Kraft Foods North America, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 753 (N.L.R.B. 2010)

KRAFT FOODS NORTH AMERICA, INC.
355 NLRB No. 156
753
Kraft Foods North America, Inc. and Office & Pro-
fessional Employees International Union, Local
1295, AFL–CIO. Case 1–CA–39068
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
The issue in this case is whether the Respondent was
obligated to provide the Union representing the bargain-
ing unit at issue with copies of the employee benefit
plans in effect at its other plants. The Union requested
this material 15 months in advance of bargaining for a
successor contract, in order to prepare for those negotia-
tions.1
The timeliness of a request for information under the
Act must be assessed as of the date when the request is
made. We find that under the circumstances of this case,
the information requested was shown to be relevant to
the Union’s bargaining responsibilities, and that the Un-
ion’s request for that information was not premature in
view of the parties’ bargaining history. Accordingly, the
Respondent violated Section 8(a)(5) of the Act by refus-
ing to comply with the request.
Background
The material facts are not in dispute. The Respondent
manufactures gelatin at its Atlantic Gelatin plant in Wo-
burn, Massachusetts, which employs 275 employees rep-
resented by the Union. The Respondent also employs
over 60,000 employees in approximately 80 other plants
around the country. The parties had a collective-
bargaining agreement governing the Woburn unit run-
ning from May 21, 1996, to May 20, 1999 (the 1996
agreement). A successor agreement ran from May 21,
1999, to May 20, 2002 (the 1999 agreement).
During negotiations for the 1996 agreement, paid time
off became a significant bargaining issue. When the Un-
ion proposed increases in paid vacation, sick time, and
holidays, the Respondent’s chief negotiator, John Dono-
van, refused, stating that the Woburn unit employees
were “the most highly paid, highly benefited people
within the Corporation.” Donovan was not only the chief
management spokesman for the Woburn facility, but

1 On May 24, 2002, Administrative Law Judge Martin J. Linsky is-
sued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed an answering brief, and the
Respondent filed a reply 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.
negotiated contracts for the Respondent at a number of
its other plants as well.
Also during the 1996 negotiations, the Respondent
proposed several new benefit plans, together designated
“Kraft Choice,” to replace the plans currently in effect at
Woburn.2 The Union agreed to accept these new plans
on the basis of the Respondent’s assurance that they had
been found satisfactory at other Kraft facilities. The par-
ties ultimately reached agreement on what became the
1996 agreement.
A few months after the 1996 agreement took effect,
the Respondent announced that it would no longer pay a
Christmas bonus. The Union objected to this action
through its grievance procedure, and the issue was dis-
cussed at a grievance session on April 17, 1997. At that
session, the Respondent agreed to pay the bonus. In
agreeing, however, as confirmed in the Respondent’s
minutes from the session, John Brady, the Respondent’s
regional human resources manager, who had also been
on the management negotiating committee for the 1996
agreement, stated the following:

Flexibility is required for every Kraft plant going. . . .
Union should know that [Woburn] employees are
among the highest paid in the Kraft corporation and
have the costliest benefits. This is the only plant in the
corporation that receives a Christmas bonus. The
Company should get value and flexibility from this in-
vestment.

In February and March 1999, less than 2 months be-
fore face-to-face negotiations were to begin for the 1999
agreement, the Union requested copies of and additional
information concerning the health, sick pay, retirement,
and vacation benefit plans in force at the Respondent’s
other facilities. The Respondent refused to provide the
requested material, and the Union filed a charge with the
Board. In June 1999, while the charge was being proc-
essed, the parties reached agreement on what became the
1999 agreement. At the Union’s request, the Region
then dismissed the charge.3
During the negotiations leading up to the 1999 agree-
ment, the Respondent again compared the Woburn unit’s
benefits to the benefits at other Kraft facilities. Dono-
van, once more the Respondent’s chief spokesman, re-

2 The Respondent’s new proposed plans included the “Kraft Choice
Medical Plan,” the “Kraft Choice Dental Plan,” and the “KGE [Kraft
General Foods] Personal Accident Insurance Plan.” The Respondent
characterized “Kraft Choice” as an “umbrella” term.
3 However, the Regional Director noted in that dismissal that “the
investigation revealed sufficient evidence to establish that the [Respon-
dent] unlawfully failed to provide information concerning the benefit
programs at the [Respondent’s] other facilities,” and gave “notice” that
“any further such conduct may result in the issuance of complaint. . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
sponded to a union proposal to eliminate the waiting pe-
riod for sick pay by stating that the waiting period could
not be waived and that “it was the same policy through-
out Kraft for the Sick Plan.” Brady, who also partici-
pated in the negotiations, repeated that the Woburn em-
ployees were “among the highest paid in the Kraft corpo-
ration and have the costliest benefits.” In addition, the
Respondent proposed a “Kraft Corporate” substance
abuse policy to replace the policy in effect at Woburn,
which the Union rejected.
On January 11 and February 26, 2001—15 months and
14 months, respectively, before negotiations would start
for a contract to succeed the 1999 agreement—the Union
again made written requests for copies of the health, dis-
ability, retirement, sick time, and vacation plans at the
Respondent’s other plants. Once more, the Respondent,
in an undated letter sent sometime before February 26 in
response to the January 11 requests, refused to provide
any of these materials on the asserted ground that they
were “not relevant.” The Respondent also stated:

[T]he Company has not indicated in any way that it
will be proposing any changes in the existing benefit
plans [at] Woburn or that, if changes are proposed,
such changes are based upon terms and conditions
which exist in other facilities.

On February 26, 2001, the Union’s president, Ken
Borden, wrote back, stating, in part:

The relevancy of these materials is that, on numerous
occasions at negotiations sessions, Kraft Representa-
tives have made references to the other facilities within
the organization, and the benefit plans, wages, and
policies in effect there, in comparison with those at the
Woburn, MA, facility.

Borden’s letter also cited the Union’s previous request for
this material, the Respondent’s refusal to provide it, the
Union’s 1999 Board charge based on that refusal, and the
voluntary dismissal of that charge in connection with the
parties’ previous contract settlement.
By letter on March 16, 2001, the Respondent again re-
fused to provide any of the requested information, assert-
ing the following:

Even if such statements [by Kraft representatives] were
made . . . the Union must establish that, at the present
time, the Company is taking a bargaining position
based upon what benefits are in effect at other loca-
tions. As the union cannot meet this burden, we be-
lieve that your request . . . is not relevant.

On May 14, 2001, the Union filed the charge at issue
here.
At the unfair labor practice hearing, Borden confirmed
that the Union wanted the information about benefits at
the Respondent’s other facilities because “the Company
had made the statement on a couple of occasions that our
benefits were the costliest . . . so that we could see for
ourselves if we were, in fact, the . . . costliest benefits,”
and also for the purpose of “formulating proposals [to
go] into negotiations with as much information as possi-
ble.” Borden also testified that the Union made the re-
quests for information well in advance of the 2002 nego-
tiations because the Respondent had refused to comply
with the same request in 1999. Borden said that “we felt
it would be a good idea to put the information requests in
much earlier this time so that we could, if there were any
legal dealings . . . have those out of the way prior to ne-
gotiations starting.”4
The judge found that the Union had demonstrated the
relevance of the information requested. He also found
that the requests were “continuing” and therefore not
untimely. Accordingly, the judge concluded that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish the requested information.
Analysis
A. Relevance
Although a union is required to show that a request for
information about the terms and conditions of employ-
ment of employees outside the bargaining unit is relevant
to its representational duties, the required showing is
subject to a liberal, “discovery-type standard” under Sec-
tion 8(a)(5). NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967). Accordingly, the union need show only
a “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.” Id. The union’s
burden is therefore “not an exceptionally heavy one.”
SBC Midwest, 346 NLRB 62, 64 (2005).
We agree with the judge that the Union demonstrated
that the requested information was relevant. It is well
established that employee health, disability, and vacation
benefits are mandatory subjects of bargaining and there-
fore a proper subject of information requests.5 More-
over, on multiple occasions over a period of years, the
Respondent had stated that the Woburn unit’s members
were “the most highly paid, highly benefited people

4 The judge credited Borden generally, finding him “an honest wit-
ness.”
5 See, e.g., MEMC Electronic Materials, 338 NLRB No. 142 (2003)
(not reported in Board volume), enfd. 363 F.3d 705 (8th Cir. 2004);
Metro Health Foundation, 338 NLRB 802 (2003).
KRAFT FOODS NORTH AMERICA, INC. 755
within the Corporation,” and resisted the Union’s at-
tempts to improve the unit’s benefits specifically on that
ground. The Respondent’s own proposals in successive
negotiations also clearly confirmed that its long-term
goal was to standardize the benefits at the Woburn plant
with those in place at Kraft’s other facilities. This nego-
tiating history more than satisfies the Union’s burden of
establishing the relevance of the requested information
concerning benefits at the Respondent’s other facilities.6
B. Timeliness
With respect to the timeliness of the Union’s request,
the judge found that the request was “continuing” and
therefore not premature. The Respondent challenges that
finding, pointing out that the request was made more
than a year before contract negotiations would begin.
We agree with the judge that the request was timely, for
the reasons that follow.
As the Seventh Circuit has observed, a union’s “prof-
fered reasons for demanding the information, as well as
[the employer’s] motives for refusing that demand, must
be examined as of the time of the demand and the re-
fusal.” General Electric Co. v. NLRB, 916 F.2d 1163,
1169 (7th Cir. 1998). Moreover, “the adequacy of the
union’s request . . . must be judged in the light of the
entire pattern of facts available to the employer. . . .” Id.
at 1170 (internal citations omitted). The facts cited by
the Union to the Respondent in early 2001 made it obvi-
ous both why the information was relevant and why the
Union was requesting the information well in advance of
the 2002 negotiations.
As explained above, the Respondent for at least 5
years had compared the benefits at the Woburn unit with
the benefits at its other facilities, and responded to the
Union’s bargaining proposals using that comparison.
However, when the Union submitted a timely request for
corporatewide benefit information in 1999—less than 2
months before negotiations for the successor contract
were to begin—the Respondent neither complied nor
even attempted to reach an accommodation with the Un-
ion by providing some portion of the information sought.
The Union was forced to file a charge with the Board,

6 See Caldwell Mfg., 346 NLRB 1159, 1159–1160 (2006) (employer
made cost and productivity information from its other facilities relevant
by claiming that bargaining unit was less competitive); Allison Corp.,
330 NLRB 1363, 1367–1368 (2000) (employer made requested infor-
mation on subcontracting and import of materials relevant by attribut-
ing layoffs to those factors); Langston Cos., 304 NLRB 1022, 1070-
1071 (1991) (employer made information on corporatewide substance
abuse program relevant by referring to it in bargaining); E. I. du Pont
de Nemours & Co., 276 NLRB 335 (1985) (employer made cost and
productivity information from its other facilities relevant by claiming
bargaining unit needed to be restructured).
and that charge was not resolved by the time the parties
reached the 1999 agreement.
Given this history, it was entirely reasonable for the
Union to assume that, in order to obtain corporatewide
information in time to make use of it in the 2002 negotia-
tions, it would have to submit its request early enough to
obtain timely enforcement of the request through the
Board if necessary. The Respondent had given the Un-
ion no reason to believe that the requested information
would be any more forthcoming than the last time. In
this setting, it would arguably have been imprudent for
the Union not to submit its second request for informa-
tion as early as it did. For this reason, the Respondent’s
assertion that the Union’s request was premature because
the Respondent had not yet cited benefits at other facili-
ties in relation to the next contract negotiations is unper-
suasive.
The Respondent cites the Seventh Circuit’s holding in
General Electric Co., supra, but that decision, although
declining to enforce the Board’s order, supports our con-
clusion here (contrary to the dissent’s view). The court
observed that there was no evidence that the parties in
that case “were preparing in earnest for . . . negotiations”
at the time the union submitted its request for informa-
tion concerning maintenance subcontracting. Id. at 1170.
Moreover, the court emphasized that the union did not
even allege that the company had ever raised the issue of
maintenance costs in prior negotiations. Id.7 Here, in
contrast, the Union was “preparing in earnest” for up-
coming negotiations8 (and for the Respondent’s predict-
able intransigence in providing this specific, relevant
information), even at the early date it made its request.
And the Respondent here had indeed “raised costs during
prior bargaining battles” by repeatedly asserting that the
unit members were “the most highly paid, highly bene-
fited people within the Corporation.” In short, General
Electric supports our finding that the Union’s request
was not premature and that the Respondent acted unlaw-
fully.9

7 The court also distinguished its prior decision in J .I. Case Co., 253
F.2d 149 (7th Cir. 1958), in which the court had found a request for
information timely even though it was made long before contract expi-
ration, because the union in that case “was actually preparing for con-
tract negotiations.” Id. at 1171 fn.5. Here, as in J. I. Case, the Union
was similarly preparing for negotiations.
8 The dissent contests this fact, but the Union president’s testimony
establishes that the Union was both preparing its proposals and antici-
pating the Respondent’s positions and considering possible responses.
The dissent further asserts that both parties must be preparing for bar-
gaining before information requests are timely, but one party’s dilatori-
ness cannot prevent its counterpart from obtaining the information it
needs to prepare.
9 In the underlying Board case, General Electric, 294 NLRB 146
(1989), enf. denied 916 F.2d 1163 (7th Cir. 1990), the Board had found
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
The dissent asserts that our analysis is “premised on
. . . an alchemy of conjecture and assumption” and as-
serts that our decision will permit “massive information
requests for non-presumptively relevant information” to
be made “at virtually any time during the existence of a
bargaining relationship under the guise of unilateral
‘preparations for negotiations.’” To the contrary, our
holding here is a relatively narrow one, grounded in the
facts of this case and in the practical realities of litigation
before the Board, which can proceed too slowly to make
the statutory right to information a meaningful one. The
dissent, in contrast, would put the Union in a double-
bind: its request for information would be ripe only when
it was too late for the information to be timely received.
Needless to say, we reject the dissent’s approach, which
reflect an unfounded skepticism about the usefulness of
sharing information in collective bargaining and in estab-
lishing enlightened relations between labor and manage-
ment.
REMEDY
Because we have found that the Respondent unlaw-
fully refused to provide the information requested by the
Union, we shall order it to do so.10
ORDER
The National Labor Relations Board orders that the
Respondent, Kraft Foods North America, Inc., Woburn,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the following actions.
1. Cease and desist from

that a request for information made 13 months before contract negotia-
tions was not premature because, “by the time of the [Board] hearing in
[that] case, those negotiations were sufficiently close at hand. . . .” 294
NLRB at 146. The Seventh Circuit denied enforcement on the ground
that this finding was legally erroneous, holding that the Board should
have assessed the request “as of the time it was made.” 916 F.2d at
1169. No party in this case has argued that the Union’s request was
timely because it had become so by the date of the hearing.
We note further that neither General Electric nor this case involves
an alter ego dispute in which the union seeks information on the rela-
tionship between the employer and another entity. In such a case, the
union “need not inform the signatory employer of the factual basis for
its request” at the time of the request, “but need only indicate the reason
for the request.” Disneyland Park, 350 NLRB 1256 (2007); Pulaski
Construction Co., 345 NLRB 931 (2005) (same; Contract Flooring
Systems, 344 NLRB 925 (2005) (same).
10 The judge found, sua sponte, that to provide copies of all of the
benefit plans for all of its facilities would be an “onerous” burden to the
Respondent. However, as the Respondent concedes in its reply brief,
the Respondent has never asserted that the request was burdensome.
This issue was therefore not before the judge. We will accordingly
issue a standard remedial order that the Respondent provide the re-
quested information. If any of the information can be provided in an
alternative form preferable to both the Union and the Respondent, the
matter may be pursued in compliance.
(a) Failing and refusing to bargain in good faith with
the Office & Professional Employees International Un-
ion, Local 1295, AFL–CIO (the Union) by failing to pro-
vide the Union with requested information that is neces-
sary and relevant to the performance of the Union’s du-
ties as the exclusive collective-bargaining representative
for the employees in the following appropriate unit:

All regular employees of the Company’s Hill Street,
Woburn, Massachusetts plant, excluding executive, su-
pervisory, office, clerical, technical and professional
employees, salesmen and plant protection officers.

(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 purpose of the Act.
(a) Immediately comply with the requests for informa-
tion from the Union dated January 11 and February 26,
2001, with respect to all information and documents
sought pertaining to benefit plans in force at the Respon-
dent’s other facilities in the continental United States.
(b) Within 14 days after service by the Region, post at
its Atlantic Gelatin plant in Woburn, Massachusetts, cop-
ies of the attached notice marked “Appendix.”11 Copies
of the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since February 26, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

11 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.”
KRAFT FOODS NORTH AMERICA, INC. 757
MEMBER SCHAUMBER, dissenting.
An employer’s statutory duty to bargain includes a
duty to furnish requested relevant information. When the
information requested is not presumptively relevant, as
here, “the [u]nion’s proffered reasons for demanding the
information, as well as [the employer’s] motives for re-
fusing that demand, must be examined as of the time of
the demand and refusal.” General Electric Co. v. NLRB,
916 F.2d 1163, 1169 (7th Cir. 1990). Applying that stan-
dard, I find that the Union’s information requests—for
copies of all the benefit plans at Respondent’s 80 plants
nationwide, covering some 60,000 employees—made 15
months and 14 months respectively before bargaining
was even to begin on a successor contract, were prema-
ture and that the Respondent did not violate Section
8(a)(5) of the Act by refusing to furnish the information.
By focusing only on the Union’s “proffered reasons for
demanding the information” and ignoring the Respon-
dent’s “motives for refusing that demand,” the majority
finds the information request timely and the Respon-
dent’s refusal unlawful. I dissent.
The majority has fully set out the facts. In brief, the
Union made its initial information request for copies of
certain benefit plans “at all Kraft Foods plants within the
continental United States” 15 months before negotiations
were due to begin in April 2002. The second informa-
tion request for “[c]opies of all Vacation Plans in effect
at all Kraft Foods plants within the continental United
States” followed a month later. There was no evidence
of a midterm reopener clause. There was no indication
that the parties had begun to negotiate over a new con-
tract or were preparing in earnest for such negotiations.
The Union did not renew its requests closer in time to the
commencement of bargaining. Moreover, although the
Respondent had referred, in 1996 and 1997, to the Wo-
burn unit employees, those at issue here, as having the
costliest benefits, it never indicated to the Union that
benefits would be an issue when negotiations for a suc-
cessor agreement ultimately commenced in 2002.
In holding that the Respondent violated the Act by de-
nying the information requests, the majority does not
find that the requests were timely in regard to any current
or impending negotiations or to any current dispute or
grievance that implicated the proper interpretation of a
contractual term. Rather, the majority relies on the Re-
spondent’s prior statements to the effect that the Woburn
unit employees were the most highly paid, highly bene-
fited people within the corporation, as well as the Re-
spondent’s denial of an earlier information request, to
find that the Union was fulfilling its “bargaining respon-
sibilities” in making the requests when it did. Conjectur-
ing, in effect, that the Union made the requests prema-
turely because it anticipated that the Respondent would
refuse them and that the Union would then litigate the
issue, and, assuming that the refusal would be found
unlawful, the majority finds the requests were timely
because the Respondent would have to furnish the infor-
mation in time for the negotiation of the successor
agreement. But an analysis premised on such an al-
chemy of conjecture and assumption stretches even the
Board’s lenient information request standard beyond all
reasonable limits.
Although not cited by the judge, the Board’s and Sev-
enth Circuit’s decisions in General Electric Co., 294
NLRB 146 (1989), enf. denied 916 F.2d 1163 (1990), are
instructive. In that case, the judge found that the em-
ployer violated Section 8(a)(5) by refusing to furnish
requested information about maintenance subcontracting.
The judge found the information relevant because it re-
lated both to the processing of grievances and to future
contract negotiations. In affirming the judge’s unfair
labor practice finding, the Board relied solely on the ra-
tionale that the information was relevant to future nego-
tiations. The Board found that the union had referred to
contract negotiations in its request and that “at least by
the time of the hearing,” those negotiations were suffi-
ciently close at hand to require the employer to provide
the information. Id. at 146. At the time of the request
itself, however, the expiration of the parties’ collective-
bargaining agreement was 16 months away, and the ear-
liest date for commencement of bargaining was 13
months away.
Concluding that the Board’s decision “evidence[d] an
unreasonable application of the Act,” the Seventh Circuit
denied enforcement. General Electric Co. v. NLRB, 916
F.2d at 1165. The court found instead that the union’s
request for information was “premature and insufficient”
because the demand had been made over a year before
bargaining could have begun, the existing contract did
not provide for mid-term bargaining, and there was no
evidence that the parties “had begun to negotiate over a
new contract or were preparing in earnest for such nego-
tiations.” Id. at 1170–1171. Further, there was no evi-
dence that the union “ever renewed its [information] re-
quest . . . linking it more closely, both in time and pur-
pose, to contract negotiations.” Id. at 1169 fn. 4. The
court rejected the Board’s premise that the inquiry into
the relevance of the information “allowed it to consider
the state of affairs ‘by the time of the hearing.’” Id. at
1169. In the court’s view, as explained above, “the
[u]nion’s proffered reasons for demanding the informa-
tion, as well as [the employer’s] motives for refusing that
demand, must be examined as of the time of the demand
and refusal.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
I agree with the reasoning of the court and apply that
analysis here.1 When a union requests information that is
not presumptively relevant, the employer must assess
relevance; it can only do so based on the realities existing
at the time the request is made. If no present connection
exists between the requested information and the union’s
representative duties, the employer does not violate Sec-
tion 8(a)(5) by declining to furnish that information.
Since that is precisely what happened here, the Respon-
dent did not violate the Act by refusing to furnish the
information requested.2 In finding otherwise, the major-
ity employs a rationale that, like the Board’s rationale in
General Electric, must be rejected as “an unreasonable
application of the Act.”3 Under their rationale, massive
information requests for nonpresumptively relevant in-
formation, such as the one at issue here, may be inter-
posed at virtually any time during the existence of a bar-

1 The majority’s attempt to wrap itself in the court’s reasoning fails.
Contrary to the majority, the court did not simply analyze whether the
union there was “preparing in earnest” for negotiations but rather
whether both parties were. Here, there is no indication that the Respon-
dent was engaged in any contract preparations. Further, in elaborating
on what it meant to be “preparing in earnest” for negotiations, the court
referred to two other cases, San Diego Newspaper Guild v. NLRB, 548
F.2d 863, 868 (9th Cir. 1977), and NLRB v. Goodyear Aerospace
Corp., 497 F.2d 747, 751–752 (6th Cir. 1974). In the first, it indicated
that the information was not requested for any valid bargaining purpose
where the contract had at least 2 years to run, and “‘there was no evi-
dence of contract negotiation being carried on with the [u]nion at the
time of the request;” and, in the second, it indicated that the refusal to
furnish information was not unlawful “as the parties were not engaged
in ‘genuine negotiations’ but were merely ‘sparring.’” General Electric
v. NLRB, 916 F.2d at 1170. Here, where the parties were neither en-
gaged in “genuine negotiations” nor even “sparring,” and the then-
current contract had well over a year to run, it can hardly be said that
they were “preparing in earnest” for upcoming negotiations as the court
understood that term.
2 Since the information requests were premature, it is unnecessary to
decide whether they were otherwise relevant or whether they were
overly broad. While I question the validity of the majority’s discussion
of the standard for demonstrating relevance in the alter ego context for
the reasons set out at Contract Flooring Systems, 344 NLRB 925, 925
(2005), I need not address that standard here where alter ego status is
not in issue.
3 J. I. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958), relied on by
the majority to support its position that an information request may be
timely even if made long before contract expiration, is readily distin-
guishable. The contract at issue in that case was due to expire in Janu-
ary 1958, but was reopenable as to wages in January 1957. In finding
that the March 1956 information request at issue, which implicated
wages, was timely, the court emphasized that the union “was actually
preparing for contract negotiations the following January to which the
data would be relevant.” Id. at 155 (emphasis added in part). In other
words, the court found the information request timely as to the January
1957 reopener, some 9 months after the request was made, not to the
date of contract expiration, some 21 months later. As the information
requests at issue in the present case not only fall well outside the 9
months found timely in J. I. Case, but were also made at a time when
the Union was not actually preparing for contract negotiations, that case
can only undermine, not support, the majority’s position.
gaining relationship under the guise of unilateral “prepa-
rations for negotiations.” Because that result is inconsis-
tent both with our precedent and any reasonable con-
struct of good faith bargaining, I respectfully dissent.
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 provide your Union, Office &
Professional Employees International Union, Local 1295,
AFL–CIO, with requested information relevant to pre-
paring for bargaining for a successor contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed you by Federal labor law.
WE WILL provide the Union with copies of the em-
ployee benefit plans in effect at our other plants, as the
Union requested in order to prepare for bargaining.
KRAFT FOODS OF NORTH AMERICA, INC.

Robert J. DeBonis, Esq., for the General Counsel.
Jules I. Crystal, Esq. (Ross & Hardies), of Chicago, Illinois,
and James Fuller, Esq. (Kraft Foods North America,
Inc.), for the Respondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On May 14,
2001, the Office & Professional Employees International Un-
ion, Local 1295, AFL–CIO (the Union), filed a charge in Case
1–CA–39068 against Kraft Foods North America, Inc. (the
Respondent).
On August 27, 2001, the National Labor Relations Board, by
the Acting Regional Director for Region 1, issued a complaint
alleging that Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act), when it failed and re-
fused to furnish the Union with information which the Union
requested and which information was necessary for, and rele-
vant to, the Union’s performance of its duties as the exclusive
KRAFT FOODS NORTH AMERICA, INC. 759
collective-bargaining representative of a unit of Respondent’s
employees.
Respondent filed an answer in which it denied that it violated
the Act in any way. A hearing was held before me on January
29, 2002, in Boston, Massachusetts.
Based upon the entire record, including my observation of
the demeanor of the witnesses, and after considering briefs filed
by the General Counsel and Respondent, I make the following
I. FINDINGS OF FACT
At all material times, Respondent, a corporation with an of-
fice and place of business in Woburn, Massachusetts, has been
engaged in the manufacture, sale, and distribution of food prod-
ucts.
Respondent admits, and I find, that at all material times Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union had been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union represents a unit of Respondent’s employees at
Respondent’s Atlantic Gelatin Plant in Woburn, Massachusetts.
Prior to 1990, General Foods owned the Woburn facility. In or
about 1990, Phillip Morris purchased General Foods and
merged it with Kraft Foods into what was called Kraft General
Foods, and then simply Kraft Foods.
The Woburn facility manufactures gelatin in a variety of fla-
vors.
The collective-bargaining agreement currently in effect be-
tween Respondent and the Union, herein the 1999 agreement is
effective, by its terms, from May 21, 1999, to May 20, 2002.
The predecessor agreement between the parties, herein the 1996
agreement, was effective, by its terms, from May 21, 1996, to
May 20, 1999.
During the negotiations for the 1996 agreement which oc-
curred in April and May 1996, the issue of paid time off came
up for discussion. When the Union proposed additional vaca-
tion and sick time, as well as an additional holiday, according
to Local President Kenneth B. Borden, who was present at the
negotiating session and was a member of the union bargaining
committee testified the following occurred:

A. The Employer, through John Donovan, made it
very clear that they were not willing to give us any more
paid time off. The statement that was made was that we
were the most highly paid, highly benefited people within
the Corporation. The Company was not interested in giv-
ing us more time off with pay.
Q. Now do you remember about when Mr. Donovan
made these statements?
A. The exact day?
Q. Or the approximate date?
A. No, it was some—some time in mid-April to mid-
May, during the negotiations.
Q. Of 1996?
A Yes.
Q. Okay. What did he say again? Could you repeat
that.
A. Yes, he said that the Company wasn’t interested in
giving us anymore paid time off. We were the most
highly paid, highly-benefited people in the organization.
(Tr. 39.)

John T. Donovan was the chief spokesman for the manage-
ment negotiating team and negotiated contracts for Respondent
at a number of locations. Donovan denied he said this but I
credit Borden that he did say it for the reasons recited below.
Donovan no longer works for Respondent but is employed
elsewhere. This fact doesn’t add or detract from Donovan’s
credibility in my judgment.
Some months after the 1996 agreement took effect, a dispute
arose as to the Christmas bonus. Respondent announced that it
would no longer pay a Christmas bonus. The Union filed a
grievance and the matter was discussed at a Joint Labor Rela-
tions Committee (JLRC) meeting on April 17, 1997.
John “Ike” Brady, who was on the management negotiating
committee for the 1996 agreement, which was headed by John
T. Donovan, was present at the meeting where the Christmas
bonus was discussed. According to Kenneth Borden, Local
president who was present at the JLRC meeting on April 17,
1997, the following occurred:

A. Okay. The discussion came up because there was a
grievance filed about the Christmas—about not receiving
the Christmas bonus for the duration of the Contract. We
had questioned the Company as to when the bonuses were
going to be paid for Christmas, and the response we got at
the local level was that we were not going to receive the
Christmas bonus anymore. Subsequently, there was a
Grievance filed. We brought it up in discussion at the
JLRC meeting, and there was some preliminary discus-
sion; and a gentleman by the name of . . . [John “Ike”]
Brady said that he would have to make some telephone
calls.
He left the meeting for a period of time. He came back
into the meeting and let everybody in the room know that
the Christmas bonus would be paid; that we were the only
plant within Kraft Foods that still received a Christmas
bonus; that they expected some amount of—some type of
return in acknowledgment of us getting this continued
Christmas bonus while other plants did not receive it; that
it was something that he felt was not negotiated and that
we were, in fact, not entitled to it, but he was going to give
it to us anyways; and he made a comment about us being,
again, highly-paid and highly benefited employees within
the Corporation.
JUDGE LINSKY: Now who said that, again?
THE WITNESS: Ike Brady. (Tr. 41–42)

A number of issues were discussed at the April 17, 1997
JLRC meeting. Minutes of the meeting were prepared by man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
agement and distributed to management and the Union. The
minutes contain the following section on page 14:

Agree to pay Christmas bonus. Snow day discussion is fin-
ished. Expressed concern with expectations of the Union.
Believes that Union wants to move forward. Flexibility is re-
quired for every Kraft plant going. Believes everyone is
committed to making things better. Union should know that
Atlantic Gelatin employees are among the highest paid in the
Kraft corporation and have the costliest benefits. This is the
only plant in the corporation that receives a Christmas bonus.
The Company should get value and flexibility from this in-
vestment.” (GC Exh. 11.)

On February 26, 1999, shortly before negotiations began for
the 1999 agreement the Union made a information request not
unlike the information request at issue in this case. Respondent
refused to turn over the information. The Union filed a charge
and while the charge was being processed Respondent and the
Union agreed to a new contract, i.e., the 1999 agreement, which
runs from May 21, 1999, to May 20, 2002. Since the parties
had agreed to a new contract the Region issued a merit dis-
missal letter dismissing the charge. (GC Exh. 15.)
About January 11, 2001, the Union, by four separate letters
to Patricia Edwards, the human resources manager at the Wo-
burn facility from Union President Kenneth Borden, requested
that Respondent furnish the Union with the following informa-
tion:

(1) Copies of all Health Insurance/HMO Plans offered
at all Kraft Foods plants within the continental United
States.
(2) Copies of all short term, long term disability plans
and supplemental plans in effect at all Kraft Foods plants
within the continental United States.
(3) Copies of all Retirement Plans in effect at all Kraft
Food plants within the continental United States.
(4) Copies of all sick time policies in effect at all
Kraft Foods plants within the continental United States.

About February 26, 2001, the Union, by letter to Patricia
Edwards from Union President Borden, requested that Respon-
dent furnish the Union with the following information:

(1) Copies of all Vacation Plans in effect at all Kraft
Foods plants within the continental United States.

Respondent’s director of labor relations, Jeffrey A. Horne,
advised the Union that Respondent would not furnish the re-
quested information and none of the requested information has
been turned over to the Union.
On May 14, 2001, the Union filed the charge in Case 1–CA–
39068.
Negotiations ordinarily wouldn’t start until April of 2002
and Respondent claims the information request by the Union is
premature. However, the Union made the information request
which is a continuing information request assuming Respon-
dent would again refuse to turn over the data and hoping, I
suspect, that the Board could decide the case before negotia-
tions for the 2002 agreement got under way. I suspect, without
really knowing, that if the Board finds in favor of the General
Counsel and the Union that the Respondent will litigate this
matter in anyone of several U.S. Courts of Appeals.
Borden testified that during the 1999 negotiations the issue
of fully paid sick days was discussed. Borden testified as fol-
lows:

Q. Mr. Borden, during the 1999 negotiations, did the
subject of Sick Pay ever come up?
A. Yes; it did.
Q. And can—can you just summarize what the discus-
sion was with respect to Sick Pay?
A. The Union had a proposal on the table—we were
looking to get ten fully-paid sick days for our employees,
without any waiting period. There was discussion around
that, and the Company’s response to that was that it could
not waive the waiting period; that it was a—it was the
same policy throughout Kraft for the Sick Plan.
Q. Okay. What is the waiting—waiting period?
A. You have a three-day waiting period in order to
collect Sick Pay benefits, unless you’re hospitalized.
Q. Now we’ve just—the Judge has just received into
the record—
A. JUDGE LINSKY: Excuse me; I’m sorry. Who said
that, for the Company?
The WITNESS: John Donovan.
JUDGE LINSKY: Thank you. (Tr. 52.)

In so far as Donovan contradicts Borden I credit Borden. By
his demeanor Borden impressed me as an honest witness. In
addition Borden was corroborated by what he testified Brady
said at the April 17, 1997 JLRC meeting. Brady who is no
longer with Respondent did not testify but what Borden says
Brady said is memorialized in the minutes of the JLRC meet-
ings, i.e., the Woburn employees “are among the highest paid
in the Kraft corporation and have the costliest benefits.” Brady
was on the 1996 management negotiating team and served un-
der Donovan. Even Donovan concedes that Brady was at half
the negotiating sessions and he was in a position, like Borden,
to hear what Donovan had to say about the pay and benefits of
the Woburn employees.
Donovan claims he wouldn’t even [have] known how the
wages and benefits at the Woburn facility compared to others
of Respondent’s facilities because he had responsibility for
only 20 to 25 facilities. However, it didn’t take very long for
Respondent to verify that only the Woburn facility employees
received a Christmas bonus or that the waiting time on sick pay
was the same companywide.
The amount of information requested by the Union is exten-
sive. Director of Labor Relations Jeffrey Horne testified and I
credit his testimony based on his demeanor and the fact that he
was not contradicted by any other credible evidence that Kraft
employs 65,000 people, operates 80 plants, and has approxi-
mately 800 different benefit plans in the continental United
States. The Union information request is broad enough to
cover all 800 benefit plans at all 80 plants. According to the
charge, the Woburn facility employs approximately 275 em-
ployees.
When asked at the hearing why the Union needed the infor-
mation it requested in 1999, Borden replied:

KRAFT FOODS NORTH AMERICA, INC. 761
A. We felt we needed the information because we were
making proposals at the negotiations to limit the amount that
we paid for health benefits. We felt the information was
important to keep us in comparison with the other Kraft fa-
cilities in the United States; since the Company had made
the statement on a couple of occasions that our benefits
were the costliest. We felt that we had an entitlement to that
information so that we could see for ourselves if we were, in
fact, the most costliest benefits.” (Tr. 46.)

When asked why the Union made its 2001 information re-
quests Borden replied:

A. Given the history of negotiations with Kraft Foods,
some of the gains that we made by accepting Corporate
Policies that were offered up at lesser cost to our employ-
ees and the Company, the comparisons that were made be-
tween Woburn and other Kraft facilities within the United
States; we felt that the information was relative to our
formulating proposals and in going into negotiations with
as much information as possible.
Q. Now since the Union does not expect the Contract
negotiations to begin until April of this year, why did the
Union request the information in January and February of
2001?
A. Because of the previous negotiations. We requested
the information only two or three months prior to the nego-
tiations starting, and the resultant charge and the dismissal
of that charge, based on the fact that we completed negotia-
tions; we felt it would be a good idea to put the Information
Requests in much earlier this time so that we could, if there
were any legal dealings, we could have those out of the way
prior to negotiations starting.” (Tr. 53.)
B. Analysis
If Respondent refuses to turn over to the Union which repre-
sents a unit of its employees information the Union requests
that is relevant and necessary to the Union in carrying out its
collective-bargaining responsibilities then the Respondent has
violated Section 8(a)(1) and (5) of the Act by not bargaining in
good faith. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967),
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
Information that pertains to bargaining unit employees repre-
sented by the Union, e.g., wages and benefits, is presumptively
relevant and necessary to the Union’s bargaining obligation.
However, if the information sought pertains to persons outside
the bargaining unit then the Union must demonstrate more pre-
cisely the necessity and relevance of the information requested.
In the instant case all the information the Union seeks per-
tains to benefit plans for employees outside the bargaining unit.
It is well established that when a Union seeks information
concerning matters outside the bargaining unit, the Union is
required to make a showing of relevancy and necessity. See,
e.g., Public Service Electric & Gas Co., 323 NLRB 1182, 1186
(1997), enfd. 157 F.3d 222 (3d Cir. 1998).
But the Board had made it clear that the burden of establish-
ing relevancy and necessity in this context “is not an exception-
ally heavy one, requiring only that a showing be made of a
‘probability that the desired information is relevant, and that it
would be of use to the union in carrying out its statutory duties
and responsibilities.’” Id., quoting NLRB v. Acme Industrial
Co., supra at 437.
Once a specific need has been established, the standard of
relevancy “is a ‘liberal discovery-type standard’ requiring only
that there exists ‘a probability such data . . . will be of use to the
union. . . .”’ Children’s Hospital, 312 NLRB 920, 930 (1993),
citing NLRB v. Acme Industrial Co., supra.
The General Counsel relies on the recent Board decision in
Frito-Lay, Inc., 333 NLRB 1296 (2001). In that case the Board
affirmed Judge George Carson and ordered that Frito-Lay turn
over to the Union information the union requested reflecting the
average wage rate and racial makeup of the workforces at Frito-
Lay’s 40 different facilities. In the Frito-Lay case, the informa-
tion showing that the Jackson, Mississippi, facility where the
union represented a work force that was 90-percent African-
American was the lowest paid compared to other facilities
where most of the employees were white was dated sometime
in 1992 and 5 years later in 1997 it was still considered fresh
enough to support the union information request.
In the instant case the Union relied on the statements of
Donovan and Brady from 1996 and 1997 to support its request
for information in 2001. I find that the Union was told that the
employees it represented at the Woburn facility were among the
highest paid and best benefited of all Respondent’s employees.
I conclude that these 1996 and 1997 statements establish the
necessity and relevance for the Union to seek access to the
benefit plans available to other employees of Respondent at its
79 other facilities.
At the trial before me Respondent argues that producing 800
different benefit plans from 80 plants covering 65,000 employ-
ees will be overly burdensome. They have a point.
I would encourage the parties to agree to something like the
following: Respondent lists its 80 plants and the Union can see
the requested benefit plans at 15 of the plants that the Union
selects from the list of 80 plants.
The bottom line is the union in the Frito-Lay case had infor-
mation several years old that the employees it represented were
among the lowest paid of Frito-Lay employees and they got the
wage and racial data it requested from Frito-Lay’s 40 plants. In
the instant case the Union had information several years old
that the employees it represented were among the highest paid
and highest benefited of Respondent’s employees and it should
get the information it requested at Respondent’s 80 plants to
test those assertions.
It is obvious that the Union, when it receives the information
requested from Respondent, will be in a better position to know
what benefit demands at the negotiating table are reasonable
and what benefit demands they might ordinarily want to make
at the negotiating table are not reasonable.
I find that the Respondent violated Section 8(a)(1) and (5) of
the Act when it failed and refused to turn over the information
requested by the Union.
One of the cases Respondent relies on is the decision of
Judge David L. Evans in Universal Fasteners, Cases 9–CA–
35633 and 9–RD–1839, 1998 NLRB LEXIS 906 (Nov. 17,
1993). No exceptions were taken to Judge Evans’ decision and
there is as a result no reported Board decision in the case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
In Universal Fasteners, the Respondent had two plants. One
of the plants was in Lawrenceville, Kentucky, and the Union
represented employees at this plant. The other plant was in
Centerville, Tennessee, where the employees were not repre-
sented by a union.
The Respondent in that case was a wholly owned subsidiary
of YKK Corporation. YKK Corporation owned another sub-
sidiary in Macon, Georgia, named YKK (USA), where the
employees were not represented by a union.
During the processing of a decertification petition at the
Lawrenceville, Kentucky plant the Respondent’s management
compared the wages and benefits of nonunion employees at its
Centreville, Tennessee, plant and the benefits of nonunion em-
ployees at YKK (USA) with the wages and benefits of the un-
ion represented employees at the Lawrenceville, Kentucky
plant.
The Union in that case requested wage and benefit informa-
tion for Respondent’s Centreville, Tennessee facility and for
the YKK (USA) company in Macon, Georgia.
The Respondent turned over the wage and benefit informa-
tion from the Centerville, Tennessee plant but not the wage and
benefit information at YKK (USA).
Judge Evans concluded that Respondent did not violate the
Act in failing and refusing to turn over the information regard-
ing YKK (USA) company.
I believe this case is distinguishable from the case before me
because the wage and benefit information data Universal Fas-
teners refused to turn over was from a separate wholly-owned
subsidiary of Universal Fasteners’ parent company. The wage
and benefit information Universal Fasteners did turn over was
from one of its plants in Centerville, Tennessee. In the instant
case the Union is not asking for benefit information from a
separate wholly-owned subsidiary of Phillip Morris but from
Respondent’s own plants.
The Frito-Lay case is more like the case before me than the
Universal Fasteners case.
REMEDY
Respondent should be ordered to cease and desist from this
unlawful conduct, post an appropriate notice and turn over the
information requested by the Union.

CONCLUSIONS OF LAW
1. Respondent, Kraft Foods North America, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Office and Professional Employees International Union,
Local 1295, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
when it failed and refused to turn over information requested by
the Union which was relevant and necessary to the Union in
carrying out its collective-bargaining responsibilities.
[Recommended Order omitted from publication.]