Levine in
writing and later did so by letter dated October 6.4 No
contention was made by the Respondent that the list sup-
plied to th Union was a complete list of chemicals used
by it. On the contrary, based on undisputed record evi-
dence, the Respondent utilized in excess of 500 chemical
substances in its Memphis facilities, both in the manufac-
testimony, on the other hand, was vague and equivocal. Ferrell's recol-
lections were too frequently prefaced with "I believe" or "I1 think," and I
conclude they were unreliable.
4 Resp. txh. 4.
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turing process and in the cleaning and maintenance Work
performed in the facilities.
While the Union filed the charge herein on October 2,
there appeared to have been no further general discus-
sion between the parties with respect to the Union's re-
quest for information on the chemical substances until
the period in August 1981 when the parties were en-
gaged in negotiations on a new collective-bargaining
agreement. According to Levine's testimony, however,
when the subject of a list of chemicals came up in those
negotiations, Levine and John Whitcomb, the Respond-
ent's director of employee and labor relations and its
chief negotiator at the sessions, mutually agreed that
since the matter was in litigation they would not discuss
it in negotiations, although neither party was waiving
any rights that it might have. More specifically, Levine
testified that, when the discussion of the Union's propos-
al to greatly expand the health and safety language came
up in negotiations, there was general discussion about the
Union's need for a list of chemicals and the response of
Whitcomb was "Look, the matter is in litigation, and
you know that our position hasn't changed." It is undis-
puted that at the time of the hearing the Respondent had
supplied no list of chemicals in response to the Union's
request other than the list of eight chemicals supplied to
Levine by Gilley on October 2.
There was also little discussion between the parties rel-
ative to the request for the results of the employees
physical examinations. It is clear from the record that the
Respondent did not supply the Union with the results of
the physicals and did not change its position from that
initially taken by Gilley on June 10.
The Respondent presents a number of arguments in its
defense. The Respondent devoted a substantial part of its
brief to the argument that, while employee safety and
health is a proper and mandatory subject of bargaining,
the basic dispute between the parties more appropriately
falls within the purview of the Occupational Health and
Safety Administration (OSHA) which has set forth stand-
ards regulating employee access to safety and health in-
formation held by employers. The Board, the argument
goes, should not assert its jurisdiction in this matter. The
Respondent then proceeds to argue that even if the
Board asserts its jurisdiction here it should find that
there has been no bad-faith bargaining because the infor-
mation sought by the Union would not be considered
relevant to the Union's bargaining functions and obliga-
tions. Even assuming such information was relevant, the
argument continues that the Respondent was entitled not
to disclose the requested information because of the con-
fidential nature of the information. Moreover, even if rel-
evant and not privileged from disclosure the Union
waived its right to the information by engaging in collec-
tive-bargaining negotiations and agreeing to a bargaining
agreement containing a "zipper clause" under which the
parties signatory agreed that "no other matters, whether
covered by this agreement or not, shall be subject to fur-
ther collective bargaining during the continuance of this
agreement." 5 Finally, the Respondent advances the claim
5 Resp Exh. I. art 33, sec 2.
that a number of factors mitigate against the finding of a
violation here in refusing to provide the requested infor-
mation. Among such factors are: the shown safety of the
Respondent's plants, the Respondent's practice of provid-
ing the Union with information upon request when spe-
cific problems arise, the Respondent's supplying the
Union with the names of the eight toxic chemicals ap-
pearing on the EPA list; and the absence of a real need
by the Union for the requested information since the
union health and safety committee serves the same func-
tion that the requested information would serve for the
Union; i.e., monitoring the safety of the Respondent's
facilities. The Respondent also cites as a mitigating
factor: the extreme cost of producing the information.
B. Discussion and Conclusion With Respect to the
Chemical Information
1. Board assertion of jurisdiction
The Respondent argues that Congress charged OSHA
with the duty "to assure so far as possible every working
man and woman in the nation safe and healthful working
conditions." Occupational Safety and Health Act, 29
U.S.C. § 651 (1970). And in keeping with this duty,
OSHA has formulated regulations making certain em-
ployee exposure data and medical records available, to
employees and their representatives. According to the
Respondent, the formulation of the regulations constitut-
ed an attempt, to the extent possible, to strike a delicate
balance on the myriad of complex issues involved in the
area of access by employee representatives to safety and
health information held by the employers. Since the
Union's request for information here falls within the pur-
view of OSHA's regulations, expertise, and jurisdiction
the Board should decline jurisdiction here, and for the
Board to become heavily embroiled in an issue that
OSHA has already determined is for the Board to go
outside of "its legitimate area of concern." In support of
this argument the Respondent cites the fact that the Gen-
eral Counsel of the Board has recognized the primary ju-
risdiction of OSHA in cases involving discrimination
against employees engaged in health and safety activity
even though such discrimination might also be pro-
scribed under the National Labor Relations Act where
related to the broad right of employees to engage in con-
certed activities. See Memorandum of Understanding Be-
tween OSHA and NLRB, 40 F.R. 26083 (1975).
The Respondent's argument briefly related above has
considerable appeal. But the General Counsel's under-
standing with OSHA has application only to discrimina-
tion cases, and does not apply to refusal-to-bargain cases
where the Board itself has significant expertise. More-
over, the Board has already answered the Respondent's
argument in this area in Gulf Power Company, 156 NLRB
622, 626 (1966), enfd. 384 F.2d 822 (5th Cir. 1967),
where it said:
We find without merit the Respondent's conten-
tion that statutory provisions requiring that it exer-
cise a high degree of care in its operations render
all matters pertaining to safety a prerogative of
management and therefore immune from bargaining.
1100
PLOUGH, INC.
Such laws, like the minimum wage and a variety of
governmental regulations, merely establish certain
minimum requirements in their respective fields as
conditions of doing business and are not intended to
preempt their fields of regulation to such an extent
as to exclude therefrom the concept of collective
bargaining.
Gulf Power issued prior to the advent of OSHA regula-
tions cited by the Respondent. However, it has not been
reversed on the point noted above, and, on the contrary,
it was cited by the administrative law judge in a case in
which the Administrative Law Judge held with recent
Board approval that an employer violated Section 8(a)(5)
by refusing to allow plant access to a union's industrial
hygienist. Winona Industries Inc., 257 NLRB 695 (1981).
In reaching this conclusion, the Administrative Law
Judge observed that although OSHA reports might be
available the evidence reflected that the union's industri-
al hygienist followed procedures which would reveal
data supplementing and expanding that obtained by
OSHA investigators.
Likewise, in the instant case, there was no showing
that the information with respect to all the chemicals
used, processed, or contained in the Respondent's prod-
ucts was available to the Union through OSHA reports,
or that the Union would have access to all such informa-
tion under OSHA regulations. Without this information
it is unlikely that the Union could insure identification,
location, examination, and treatment of unit employees
exposed to chemicals subsequently determined to be haz-
ardous. Moreover. the Union's reluctance to accept at
face value the Respondent's assertion of plant safety and
compliance with OSHA regulations, notwithstanding the
Respondent's safety record, is understandable where, as
here, one of the Respondent's representatives, Gilley, in
his testimony alluded to OSHA regulations and employ-
ee complaints thereunder as an "endless little game,
wasting a lot of time."
Considering the foregoing and the authority cited
above, I reject the Respondent's argument that the
Board should not assert its jurisdiction in this case, and
conclude that the Board has not yet abdicated its author-
ity to OSHA to determine employer obligations under
Section 8(a)(5) of the Act to bargain in good faith.6
2. The relevance of the requested information
It is well established that an employer is obligated to
provide a union which represents its employees informa-
tion requested by that union which is relevant and neces-
sary for the proper performance of the union's duties as
a collective-bargaining representative. N.L.R.B. v. Acme
Industrial Co., 385 U.S. 432 (1967); N.L.R.B. v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The obligation to supply
requested information extends not only to information
which is useful and relevant for the purposes of contrac-
6 This is not to say that the accommodation between the Act and
OSHA should not be sought. Preservation of the objectives of each dic-
tates such accommodation. But Board deference to OSHA is not required
in all cases. See., e.g. Brown & Root In.., 246 NLRB 33 (1979); Kelly-
Springfield Fire Company, ALJD-586 81. As indicated, I find no necessi-
ty for deferral to OSHA under the circumstances of this case.
tual negotiations, but also to information necessary to
inform administration of a collective-bargaining agree-
ment. Safeway Stores, Inc., 252 NLRB 1323 (1980); Wes-
tinghouse Electric Corporation, 239 NLRB 106 (1978).
The only premise for deciding whether the obligation to
produce exists is its relevance and reasonable necessity
for the labor organization's proper performance of its
role as a collective-bargaining representative. Detroit
Edison Company, 218 NLRB 1024, 1033 (1975), reversed
and remanded on other grounds 440 U.S. 301 (1979).
Relevancy is to be determined by a liberal standard.
N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 437
(1967). And, as the court said in Curtiss-WU'right Corpora-
tion, Wright Aeronautical Division v. N.L.R.B.. 347 F.2d
61, 69 (3d Cir. 1965), "Reasonable necessity for a union
to have relevant data is apparent; necessity is not a sepa-
rate and unique guideline, but is directly related to the
relevance of the requested data." Furthermore. in deter-
mining relevance, the Board has observed in Northwest
Publications, Inc., 211 NLRB 464, 466 (1974), "All possi-
ble ways in which the information may become impor-
tant can not be foreseen in advance of negotiations."
And in N.L.R.B. v. Acme Industrial, supra, the Supreme
Court in requiring an employer to provide information
requested by a union in connection with processing a
grievance indicated at 437 that it was necessary to estab-
lish only "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."
"[Wlage and related information pertaining to employ-
ees in the bargaining unit is presumptively relevant, for, as
such data concerns the core of the employer-employee
relationship, a union is not required to show the precise
relevance of it, unless effective employer rebuttal comes
forth .... " Curtiss-Wright Corporation v. N.LR.B.,
supra at 69. Because plant safety rules and safe work
practices have consistently been considered to be a man-
datory subject of bargaining,' a request for information
related to work place health and safety problems must be
likewise considered presumptively relevant to a collec-
tive-bargaining representative's fulfillment of its statutory
functions. Aside from wages, it is difficult to perceive of
any subject being of greater concern to employees or
having a greater impact upon their conditions of employ-
ment than the subject of safety. Indeed, there is frequent-
ly direct correlation between wages and safety.
In the instant case, the fact that safety has been a
matter of interest and concern to the Union is demon-
strated by the inclusion of the health and safety provi-
sion, article 18, in the current and preceding collective-
bargaining agreements.8 In that provision it is specifical-
ly stated:
It is agreed that health and safety of the employees
is a matter of interest to both the Company and the
Union. The Company shall use reasonable care to
see that no employees shall be required to work
under conditions which constitute a hazard or
which are injurious to health and shall continue to
See Gulf P>wer, Company, supra.
s See Resp. Exhs. I and 9
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supply without cost to the employees such safety
and health equipment as may be reasonably needed
for the safety and health of employees while at
work. Employees will not be required to perform
any job which cannot be done with reasonable
safety.
Thus, the parties here by agreement have emphasized
their collective concern over safe working conditions for
unit employees. Accordingly, even if safety information
was not presumptively relevant the parties have by
agreement and in their past practice clearly made it rele-
vant. 9
While the Union had failed to clearly articulate its rea-
sons for wanting the list of chemical substances in the
working environment prior to October 1, it is clear and
undisputed that on that date Union President Perry had
related the request for the information to the Union's
general concern over prior incidents when several em-
ployees had experienced nausea after exposure to certain
fumes. And on the following day, October 2, Levine, at
Gilley's request, expressly stated the necessity of the
Union's acquisition of the requested information relating
it to a concern over record keeping of employee expo-
sure to chemicals or materials which might later be de-
termined as harmful or hazardous. Moreover, regardless
of whether the information requested would have an im-
mediate impact upon the working conditions of unit em-
ployees, Levine's expressed reason for requesting the in-
formation has obvious validity. Experience in recent
years has revealed that certain substances once thought
harmless have turned out to be in fact hazardous. Having
a list on file of chemicals to which unit employees have
been exposed quite clearly has a potential usefulness in
determining the necessity of periodic examination and
treatment if any of such chemicals are subsequently
found to be hazardous. As I have already related, the
fact that the requested information might not have an im-
mediate impact upon working conditions does not affect
the obligation to produce. As the Board said in Western
Massachusetts Electric Company, 234 NLRB 118, 119
(1978):
Thus, it is well settled that a labor organization's
entitlement to information is not to be limited
merely to that which would be pertinent to a partic-
ular existing controversy but rather extends to all
information that is necessary for the labor organiza-
tion properly and intelligently to perform its duties
in the general course of bargaining. Indeed, a more
restrictive view of a union's right to information
would often require it to play blindman's bluff with
9 The Respondent claims that the Union previously made an extensive
request for information including a "list of all substances in use, and pos-
sible hazards." Whltcomb testified, without contradiction, that the request
was made in the 1978 negotiations, but he added that the Union's request
which was contained in a contract proposal was withdrawn with the
Union's acknowledgement that they had enough information for their
needs. It is sufficient to observe that a prior withdrawal of a request does
not affect the relevancy of a subsequent request for the same information
nor does such withdrawal thereafter preclude for all time the necessity
for the requested information
respect to potential grievances, a result repeatedly
rejected by this Board and the courts.
Finally, the information requested an c c;,icais could
clearly affect the Union's ability to administer the health
and safety provision of the collective-bargaining agree-
ment. Without such information and the knowledge of
what employees are dealing with or are exposed to, there
is no way it could effectively ensure the Respondent's
compliance with its commitment in the health and safety
provision of the collective-bargaining agreement not to
require employees "to work under conditions which con-
stitute a hazard or which are injurious to health .... "
It is true that the Respondent has commendably taken ef-
forts to ensure the safe working conditions of its employ-
ees. The fact that it has had substantial success with its
efforts in this regard cannot be disputed and is also very
commendable. The Respondent's safety programs may
serve its purposes well and may well meet the standards
required by state and Federal regulations. But as stated
by Administrative Law Judge Maurice M. Miller in
Borden Chemical, a Division of Borden, Inc., 261 NLRB
64, 77-78 (1982), in a case which closely parallels the in-
stant case and which is presently pending before the
Board:
More particularly, Respondent's broad spectrum of
control devices, protective clothing, technical pro-
cedural directives, and safe practice rules, calculat-
ed to preserve health and promote workplace
safety, may indeed provide the Fremont plant
workers with "adequate" protection against known
toxicological risks, while permitting management to
maintain optimum production. However, shared
knowledge, confined merely to familiarity with a
plant management's currently maintained protective
measures, provides neither Respondent's Fremont
workers, nor their collective-bargaining representa-
tive, with sufficient data to facilitate continuous "in-
telligent" contract policing or prospective contract
negotiations. Such narrowly focused knowledge,
clearly, could never promote or facilitate discoveries
with respect to whether specific "materials and
chemicals" handled within Respondent's plant may
present potential hazards not yet manifested within
Respondent's work force, never previously recog-
nized within a laboratory, and thus not yet cogniza-
bly forestalled. [Emphasis supplied.]
Respondent's determination to withhold a com-
plete materials list, necessarily, precludes Complain-
ant Union from seeking determinations-derived
from "independent" consultation or research-re-
garding the toxic properties of chemicals handled
and processed within the firm's Fremont plant.
Conceivably, some potential hazards-clinically or
experimentally traceable to significant or sustained
"exposure" involving such chemicals, but never
previously suspected, never previously recognized,
never reported to Respondent's concerned profes-
1102
PLOUGH, INC.
sionals, and never previously verified-could, there-
fore, remain undetected, pending their definitive
physiological manifestation within a significant
number of Respondent's workers.
Administrative Law Judge Miller in Borden Chemical,
supra, concluded therefore that a union's request for a
complete "materials and chemicals" list was a request for
"relevant" information which "would be of use" to the
union in seeking to discharge statutory duties and re-
sponsibilities. Similar results were reached by two addi-
tional administrative law judges in Colgate-Palmolive
Company, 261 NLRB 90 (1982), and Minnesota Mining
Company, 261 NLRB 27 (1982). These cases are also
pending decisions by the Board. More recently, in Kelly-
Springfield Tire Company, JD-586-81, Administrative
Law Judge Thomas Bracken held that a union's request
of an employer for a list of chemicals by generic name
was a request for "information vital to the present and
future health of the employees it represent[ed]."
Considering all of the foregoing and consistent with
the conclusion of the Administrative Law Judges in the
Borden Chemical, Colgate-Palmolive, Minnesota Minning,
and Kelly-Springfield cases, I conclude that the Union's
request here for a listing of all chemical substances in the
employee work environment was a request for "rele-
vant" information necessary to the Union in the fulfill-
ment of its representative functions. 10
In view of the relevance of the requested chemical in-
formation and the reasonable necessity of the Union's
possession of it, the Respondent's good faith in failing to
provide the information, absent an outright inability to
provide it, becomes largely irrelevant. The mechanics of
providing the information such as the allocation of costs
involved, the form of assurances against disclosure by
the Union, the format of the information to be supplied,
the time and method of supplying, and any other perti-
nent details of access to the information are subject to
the bargaining process." But the Respondent's obliga-
Lo In the instant case, I must observe that the Respondent's submission
to the Union of a list of eight chemicals determined to be toxic by the
Environmental Protection Agency (EPA) was completely inadequate to
assuage a legitimate concern by the Union about other chemicals not yet
determined to be hazardous. Moreover, and in any event, it is quite clear
from the record that employees were required to handle chemicals con-
*idered to be dangerous which were not on the EPA toxic list. Thus,
Reap. Exh. 12 a portion of a formula card used by the Respondent in
making up its products and introduced into evidence to show the precau-
tionary measures taken in instructing employees in handling chemicals
used in the formula, demonstrates that at least two chemicals listed in the
formula card. phenylmercuric acetate and sodium hydroxide, were
chemicals which could be dangerous and could cause burns. Such chemi-
cals clearly were not on the EPA toxic list supplied to the Union on Oc-
tober 2, yet they were nevertheless presented hazards to employees han-
dling them. And even if the Respondent taught its employees handling
procedures, the Union without knowing what chemicals were handled
could not question or determine whether such handling procedures were
adequate for employee protection in its view.
It The Respondent sought to introduce evidence at the hearing con-
cerning certain offers it had made to the Union in connection with the
requested information. That evidence was excluded, however, because
the offers were made in settlement discussion directed by me in a pre-
hearing telephone conference with the parties and also at the hearing.
Offers which are part of settlement negotiations are inadmissible. East
Wind Enterprises, 250 NLRB 685 (1980). See also Fed. R. Evid. Rule 408.
Moreover, any offers of compromise made immediately before the hear-
tion to provide relevant and necessary .,,ormation is
basic and not subject to bargaining. Curtiss- Wright Corpo-
ration, supra; Winona Industries, Inc, supra; General Elec-
tric Company, 199 NLRB 286 (1972). Cf. N.LR.B. v. As-
sociated General Contractors of California, 633 F.2d 766
(9th Cir. 1980). And as the Board said in The Kroger
Company, 226 NLRB 512, 513 (1976), "[W]here a request
for relevant information adequately informs the employer
of the data needed, the employer either must supply such
information or adequately set forth the reasons why it is
unable to comply." See also Westinghouse Electric Corpo-
ration, 239 NLRB 106 (1978).
While, as urged by the Respondent, the Union's re-
quest in the case sub judice was a broad one, I am satis-
fied from the record as a whole that the Respondent
comprehended the scope of the information sought by
the Union. More particularly, Gilley testified that in the
October meeting he had with Levine they had discussed
"exactly what was meant by chemical substances in the
work plant." It was agreed that the Union was not seek-
ing a listing of chemicals in the cafeteria but rather those
"within the working area."
In view of the foregoing I conclude that the Respond-
ent understood what was requested of it, that it had a
clear and affirmative duty to provide the Union with the
requested chemical information, unless the reasons ad-
vanced by the Respondent and considered infra justify its
failure to comply with this duty.
3. The Respondent's confidentiality defense
It is undisputed that the Respondent manufactured
products containing chemical substances which are com-
bined in accordance with formulas which might involve
"confidential" information or "proprietary" trade secrets.
In the instant case, however, the Union did not request
formulas nor did it request ratios of chemicals within
products.' 2
The Board has held that a general confidentiality claim
"does not privilege" a refusal to provide a union with re-
quested relevant information. See The Ingalls Shipbuild-
ing Corporation, 143 NLRB 712, 717 (1963). But in De-
troit Edison Company v. N.LR.B., supra, the Court indi-
cated that there is no absolute rule that a union's request
for relevant information must predominate over other le-
gitimate interests an employer may have in refusing to
give the union requested information. Accordingly, there
must be a balancing of the interests of each side, the em-
ployer's in retaining the information and the union's in
obtaining the information.
I am not persuaded that the Respondent here has dem-
onstrated reasonable jeopardy to its confidential materials
or proprietary interest. Other than the bare assertion of
the Respondent's witnesses that disclosure of a chemical
list would jeopardize trade or proprietary secrets, there
ing are entirely irrelevant to a determination of a preexisting violation of
the Act which had remained unremedied for more than a year.
L' Gilley in his testimony admitted, in any event, that the Respondent's
products could be broken down by a chemist and analyzed to determine
the components and the ratios of the components within the product.
Indeed, as Gilley further admitted, the ingredients of its products are
listed on the label of its products.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is precious little in the record herein to establish exactly
the degree of danger involved. The Union did not ask
for the ingredients of the products and there is no indica-
tion of exactly how a list of chemicals, unrelated to any
given product, would represent a risk to the disclosure of
confidential or proprietary information. The mere asser-
tion of a claim of confidentiality cannot outweigh the
right to disclosure of relevant information. Ingalls Ship-
building, supra: The Kroger Co., 163 NLRB 441 (1967).
Clearly an unsubstantiated and unexplained fear of dis-
closure cannot, on balance, override a union's request for
relevant information. Again, as Administrative Law
Judge Miller said in the Borden Chemical case at 261
NLRB at 85, "This Board cannot presume some 'certain
risk of public disclosure' which Respondent has not, yet,
persuasively demonstrated. " 's The same may be said
here. Accordingly, I conclude that, on the record in this
case, the Respondent has not established an overriding
proprietary or confidentiality interest in the list of chemi-
cal substances sought by the Union sufficient to deprive
the Union of its right to obtain and possess such a list.
4. The Respondent's waiver claim
As already related, the Respondent claims that the
Union by proceeding through 1981 negotiations on the
collective-bargaining agreement and by executing the so
called "zipper clause," it thereby waived any right it
might have to the information requested. A "waiver"
will not be lightly inferred however, and a waiver of a
statutory right to requested relevant information must be
clear and unmistakable. Globe-Union, Inc., 233 NLRB
1458 (1977). A waiver requires "conscious relinquish-
ment by the Union, clearly intended and expressed." Per-
kins Machine Company, 141 NLRB 98, 102 (1963). And
the failure to incorporate a statutory right in a collective-
bargaining agreement does not justify the inference of a
waiver of that right. Southwestern Bell Telephone Compa-
ny, 247 NLRB 171 (1980). Even the presence of a
"zipper clause" in a negotiated agreement does not nec-
essarily dictate a finding of a waiver. In Rockwell-Stand-
ard Corporation Transmission and Axle Division, Forge Di-
vision, 166 NLRB 124 (1967), enfd. 410 F.2d 953 (6th
Cir. 1969), the Board adopted the Trial Examiner's find-
ing at 132 that:
Even when a "waiver" is expressed in a contract in
such broad, sweeping terms . . . it must appear
"from an evaluation of the ... negotiations that the
[particular] matter [in issue] was 'fully discussed' or
'consciously explored' and the union 'consciously
'i Whitcomb testified with apparent seriousness that Levine during
1981 contract negotiations responded affirmatively to a specific accusa-
tion by Whitcomb that all Levine wanted the requested information for
was to supply it to the general public and the Respondent's competitors.
However, on cross-examination Whitcomb conceded, reluctantly, that
Levine's response had been sarcastically delivered. Accordingly, I do not
accept Whitcomb's testimony as establishing any ulterior motivation by
the Union in seeking to secure the requested information, particularly in
view of Whitcomb's further admission that L.evine also specifically told
him that the Union needed to knowv even the "harmless" chemicals in
case at "some unforeseen date in the future, they would become of con-
cern."
yielded' or clearly and unmistakably waived its in-
terest in the matter."
On the basis of the record here I find no "waiver" by
the Union. On the contrary, as Levine credibly testified,
there was specific mutual agreement after the subject
arose in negotiations that since litigation on the requested
information was pending the parties would not discuss
the matter. I do not credit Whitcomb's testimony to the
extent it contradicts Levine's on this point. Whitcomb
was at times vague, evasive, unresponsive, and occasion-
ally argumentative. Moreover, even Whitcomb's testimo-
ny reveals that he did not specifically understand the
successful negotiations on the new collective-bargaining
agreement to constitute a resolution of the dispute over
supplying the Union information on chemical substances.
Thus, in a discussion with Levine concerning arrange-
ments for executing the new agreement, Whitcomb
found it necessary to inquire if that resolved the "whole
issue of the material list." Such inquiry would have been
unnecessary if the negotiations had been clearly intended
to resolve the point. Finally, the execution of the con-
tract did not in itself render moot the issue on the re-
quested information. The need for, and relevancy of, the
requested information was not limited to contractual ne-
gotiations, but, as already noted, extended to administra-
tion of the contract as well as the Union's long-term con-
cern for the health and safety of unit employees. Accord-
ingly, I find the credited evidence here falls far short of
establishing any "clearly intended and expressed" relin-
quishment by the Union of its right to the requested in-
formation.
5. The Respondent's cost defense
With respect to its contention that the production of a
list of chemical substances in the plant would be burden-
some and costly, Board law is that an employer need not
furnish even relevant data to a union that would be
unduly burdensome to compile. Westinghouse Electric
Corporation, 129 NLRB 850, 866 (1960). Here I am not
satisfied that the Respondent has established an undue
burden.
Gooch testified that supplying the Union with the re-
quested information would cost an estimated $2 million.
Gooch's testimony is based on discussion and communi-
cations with Dr. J. M. Neilsen, an official of a division of
the General Electric Company, a concern capable of de-
veloping safety data sheets for various chemicals. Gooch
presented to Neilsen as a basis for the estimate the theo-
retical preparation of 10,000 material safety data
sheets. 14 Neilsen, in a letter to Gooch dated April 9,
1981, concluded that it would take 4 years to complete
the task using a planned staff of six to eight professionals
and the project would cost a "guesstimated" $2 million.
Similarly, the Respondent's director of systems devel-
opment for the proprietary drugs and toiletries division,
'4 A safety data or material hazard sheet was described by Gooch as a
document reflecting the chemical composition of a substance, the expo-
sure limits on a daily basis for an individual, the flash point of the sub-
stance, and protective measures and equipment to he utilized in handling
the substance.
1104
PLOUGH, INC.
Cynthia Ziegler, testified that during the week prior to
the hearing she was asked by Whitcomb to provide an
estimate of the cost of the development of a computer
system necessary to provide the requested information
by the Union for a list of chemical substances as well as
an estimated annual cost to run the system. Ziegler esti-
mated that the development of a computer system which
could provide for each chemical in use in the plant, re-
gardless of whether it was used in the product manufac-
tured, the generic name, trade name, hazardous warning
or instructions related to the chemical, and the material
safety data sheet for the chemical would cost $258,000.
She further estimated an annual cost of $114,000 in main-
taining the computer system from which the information
on the chemicals could be obtained.
I find the Respondent's cost defense defective for a
number of reasons. First of all, while the Union, in addi-
tion to a list of chemicals, also sought "any" hazardous
warnings or instructions associated with the chemicals to
include material hazard sheets such request cannot be in-
terpreted as requiring the Respondent to establish materi-
al hazard sheets. The use of the word "any" in my view
is a word of limitation referring to existing warnings,
instructions, and hazard sheets. Moreover, if there was
any ambiguity or uncertainty on the Respondent's part as
to what was required in this regard there is no evidence
that it sought clarification from Levine. Second, Dr.
Neilsen's "guesstimate" was based on preparation of
10,000 safety data sheets but the record does not estab-
lish that the Respondent utilized 10,000 chemical sub-
stances. Even if it did, Gooch admitted that the Re-
spondent already had "some" safety data sheets. Thus, I
view the "guesstimate" to be a clear and unreliable exag-
geration.
Third, and with respect to the testimony of Ziegler,
the Union did not request the development of a comput-
erized system. Moreover, there is nothing in Ziegler's
testimony nor in the testimony of any of the other wit-
nesses presented by Respondent which would explain the
necessity of the development or maintaining of a com-
puterized system for providing the Union with the re-
quested information. It is also clear that Ziegler did not
base her estimate on personal knowledge of the availabil-
ity of information. In this regard, testifying with respect
to obtaining raw data, Ziegler testified that as she "un-
derstood it" some of the requested material was not
available at all, and otherwise exhibited confusion with
respect to the availability of information to put into the
computer system. The following question and answer are
demonstrative:
Q. (By Mr. Cantrell) So when you are saying
"not available" [data] you don't mean it is not any-
where in the plant?
A. I am frankly not sure if all of the data is avail-
able in the plant. I know a great deal of it probably
is somewhere on either some chemical drums or in
some file or something, but I truly don't know the
answer to that.
Asked about her estimate with respect to the cost of
systemizing the printing plant, Ziegler responded:
That was our best guess. I was much more comfort-
able with proprietary drugs and toiletries and how
we would go about doing it and the discussions
with the data processing people in the printing plant
and what information they had readily available to
them, we felt that including them, as I understand
we would need to do in this estimate, that they
would represent an incremental cost of about a
quarter.
Thus, while Ziegler may have been well qualified to as-
certain the cost of establishing a computer program as a
source for information, I am not persuaded that her testi-
mony in itself proves the unavailability of the requested
information or provides an accurate estimate of the cost
of providing the information. Indeed, Ziegler's testimony
shows that the cost of acquiring the chemical informa-
tion would be less than 6 percent of the $372,000 claimed
cost of establishing and maintaining a computer system
for the information.
The record is also otherwise contradictory and confus-
ing as to the availability of the information sought by the
Union. There was testimony of Gooch that there was no
single list of chemical substances used in the plant. The
testimony of Whitcomb and Ferrell, however, was vague
with respect to the existence of a number of separate lists
and the difficulty in compiling therefrom a single list.
Whitcomb, at one point in his testimony, indicated the
departmental employees might catalog chemicals within
their area and a list could be compiled within 8 hours. It
is difficult to understand how a presumably efficient and
modern plant would not have immediately available to it
information regarding the content of its products, raw
materials, and substances used in the manufacturing proc-
ess. Indeed, Ferrell in his testimony related that the Re-
spondent was able to determine whether it was using any
of the over 239 chemicals listed by the EPA as toxic and
hazardous. Thus, the Respondent determined that it did
have some eight chemicals of a toxic nature and it was
these eight chemicals which it revealed to the Union on
October 2 through Gilley's conversation with Levine.
Logic would seem to dictate that if department heads
can determine that they do not have certain chemicals
they must necessarily have knowledge or stored informa-
tion regarding chemical substances that they do have in
their departments and under their control. In other
words, one cannot determine what he does not possess
unless he knows what he possesses. Moreover, even
Ziegler testified that the Respondent already had ap-
proximately 500 chemical substances available from the
Respondent's computer system.
Finally, I note with respect to the Respondent's cost
defense that it made no attempt to ascertain the cost of
providing the information until more than 10 months
after the Union's initial request for the information in
May 1980.15 Nor did it seek at any time any contribution
Ls As previously indicated, Ferrell's communication with Neilsen of
General Electric was not until Aprinl 1981. And Ziegler was not asked
about developing a data system for the infiormation until a week prior to
the hearing.
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union for any alleged costs. t 6 Accordingly, I
find on this record the Respondent's economic defense to
be vague, overstated, and so exaggerated as to be unreli-
able. I find no merit to it.
C. Discussion and Conclusion on Information Relative
to Results of Employee Physicals
Initially it must be observed that the results of physical
examinations had relevance to the Union's representative
functions because such information could allow it to
identify deteriorating physical conditions which, when
correlated to departments or areas, might be vindictive
of an exposure hazard involving chemicals in that area.17
It is clear that the results of a physical examination
constitutes a medical record. In United Aircraft Corpora-
tion (Pratt and Whitney Division), 192 NLRB 382
(1971),x8 the Board considered whether it was a viola-
tion of Section 8(a)(5) for the employer there to provide
the union with certain medical records. There the Board
stated at 390:
As to the "Functional Capacity Record" which is a
record of physical disabilities and informities of em-
ployees discovered by a physician in a physical ex-
amination, Respondent's position was that such
records should not be publicized without the em-
ployee's permission unless and until that individual's
physical capacities become relevant to some partic-
ular problem. In view of the generally recognized
confidential nature of a physician's report, we find
that Respondent's position with respect to furnish-
ing copies of such reports was [a] reasonable one
and did not violate Section 8(a)(5) of the Act.
Applying the above language in United Aircraft, and
proposed OSHA regulations on the confidentiality of
medical records, the Administrative Law Judge in Col-
gate-Palmolive Company, supra, concluded that an em-
ployer did not violate Section 8(a)(5) by refusing to pro-
vide the union with requested medical records which
would identify employees absent their consent. The Re-
spondent cites the reasoning and result in Colgate-Palmo-
live on this point as applicable here. The Union would
apparently distinguish Colgate-Palmolive on the basis that
it specifically did not seek the identity of the employees
1s As the Board said with respect to a union's request for information
in Food Employers Council. Inc., e al., 197 NLRB 651 (1972):
If there are substantial costs involved in compiling the information in
the precise form and at the intervals requested by the Union, the par-
ties must bargain in good faith as to who shall bear such costs, and,
if no agreement can be reached, the Union is entitled in any event to
access to records from which it can reasonably compile the informa-
tion.
1i At the hearing the Union made it clear that its request included re-
sults of preemployment physicals which would likewise be relevant to
identifying a post-employment health condition which might be attributa-
ble to a chemical exposure problem. Since the Union's request was for
"all" results of physicals, I do not view the Union's explanation at the
hearing regarding the employment physicals to constitute an effort to
expand the scope of its original request
18 Modified on other grounds sub nom. Lodges 743 and 1746 Interna-
tional Association of Machinists and Aerospace Workers. AFL-CIO v.
United Aircraft Corporation. 534 F.2d 422 (2d Cir. 1975), cert. denied 429
U.S. 825 (1976).
in the information requested. The Respondent counters
that even with deletion of names the results of the physi-
cals would nevertheless contain information by which
employees could be identified.
In Johns-Manville Sales Corporation, 252 NLRB 368
(1980), the Board, observing its obligation under Detroit
Edison Co., supra, to balance the union's need for the in-
formation requested against any legitimate assertions of
confidentiality, found no violation of Section 8(a)(5) in
an employer's refusal to supply the requesting union with
the names of 34 employees whose medical files the em-
ployer had "red-tagged" because of a diagnosis of their
partial disability by pneumoconiosis, a lung disease possi-
bly related to employment. In reaching this conclusion,
the Board found the union could fulfill its responsibilities
to the "red-tagged" employees without the requested in-
formation.
It is therefore clear that the Board has significant con-
cern with the confidentiality of employee medical
records. While the Union here did not ask for names of
the individual employees, the results of the physical ex-
aminations necessarily includes other identifying nIlbrma-
tion, such as sex, age, height, weight, observable infirmi-
ties, and, usually, identifying scars. The record does not
show whether the examination records would reflect the
employee work area or department. Although it might
be possible to delete the identifying information noted
above, it would appear that the resulting information
would lose much of its value for the purposes sought by
the Union. On the other hand, the Respondent has pro-
vided the Union in the past with information' 9 reflecting
the occurrence of any occupational illnesses occurring
within the plant and the nature of the illness. Compila-
tion of this information over a period of time would, I
believe, tend to serve the same purpose as the informa-
tion sought by the Union. Moreover, if indeed critical to
its needs, the Union nevertheless could acquire the physi-
cal examination results upon securing individual employ-
ee consent for such records.20 Accordingly, I conclude
that the potential benefit of the Union in having the
physical examination results under the circumstances
here does not outweigh the legitimate concern over con-
fidentiality of employee medical records. I therefore con-
clude that the Respondent did not violate Section 8(a)(5)
or (1) of the Act in refusing to provide the Union with
the results of the physicals.
Based on the foregoing, and considering the record as
a whole, I make the following:
19 This information consisted of the right hand portion of OSHA
Form 200, a reporting form which omitted identifying information.
20 Although the Respondent raised a cost defense with respect to sup-
plying the Union with the results of the physicals, I find no merit to such
defense which consisted solely of Ziegler's testimony regarding establish-
ing of a computer system for such information. Here again the necessity
of establishing such a system was not shown and I therefore conclude
that the cost was unsupported. Moreover, in this instance, the claim of
excessive cost is inconsistent with the Respondent's expressed willingness,
without reservations as to cost, to provide the results of the physicals
upon employee consent.
1106
PLOUGH, INC.
CONCLUSIONS OF LAW
1. Respondent Plough, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, as amended.
2. International Chemical Workers Union Local No.
194 is a labor organization within the meaning of Section
2(5) of the Act, as amended.
3. All production, plant maintenance, machine shop,
warehousing, garage mechanics, shipping, receiving,
garage, boiler room, and printing plant service employ-
ees of the Company at its plants at 3022 Jackson Avenue,
Memphis, Tennessee, 1248 Warford Street, Memphis,
Tennessee, 2491 Mathews Street. Memphis, Tennessee,
and 1178 Pope Street, Memphis, Tennessee, but exclud-
ing printers, bookbinders, typographers, over-the-road
truck drivers, cafeteria employees, watchmen, guards,
office and clerical employees, professional and technical
employees and supervisors as defined in the Labor Rela-
tions Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein the Union has been the
exclusive bargaining representative of the employees of
Plough, Inc., within the bargaining unit found appropri-
ate herein, within the meaning of Section 9(a) of the Act.
5. By failing and refusing to provide the Union with a
complete list of chemical substances in use in the above
unit by their respective generic and trade names along
with any hazardous warning and instructions associated
with the substances, including material hazard sheets,
pursuant to the Union's request, Respondent has failed
and refused to bargain collectively with the Union and
has thereby engaged in, and continues to engage in,
unfair labor practices within the meaning of Section
8(aXS5) and (1) of the Act.
6. The unfair labor practices specified affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not violate Section 8(aXS) and
(1) of the Act by refusing to provide the Union with the
results of all physical examinations taken by employees
from May 13, 1975, or in any other manner alleged in
the complaint.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to provide the
Union with certain requested information, I shall recom-
mend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act, including the posting of an
appropriate notice.
Having found that Respondent unlawfully refused to
provide the Union with information with respect to all
the chemical substances used in the bargaining unit along
with any available hazardous warnings or instructions as-
sociated with such substances, including material hazard
sheets, I shall recommend that the Board require that the
Respondent be affirmatively ordered to provide the
Union with such information.
In connection with its obligation to produce the infor-
mation requested by the Union, to the extent costs are
involved in such production, it is recommended that the
Respondent be required to bargain in good faith with the
Union regarding who shall bear such costs. Barring
agreement, the Union shall be allowed access to records
from which it can reasonably compile the information re-
quested. If any dispute arises in applying these guide-
lines, it will be treated in the compliance stage of the
proceeding. Food Employer Council, Inc., et aL, supra at
651; Safeway Stores, Inc., 252 NLRB 1323 (1980).
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
ORDER2 '
The Respondent, Plough, Inc., Memphis, Tennessee,
its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to bargain collectively with International
Chemical Workers Union Local No. 194 as the exclusive
bargaining representative of its employees by refusing to
furnish the Union a complete list of all chemical sub-
stances in use in the bargaining unit by generic and trade
names along with any hazardous warnings or instructions
associated with said substances, including any material
hazard sheets.
(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 which is nec-
essary to effectuate the policies of the Act:
(a) Furnish the Union, or its designated representa-
tives, upon request, the chemical substances list described
in paragraph l(a) above.
(b) Post at its Memphis, Tennessee, facilities, copies of
the attached notice marked "Appendix." 22 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
21 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
22 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1107