CHAPIN HILL @ RED BANK

National Labor Relations Board - Board Decisions

Jan 10, 2014

360 N.L.R.B. 116 (N.L.R.B. 2014)

116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 27
Chapin Hill at Red Bank and Local 707 Health Em-
ployees Alliance Rights & Trade (HEART).
Case 22–CA–095604
January 10, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On July 12, 2013, Administrative Law Judge Kenneth
W. Chu issued the attached decision. The Respondent,
Chapin Hill at Red Bank, filed exceptions and a support-
ing brief. The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified1 and set
forth in full below.
In affirming the judge’s conclusion that the Respond-
ent unlawfully failed to provide information requested by
the Union, we agree with the judge’s finding that the
request was not rendered moot by the resolution of a
grievance the Union had filed on behalf of unit employee
Joanne Klich. As found by the judge, the requested in-
formation has present and continuing relevance for the
Union to determine whether the Respondent has been
complying with a provision in the parties’ collective-
bargaining agreement governing the Respondent’s use of
nonunit employees to perform bargaining unit work.
In its exceptions, the Respondent cites two cases in
which the United States Court of Appeals for the Third
Circuit declined to enforce portions of Board orders (re-
quiring that information unlawfully withheld be fur-
nished) because the court found that the information re-
quested by the unions was not currently relevant: C-B
Buick, Inc. v. NLRB, 506 F.2d 1086 (3d Cir. 1974), and
International Telephone & Telegraph Corp. v. NLRB,
382 F.2d 366 (3d Cir. 1967), cert. denied 389 U.S. 1039
(1968). Those cases are distinguishable. In C-B Buick,
the union had requested financial information bearing on
the parties’ contract negotiations, but by the time the case
reached the court, the parties had reached an agreement
and there was no evidence that the union needed the in-
formation to administer that agreement. 506 F.2d at
1093–1095. In International Telephone & Telegraph,
the union had requested seniority information about all
nonunit employees who were eligible to transfer into the
unit, but no such transfers were imminent and there was
no evidence that the information otherwise was relevant

1 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the Board’s standard remedial language.
to the union’s ability to police the parties’ agreement.
382 F.2d at 371–372. By contrast, the record here fully
supports the judge’s finding that the Union has a present
need for the requested information.2
ORDER
The National Labor Relations Board orders that the
Respondent, Chapin Hill at Red Bank, Red Bank, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local 707
Health Employees Alliance Rights & Trades (the Union)
by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation requested by the Union on August 14, 2012.
(b) Within 14 days after service by the Region, post at
its Red Bank, New Jersey facility copies of the attached

2 In so finding, we note that the judge quoted a portion of the
Board’s decision in International Telephone & Telegraph Corp., 159
NLRB 1757, 1759 (1966), which the court reversed in relevant part.
As explained, however, the court’s decision in that case does not war-
rant a different result here.
We also note that, in his analysis of the mootness issue, the judge er-
roneously characterized the Board’s decision in Bloomsburg Craftsmen,
276 NLRB 400 (1985), as holding that an employer is not required to
provide unlawfully withheld grievance-related information where the
grievance and arbitration process has already concluded. In fact, the
Board ordered the employer to provide the requested information. See
276 NLRB at 400 fn. 2; but see Borgess Medical Center, 342 NLRB
1105 (2004) (not requiring production of information bearing on a
completed arbitration proceeding where the union did not indicate
another need for the information). We need not address the merits of
Bloomsburg or Borgess, however, because we agree that the Union’s
request is not moot for the reasons stated above.
Finally, we affirm the judge’s finding that deferral to arbitration is
inappropriate. The Board has long held that deferral is inappropriate in
8(a)(5) information request cases. See, e.g., United Technologies
Corp., 274 NLRB 504, 505 (1985); DaimlerChrysler Corp., 331 NLRB
1324, 1324 fn. 3 (2000), enfd. 288 F.3d 434 (D.C. Cir. 2002). We find
it unnecessary to rely on Medco Health Solutions of Spokane, Inc., 352
NLRB 640 (2008), cited by the judge, which was decided by a two-
member Board. See New Process Steel v. NLRB, 130 S.Ct. 2635
(2010).
Because the Union requested the information at issue here to police
the parties’ collective-bargaining agreement as well as in connection
with a grievance arbitration, Member Miscimarra finds it unnecessary
to pass on the foregoing cases or decide whether—and, if so, under
what circumstances—it would be appropriate to defer to arbitration a
dispute about information requested solely in connection with a pend-
ing grievance.
CHAPIN HILL AT RED BANK 117
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 14, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that 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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Local
707 Health Employees Alliance Rights & Trades (the
Union) by failing and refusing to furnish it with request-
ed information that is relevant and necessary to the Un-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ion’s performance of its functions as the collective-
bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on August 14, 2012.
CHAPIN HILL AT RED BANK
Lisa D. Pollack, Esq., for the Acting General Counsel.
J. Ari Weiss, Esq. (Law Offices of Morris Tuchman), of New
York, New York, for the Respondent-Employer.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case
was tried on May 7, 2013,1 in Newark, New Jersey, pursuant to
a complaint and notice of hearing issued by the Regional Direc-
tor for Region 22 of the National Labor Relations Board
(NLRB or the Board) on March 28. The complaint alleges that
Chapin Hill at Red Bank, New Jersey (the Respondent), violat-
ed Section 8(a)(5) and (1) of the National Labor Relations Act
(NLRA or the Act) by failing to furnish information requested
by Local 707 Health Employees Alliance Rights & Trades (the
Charging Party or the Union), which was the certified bargain-
ing representative of an appropriate unit of its employees. Re-
spondent filed a timely answer to the complaint denying the
material allegations in the complaint.
After the close of the hearing, the briefs were timely filed by
the Acting General Counsel and Respondent, which I have
carefully considered.
On the entire record, including my observation of the de-
meanor of the witness, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a New Jersey corporation, with its principal
office in Red Bank, New Jersey, is engaged in the operation of
a nursing home and rehabilitation center providing in-patient
medical and residential care. During a representative 1-year
period, the Respondent derived gross annual revenue in excess
of $100,000 and has purchased and received goods valued in
excess of $5000 at its Red Bank facility directly from suppliers
located outside the State of New Jersey. Accordingly, I find, as
the Respondent admits, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Union’s Request for Information on August 14
The Union and Respondent have engaged in a collective-
bargaining relationship after the Board certified the Union on

1 All dates are in 2012, unless otherwise indicated.
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 21, 2008, as the exclusive collective-bargaining repre-
sentative of the Respondent’s employees in the following ap-
propriate bargaining unit of
All full-time and regular part-time CNAs, COTAs, PTAs,
laundry employees, housekeeping employees, cooks, dietary
aides, central supply, staffing coordinator, restorative aides,
transporters, drivers, activity aides, LPNs, accounts payable
clerks, rehabilitation technician, rehabilitation aides, unit sec-
retary and telephone operators employed by the Employer at
its 110 Chapin Avenue, Red Bank, New Jersey facility, but
excluding all confidential employees, RNs, professional em-
ployees, managers, guards and supervisors as defined under
the Act.
Terms and conditions of employment were embodied in an
existing collective-bargaining contract (CBA or contract) since
May 1, 1998, to April 30, 2012. The union president, Odette
Machado-Ramadeen (Machado),2 testified that the CBA has an
automatic annual extension continuing to date and there have
been no relevant changes or revisions to the contract. (GC Exh.
2; Tr. 14, 15.)3
On August 14, Machado sent an email to Joseph Schlanger
(Schlanger), who was and is the executive director for the Re-
spondent. (Jt. Exh. 1.) The email referred to a pending arbitra-
tion on a grievance filed by the Union on behalf of Joanne
Klich (Klich) which alleges, among other items, that the Re-
spondent failed to provide Klich with extra and/or overtime
hours while assigning hours of work that were requested by
Klich to nonbargaining unit employees. (GC Exh. 3.) The
email, in part, stated
In order to assure speedy resolution of this matter, we are re-
questing the following:
 That you respond to the Union promptly with the in-
formation we requested,
 A date that is mutually agreeable to the Union and
Management for the above Multiple Issue Arbitra-
tion,
 A resolution that is acceptable to the Union.
In the email, the Union requested the following information
Time Sheets/Schedules and Assignment Sheets for all BU
(bargaining unit) Departments and a list of non BU employees
who were assigned BU work, all from March 2012 to the cur-
rent time.
Machado explained that the information requested was rele-
vant and necessary
. . . for the Union to have meaningful discussions with the
Employer regarding a resolution for the improper use of non
BU employee who do bargaining unit work while denying
BU employees OT (overtime) ans [sic] extra hours.

2 Machado was the only witness to testify at the trial.
3 Testimony is noted as “Tr.” (Transcript). The exhibits for the Act-
ing General Counsel and Respondent are identified as “GC Exh.” and
“R. Exh.” The joint exhibit is identified as “Jt. Exh.” The closing brief
for the Acting General Counsel is identified as “GC Br.” and for the
Respondent as “R. Br.”
According to Machado, the information was necessary in or-
der to effectively monitor the contract and in the event there are
contractual violations, the information would be useful to clari-
fy the grievance procedure. Machado testified that article 22 of
the contract provides for per diems, no frills, and temporary
employees to substitute for regularly scheduled unit employees.
(GC Exh. 2 at 18.) Article 22.1 reads
Per Diem/no frills and temporary (including Agency) em-
ployees shall be used on an on-call, as needed basis only to
substitute for regularly scheduled employees during their ab-
sence on non-working benefit days (sick leave, Union days,
holidays, personal leave days, or vacation).
Machado explained that the information requested would en-
able the Union to determine whether there is a violation of arti-
cle 22.1 and to enforce the contract if per diems were in fact
being given extra work hours over bargaining unit employees
or if management was over utilizing per diems. Machado testi-
fied the information requested would also assist the Union in
the grievance-arbitration procedure. Machado said that the
Klich arbitration involves a supervisor doing bargaining unit
work that Klich had requested to perform. (Tr. 18–21.)
B. The Information Request on October 24
Machado repined that she never received a response from
Schlanger to the information requested in her August 14 email.
While Machado was visiting the Respondent’s facility in her
capacity as the union president (she could not recall the specific
date, but it was in sometime in autumn; about 3 weeks to a
month after the email), she encountered Ben Sherer (Sherer),
the new administrator of the facility and introduced herself. At
that encounter, Machado informed Sherer that she had request-
ed information on the per diems and never received a response
from Schlanger on her request. According to Machado, Sherer
replied that she should contact Schlanger since she has been
dealing with him. (Tr. 23–25.) Machado agreed that Sherer’s
suggestion made sense, so she decided to call Schlanger at their
next weekly telephone conference call. Machado said that
Schlanger was not available, so she left him a voice message.
She also sent Schlanger another email on October 24. (Tr. 26–
29.) The October 24 email (GC Exh. 4) stated
Dear Joseph,
Please be advised that the union is revising its grievance to
clarify its position regarding Management’s contract viola-
tions and also the remedy we are seeking as they relate to arti-
cles including but not limited to the following:
Failing to recognize the union and failing to apply the contract
to numerous employees who do bargaining unit work.
REMEDY REQUESTED BY THE UNION: Make the union
whole in every way, including: MANAGEMENT TO
COMPLY THE CONTRACT, including but not limited to
the following articles:
Bargaining Unit
Union Security
Wages and all Benefits
Union Orientation and Notification of the Union by Manage-
-
CHAPIN HILL AT RED BANK 119
ment to new potential union employees.
Seniority
Hours of Work
Reports to the Union
Maintenance of Standards
Per Diems etc
Check-off and Union Dues and Union initiation fees.
Please noted that the clock is ticking and and (sic) that the un-
ion intends to file arbitration no later than October 30th if
these matter are not resolved.
We are available to meet regarding these matters, please call
(deleted) to schedule an appointment
Thank You
Odette Machado
There is some dispute as to whether the October 24 email
was a second request for the same information reflected in the
August 14 email. The Respondent argues that the emails were
pertaining only to the grievance pending in arbitration. Macha-
do maintained that the October 24 email was in fact regarding
the information requested earlier in addition to requiring the
information for the pending arbitration.
The Respondent did not respond to her October 24 email,
although Machado testified that she attempted to contact
Schlanger on a weekly basis. (Tr. 30–33.) The Respondent has
argued that it did not consider the October 24 email a supple-
mental information request and that it was only a recitation of
the grievance pending in the arbitration. (Tr. 54–60; R. Br. at
4.)
C. The Information Request on January 7
Machado made another attempt to obtain the information re-
quested on January 7, 2013, by email to Schlanger (GC Exh. 5),
which, in part, read
Dear Joseph,
The facility has disregarded our request for infor-
mation each and every time we requested it. We need the
information to determine how the facility utilizes per
diems and other non union who do bargaining work.
It appears that the facility is over utilizing such work-
ers and is in direct violation of the CBA. Chapin Hill is
hiring non BU workers, placing them on union schedules
and assignments while no initiation fees and union dues
from them are remitted to the union.
In many cases these workers are getting hours which
are equal to or more than what BU workers get. We re-
quested that you apply the CBA to those workers includ-
ing the union security article, to be specific, those employ-
ees have to be terminated in accordance with the union se-
curity article, for failing to join the union.
Your failure to comply with our request for the following:
• Information regarding the use of per diems and
other non BU workers who do BU work,
• Salary information we requested on a specific
dietary employee
• To terminate non BU workers who have failed
to join the Union will leave us no choice but to
continue to take all necessary steps to assure that
the facility cease and desist committing unfair
labor practices and contract violations as they re-
late to this matter.
We look forward to your prompt compliance in handling this
matter
Thank you
Odette Machado.
Machado testified that the Respondent did not respond to the
January 7, 2013 information request. (Tr. 33.) According to
Machado, she met with Sherer regarding a pending grievance
the week following her January 7 email. At that grievance
meeting, Machado raised with Sherer that the Union never
received the information requested from her August 14 email.
Machado complained to Sherer that there were employees the
Union had identified that were not in the bargaining unit and
the information requested on the number of hours they had
worked was essential to determine if there was a contract viola-
tion. Machado said she showed Sherer a copy of her August 14
email and he promised to provide her with the information, but
never did. (Tr. 33–40.)4 To date, the Respondent has not pro-
vided any of the requested information.
III. DISCUSSION AND ANALYSIS
A. The Union’s Information Request was Necessary
and Relevant
The Acting General Counsel argues that the information re-
quested was necessary for the Union to carry out its representa-
tive responsibilities under the collective bargaining contract.
It is well established that, as a corollary of the duty to bar-
gain in good faith, parties to a bargaining relationship are re-
quired, upon request, to provide certain information within their
possession. It is a violation of Section 8(a)(5) and (1) of the
Act when an employer fails or refuses to provide information
requested for contract negotiations. NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956).
The Union requested the information on August 14 and on
October 24. While there is a dispute as to whether the infor-
mation requests were specifically related to the Union’s need to
monitor and ensure compliance with the CBA or merely a de-
mand by the Union to the Respondent to resolve the pending
grievance, it is well settled that a union is not required to repeat
the request, Bundy Corp., 292 NLRB 671 (1989), and that an
employer is obligated to request clarification if the initial re-
quest was not understood. Azabu USA (Kona) Co., 298 NLRB
702 (1990). Here, the Respondent failed to provide a credible
rationale for not responding to the Union’s information request

4 The Acting General Counsel proffered GC Exh. 6 showing an
email dated March 21, 2013, in which the Union again requested the
information, but Machado testified that the email was actually sent
shortly after her February 17, 2013 meeting with Sherer and before
February 21, 2013. Unable to adequately explain the discrepancy as to
when the email was actually sent, the Acting General Counsel with-
drew this exhibit. (Tr. 41, 42.)
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or to request a clarification if it believes that the August 14 and
October 24 requests were only related to the grievance-
arbitration procedure.
My review of the emails dated August 14 and October 24
shows that the information requested would allow for the Union
to monitor compliance with article 22.1 of the CBA and to
assist the Union in its pending arbitration.
I credit Machado’s testimony as fully credible when she stat-
ed that the Union requested the information in order to monitor
article 22.1 of the contract to ensure that the Respondent was
not over utilizing per diem employees to the detriment of the
unit employees. Her testimony is consistent with her August 14
information request, which specifically stated that the infor-
mation is needed “. . . for the Union to have meaningful discus-
sions with the employer regarding a resolution for the improper
use of non BU employees who do bargaining unit work while
denying BU employees OT and extra hours.” Machado credi-
bly testified that the information was also needed for a pending
arbitration relating to the article 22.1 when the Respondent
failed to provide Klich, a unit employee, with overtime work
hours.
In addition, Machado’s October 24 information request spe-
cifically stated that she wanted management to comply with the
contract (to include, among other items) wages and all benefits,
hours of work, and per diems. In my opinion, while the August
14 and October 24 requests for information related to the pend-
ing arbitration, it also clearly reflects the Union’s responsibility
to monitor and ensure compliance of the CBA as the exclusive
bargaining representative of the unit.
The Respondent violated Section 8(a)(5) and (1) of the Act
when it failed to provide the Union with relevant information
that is necessary to properly perform its duties as the exclusive
bargaining representative. Truitt Mfg. Co., supra. The infor-
mation was necessary and relevant for the Union to ensure
compliance with the contract. Under article 22.1 of the con-
tract, the Respondent is entitled to utilized per diem employees
as needed basis but only to substitute for regularly scheduled
employees who are absent from work. It is well settled that an
employer is obligated to furnish information requested by its
employees’ collective-bargaining agent that is relevant and
necessary to the Union’s bargaining responsibilities and con-
tract negotiations. Detroit Edison Co. v. NLRB, 440 U.S. 301,
303 (1979); Iron Workers Local 207 (Steel Erecting Contrac-
tors), 319 NLRB 87, 90 (1995). Relevancy should be broadly
construed and absent any countervailing interest, any requested
information that has a bearing on the bargaining process must
be disclosed. The burden to show relevancy is not exceptional-
ly heavy, “requiring only that a showing be made of a probabil-
ity that the desired information is relevant, and that it would be
of use to the union in carrying out its statutory duties and re-
sponsibilities.” NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967). The standard for relevancy to apply is a liberal
discovery-type standard requiring only that the information be
directly related to the union’s function as a bargaining repre-
sentative and that it appear “reasonably necessary” for the per-
formance of that function. Acme Industrial Co., supra.
The Union requested time, schedules, and assignment sheets
for all bargaining unit departments and a list of nonbargaining
unit employees who were assigned bargaining unit work from
March 2012 to the current time. It is well settled that the fore-
going type of information regarding the wages, terms and con-
ditions of unit employees is presumptively relevant to the Un-
ion’s bargaining obligations and must be furnished upon re-
quest. Fused Solutions, LLC, 359 NLRB No. 118 (2013) (not
reported in Board volumes); Metro Health Foundation, Inc.,
338 NLRB 802 (2003); Southern California Gas Co., 342
NLRB 613, 614 (2004).
A request for information outside of the bargaining unit,
such as information about per diems, temporary employees or
subcontracting, is not considered presumptively relevant and
thus the relevance required to be established is somewhat more
precise. Ohio Power Co., 216 NLRB 987, 991 (1975); Cald-
well Mfg. Co., 346 NLRB 1159 (2006); Shoppers Food Ware-
house Corp., 315 NLRB 258, 259 (1994). In Sheraton Hart-
ford Hotel, 289 NLRB 463 (1988), the Board stated:
Section 8(a)(5) obligates an employer to provide a union re-
quested information if there is a probability that the infor-
mation would be relevant to the Union in fulfilling its statuto-
ry duties as bargaining representative. Where the requested in-
formation concerns wage rates, job descriptions, and other in-
formation pertaining to employees within the bargaining unit
the information is presumptively relevant. Where the infor-
mation does not concern matters pertaining to the bargaining
unit, the Union must show that the information is relevant.
When the requested information does not pertain to matters
relating to the bargaining unit, to satisfy the burden of show-
ing relevance, the union must offer more than mere suspicion
for it to be entitled to the information.
The burden to show relevancy is not exceptionally heavy,
but it does require “. . . a showing of probability that the desired
information is relevant and . . . would be of use to the union in
carrying out its statutory duties and responsibilities.” Saginaw
Control & Engineering, Inc., 339 NLRB 541, 544, 545 (2003).
Machado explained that the Union needed the time, assignment
and schedule sheets of the nonunit employees in order to de-
termine how much contracting out of bargaining unit work was
occurring in order to monitor and enforce the collective-
bargaining agreement.
In United Graphics, 281 NLRB 463 (1986), the employer
was utilizing temporary workers, but were not receiving wages
and benefits in accordance with the collective-bargaining
agreement. The Board held, “it is clear that information regard-
ing individuals who are engaged in performing the same tasks
as rank-and-file employees within the bargaining unit ‘relates
directly to the policing of the contract terms.’” Id. at 465, quot-
ing Globe Stores, 227 NLRB 1251, 1253–1254 (1977) (names,
rates of pay, and store of employment of group managers per-
forming the same tasks as rank-and-file employees).
In Mt. Clemens General Hospital, 344 NLRB 450, 463
(2005), the union believed that the employer was awarding
positions to nurse externs over bargaining unit employees,
which was a violation of the collective-bargaining agreement.
When the union requested the employer for the names and job
descriptions of the nonunit workers, the employer provided
only the job descriptions. The Board held that the union’s in-
CHAPIN HILL AT RED BANK 121
formation pertaining to the nonbargaining unit employees is
relevant and the employer’s refusal to provide the requested
information was a violation of the Section 8(a)(5) and (1) be-
cause the union reasonably believed that the employer was
utilizing nonbargaining unit workers to the detriment of unit
employees.
The information requested was also needed for a pending ar-
bitration and a violation of the Act when the Respondent failed
to provide the information. The Union claimed in its grievance
that the Respondent had violated the CBA when shift work was
given to a management employee to the detriment of Klich, a
member of the bargaining unit.
An employer’s refusal to furnish information pertaining to
grievances during the term of the collective-bargaining contract
is also a violation of the duty to bargain in good faith. Acme
Industrial Co., supra, Curtiss-Wright Corp., 145 NLRB 152,
156–157 (1963). That information could have helped the Un-
ion to assess the contracting work that was occurring and influ-
ence it on proceeding with the grievance. The Board has held
that by failing to provide information necessary to decide
whether to proceed with a grievance or arbitration, the employ-
er violated Section 8(a)(5) and (1) of the Act. Acme Industrial,
supra, Eazor Express, 271 NLRB 495 (1984); Island Creek
Coal Co., 292 NLRB 490, 491 (1989); Bud Antle, Inc., 359
NLRB 1257, 1264, 1265 (2013).
In New York Presbyterian Hospital, 354 NLRB 71 (2009),
the Board found that the employer violated Sections 8(a)(5) and
(1) of the Act by refusing to produce work shift documents on
nurse practitioners, who were not bargaining unit employees, to
the union for an arbitration hearing. The Board found that the
union’s request was relevant because the nurses who were not
in the bargaining unit performed the same type of work as those
who were in it. This information was pertinent to a breach of
contract claim the union filed against the employer for giving
duties to non-bargaining unit employees that it could only give
to employees in the bargaining unit, and therefore consistent
with the union’s function to collectively bargain and relevant.
I find and conclude that the Union has met its burden to
show that the information requested of bargaining and non-
bargaining unit employees was relevant and necessary for it to
perform its statutory duties in carrying out the collective-
bargaining agreement in monitoring the terms of the contract
and to process the pending grievance.
B. The Information Requested was not Moot
The Respondent argues that the information requested was
not relevant as the underlying grievance had been heard and an
award issued in favor of Klich and the Union on November 14.
In that matter, the arbitrator was required to draw an adverse
inference when the Respondent refused to provide the infor-
mation requested prior to the arbitration. (R. Exhs. 1, 2.) The
Respondent maintains that the information requested was solely
for the purpose of the pending arbitration. The Respondent
contends that the Union’s August 14 request for information
which Machado needed for the grievance and arbitration was
no longer relevant and necessary after the arbitration award was
issued in the Union’s favor.
The Board has dismissed alleged violations of Section
8(a)(5) and (1) of the Act for a refusal to bargain when the in-
formation was relevant when initially requested, but the under-
lying issue for the unfair labor practice charge became moot by
the time it was filed. Bloomsburg Craftsmen, Inc., 276 NLRB
400 (1985); Glazers Wholesale Drugs, 211 NLRB 1063, 1066
(1974). Among the reasons that the Board has rendered previ-
ously relevant information requests moot is when the issue
behind the charge was resolved at arbitration. Bloomsburg, 276
NLRB at 405.
In Bloomsburg, supra, the union pursued a grievance on be-
half of a bargaining unit employee who had been terminated by
the employer. The Union filed for arbitration when the griev-
ance was denied. While the grievance was pending arbitration,
the union requested the employer for records on the terminated
employee, including dates of hire and termination and job de-
scription, for the stated purpose of verifying if the personnel
actions of the Respondent complied with the CBA, but the em-
ployer refused. The grievance was upheld during arbitration
and the terminated employee was reinstated and awarded back-
pay. The Board found that the employer’s refusal to provide
information on the terminated employee violated Section
8(a)(5) and (1) of the Act because the requested information
was relevant to the union’s processing of the grievance for the
terminated employee. Even though it was unlawful for the
employer to withhold this type of information during the arbi-
tration period, the Board held that the union could no longer
access it, without making a new formal request, because “oth-
erwise relevant information expires when subsequent events
render the issue moot.” Id at 405.
The key question in this case is whether the underlying issue
of the Union’s charge was resolved during arbitration and was
therefore moot, notwithstanding the relevance of the Union’s
information request before the arbitral award. The Respondent
argues that the underlying issue, whether the Respondent
should have complied with the subpoena and information re-
quest, was specifically resolved during arbitration, with the
arbitrator using the adverse inference principle in ruling in fa-
vor of the Union. The Respondent reasons that the Union’s
request for information is no longer relevant and necessary
because an arbitration award regarding the information issue
was given out, and argues that the request should now be ren-
dered moot. The Respondent also argues that, aside from the
request later settled by the arbitral award, there are no outstand-
ing information requests from the Union that are relevant and
require the Board’s consideration because no other request
affects the Union’s obligation to administer the CBA.5 In con-
trast, the Acting General Counsel argues that the underlying
issue for the information requested was for the administration
and monitoring of article 22.1 of the CBA to ensure there were

5 The January 7 request was made after the unfair labor practice
charge was filed with the Board in December. The Respondent argues
that the charge referenced only the August 14 request and any infor-
mation requested after December was outside the scope of the com-
plaint. (R. Br.) Assuming this to be true, it is not necessary for me to
assess the validity of this argument since it is sufficient to find a viola-
tion of the Act when the Respondent refused to provide the information
requested on August 14 and October 24 that was relevant and necessary
for the Union to carry out its bargaining duties.
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no contract violations, and therefore, the information requested
should not be moot despite a favorable arbitral award. I agree.
The stated purpose of the August 14 information requested
as credibly articulated by Machado was two-fold, that is, to
enable the Union to administer the contract and to assist the
Union in its pending arbitration. The underlying rationale for
the information requested pertaining to the grievance-
arbitration procedure may have been moot once the arbitrator’s
decision was issued in favor of the Union. However, the under-
lying rationale for the information requested pertaining to the
monitoring and compliance of the CBA was not rendered moot
by the arbitrator’s decision. A reasonable reading of the infor-
mation requested on August 14 and October 24 would direct
one to conclude that the Union was requesting the information
for its duty to administer the contract and for the pending arbi-
tration. In my opinion, the more significant of the two ration-
ales for the information was to enable the Union to administer
its contract; to enable the Union to determine whether there was
a violation of article 22.1 and the possible adverse effects of
nonunit workers doing unit work.
The Board held in International Telephone & Telegraph
Corp., 159 NLRB 1757, 1759 (1966), that the
The Union’s right to such data, however, turns not on whether
the employees to whom the data refers are in a unit, but rather
on whether the data itself is necessary and relevant to the Un-
ion’s role as bargaining representative. Where, as here, the re-
quested information relates to the possibility of unit job dis-
placement by nonunit employees, we do not see how the Un-
ion could properly detect infractions of the contract or insti-
tute grievances in order to protect the rights of unit employees
improperly or adversely affected . . . unless it were given the
requested information. Nor do we see how the Union could
intelligently discharge its further bargaining function of coun-
seling and advising unit employees of their rights and status
under the contract which the Union negotiated for them unless
the Union had access to such data.
If the Respondent was not certain or needed a clarification as
to the purpose of the information, it was obligated to request
the Union to clarify the purpose or relevancy of the request,
which the Respondent never did. It is well established that “. . .
an employer may not simply refuse to comply with an ambigu-
ous and/or overbroad information request, but must request
clarification and/or comply with the request to the extent it
encompasses necessary and relevant information.”6 Azabu USA
(Kona) Co., supra at 702.
Accordingly, I find and conclude that the August 14 infor-
mation requested by the Union was necessary and relevant to
enable the Union to discharge its statutory bargaining function
of administering the contract and that the information requested
was not rendered moot by the arbitration decision. I further
find and conclude that the Respondent, by refusing to furnish

6 Even assuming that the Union had not fully articulated the rele-
vancy for this information, the Board has made clear that “where the
factual basis of a request for nonunit information is obvious from all the
surrounding circumstances, the Union’s failure to spell it out will not
absolve the employer from its obligation under the Act.” Piggly Wiggly
Midwest, 357 NLRB 2344 (2012).
the Union with the requested information, violated Section
8(a)(5) and (1) of the Act.
C. Deferral to Arbitration is not Appropriate
The Respondent raises an affirmative defense that this matter
in dispute should be deferred to grievance-arbitration procedure
under the contract. The Respondent points to article 22.5 of the
CBA, which states, “The Employer shall provide to the Union
upon request evidence showing that there were no bargaining
unit employees available to work the needed shift (GC Exh.
2).” The Respondent argues that this clause should trigger a
contractual obligation independent of the statutory obligation to
provide the requested information and consequently, should be
deferred to arbitration. In Sheet Metal Workers’ Local 18–
Wisconsin, 359 NLRB 1095, 1096 (2013), the Board, citing
United Technologies Corp., 268 NLRB 557 (1984), and Collyer
Insulated Wire, 192 NLRB 837 (1971), held that it will find
deferral to a grievance-arbitration procedure appropriate when:
the parties’ dispute arises within the confines of a long and
productive collective-bargaining relationship; there is no
claim of animosity to employees’ exercise of Section 7 rights;
the parties’ agreement provides for arbitration in a broad
range of disputes; the parties’ arbitration clause clearly en-
compasses the dispute at issue; the party seeking deferral has
asserted its willingness to utilize arbitration to resolve the dis-
pute; and the dispute is well suited to resolution by arbitration.
The Board has long held that issues regarding a refusal to
provide information are not subject to deferral to the grievance-
arbitration procedure. In Medco Health Solutions of Spokane,
Inc., 352 NLRB 640, 641 (2008), the Board reverse the judge’s
findings that deferral of the refusal to furnish information to
arbitration was appropriate. The Board has maintained a policy
against deferral to arbitration in failure to furnish information
issues because “. . . deferral can result in a “two-tiered” process
that may cause delay in resolving the underlying dispute and
undue expense for the parties involved, and because the bar-
gaining representative has a statutory right to relevant infor-
mation that is independent of the rights accorded under the
contract.” Also Postal Service, 276 NLRB 1282 (1985).
The Respondent concedes that the existence of contractual
rights and obligations to use grievance and arbitration proce-
dures do not divest the parties of their rights and duties under
the Act nor oust the Board of jurisdiction to determine whether
unfair labor practices have occurred and to remedy them if they
have. This is particularly so where the issue involves primarily
one not of contractual interpretation.
The Respondent also concedes that issues regarding the re-
fusal to provide information are not subject to deferral to the
grievance-arbitration process, but respectfully submit that the
policy of nondeferral of information request to the grievance
and arbitration procedure is frankly outdated and argues that the
dispute over the validity of the information requested is appro-
priate for the parties’ grievance-arbitration procedure and to
dismiss the complaint.
It is a well-established principle that Board judges have the
responsibility to apply Board precedent in making rulings when
neither the Supreme Court nor the Board has overruled it.
CHAPIN HILL AT RED BANK 123
Teamsters Local 507 (Klein News), 306 NLRB 118, 144
(1992). As stated by the Board in: Insurance Agents, 119
NLRB 768, 773 (1957).
It remains the [judge’s] duty to apply established Board prec-
edent which the Supreme Court has not reversed. Only by
such recognition of the legal authority of Board precedent,
will a uniform and orderly administration of a national act,
such as the National Labor Relations Act, be achieved.
This rule has been enforced in later Board decisions and is
without exception. Douglas Autotech Corp., 357 NLRB 1336
(2011); Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004). As
so succinctly stated in Waco, Inc., 273 NLRB 746, 749 fn. 14.
In his discussion of this issue, as elsewhere, the judge improp-
erly relied on court of appeals decision instead of initially
considering relevant Board decisions on the issues presented.
And, on one issue, the judge relied on the dissent of a single
Board member rather than on the Board majority in that deci-
sion. We emphasize that it is a judge’s duty to apply estab-
lished Board precedent which the Supreme Court has not re-
versed. Iowa Beef Packers, 144 NLRB 615, 616 (1963). It is
for the Board, not the judge, to determine whether that prece-
dent should be varied.
Accordingly, I find and conclude that the deferral of the re-
fusal to furnish information to the Union would be inappropri-
ate and contrary to established Board precedent.7

7 The Respondent raised a second affirmative defense that I find
wholly without merit. The Respondent contends that the charge was
untimely under the statute of limitations. (GC Exh. 1(e).) Although
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to fully furnish the relevant infor-
mation to the Union in its August 14, 2012 request, the Re-
spondent has committed an unfair labor practice in violation of
Section 8(a)(5) and (1) of the Act.
4. By delaying and refusing to promptly provide the relevant
information to the Union in its August 14 and October 24, 2012
requests, Respondent has committed an unfair labor practice in
violation of Section 8(a)(5) and (1) of the Act.
5. The Respondent’s above described unfair labor practice
affects commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices within the meaning of Section (a)(5) and (1)
of the Act, 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.
[Recommended Order omitted from publication.]

not fully articulated by the Respondent, I presume the Respondent is
alleging that the charge was untimely because the information request-
ed was outside of the 6-month statute of limitations prescribed by Sec.
10(b) of the Act. However, here, the charge was served on December
28, 2012. The initial request for information was on August 14, 2012,
well within the 6-month period.