Lansing Automakers Federal Credit Union

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1345 (N.L.R.B. 2010)

LANSING AUTOMAKERS FEDERAL CREDIT UNION
355 NLRB No. 221
1345
Lansing Automakers Federal Credit Union and Local
459, Office and Professional Employees Interna-
tional Union, AFL–CIO. Case 7–CA–52115
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On January 5, 2010, Administrative Law Judge George
Alemán issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a motion to strike and an answering brief to
the Respondent’s exceptions. The Respondent filed a
response in opposition to the General Counsel’s motion
with a supporting brief, and a reply brief to the General
Counsel’s 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,1 and conclusions,2 as
modified, and to adopt the recommended Order as modi-
fied.
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by unconditionally
failing and refusing to provide the Union with the re-
quested reports prepared by Human Resources Director
Sharon Gillison and Internal Auditor Ron Pioch. For the
reasons that follow, however, we will not require the
Respondent to furnish those reports.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
We find it unnecessary to rely on the judge’s adverse inference re-
garding the Respondent’s failure to call as a witness its chief executive
officer, Robin Frucci.
2 The General Counsel has filed a motion to strike certain exhibits
attached to the Respondent’s brief in support of its exceptions and the
exceptions that rely on those exhibits. We grant the General Counsel’s
motion to strike the affidavits of Sharon Gillison and Ron Pioch, as
those affidavits are outside the record. We deny the motion as to the
Policies and Procedures of the Federal Mediation and Conciliation
Service. Although that document is also outside the record, the Board
may take administrative notice of it in any event. We deny the motion
to strike the exceptions that rely on the exhibits, and we find those
exceptions without merit.
On July 12, 2010, the Respondent and the Charging
Party filed with the Board a joint notification by Respon-
dent and Charging Union of “Moot” Status. In subse-
quent filings, the Respondent has contended that the
complaint should be dismissed because the parties have
settled the grievances giving rise to the disputed informa-
tion requests. The General Counsel and the Union op-
pose the request for dismissal. In particular, the Union
stated in a document filed on September 14 that, in
agreeing to submit a joint statement to the Board that the
current case was “moot,” it “never agreed to request ei-
ther a withdrawal or a dismissal of the underlying case.”
Rather, as the Union further explained, “[t]he statement
of ‘mootness’ related solely to the fact that the underly-
ing grievances over which the information was requested
had been concluded, and the subsequent litigation relat-
ing thereto had been resolved by the parties, therefore,
the information previously requested by the Union, and
which was subject of the complaint and ALJ decision in
this matter, was no longer related to an active grievance,
and was, essentially, no longer required by the Union in
order to effectively represent the grievants.”
Contrary to the Respondent, the issue of whether it
unlawfully refused to provide the requested reports is to
be determined by the facts as they existed at the time of
the request. Mary Thompson Hospital, 296 NLRB 1245,
1250 (1989), enfd. 943 F.2d 741 (7th Cir. 1991). Inas-
much as the reports were relevant to grievances pending
at the time of the request, subsequent events have no
impact on our finding of a violation. As for the appro-
priate remedy, however, the joint representation of
mootness, as explained by the Union, warrants deleting
from the judge’s remedy the requirement that the Re-
spondent provide the reports that the Union expressly
states it no longer requires.3

3 Because the Respondent will not be required to furnish the reports,
we need not address the Respondent’s contention that Federal regula-
tions governing disclosures of, and related to, suspicious activity re-
ports precluded the Respondent from demonstrating a legitimate confi-
dentiality interest in the Pioch report. Member Hayes would find that
the Respondent demonstrated a legitimate confidentiality interest such
that, absent the joint representation of mootness, the appropriate af-
firmative remedy would have been to order the parties to bargain for a
mutually acceptable accommodation of their respective interests.
Chairman Liebman observes that this case differs materially from
Borgess Medical Center, 342 NLRB 1105 (2004), in which she dis-
sented from the majority’s refusal to order the employer to furnish the
information it unlawfully withheld. There, the Board accepted the
employer’s assertion that the union no longer needed the information.
Chairman Liebman adheres to her dissenting view that the employer in
Borgess failed to sustain its burden of showing mootness. Here, how-
ever, the Union expressly states that it no longer requires the informa-
tion it previously requested. Accordingly, she concurs in the remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lansing
Automakers Federal Credit Union, Lansing, Michigan,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Failing and refusing to bargain collectively and in
good faith with Local 459, Office and Professional Em-
ployees International Union, AFL–CIO as the exclusive
collective-bargaining representative of the unit employ-
ees by failing and refusing to furnish the Union with re-
quested information that is relevant and necessary to its
role as the exclusive collective-bargaining representative
of the unit employees. The appropriate unit includes:

All full-time and regular part-time office clerical em-
ployees in the following classifications: Financial Ser-
vices Representative I (including tellers, file clerks,
loan clerks, and adjustment clerks); Financial Services
Representative II (including member services represen-
tatives, receptionists, and loan interviewers); Financial
Services Specialist (including bookkeepers, senior
member services representatives, loan officers, head
tellers, collectors and Loss Prevention Specialists, em-
ployed by Respondent at its various facilities; but ex-
cluding maintenance employees, non-probationary
temporary employees, professional employees, Human
Resources administrative personnel, confidential secre-
taries, and guards and supervisors as defined in the
Act.”

2. Delete paragraph 2(a) and reletter subsequent para-
graphs accordingly.
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated 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 fail and refuse to bargain collectively
and in good faith with Local 459, Office and Professional
Employees International Union, AFL–CIO as the exclu-
sive collective-bargaining representative of our unit em-
ployees by failing and refusing to furnish the Union with
requested information that is relevant and necessary to its
role as the exclusive collective-bargaining representative
of our unit employees. The appropriate unit includes:
All full-time and regular part-time office clerical em-
ployees in the following classifications: Financial Ser-
vices Representative I (including tellers, file clerks,
loan clerks, and adjustment clerks); Financial Ser-
vicesRepresentative II (including member services rep-
resentatives, receptionists, and loan interviewers); Fi-
nancial Services Specialist (including bookkeepers,
senior member services representatives, loan officers,
head tellers, collectors and Loss Prevention Specialists,
employed by us at our various facilities; but excluding
maintenance employees, non-probationary temporary
employees, professional employees, Human Resources
administrative personnel, confidential secretaries, and
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
LANSING AUTOMAKERS FEDERAL CREDIT
UNION
Patricia Fedewa, Esq., for the General Counsel.
James C. Baker, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. This case was
tried in Lansing, Michigan, on September 8, 2009,1 following
issuance of a complaint on July 17, by the Regional Director
for Region 7 of the National Labor Relations Board (the Board)
against Lansing Automakers Federal Credit Union (the Re-
spondent or LAFCU), alleging it had violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act).2 Spe-
cifically, the complaint alleges that the Respondent has unlaw-
fully failed and refused to provide the Union with certain inves-
tigative reports regarding a “gifting circle” involved in by cer-
tain employees represented by the Union.3 In its answer to the

1 All dates are in 2009, unless otherwise indicated.
2 The unfair labor practice charge underlying the complaint was filed
by Local 459, Office Professional Employees International Union,
AFL–CIO (the Union).
3 It is alleged in the complaint, and admitted by the Respondent, that
the Union has represented all of the Respondent’s full-time and regular
part-time office clerical employees since about 1966. The parties are
LANSING AUTOMAKERS FEDERAL CREDIT UNION 1347
complaint, the Respondent denies engaging in any unlawful
conduct.
At the hearing, all parties were afforded a full and fair oppor-
tunity to be heard, to present oral and written evidence, to ex-
amine and cross-examine witnesses, and to argue orally on the
record. On the entire record, including my observation of the
demeanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a financial service institution with its
principal office in Lansing, Michigan, and branches in Mason,
Dewitt, Charlotte, and Eaton Rapids, Michigan, from which it
provides financial services to its members. During the calendar
year 2008, a representative period, the Respondent, in the con-
duct of its operation, had gross revenues in excess of $500,000
and, during the same period, purchased and received goods and
materials valued in excess of $50,000 at its Lansing facility
from other enterprises who received goods directly from points
outside the State of Michigan. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Factual Background
The record reflects that Robin Frucci serves as Respondent’s
chief executive officer (CEO), Sharon Gillison as senior vice
president for human resources, and Ron Pioch as Respondent’s
auditor. All three are admitted supervisors and/or agents of the
Respondent within the meaning of Section 2(11) and (13) of the
Act. Sometime in early December 2008, according to Gillison,
she received an anonymous letter from a LAFCU member ad-
vising that one of Respondent’s employees was involved in a
“cash gifting” scheme. As the employee in question was on
sick leave at the time, Gillison decided to wait until the em-
ployee returned to work to discuss the matter. When the em-
ployee returned from sick leave, Gillison purportedly spoke
with the employee, in the presence of a union representative, to
determine if the employee had been soliciting money from a
member of the Respondent in connection with the gifting
scheme.
Gillison testified that shortly after receiving the initial
anonymous report, Frucci told her he had received a report
from “someone” that several people were involved in a gifting
scheme. She also contends that, on another occasion, an uni-
dentified employee approached her with a list of names of peo-
ple purportedly involved in the gifting scheme. Gillison further
testified to having received an anonymous phone call from
another of Respondent’s members informing her of the gifting
circle or scheme, and to receiving another anonymous letter

currently bound to a collective-bargaining agreement which remains in
effect until December 12, 2009.
questioning the Respondent’s integrity for allowing employees
to be involved in such a scheme. (Tr. 148–149.)
Gillison claims that she made notes of the information she
was receiving regarding the “gifting clrcle,” as well as a list of
individuals presumably involved in the scheme. Gillison then
notified staff employees of the gifting circle via email. In one
such email dated December 8, 2008, Gillison informed em-
ployees of the possible existence of a “gifting scheme” taking
place on Respondent’s premises, which she compared to an
unlawful pyramid or “Ponzi” scheme. She cautioned employ-
ees that the “gifting scheme” could possibly be illegal, and that
she would be reporting it to the local authorities, including the
State Attorney General’s office, for possible investigation. In
another email dated December 11, 2008, she provided employ-
ees with a copy of a “Consumer Alert” issued by the State At-
torney General in October 2008 on the illegal nature of “gift-
ing” and other similar schemes, and what individuals should do
when asked to take part in any such scheme. (See GC Exhs. 10
and 11.)
On or around February 11, according to Gillison, Frucci in-
structed her to conduct an investigation into the gifting circle,
provided her with a list of employees obtained from a report
prepared for him by auditor Pioch which she was to interview,
and directed her to prepare a report for him on her findings.4
(Tr. 78.) Gillison apparently conducted such an investigation
by interviewing the employees identified on Frucci’s list, often
with a union representative present,5 and thereafter prepared a
report and turned it over to Frucci on or around February 20.
Asked if she gave her report to anyone else, Gillison said she
had not because she had been instructed by Frucci that he was
the only one to receive the report. Gillison, however, admitted
giving a copy of her report to LAFCU’s attorneys, at their re-
quest, but only after Union’s grievances were proceeding to
arbitration. (Tr. 171.)
Pioch purportedly first learned of the gifting circle in early
December 2008, on receiving a copy of Gillison’s email and the
attached Attorney General’s consumer alert. He testified to
being surprised on learning of the scheme, and did not really
appreciate the ramifications involved in the scheme until after
discussing it with others and researching it on the internet.
Pioch claims that, at some point thereafter, he was called to
Frucci’s office where he and Frucci, with the Respondent’s
attorney, one Mr. Johnson, on the phone, expressed concerns
about the gifting circle and its ramifications to LAFCU. All
three, according to Pioch, apparently agreed that LAFCU might
have to file some report on the gifting circle with regulatory
agencies. Pioch explained that when he left the office, he was
instructed to find out what was going on and to determine if
LAFCU would be required to file some regulatory reports.
Specifically, he was instructed to find out what was going on
and the length and breadth of the gifting circle. Pioch under-

4 Union Representative Cindy Jeffries testified, without contradic-
tion, to being told by Gillison that the employee names given to her by
Frucci came from an earlier report Pioch prepared for Frucci following
Pioch’s own interviews with employees.
5 Some employee interviews were conducted without union repre-
sentation because the employee involved did not request it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
stood from the nature of the discussion that he was to report
whatever he learned directly and only to Frucci. He averred in
this regard that “[i]t was my understanding from the beginning
that this was going to be my working with the CEO, that it was
not going to go outside the two of us,” and that he was not “to
share this report with anyone other than the CEO.” (Tr. 113,
114.) Pioch made no mention in his testimony of anything else
being said during this meeting on whether the report he was
asked to prepare would be used for anything other than decid-
ing whether LAFCU would need to file some report, including
a “Suspicious Activity Report” or SAR with an appropriate
regulatory agency.6 (Tr. 114.)
As LAFCU’s auditor, Pioch’s responsibilities include,
among other things, preparing various reports for Respondent
and outside regulatory agencies, including, when necessary,
SARs. Pioch testified that he was authorized to prepare a SAR
without having to obtain prior authorization or approval from
Frucci or anyone else at LAFCU. The report Frucci asked him
to prepare, however, was not a SAR, but rather a separate re-
port to be used for, inter alia, determining if a SAR needed to
be filed. Pioch testified that the employees he questioned about
the “gifting circle” were not offered the opportunity to have a
union representative present during the interviews because he
“didn’t see [his investigation] as an employee issue” and it was
not a human resources matter.
On January 26, Pioch prepared and turned over this separate
report to Frucci. Pioch gave some conflicting testimony on
whether he also provided a copy of his report to LAFCU’s at-
torneys. Thus, despite claiming on Respondent’s direct exami-
nation that he understood from the beginning that he would be
working only with the CEO, that his report “was not going to
go outside the two of us,” and that he was not “to share this
report with anyone other than the CEO,” when asked on cross-
examination by counsel for the General Counsel if Frucci was
the only person to whom he submitted his report, Pioch replied,
“and legal counsel,” suggesting that he also gave a copy to
LAFCU’s attorney. (Tr. 125.) Notably, on Pioch’s direct ex-
amination, he was asked by Respondent’s counsel if, as far as
he knew, his report had made it into the hands of anyone other
than the CEO. When Pioch replied that he was unaware of
anyone else seeing his report, Respondent’s counsel, in a highly
leading fashion, proffered a different answer to Pioch by ask-
ing, “Except legal counsel?” at which point Pioch, picking up
on his attorney’s cue, replied, “Legal counsel, yes, of course.”
(Tr. 115).
Pioch’s claim, in response to a query from counsel for the
General Counsel that he also gave a copy of his report to
LAFCU’s attorney, is not credible, for it is inconsistent with his

6 Banks and other lending institutions, like the Respondent here, are
statutorily required to file a SAR “if it knows, suspects, or has reason to
suspect that any crime or any suspicious transaction related to money
laundering activity or a violation of the Bank Secrecy Act has oc-
curred.” See, 12 CFR §748.1. The reports are deemed to be confiden-
tial. Thus, 12 CFR §748.5 provides that “any credit union, including its
officials, employees, and agents, subpoenaed or otherwise requested to
disclose a SAR or the information in a SAR must decline to produce
the SAR or to provide any information that would disclose that a SAR
was prepared or filed.”
other claim that his report was to be shared only with Frucci
and no one else. Nor does his rather dubious response to his
attorney’s leading question serve to bolster his credibility, for
the question put to him by Respondent’s counsel was whether
he knew if his report had found its way into the hands of
LAFCU’s attorney, not whether Pioch had given a copy of his
report to the attorney. Pioch’s lack of credibility on this matter
also leads me to question his further assertion of an attorney
Johnson being a participant in the discussion Pioch and Frucci
had about the “gifting circle” matter. Pioch’s admission that
the affidavit he gave to the Board during the investigation of
the unfair labor practice charge makes no mention of him hav-
ing had any such discussion with any attorney, further casts
doubt on his claim regarding the involvement of an Attorney
Johnson in his “gifting circle” discussion with Frucci.
Lori Fahndrich is a LAFCU employee (member service rep-
resentative) and the Union’s chief steward at the facility. She
first learned of the “gifting circle” sometime in December from
another employee who gave her a copy of one of Gillison’s e-
mails as she, Fahndrich, was on her way to talk to Gillison on
another matter. On meeting with Gillison, Fahndrich, being
unfamiliar with “gifting circles,” asked her about it and was
told by Gillison that a “gifting circle” was nothing more than an
unlawful pyramid or “Ponzi” scheme. Fahndrich then notified
the Union’s service representative, Cindy Jeffries, about the
“gifting circle” issue and of the emails sent to employees by
Gillison on the subject.
Jeffries, who is not an employee of the Respondent, recalls
receiving the information about the “gifting circle” from
Fahndrich, including copies of Gillison’s emails, and having
on-and-off discussions with Gillison on the matter, who in-
formed her that there would be an investigation. Gillison also
told her about an internal auditor’s report being prepared by
Pioch on the “gifting circle” matter, explaining that it would be
part of an annual audit conducted by NCUA, a national associa-
tion of credit unions, and designed to show that the “gifting
circle” issue had been addressed. Pioch’s report, Jeffries re-
called Gillison saying, would be separate from the report she,
Gillison, would prepare on the “gifting clrcle.”
Sometime in mid-January, Fahndrich learned that Pioch was
calling employees to his office and questioning them on what
they knew about the “gifting circle.” Not knowing what the
status was of Gillison’s investigation of the “gifting circle”
matter, Fahndrich contacted Gillison to find out what the Pioch
investigation was all about. Gillison told her Pioch was con-
ducting an investigation in his capacity as internal auditor, that
the information obtained by Pioch would not be used in the
disciplinary process, and that employees had the right to talk or
not talk to Pioch. (Tr. 73.) At some point, presumably after
this latter conversation with Gillison, Fahndrich was told by
Gillison that she had been waiting for Pioch to complete his
investigation and turn over his report to Frucci, and that, once
he did so, Frucci, based on the information and employee
names provided to him in Pioch’s report, gave Gillison a list of
names of employees to investigate.
As to Pioch’s investigation, Fahndrich learned from Melinda
Wood, one of the employees interviewed by Pioch, that Pioch
asked her, and presumably other employees interviewed, to
LANSING AUTOMAKERS FEDERAL CREDIT UNION 1349
initial his handwritten notes of their conversations. Wood told
Fahndrich she wanted a copy of the handwritten notes because
of a concern that the notes could subsequently be altered or
changed without her knowledge. Fahndrich testified she raised
the matter of the signed handwritten notes with Pioch during a
conversation they had while she was working the front desk.
According to Fahndrich, Pioch approached her at the front desk
and told her he would not be interviewing her about the “gifting
circle” matter. Fahndrich then told Pioch that, while they were
on the subject, she wanted him to provide employees who
signed or initialed his interview notes with copies of those
notes, explaining to him the concerns employees had that the
notes could be altered without their knowledge. Fahndrich
claims that Pioch replied, in a somewhat flippant manner,
“How do you know I already haven’t” changed the handwritten
notes. (Tr. 77; GC Exh. 12.)
On January 20, Fahndrich sent Pioch an email stating she
was aware that Pioch was asking employees being interviewed
to sign or initial his handwritten notes of their conversations,
informed him that employees were concerned the notes could
be altered without their knowledge, and requested that he pro-
vide said employees with copies of his handwritten notes. In a
January 23, reply email, Pioch thanked Fahndrich for her in-
quiry, explained that the interviews he was conducting were
“for review of regulatory and compliance matters, and not a
Human Resource function,” and advised Fahndrich that, if she
needed any further information, she should take the matter up
with Frucci, to whom he reported directly. Fahndrich testified
that, to her knowledge, no employee ever received a copy of the
handwritten notes they signed for Pioch. She further testified
that after Pioch completed his report, Gillison told her the “gift-
ing circle” matter would not be turned over to the local authori-
ties for investigation.
Jeffries sat in on some of the employee interviews conducted
in February by Gillison, and testified that employees were rep-
resented “at every stage of [LAFCU’s] investigation” into the
“gifting circle” matter. (Tr. 42–43.) She testified that Gillison
completed her “gifting circle” investigation towards the end of
February, after which Gillison told her she would be preparing
a report for Frucci, and that the decision on who to discipline
was to be made by Frucci. Gillison provided Jeffries with the
names of several employees she believed might be terminated.
The employees who were eventually terminated, Jeffries re-
called, were slightly different from those identified by Gillison
to her as possible terminations.
The record reflects that between March 11 and April 8, sev-
eral employees were discharged or otherwise disciplined for
their purported involvement in the “gifting circle.” (See GC
Exh. 2.)7 Gillison was of the opinion that her report to Frucci
was not a factor in the Respondent’s decision to terminate em-
ployees, but did not explain what she based her opinion on (Tr.

7 GC Exh. 2 contains the discharge or disciplinary notices issued to
employees. It shows employees Nuria Ankney, Tami Baty, Jan
Atchley were discharged, and employee Nanette Lee was initially sus-
pended and subsequently discharged. Employees Jan Lopez, Carolyn
Rosa, and Hope Sheler received 10-day disciplinary layoffs, while
employees Roxanne Dysart and Faith Rusk were issued disciplinary
warnings.
153.) Frucci, who made the termination and other disciplinary
decisions regarding employees involved in the gifting circle,
was not called to testify, leaving unexplained just how Frucci
made his decisions, what information he may have relied on, or
what role Gillison’s or Pioch’s report may have played in his
decisions.
Between March 13 and April 13, the Union filed grievances
on behalf of said employees. (GC Exh. 3), and, in furtherance
thereof, submitted written requests to the Respondent for cer-
tain information relating to the discharge or disciplinary meas-
ure taken against each of the above-named employees.8 For the
most part, the information requested for each of the employees
consisted of the following:

(A) Any and all information used in issuing the discipline of
the employee in question.
(B) The personnel file for the above individual.
(C) Internal auditor report on the “gifting circle.”
(D) All disciplines issued to union and non-union employees
regarding “gifting circle.”
(E) Human Resources report to ALFCU CEO on “gifting cir-
cle.”
(F) List of all persons who came forward due to manage-
ment’s email.9

By letter dated March 19, Gillison responded as follows to
Marutiak’s information request regarding Ankney:

(A) Cindy Jeffries has a copy of the communication between
[Ankney] and me dated February 26. . . , and between [em-
ployee Rosa] and me dated March 11, 2009.
(B) The personnel file will be provided.
(C) The respective reports to the CEO are confidential and
proprietary to LAFCU. They are work products subject to
privilege in favor of Management as cited in P.P.G. Indus-
tries, Inc. and Aluminum Brick and Glass Workers Interna-
tional Union.10
(D) The Union has copies of all disciplines issued to date to
Union employees. We have no authority or authorization to
release disciplinary action for a non-union employee. . . .
(E) The FMCS procedural rules as well as the current CBA
are silent regarding any pre-hearing discovery and for eco-
nomic reasons, among others, Management has never agreed
to same during any contract negotiations.

By letters dated March 23, the Respondent replied to the Un-
ion’s information requests involving employees Atchley and

8 The Union’s information requests were submitted to Respondent
either by Jeffries and/or Fahndrich. One information request, regarding
the termination of employee Ankney, was made by Jeffries’ supervisor,
Joseph Marutiak. (See GC Exh. 4.)
9 The information requests for employees Ankney, Baty, and
Atchley did not ask for the information sought in item F. The Union
requested that the Respondent provide the information for these three
employees by March 23. As to the other employees, the Union asked
that the Respondent provide the requested information by April 17.
10 The cases referenced by Gillison in her response to the informa-
tion requests—P.P.G Industries and Aluminum Brick & Glass Workers
International Union—appear to be arbitration decisions, as explained
by the Respondent in its posttrial brief (R. Br. 8).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
Baty. As to items A and B in the request, the Respondent ad-
vised the Union that copies of emails (item A) and the person-
nel files (item B) would be provided. Its response to items C,
D, and E were identical to that provided in its above response to
the information request involving Ankney. (GC Exh. 5[b],
5[c].)
On April 16, the Respondent also replied to the Union’s in-
formation requests regarding the other employees. Its response
to items B through E mirrored those contained in its above
March 19 letter to Marutiak. As to the information requested in
item A, the Respondent answered that “[t]he Union was present
and privy to all information during HR’s investigation and in-
terviews with the named employee,” and that the information
obtained in the interviews was used in issuing the discipline. In
response to item F of the information requests, the Respondent
agreed to provide the Union with “the list of persons who came
forward after the email to all Staff.” (GC Exh. 5[d], 5[f-i].) In
response to the information request involving employee Lee,
the Respondent agreed to provide the Union with a copy of the
discipline issued to her and of her personnel file, but noted that
Lee’s termination was not for involvement in the “gifting cir-
cle.” Regarding the information sought by the Union in items
C, D, and E relating to Lee’s termination, the Respondent re-
sponded in the same manner as it had with the other above-
described requests.
The record shows that the Respondent did furnish the Union
with the information sought in items A, B, D, and F of its sev-
eral information requests, but declined to provide the Union
with the internal auditor’s report prepared by Pioch, and the
human resources report prepared by Gillison, as requested in
items C and E, respectively, of those requests. As Gillison
explained in her letter to Marutiak, her report and Pioch’s re-
port were not turned over because both reports were “confiden-
tial and proprietary to LAFCU,” and “work products subject to
product privilege in favor of Management.”
From an exchange of emails between Jeffries and Gillison on
April 2, it appears the parties met the day before to discuss
several of the grievances. In her email, Jeffries mentioned
some information (but not the actual report) the Union had
received “regarding the auditor’s report” pointing out how the
“gifting circle” scheme had posed “a moderate risk” of harm to
LAFCU’s reputation. (GC Exh. 7.) Jeffries, in her email, ques-
tions why the Respondent would have terminated employees
who purportedly created this moderate risk to LAFCU by alleg-
edly taking part in the “gifting circle” scheme, when it had, thus
far, failed to terminate or impose the same severity of punish-
ment on other persons who were found in prior audits or exams
to have known but not corrected more serious problems involv-
ing high risks of fraud to LAFCU.
Jeffries sent Gillison another email a few minutes later
thanking her for previously forwarding to the Union a copy of
the CUNA Examination Overview, but again demanded that the
Respondent provide the Union with a copy of the internal audit
report prepared by Pioch on the gifting circle. She reminded
Gillison that, on two prior occasions, the latter had assured her
(Jeffries) and Fahndrich that the information gained in
LAFCU’s “internal audit process in preparation for the CUNA
audit was not used in the employer’s actions against employees
in respect to the gifting circle.” In her email, however, Jeffries
expressed skepticism at this latter claim by Gillison, stating,
“Obviously you did use the report or it would not have shown
up on the overview which you have sent us as evidence to sup-
port the employer’s actions against these employees.” (GC Exh.
8).
Gillison replied to Jeffries by email a few hours later ex-
plaining that the problem of the “gifting circle” had been in-
cluded or referenced in the Examiners’ Report prepared and
submitted to NCUA examiners because, as a financial institu-
tion, LAFCU is “obligated to report any suspicious monetary
activity . . . that could affect the safety and soundness of the
institution and/or its members” by filing a SAR, which Gillison
believed had occurred. She further explained to Jeffries that, to
her knowledge, the NCUA examiners never saw the internal
auditor’s report prepared by Pioch, nor the report she prepared,
regarding the gifting circle. (GC Exh. 8.) The record makes
clear, and Gillison confirmed in a subsequent email to Jeffries,
that Frucci was the one who made the decision to discharge or
otherwise discipline employees involved in the alleged gifting
circle scheme. (GC Exh. 6.)
Neither Pioch’s nor Gillison’s report on the gifting circle was
ever provided to the Union, nor, as readily admitted by Gilli-
son, did the Respondent offer to negotiate or reach some kind
of accommodation that would allow the Union access to the
reports while protecting the Respondent’s confidentiality con-
cerns regarding said reports.
At the hearing, on direct examination, Gillison gave “a cou-
ple of reasons” for not providing her report to the Union. First,
she explained that she declined to do so because “the report was
a direct report” between [Frucci] and herself. Secondly, she
stated that giving it to the Union “would have set a serious
precedent relative to what the Union is entitled to,” explaining,
somewhat vaguely, that while she believed the Union should
have whatever it is entitled to, her report “was not one of those
things that I felt the Union was entitled to have.” Asked by
Respondent’s counsel why she believed the Union was not
entitled to her report, Gillison explained that her report was
simply a summary of her investigation, and that the Union al-
ready had the information contained in the summary because its
representative was present during her interview of employees,
and thus heard everything she had heard during said interviews.
However, when asked by me if this meant she refused to pro-
vide her report because the Union already had the information
contained in the summary, Gillison backtracked somewhat by
reasserting that her reason for not doing so was because the
report was intended solely for Frucci. (Tr. 156–157.)
Counsel for the General Counsel contends that the failure
and refusal to furnish the Union with copies of the reports was
unlawful and a violation of Section 8(a)(5) and (1) of the Act.
The Respondent, on the other hand, principally argues that the
reports were privileged and confidential and, thus, exempt from
disclosure. I agree with counsel for the General Counsel.
Discussion
1. Applicable principles
It is well established that, as part of its bargaining obligation
with a union duly authorized to represent its employees, an
LANSING AUTOMAKERS FEDERAL CREDIT UNION 1351
employer must, upon request, furnish the union with informa-
tion that is relevant and necessary for it to perform its statutory
duties and responsibilities as representative. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); East Tennessee Baptist
Hospital v. NLRB, 6 F.3d 1139, 1143 (6th Cir. 1993); General
Motors Corp. v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983);
Courtesy Bus Co., 354 NLRB No. 66 slip op. at 2 (2009);
Postal Service, 354 NLRB No. 58, slip op at 4 (2009); Ralph’s
Grocery Co., 352 NLRB 128, 134 (2008); National Broadcast-
ing Co., 352 NLRB 90, 97 (2008); King Soopers, Inc., 344
NLRB 838, 840 (2005). Information sought by a union as to
matters affecting the terms and conditions of employment of
unit employees is deemed to be presumptively relevant and
must be provided to the union on request. This duty to provide
information extends to information needed by the union to
process a grievance or to proceed to arbitration. NLRB v. Acme
Industrial, supra; Ralph’s Grocery, supra; National Broadcast-
ing Co., supra at 101; also, National Grid USA Service Co., 348
NLRB 1235, 1248 fn. 17 (2006); SBC California, 344 NLRB
243, 245 (2005); Jacksonville Area Assn. for Retarded Citizens,
316 NLRB 338, 340 (1995); Consolidation Coal Co., 310
NLRB 109, 112 (1993); Fawcett Printing Corp., 201 NLRB
963, 972 (1973).
A union’s entitlement to information, however, is not abso-
lute and is subject to some limitations. A union, for example, is
not entitled to information regarding employees outside a bar-
gaining unit it represents unless it can show that the nonunit
information is both relevant and necessary for it to effectively
carry out its statutory duties and obligations. Bryant Stratton
Business Institute, 321 NLRB 1007, 1013 (1996). Also, Mon-
mouth Care Center, 354 NLRB No. 2, slip op. at 41 (2009).
Likewise, an employer’s claim of confidentiality may justify a
refusal to furnish otherwise relevant information to a union.
National Grid USA Service Co., above at 1243–1244; Critten-
ton Hospital, 342 NLRB 686, 694 (2004); Lasher Service
Corp., 332 NLRB 834 (2000); Jacksonville Area Assn. for Re-
tarded Citizens, supra.11 Still, on this latter point, a bare asser-
tion of confidentiality, without more, will not suffice to justify
nondisclosure. Rather, when a claim of confidentiality is made,
the party making the claim, in this case the Respondent, bears
the burden of establishing that it has a substantial and legiti-
mate confidentiality interest in the requested information. Id.
If the Respondent meets this burden, its need for confidentiality
must then be balanced against the union’s legitimate interest in
having the information disclosed. Finally, a claim of confiden-
tiality in response to an information request must be timely
raised. National Broadcasting Co., 352 NLRB 90, 101–102

11 Information generally considered confidential and not ordinarily
subject to disclosure includes that “which would reveal highly personal
information such as individual medical records of psychological test
results; that which would reveal substantial proprietary information,
such as trade secrets; that which could reasonably be expected to lead
to harassment or retaliation, such as the identity of witnesses; and that
which is traditionally privileged, such as memoranda prepared for
pending lawsuits.” See National Grid USA, supra, quoting from Pu-
laski Construction Co., 345 NLRB 931 (2005); also Northern Indiana
Public Service Co., 347 NLRB 210, 211 (2006); Detroit Newspaper
Agency, 317 NLRB 1071, 1073 (1995).
(2008). The reason for imposing this timeliness requirement is
so that the parties can attempt to seek an accommodation of the
employer's asserted confidentiality concerns. Id. Detroit News-
paper, supra. Thus, when presented with an information re-
quest, an employer cannot simply raise its confidentiality con-
cerns, but rather must come forward with some offer to ac-
commodate both its concerns and its bargaining obligation.
The burden of formulating a reasonable accommodation is on
the employer; the union need not propose a precise alternative
to providing the requested information unedited. Burgess
Medical Center, 342 NLRB 1105, 1106 (2004). With these
principles in mind, I now address the various arguments made
by the Respondent to justify its decision not to provide the Un-
ion with the Gillison and Pioch reports.
2. The Gillison report
The Gillison report, as noted, was prepared by Gillison on
instructions from Frucci, for the purpose of determining which
employees were involved in the “gifting circle,” and from
which Frucci was to decide which employees would be dis-
charged or otherwise disciplined for their involvement in the
alleged scheme. As such, Gillison’s report is nothing more
than an investigative report used by management to discipline
employees, similar to others she admits to preparing in the
past.12 (Tr. 154.) The Board has long found such reports to be
readily discoverable. See Postal Service, 332 NLRB 635, 644
(2000); Grand Rapids Press, 331 NLRB 296, 300 (2000);
United Technologies Corp., 277 NLRB 584 (1985).
The Respondent, on brief, contends that Gillison’s report
should be treated as confidential because Gillison “believed the
information to be private,” and had been instructed by Frucci to
prepare the “executive” report herself and to deliver it to him
“for his eyes only.” However, the mere fact that Gillison may
have viewed her report as an internal document or, as described
by the Respondent on brief, an “executive” report, to be shared
only with Frucci does not per se make the document immune
from disclosure. Postal Service, above at 635, 637. The infor-
mation contained in the Gillison report was presumptively rele-
vant to the Union as it pertained to the alleged involvement of
unit employees in the gifting circle and was the basis for the
discipline imposed on unit employees, information the Union
clearly needed to properly process its grievances to arbitration.
This fact was made known to the Respondent in the informa-
tion requests submitted by the Union. To overcome this pre-
sumption, the Respondent must do more than simply rely on
Gillison’s stated belief in the confidentiality of her report.
In an effort to do so, the Respondent, on brief, further argues

12 Gillison testified that she has, in the past, given to the union
documents prepared by her in connection with the discipline or dis-
charge of employees, and that while she has previously prepared re-
ports not unlike the one she prepared on the gifting circle for Frucci,
she has never provided copies of such past reports to the Union because
the Union has never before asked for them. Gillison did not explain
how the report she prepared for Frucci on the gifting circle differed
from the documents she admits providing to the Union in the past. Nor
can it be determined from Gillison’s testimony if any of the documents
she may have provided to the Union in the past regarding the discharge
or discipline of employees were, like the report on the gifting circle,
prepared for Frucci at his request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1352
that the Gillison report is confidential because it “contained
Gillison’s personal thoughts and impressions regarding her
investigation, various confidential recommendations in antici-
pation of litigation/arbitration, and discussions of matters in-
volving attorney/client privilege, and ‘work product privilege.’”
(R. Br. 8.) The argument lacks merit. Thus, there is no evi-
dence to support the Respondent’s assertion that Gillison’s
report contains various recommendations in anticipation of
litigation/arbitration, and discussions of matters involving at-
torney/client privilege, and “work product privilege.” Gillison
made no such claim in her testimony. Gillison testified only
that her report contained “a summary memorandum of my
thoughts and impressions,” but made no mention of having
included in her report any recommendation to Frucci regarding
litigation or arbitration matters, or discussing attorney/client or
work product privilege in the report. Respondent’s assertion,
on brief, therefore, that the Gillison report contains such mat-
ters, finds no support in the record.13
Nor do I find Gillison’s report exempt from disclosure be-
cause it arguably contains Gillison’s thoughts and impressions
regarding the “gifting circle” investigation, for said information
does not fall within any of the categories of information which
the Board has found to be sufficiently sensitive to warrant pro-
tection from disclosure on confidentiality grounds (see fn. 11,
supra). But even if Gillison’s personal thoughts and impres-
sions regarding her investigation of the “gifting circle” were
deemed sensitive enough to support the Respondent’s confiden-
tiality claim, its noncompliance with the Union’s request for a
copy of the Gillison report would not be justified, for, as noted,
an employer raising such a defense cannot simply ignore the
Union’s request but rather must offer to accommodate the Un-
ion’s need for the information with its own confidentiality con-
cerns. The Respondent, for example, could have offered to pro-
vide the Union with a sanitized or redacted version of the report
containing only the factual information uncovered by Gillison
during the investigation with Gillison’s thoughts and impressions
blacked out. Gillison, as stated, readily admitted that no such
offer to accommodate was made to the Union. (Tr. 170.) Conse-
quently, I find that the Respondent has not demonstrated that it
had a sufficient legitimate and substantial confidentiality interest
in the Gillison report as to have justified its nondisclosure to the
Union, and that, even if it had, it nevertheless failed to bargain, as
it was required to do, with the Union over a possible accommo-
dation regarding the report.
The Respondent, on brief, also suggests, implicitly, that it
should not be required to turn over the Gillison report to the Un-
ion because its initial refusal to comply with the latter’s request
had not prejudiced the Union in any way. In support of its posi-
tion, the Respondent argues that, since union representatives

13 This is not to suggest that Gillison’s report does not include such
matters. Rather, my finding here is that no evidence to support that
assertion was produced at trial. The Respondent’s argument might
have carried some weight had it presented the report to me for an in-
camera review to assess the accuracy of its assertion. As no such re-
quest for an in-camera review was made, and as Gillison made no such
claim in her testimony, the Respondent’s claim that the Gillison report
contains matters involving attorney-client, and work product, privilege
is unsubstantiated and rejected as without merit.
attended the employee interviews conducted by Gillison and
were free to question employees themselves after the interviews
to ascertain what may have been discussed, the Union thus had
access to the same information found in Gillison’s report.14 I
find no merit in its argument.
First, the record evidence, more specifically Gillison’s own
testimony, makes clear that a union representative was not pre-
sent at all employee interviews conducted by Gillison (Tr. 167).
Consequently, whatever information the Union may have gotten
from the union representatives who attended the Gillison em-
ployee interviews would have been incomplete and a poor substi-
tute for the actual and complete investigative report Gillison
prepared for Frucci containing all information garnered from the
interviews. The Respondent’s suggestion, therefore, that the
Union was not prejudiced by LAFCU’s failure to provide it with
Gillison’s report is pure speculation. Indeed, it is just as easy to
speculate that the Union was prejudiced when filing its griev-
ances by having to rely only the limited information received
from some of the employee interviews its representatives may
have attended, rather than on Gillison’s full investigative report
which presumably contained all information obtained by Gillison
from all interviews conducted by her. In any event, the Respon-
dent’s obligation to comply with the Union’s demand for the
Gillison report is not determined by whether its noncompliance
may or may not be prejudicial to the Union, but rather on whether
the report was relevant and necessary to the Union in carrying out
its statutory obligations, a fact already established here.
Further, even if, as the Respondent claims, the Union could
have obtained the information found in Gillison’s report by talk-
ing to employees who were interviewed by Gillison, and from the
representatives who attended some of the interviews, the Re-
spondent’s failure to comply with the Union’s request for that
report would not be justified. Thus, the Board has held that,
absent special circumstances not present or alleged here, an em-
ployer may not refuse to furnish relevant information on the
grounds that the union has an alternative source or method of
obtaining the information. Monmouth Care Center, 354 NLRB
No. 2, slip op. at 47 (2009); King Soopers, Inc., 344 NLRB 842,
844 (2005); Yeshiva University, 315 NLRB 1245, 1250 (1994);
llinois-American Water Co., 296 NLRB 715, 724 (1989); Asarco,
Inc., 276 NLRB 1367, 1368 (1985). The Respondent, therefore,
was not at liberty to withhold the Gillison report from the Union
based on a belief that some of the information contained in the
report may have found its way to the Union via the representa-
tives who attended the employee interviews.
On brief, as it did at the hearing, the Respondent asserts that
Gillison’s report is no longer relevant to the Union, and conse-
quently need not be provided, because the stated purpose for
which it was initially sought by the Union, e.g., to its process

14 The Respondent, on brief, appears to be using this same argument
to also justify its nondisclosure of the Pioch report. Thus, it asserts that
“there [was] no prejudice to the Union in not having the confidential
reports” (plural), presumably because of the presence of a union repre-
sentative during the interviews. While the record shows that Pioch
interviewed employees and took notes, there is no evidence that union
representatives sat in on any of the employee interviews conducted by
Pioch. The Respondent’s argument in this regard, therefore, clearly has
no application to the Pioch report.
LANSING AUTOMAKERS FEDERAL CREDIT UNION 1353
grievances, has already been accomplished, since the Union was
able to process its grievances with the other information provided
to it by LAFCU, which grievances are currently awaiting arbitra-
tion. Its argument is without merit for, as previously discussed,
an employer’s duty to furnish information relevant to the process-
ing of a grievance does not terminate when the grievance is taken
to arbitration. National Grid USA, supra at 1247 fn. 17; also
Fleming Cos., Inc., 332 NLRB 1086, 1094 (2000) (“Employer
must furnish information that is necessary to properly prepare for
arbitration as long as the information is relevant to the grievance
scheduled for arbitration.”). As discussed and found above, the
Gillison report clearly was relevant to the grievances filed by the
Union as the information contained therein was apparently relied
on by Frucci in determining which employees were to be disci-
plined or discharged for their purported involvement in the al-
leged “gifting circle” scheme. Gillison’s report, therefore, was
needed by the Union to help it ascertain the facts which led to the
disciplinary action taken, and to help it decide whether it should
proceed to arbitration or seek some accommodation, or possible
settlement, with Respondent over these matters.
I also find no merit in the Respondent’s further assertion that
the Gillison report is protected from disclosure under the attorney
work-product doctrine and the attorney-client privilege. The
work-product doctrine is distinct from the attorney-client privi-
lege in that the latter protects only confidential communications,
while the work product doctrine generally protects from disclo-
sure documents prepared by or for an attorney in anticipation of
litigation. In either case, the party asserting the privilege bears
the burden of showing that the information sought enjoys immu-
nity from disclosure.
Here, as discussed above, Gillison’s report was prepared solely
by Gillison, a nonattorney, on instructions from her superior,
CEO Frucci. Gillison never claimed, and there is no evidence to
show, that she received assistance or advice from any LAFCU
attorney in preparing her report. Nor is there any support for the
Respondent’s claim, on brief (R. Br. 11), that Gillison’s report
“includes attorney/client discussions,” for Gillison never testified
as such. Rather, Gillison’s testimony, as noted, is that she pre-
pared the report after interviewing employees from a list pro-
vided to her by Frucci, that she did so only on Frucci instructions,
and that she turned over her finished report to Frucci alone, but
did later provide a copy of her report to a LAFCU attorney for
use in the upcoming arbitrations. Gillison never claimed to have
had any discussions regarding her investigation with any LAFCU
attorney or that her report included any such discussions. Like-
wise, there is no evidence that Frucci was acting on instructions
or advice from LAFCU’s attorneys when he directed Gillison to
investigate and prepare her report on the “gifting circle.” Frucci,
who might have been able to bolster the Respondent’s attorney-
client, attorney-work product claim, was not called to testify,
warranting an adverse inference that had he been called, his tes-
timony would not have supported the Respondent’s claim.15 I

15 When a party fails to call a witness who may reasonably be as-
sumed to be favorably disposed to the party, an adverse inference may
be drawn regarding any factual question on which the witness is likely
to have knowledge. In particular, it may be inferred that the witness, if
called, would have testified adversely to the party on that issue. Desert
find that Gillison’s report is not exempt from disclosure under
either the attorney work-product doctrine or the attorney-client
privilege.16
Nor do I agree with the Respondent’s additional claim that
Gillison’s report is exempt from disclosure because it contains
witness statements, for Gillison readily admitted that her report
was simply a summary of her meetings with employees reflecting
her own thoughts and impressions, and does not contain any
witness statements. (Tr. 169.) The Board has generally found
such summaries to be discoverable. See Postal Service, 332
NLRB, above at 637; Pennsylvania Power Co., 301 NLRB 1104,
1107 (1991); New Jersey Bell Telephone Co., 300 NLRB 42
(1990). The Union, it should be noted, never sought to obtain
copies of any actual statements employees may have provided to
Gillison during the interviews; rather, the Union requested only
the summary report Gillison prepared for Frucci following those
interviews. Accordingly, the Respondent’s reliance on a “wit-
ness statement” defense to justify its refusal to provide the Union
with the Gillison report is rejected as without merit.
In sum, I find that the Respondent was not justified in refus-
ing to comply with the Union’s request for a copy of the Gilli-
son report, and that its refusal to provide the Union with the
report was, as alleged in the complaint, unlawful and a viola-
tion of Section 8(a)(5) and (1) of the Act.
3. The Pioch report
The record reflects that the Pioch report, like the Gillison re-
port, played a role in the Respondent’s decision to terminate or
discipline employees for their alleged involvement in the “gift-
ing circle.” Thus, information contained in Pioch’s report was
provided to Gillison for use in her own investigation into the
“gifting circle,”17 from which Gillison prepared her own report
for Frucci which, I reasonably infer, the latter used, together
with the Pioch report, to decide which employees to terminate
or discipline for their purported involvement in the alleged
scheme. That Pioch may have believed his report was not in-
tended to serve a human resources function, or, for that matter,
that Gillison may have believed her report played no role in the

Pines Club, 334 NLRB 265, 268 (2005). Here, it was Frucci who or-
dered both Gillison and Pioch to conduct an inquiry into the “gifting
circle” scheme, who directed them to prepare separate reports for him,
who made the ultimate decision on who to discharge or otherwise dis-
cipline employees for their alleged involvement in the “gifting circle,”
who, presumably, would have made any decision to consult with legal
counsel on the matter, and who, therefore, was in the best position to
provide key and relevant testimony regarding the Respondent’s attor-
ney-client privilege and attorney work-product defenses. Accordingly,
the Respondent’s failure to call Frucci as a witness warrants an adverse
inference.
16 I further agree with the General Counsel’s assertion on brief that
the Respondent’s attorney-client privilege defense was not timely
raised and should be rejected for this reason also. As noted, in its
March and April responses to the Union’s information requests, the
Respondent did not assert attorney-client privilege as a reason for refus-
ing to turn over the Gillison or Pioch reports to the Union. This par-
ticular defense was raised for the first time by the Respondent more
than 3 months later in its July 30, answer to the complaint.
17 Although Gillison denied knowing that Pioch prepared a report for
Frucci or seeing any such report, she did not deny having received from
Frucci information contained in the Pioch report. (Tr. 152.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1354
employees’ terminations or discipline, is of no real conse-
quence, for a clear nexus has been shown here between his
report, the Gillison report, and the resulting discharge and/or
discipline of employees by Frucci. There is no evidence here to
suggest, nor does the Respondent contend, that Frucci con-
ducted his own investigation into the “gifting circle,” or that his
decision on who to terminate or otherwise discipline was based
on anything other than the Pioch and Gillison reports. Frucci’s
failure to testify leads me to reasonably conclude that had he
been called to testify, he would not have contradicted my finding
here that he based his decisions to terminate or discipline em-
ployees on both the Pioch and Gillison reports. Accordingly, I
find that the Pioch report, like the Gillison report, was presump-
tively relevant to, and needed by, the Union to process it griev-
ances and for the upcoming arbitrations.
The Respondent’s principal argument for not turning over the
Pioch report to the Union is that it is prohibited from doing so by
regulation (12 CFR §748.1) and statute (31 U.S.C. §5318(g)(2)
(R. Br. 7). The regulation and statute cited by the Respondent do
indeed generally prohibit lending institutions, such as LAFCU,
from disclosing the existence or nonexistence of a SAR, or any
information that may be contained in such report. However, the
record makes clear that the Union, in its information request, was
seeking only the report prepared by Pioch for Frucci on the “gift-
ing circle,” and not any SAR that may or may not have been
prepared or filed by Pioch. (Tr. 133.) While admitting that the
Union was seeking only the Pioch report and not a copy of any
SAR Pioch may have prepared, the Respondent nevertheless
contends that the above regulation and statute also prohibit the
disclosure of any information which may reveal whether a SAR
has been prepared or filed, which, it further contends, the Pioch
report will do. I find its argument in this regard unconvincing.
The only evidence in the record purporting to support the Re-
spondent’s above assertion is a rather vague claim by Pioch in his
testimony that the information contained in his report to Frucci is
the same as that included in some other report he filed. It is not,
however, clear if this other report alluded to by Pioch was a SAR
or some other document, for in questioning Pioch, Respondent’s
counsel simply made vague references to “reports” Pioch had
prepared in addition to the report the latter prepared for Frucci.
(Tr. 116.) Pioch never explained if the other report he prepared,
containing the same information he provided in his report to
Frucci, was a SAR, or some other report. Nevertheless, given the
position taken by Respondent’s counsel at the hearing, that the
Respondent was statutorily prohibited from disclosing the exis-
tence or nonexistence of a SAR, it seems unlikely that the “other”
report Pioch was referencing as containing the same information
he provided in his report to Frucci could have been a SAR. If,
however, this “other” report referenced by Pioch is a SAR, then
Pioch and Respondent’s counsel would have violated the very
regulation the Respondent claims to be relying on to justify not
disclosing the Pioch report.18

18 When I sought clarification from the parties as to the distinction
between Pioch’s report, which is what the Union sought, and a SAR,
which the Respondent’s counsel adamantly declined to discuss at any
length citing the enabling statute, the Respondent’s counsel replied,
“Mr. Pioch did testify earlier that the information in both is the same.”
Other than Pioch’s rather vague above testimony, there is sim-
ply no evidence to indicate what his report to Frucci may or may
not have contained that would render it prohibited from disclo-
sure by the above regulation or statute. For example, no descrip-
tion or summary of its contents was provided at the hearing or,
for that matter, proffered to me by the Respondent for an in-
camera review to assess the reliability of Pioch’s assertion. The
only thing known about the report is that it was prepared by
Pioch, on instructions from Frucci, that it contains information
obtained by Pioch from employees he interviewed about the
“gifting circle,” and that it presumably identifies which employ-
ees were interviewed by Pioch since, according to Jeffries’ un-
disputed account, Gillison got her list of employees to be inter-
viewed from information provided in the Pioch report. Pioch’s
claim as to the similarity in content between his report to Frucci,
and some other unknown, unspecified report he may have pre-
pared, struck me as nothing more than a transparent attempt by
him to cloak his report with the same veil of confidentiality ac-
corded to SARs by regulation or statute.
Assuming arguendo, that the “other” report referenced by
Pioch was a SAR, I am nevertheless unwilling, given Pioch’s
lack of credibility in other matters, to accept at face value, and
without some corroboration, his representation that the informa-
tion included in his report to Frucci is the same as that contained
in the SAR. Other than this dubious claim by Pioch, the Respon-
dent produced no evidence to support its assertion that disclosure
of the Pioch report to the Union would somehow reveal whether
or not Pioch also prepared and filed a SAR.
As stated, the Union here is seeking only the Pioch report to
which, as found above, it is presumptively entitled, not any SAR
that Pioch may or may not have prepared. The regulation relied
on by the Respondent only prohibits disclosure of the existence
or contents of a SAR and information contained therein, and does
not prohibit disclosure of other extraneous reports unrelated to a
SAR. See, e.g., Weil v. Long Island Savings Bank, 195 F. Supp.
2d 383, 389 (2001); U.S. v. Holihan, 248 F.Supp. 2d 179, 187
(2003); also 124 Banking Law Journal, 798 (October 2007).
Here, as found above, there is no credible evidence to show that
Pioch’s report contains information that identifies the existence
or nonexistence of a SAR. The Pioch report itself is not a SAR,
nor has it been alleged to have been a draft of one which might
prevent its disclosure. Accordingly, I find no statutory or regu-
latory impediment to its disclosure to the Union.
As it did with the Gillison report, the Respondent also con-
tends that the Pioch report cannot be disclosed to the Union
because it includes confidential witness statements. Again,
there is simply no evidence to support this assertion. Pioch,
who prepared the report, made no such claim in his testimony.
The record does reflects that employees interviewed by Pioch
were asked to initial Pioch’s notes of their discussions. There

(Tr. 133.) Thus, while Pioch never actually identified this other “re-
port” as a SAR, the Respondent’s counsel may unwittingly have done
so in his above response to my query. In any event, notwithstanding
the Respondent’s insistence that it was prohibited from disclosing
whether or not Pioch had prepared a SAR, it appears that Gillison did
not feel constrained to do so, for she, as noted, expressed her belief to
Jeffries and Fahndrich during an exchange of emails that a SAR had
indeed been filed by Pioch. (GC Exh. 8.)
LANSING AUTOMAKERS FEDERAL CREDIT UNION 1355
is, however, no evidence to indicate if employees were ever
given an opportunity to thoroughly read what Pioch wrote
down, if they ever adopted Pioch’s notes of their conversation
as their own or as accurately reflecting what was discussed, or
if they received any assurances of confidentiality from Pioch
regarding statements they may have made to him. On these
facts, whatever statements employees may have given to Pioch
during his interviews would not qualify as confidential witness
statements exempt from disclosure. New Jersey Bell Tele-
phone, supra at 43. In any event, as stated, there is no evidence
that any such employee statements were incorporated by Pioch
into the report he prepared and delivered to Frucci, and, even
assuming, arguendo, that they had been so incorporated, said
statements would not, as noted, qualify as “witness statements.”
The Union, it should be noted, is not seeking access to any such
employee statements, and is only asking for a copy of the Pioch
report. Notably, the Respondent, as it is required to do when
raising a confidentiality defense, never offered to accommodate
its confidentiality concerns with the Union’s stated need for,
and entitlement to, the information contained in the Pioch re-
port. Accordingly, the Respondent’s refusal to provide the
Union with a copy of the Pioch report because it purportedly
contains “witness statements” is rejected as without merit.
The Respondent also claims that the Pioch report is protected
from disclosure by the attorney-client privilege and work-
product doctrine. I disagree. Pioch, a nonattorney, prepared
his report at Frucci’s behest and for Frucci’s eyes only. Al-
though Pioch claims that attorney Johnson was involved in his
pre-report discussion with Frucci, his claim in this regard, as
previously discussed, is not reliable. Pioch, in any event, never
claimed to have received instructions, directions, or any assis-
tance from Johnson or any other LAFCU attorney in preparing
his report. Accordingly, I find neither the attorney-client privi-
lege nor the attorney work-product doctrine to be applicable or
controlling here.
Finally, for the reasons discussed above in connection with
the Gillison report, the Respondent’s claim that the Union no
longer needs the Pioch report because it was able to process its
grievances without it, is rejected as without merit. Accord-
ingly, I find that the Respondent’s refusal to provide the Union
with a copy of the Pioch report was unlawful and a violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Lansing Automakers Federal Credit Un-
ion, is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 459, Office Professional Employees International
Union, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act, and is the exclusive collective-
bargaining representative of the Respondent’s employees in the
following appropriate bargaining unit:

All full-time and regular part-time office clerical employees in
the following classifications: Financial Services Representa-
tive I (including tellers, file clerks, loan clerks, and adjustment
clerks); Financial Services Representative II (including mem-
ber services representatives, receptionists, and loan interview-
ers); Financial Services Specialist (including bookkeepers,
senior member services representatives, loan officers, head
tellers, collectors and Loss Prevention Specialists, employed
by Respondent at its various facilities; but excluding mainte-
nance employees, non-probationary temporary employees,
professional employees, Human Resources administrative
personnel, confidential secretaries, and guards and supervisors
as defined in the Act.

3. By failing and refusing to comply with the Union’s re-
quest for copies of reports prepared by Respondent Human
Resources Director Gillison and Internal Auditor Pioch for its
Chief Executive Officer Frucci regarding a “gifting circle,”
which information is necessary for and relevant to, the Union’s
performance of its statutory duties as exclusive collective-
bargaining representative of Respondent’s unit employees, the
Respondent has violated Section 8(a)(5) and (1) of the Act.
4. The above-described unfair labor practice affects com-
merce 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, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, on request, shall be required to provide the
Union, if has not already done so, with copies of the reports
prepared by LAFCU’s human resources director and its internal
auditor for its chief executive officer regarding a “gifting cir-
cle,” and to post an appropriate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, Lansing Automakers Federal Credit Union,
Lansing, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good
faith with Local 459, Office and Professional Employees Inter-
national Union (OPEIU), AFL–CIO, which is the exclusive
collective-bargaining representative of LAFCU’s employees in
an appropriate unit, by refusing the Union’s request for copies
of reports prepared for LAFCU’s chief executive officer by
LAFCU’s internal auditor and human resources director, which
information is necessary for, and relevant to, the Union’s per-
formance of its statutory duties and responsibilities as exclusive
bargaining representative. The appropriate bargaining unit
includes:

All full-time and regular part-time office clerical employees in
the following classifications: Financial Services Representa-
tive I (including tellers, file clerks, loan clerks, and adjustment
clerks); Financial Services Representative II (including mem-
ber services representatives, receptionists, and loan interview-

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1356
ers); Financial Services Specialist (including bookkeepers,
senior member services representatives, loan officers, head
tellers, collectors and Loss Prevention Specialists, employed
by Respondent at its various facilities; but excluding mainte-
nance employees, non-probationary temporary employees,
professional employees, Human Resources administrative
personnel, confidential secretaries, and guards and supervisors
as defined in the Act.

(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Provide the Union, if it has not already done so, with cop-
ies of the reports prepared by LAFCU’s internal auditor and its
human resources director and submitted to LAFCU’s chief
executive office pertaining to their investigation and/or inquiry
into a “gifting circle.”
(b) Within 14 days after service by the Region, post at its fa-
cility in Lansing, Michigan, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, 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 employees and
former employees employed by the Respondent at any time
since March 19, 2009.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

20 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.”