Reiss Viking

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 622 (N.L.R.B. 1993)

622
312 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the
issues and the positions of the parties.
2 The Respondent argues that the judge erred in not permitting
Compton, the Respondent’s general manager, to testify about a con-
versation he had with Meadows, who was then Local Union 2460’s
president. The Respondent was given the opportunity to proffer
Compton’s testimony. We have considered the Respondent’s proffer
of testimony and find that even if adduced and credited it would not
warrant a different result in this case.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent contends that some of the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satis-
fied that the contentions are without merit.
4 In concluding that the Respondent violated Sec. 8(a)(5) and (1)
of the Act by refusing to provide the Union with requested informa-
tion, the judge, relying on Island Creek Coal Co., 289 NLRB 851
fn. 1 (1988), and Pertec Computer Corp., 284 NLRB 810 (1987),
stated: ‘‘Even when the information in the possession of an em-
ployer is deemed confidential, the employer violates the Act by re-
fusing to furnish it where the employer has failed to demonstrate
that the union would violate an agreement of confidentiality.’’ The
Respondent excepts, arguing that the cited cases do not stand for this
proposition. We agree. In Island Creek, the Board held that absent
proof that the union is unreliable in respecting confidentiality agree-
ments, the employer’s failure to test its willingness to treat informa-
tion confidentially ‘‘weighs heavily against [the employer’s] de-
fense.’’ Thus, an employer’s failure to show that the union is unreli-
able respecting confidentiality agreements does not per se establish
that the refusal to furnish the information is violative, as the judge
implies. Rather, such a failure is a factor, albeit an important one,
in assessing the employer’s confidentiality defense. We do not find,
however, that the judge’s interpretation of Island Creek and Pertec
affects the result reached in this case.
Reiss Viking and United Mine Workers of America,
District 28 and Local Union 2460. Case 11–CA–
15004
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 6, 1993, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision1 and the record in light of the exceptions
and brief and has decided to affirm the judge’s rul-
ings,2 findings,3 and conclusions4 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Reiss Viking, Tazewell,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Donald R. Gattalaro, Esq., for the General Counsel.
James A. Varner, Esq. and Jenny A. Lenhart, Esq. (McNeer,
Highland & McMunn), of Clarksburg, West Virginia, for
the Respondent.
Susan D. Oglebay, Esq., of Castlewood, Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on November 5, 1992, at Taze-
well, Virginia. The hearing was held pursuant to a complaint
and notice of hearing (the complaint) issued by the Regional
Director for Region 11 (the Regional Director) of the Na-
tional Labor Relations Board (the Board) on July 2, 1992,
against Reiss Viking (Respondent or Company). The com-
plaint is based on a charge filed by United Mine Workers
of America, District 28, Local Union 2460 (Charging Party,
UMW, or the Union) on May 18, 1992.
The complaint alleges that Respondent, Reiss Viking, has
violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act) beginning about February 11, 1992, by
refusing to bargain with the Union, the collective-argaining
representative of Respondent’s production and maintenance
employees, including truckdrivers, employed by Respondent
at its Tazewell, Virginia facility. The refusal to bargain, it is
alleged, consists of Respondent’s failure since about Novem-
ber 18, 1991, and particularly since February 11, 1992, to
provide information requested by the Union. The requested
information, the complaint alleges, is necessary for and rel-
evant to the Union’s performance of its function as the ex-
clusive bargaining representative of the employees in the bar-
gaining unit.
By its answer dated July 15, 1992, Respondent admits
some allegations of the complaint, denies others, and denies
violating the Act. At the hearing Respondent amended its an-
swer to admit certain allegations about the Union’s status.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified here, and after due
consideration of the closing arguments by counsel at the
hearing and the posthearing briefs filed by counsel for the
Union and counsel for the Respondent (the General Counsel
did not file a brief), I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
at all times material Respondent is and has been a Wisconsin
corporation operating a facility at Tazewell, Virginia, where
it produces magnetite, that during the past 12 months Re-
spondent received at its Tazewell plant goods and raw mate-
rials valued at $50,000 or more direct from points outside
Virginia, and that Respondent is now, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
623REISS VIKING
On the first page of its posthearing brief, counsel for Re-
spondent describes the Company as the ‘‘Reiss Viking Divi-
sion of C. Reiss Coal Company,’’ and that is how the Com-
pany is identified in the collective-bargaining agreement. In
the absence of discussion by the parties, I shall not amend
the caption to modify Respondent’s name. Record testimony
describes the Tazewell plant as a full process grinding plant.
Magnetite is described (Tr. 53) as an important commodity
in coal production because it is used to change coal’s spe-
cific gravity, allowing the coal to separate from the dirt and
rock.
B. The Labor Organization
The complaint alleges, Respondent admits, and I find that
at all material times the Union is and has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE APPROPRIATE UNIT AND BARGAINING HISTORY
As established by the pleadings, the appropriate bargaining
unit is:
All production and maintenance employees, including
truckdrivers, employed by Respondent at its Tazewell,
Virginia, facility, excluding office clerical employees,
guards, and supervisors as defined in the Act.
Since about 1980, the pleadings (as amended at the hear-
ing) also establish, the Union has been the designated collec-
tive-bargaining representative of Respondent’s employees in
the appropriate bargaining unit and has been recognized as
such by Respondent. Such recognition has been embodied in
a collective-bargaining agreement (CBA) which was effective
by its terms for the period October 25, 1986, to October 26,
1987, and which is now extended on a year-to-year basis.
The pleadings, as amended, establish and I find that at all
times since 1980 the Union has been the collective-bargain-
ing representative of the employees in the appropriate bar-
gaining unit, and by virtue of Section 9(a) of the Act the
Union has been, and is now, the exclusive bargaining rep-
resentative of the employees in the bargaining unit for the
purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions
of employment.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Testimony at the hearing was brief. The General Counsel
called two witnesses, Donnie Lowe and Kennith Lester
[Lester’s given name is misspelled in the transcript as Ken-
neth], and rested. The Union presented no independent evi-
dence, and Respondent called as its only witness Winfred
Gary Compton, and rested. There was no rebuttal. Since May
1990 Donnie Lowe has been UMW District 28’s president
and, since about June 1990, Lester has been a field represent-
ative for District 28. Compton, who has been with Respond-
ent for 13 years, has been Company’s general manager of
operations for about 3 years, and before that he was the plant
superintendent at Tazewell. Compton’s office is located at
the Tazewell facility. Lowe and Lester testified persuasively,
but Compton did not.
The CBA, currently extended on a year-to-year basis as
earlier noted, provides, as part of article XV, seniority, sec-
tion 11, which reads:
11. The company will not contract out work if there are
any employees on layoff who can perform the work,
and provided the necessary equipment is available. The
laid-off employee shall demonstrate his skills to man-
agement in advance.
Lowe testified that over the past several years Respondent
has eliminated shifts at Tazewell, and laid off employees, in-
cluding some truckdrivers, and reduced its bargaining unit
work force there, without cutting back on the number of the
office and sales staff. The Union began to suspect that Re-
spondent was contracting out some of the work that unit em-
ployees had been performing. During negotiations for a re-
newal contract, which have resulted in annual contract exten-
sions since 1987, Respondent’s representatives kept saying
that McGlothlin, then a competitor, was underbidding Re-
spondent and winning orders from customers which Re-
spondent lost. Yet when Respondent subsequently bought the
McGlothlin plant and thereafter closed it, unit work at Taze-
well remained at reduced levels. Although Lowe personally
did not attend the bargaining sessions with Respondent, Jack
Meadows, then Local 2460’s president, did, and Lowe dis-
cussed these matters with Meadows and Meadows’ concern
that Respondent was contracting out bargaining unit work.
Because of the Union’s concern that the reduced levels of
employees and unit work were the result of Respondent’s
contracting out unit work, the Union drafted an ‘‘Information
Request,’’ dated June 26, 1991, which Compton concedes
was presented to him by Meadows some time thereafter. The
text of the documentary request reads:
We ask that management provide the following infor-
mation so that the Local can process the grievance in
question.
1. List of all customers as of the effective date [Oc-
tober 25, 1986] of this Agreement.
2. List of all new customers after the effective date
[October 25, 1986] of this Agreement.
3. List of any Company owned plants or facilities
that is filling orders that the Tazewell operation has
filled from the effective date of this Agreement to
present time.
4. List of all truck loads and tons of magnetite that
has been processed and/or delivered by other facilities
or contractors that used to be processed and delivered
by the Tazewell operation.
5. List of all contractors filling orders that the Taze-
well operation has filled under this Contract.
6. List of all orders that goes thru Tazewell office.
7. Does Tazewell office transfer these orders to any
other facilities, plants or contractors?
8. List of all orders transferred to any other facilities.
9. List of any new employees hired after the effec-
tive date of this agreement at any operations now filling
orders that was filled by this operation . . . names, hire
dates, and job titles.
10. List of all employees transferred to other facili-
ties.
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union’s information request was followed by a griev-
ance, signed by Meadows and dated August 6, 1991, the text
of which reads:
Management has abridged the rights of the employ-
ees as set forth in this Agreement by allowing employ-
ees not covered by this Agreement to perform our
work, or by contracting it out.
We ask that they cease and desist at once, and pay
affected employees all time and benefits lost as a result
of these violations.
During the following months, Lowe testified, he spoke by
telephone with Compton at least twice, and probably more
than that, asking whether Compton was going to respond to
the Union’s information request. Each time Compton said he
was checking with Respondent’s legal department and that
he needed more time because the Union had asked for a lot
of data, it would take time to assemble the data, and the
legal department was checking to see whether the Company
was required to provide the information. Compton denies that
he had several conversations with Lowe about the matter.
Lowe testified that in December 1991 he, Lester, and Gary
Johnson, the new president of Local 2460, met with Comp-
ton. At this meeting Lowe told Compton that the Union
needed the information it had requested so the Union could
determine whether it had a grievance, and that the Company
needed to answer the grievance. Compton said that the Com-
pany was still assembling information in working on the
matter and needed more time. Lester confirms this in his tes-
timony. Compton recalls that at a meeting on another matter
Lowe asked about the information request, but he denies tell-
ing Lowe that Respondent was trying to assemble the infor-
mation because it was a broad request.
After the December 1991 meeting with Compton, Lowe
assigned the matter to Lester for processing. By letter dated
February 11, 1992, Lester wrote Compton as follows:
A class action grievance was filed by L.U. 2460 con-
cerning the Company contracting out work which be-
longed to the U.M.W.A. represented employees of the
Reiss Viking Company.
An information request was submitted to you con-
cerning this grievance.
During several conversations between you and the
Local and District Representatives you have requested
more time to gather this information, and each time the
Union has granted your request.
As of this date we have still not received any of the
information that we requested. Therefore I am enclosing
another copy of the information request, and if this in-
formation is not provided to me within ten days after
you receive this letter then some form of legal action
concerning this matter may be necessary.
Compton replied to Lester by letter of February 18, 1992,
reading:
In order to respond to the grievance filed by Local
2460 (dated 8/6/91) it would be most helpful to be
made aware of the specific alleged contract violations
that are complained of. Specifically:
1. Who were the non-union employees that per-
formed BU work?
2. What work was performed?
3. When was the work performed?
4. What work was contracted?
5. When was BU work contracted?
The information requested above is necessary for man-
agement to appropriately respond to the allegations and
request for information.
Lester testified that shortly after he received Compton’s
reply he called Compton and said the Union could not pro-
vide the requested information because it was identical to
that which the Union had requested. Compton said he would
review the matter. Compton denies that the conversation oc-
curred. The record contains no further correspondence. Lowe
testified that Respondent has never furnished the requested
data.
Lowe testified that he has not personally observed anyone
at the Tazewell plant who, in his opinion, was doing ‘‘truck-
ing work’’ (that is, as a subcontractor of unit work). How-
ever, Lowe did receive reports from unit employees of sub-
contractors performing unit work at the plant and with
trucks. These reports apparently described incidents occurring
after the August 6, 1991 grievance was filed. The reports de-
scribed a frontend loader of Koch Raven (a contractor, ap-
parently) working a stockpile using a Koch Raven employee,
and McGlothlin’s trucks coming to Respondent’s Tazewell
plant and hooking to Reiss Viking tankers loaded with mag-
netite. Lowe personally has seen McClothlin trucks with
peel-off placards of Reiss Viking stuck on the tractor door
(driving along the roadways, apparently). On one of these oc-
casions, also after August 1991, Lowe observed a
McGlothlin truck pulling a Reiss Viking tanker at Claypool
Hill heading toward Respondent’s Tazewell yard some 5 to
6 miles away, and the vehicle was being driven by someone
other than a unit driver. Lowe concedes that he has no (hard)
evidence of the contracting out, but states (Tr. 37), ‘‘That’s
why I need the information.’’
Denying that Respondent has contracted out any unit
work, Operations General Manager Compton testified that
magnetite production has declined over the years because de-
mand for the product has dropped in the geographical region
where Kentucky, Virginia, and West Virginia join, the area
served by Respondent. Compton reports that in 1987 Re-
spondent opened a plant in Kemper, Kentucky, to process
magnetite, and that beginning in 1989 Respondent began lay-
ing off employees at Tazewell.
Compton testified that disclosure of the requested data
would be unfair to Respondent because Company spent
much time and money developing its customer base, and that
if its list of 150 to 250 customers was divulged it would
harm Respondent by giving its existing competitors a free
ride while encouraging new competitors. Forced disclosure
also would greatly harm Respondent’s relations with its cus-
tomers and, indeed, prompt civil damage suits against Re-
spondent. Moreover, confidential data about magnetite, when
joined with published figures about coal production, would
enable competitors to calculate, as to Respondent’s cus-
tomers, the internal and confidential data on costs.
Testifying in reference to the list of requested data, Comp-
ton concedes that item 4 (magnetite process by others) does
625REISS VIKING
not necessarily relate to customers, but such information has
not been furnished because he understands the list to be a
‘‘total’’ request (that is, apparently to produce all or noth-
ing). Item 5, list of contractors filling orders, does not relate
to customers. Item 6, orders, refers to customers. Respecting
item 7, orders transferred or contracted, Compton testified
(Tr. 69) that in fact Respondent is not contracting out, and
that if the customer names were blocked out on any reply
then the reply would be meaningless. Item 9 (data on em-
ployees hired at other facilities now filling orders previously
done at Tazewell) does not ask for a customer list, but
Compton objects that the data on such employees is irrele-
vant. He gives the same position as to item 10 (list of em-
ployees transferred).
Although Compton asserts that he was concerned about
confidentiality from the day he received the Union’s request
for information, he admits that his pretrial affidavit, given
during Region 11’s investigation of the Union’s charge, does
not mention confidentiality. Compton explains that it was
prepared to respond to the Region’s inquiry about relevance.
Even so, Compton testified that in a February 1992 conversa-
tion he had with Donnie Lowe he told Lowe, who was in-
quiring about the requested data, that he had forwarded the
request to Company’s employee relations department. Asked
if he told Lowe he thought the information was confidential,
Compton testified, ‘‘I don’t recall saying that, no, sir.’’
Compton concedes that he has no examples where the Union
has divulged confidential matters in the past.
B. Governing Law
The Act requires an employer to furnish information re-
quested by a union that is the bargaining representative of its
employees if there is a probability that the information is rel-
evant and necessary to the union in carrying out its statutory
duties and responsibilities as the employees’ bargaining rep-
resentative. Island Creek Coal Co., 292 NLRB 480, 487
(1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990); Bohemia,
272 NLRB 1128, 1129 (1984). Although information which
is not relevant to the union’s purposes need not be furnished,
the Board, with Supreme Court approval, uses a liberal dis-
covery-type standard to determine whether information is rel-
evant, or potentially relevant, to require its production. AGA
Gas, 307 NLRB 1327 (1992); Magnet Coal, 307 NLRB 444
fn. 7 (1992); Island Creek Coal Co., supra; Bohemia, supra;
Pfizer, 268 NLRB 916, 918–919 (1984), enfd. 763 F.2d 887
(7th Cir. 1985).
Information about terms and conditions of employees actu-
ally represented by a union is presumptively relevant and
necessary and must be produced. Bohemia, supra. Informa-
tion necessary for processing grievances under a collective-
bargaining agreement, including that necessary to decide
whether to proceed with a grievance or arbitration, must be
provided as it falls within the ambit of the parties’ duty to
bargain. Bohemia, supra.
However, when a union’s request for information concerns
data about employees or operations other than those rep-
resented by the union, or data on financial, sales, and other
information, there is no presumption that the information is
necessary and relevant to the union’s representation of em-
ployees. Rather, the union is under the burden to establish
the relevance of such information. Bohemia, supra. The bur-
den respecting persons or matters outside the unit requires a
special demonstration of relevance based on a logical founda-
tion and a factual basis for the information request. Postal
Service, 310 NLRB 391 (1993).
Despite the ‘‘special demonstration’’ of relevance needed
for data on persons or operations outside the bargaining unit,
the standard to be applied in determining relevance remains
the liberal ‘‘discovery type standard.’’ Postal Service, supra;
Hawkins Construction Co., 285 NLRB 1313, 1315 (1987),
enf. denied on other grounds 857 F.2d 1224 (8th Cir. 1988).
And in assessing relevance, the Board does not pass on the
merits of the union’s claim that the employer breached the
collective-bargaining contract or committed an unfair labor
practice. Thus, the union need not demonstrate that the con-
tract has been violated in order to obtain the described infor-
mation. Island Creek, supra; W-L Molding Co., 272 NLRB
1239, 1240 (1984).
As the Board observed in Doubarn Sheet Metal, 243
NLRB 821, 824 (1979), quoted in part in Island Creek:
It is not necessary, as Respondent appears to suggest,
that the Union demonstrate actual instances of contrac-
tual violations before Respondent must supply informa-
tion. Indeed, if the Union had sufficient information to
prove contractual violations, it would not need to re-
quest information from Respondent.
The Union need not show that the information which trig-
gered its request is accurate or even ultimately reliable. W-
L Molding, supra. The Union may even make its request
based on hearsay reports. Magnet Coal, 307 NLRB 444 fn.
3 (1992); W-L Molding, supra. From a definitional stand-
point, ‘‘hearsay’’ reports may not technically be hearsay
when offered not for the truth of the report but merely to
show that the Union had some basis for making its request.
Walter N. Yoder & Sons, 754 F.2d 531, 534 (4th Cir. 1985).
But a union’s ‘‘bare assertion’’ that it needs the information
is insufficient. Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979); Postal Service, 308 NLRB 1305 fn. 29 (1992) (same
respecting allegations of discrimination). The Union’s request
must be based on one or more objective factors—on some-
thing more than naked suspicion. Bohemia, supra, 272 NLRB
at 1129.
A union need not accept an employer’s response of, for
example, no subcontracting, for the union is entitled to con-
duct its own investigation and reach its own conclusions.
Pertec Computer, 284 NLRB 810, 811 fn. 5 (1987); Barnard
Engineering, 282 NLRB 617, 621 (1987).
When a party asserts that requested information is con-
fidential, that party has the burden of proof on the issue.
AGA Gas, 307 NLRB 1327 (1992); Barnard Engineering
Co., supra at 617 fn. 1; (1987); Washington Gas Light Co.,
273 NLRB 116 (1984); Pfizer, 268 NLRB 916, 919 (1984),
enfd. 763 F.2d 887 (7th Cir. 1985). Thus, names of cus-
tomers are not necessarily exempt from discovery. AGA Gas,
supra; Magnet Coal, supra, Appendix A at II.3; Custom Ex-
cavating, 228 NLRB 285 (1977), enfd. 575 F.2d 102 (7th
Cir. 1978).
Even when the information in the possession of an em-
ployer is deemed confidential, the employer violates the Act
by refusing to furnish it where the employer has failed to
demonstrate that the union would violate an agreement of
confidentiality. Island Creek Coal Co., supra at fn. 1, 859;
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pertec Computer, supra at 811. If an employer has an inter-
est in maintaining confidentiality, the Board’s remedial order
directs that the Union refrain from any disclosure of the in-
formation to unnecessary persons. Howard University, 290
NLRB 1006, 1007 (1988).
C. Analysis
The General Counsel and the Union argue that an em-
ployer must furnish requested information so that a recog-
nized union can administer the CBA. Agreeing with that gen-
eral principle, Respondent argues that it had no duty to com-
ply here because the Union’s ‘‘suspicion’’ is unsupported by
any objective facts and, in any event, is really about work
transfers by Respondent rather than about subcontracting.
Contending that the Union’s June 1991 itemized list of re-
quested data is devoted largely to work transfers to other fa-
cilities (of Respondent), Respondent observes that nothing in
either the CBA or the law prevents Reiss Viking from trans-
ferring or relocating unit work from Tazewell to another of
Respondent’s plants. Moreover, there is no objective evi-
dence either of work transfers or of subcontracting. Finally,
Respondent asserts that the requested data, besides being ir-
relevant to any provision of the CBA, is confidential.
The evidence, I find, establishes a reasonable basis for the
Union’s concern that Respondent had begun contracting out
unit work. Unit employees were being laid off, yet the office
and sales staffs remained intact. Respondent’s expressed con-
cern, during contract negotiations, about competitor
McGlothlin underbidding Company as apparently being the
cause failed to ring true when conditions failed to improve
after Respondent purchased McGlothlin and closed that plant.
Moreover, the Union had reports from unit employees of
subcontracting. Although these reports, and the personal ob-
servations of District 28 President Lowe, of possible sub-
contracting violations occurred after the Union’s August 6,
1991 grievance, they tend to corroborate the Union’s concern
about subcontracting in violation of article 15 section 11 of
the CBA.
The CBA has no work-preservation article, nor any section
prohibiting work transfers. If the Union’s grievance advances
to arbitration, it may be that the Union will lose on the basis
there is no contractual provision preventing work transfers
and on the subcontracting portion because in fact there has
been no subcontracting. However, we do not litigate here the
merits of the Union’s grievance. Data furnished under the re-
quest may demonstrate that the Union’s concerns about sub-
contracting are indeed well founded. Consequently, the
Union is entitled to receive, under a liberal discovery-type
standard, the data it needs to make an informed evaluation
of its grievance about the subcontracting and the Union’s
chances of prevailing before an arbitrator. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1987); Island Creek Coal Co.,
supra.
Respondent’s contention about confidentiality is, I find,
more afterthought than real concern. The names of Respond-
ent’s customers are not confidential, for the Company’s driv-
ers deliver to them. In theory the Union could compile a cus-
tomer list from the drivers, assuming that all the drivers co-
operated. The Union is not restricted to self-help, however,
and is entitled to know that the information it obtains is au-
thentic and complete because it comes direct from the Re-
spondent. Moreover, the Company has not shown the Union
to be untrustworthy in confidential matters. General Manager
Compton admits that he has no examples of any such failure.
I therefore find Respondent’s confidentiality contention to be
without merit.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing on and
after February 18, 1992, to furnish to the Union the re-
quested data. Although some of the Union’s requested items
bear directly on work transfers rather than on subcontracting,
it is necessary that Respondent furnish all the requested data
in order that the Union can calculate how much, if any, work
has been subcontracted. That is, while any work transfers are
not, by themselves, relevant to the Union’s administration of
the CBA, the Union needs that data in order to determine
what the total is for all the work that existed.
To describe the matter differently, one may envision the
total production compared to the total of all deliveries. From
the total production pile, one portion (perhaps all) was and
is handled by unit employees; another portion (or perhaps
none) was transferred to another facility of Respondent; and
yet a third portion (or perhaps none) was subcontracted. To
determine whether any part of the whole was subcontracted,
the Union has to begin with the whole and trace where it
went. If the data shows that some of the whole left as work
transfers, that is not something which the CBA directly pro-
hibits, but it is information the Union needs to determine just
how much of the whole, if any, left by way of subcontract-
ing—and subcontracting is restricted by the CBA. Moreover,
the Union is not restricted to Respondent’s word on any of
this, or even to Respondent’s records, but may verify both
by checking with customers.
CONCLUSIONS OF LAW
1. The Respondent, Reiss Viking, is and has been at all
times material an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America, District 28 and Local
Union 2460 is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times since 1980 the Union has been the exclu-
sive collective-bargaining representative, within the meaning
of Section 9(a) of the Act, of the employees in the following
appropriate bargaining unit:
All production and maintenance employees, including
truckdrivers, employed by Respondent at its Tazewell,
Virginia, facility, excluding office clerical employees,
guards, and supervisors as defined in the Act.
4. The information requested by the Union in its letter of
February 11, 1992, resubmitting its itemization of June 26,
1991, is necessary for and relevant to the Union’s perform-
ance of its function as the exclusive bargaining representative
of the employees in the recognized unit.
5. By failing and refusing, on and after February 18, 1992,
to furnish the Union with the information it requested by its
letter of February 11, 1992, resubmitting the itemization of
June 26, 1991, Respondent Reiss Viking has violated Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
627REISS VIKING
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Reiss Viking, Tazewell, Virginia, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Mine
Workers of America, District 28 and Local Union 2460 as
the exclusive bargaining representative of the employees in
the following appropriate unit by refusing to furnish the
Union with the information requested by its letter of Feb-
ruary 11, 1992, resubmitting its itemization of June 26, 1991.
The unit is:
All production and maintenance employees, including
truckdrivers, employed by Respondent at its Tazewell,
Virginia, facility, excluding office clerical employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request furnish the Union, in writing, the data re-
quested by the Union’s letter of February 11, 1992, resubmit-
ting its itemization of June 26, 1991; provided, that on re-
ceipt of this data the Union, its officers, agents, members,
and attorneys shall not divulge the information to any other
persons not involved in or not necessary to the resolution of
the grievance in question.
(b) Post at its plant in Tazewell, Virginia, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with United
Mine Workers of America, District 28 and Local Union 2460
by refusing to furnish the Union with the data it requested
by letter of February 11, 1992, resubmitting its itemized in-
formation request of June 26, 1991.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, furnish the Union, in writing, the in-
formation requested by its letter of February 11, 1992, resub-
mitting its itemized information request of June 26, 1991,
which the Union needs in protecting the rights of employees
covered by the Union’s collective-bargaining agreement with
us; provided, however, that on receipt of this data the Union,
its officers, agents, members, and attorneys shall not divulge
the information to any other persons not involved in or nec-
essary to the resolution of the grievance in question.
REISS VIKING