TDY Industries, LLC d/b/a ATI Specialty Alloys and Components, Millersburg Operations

National Labor Relations Board - Board Decisions

Jul 22, 2020

369 N.L.R.B. 128 (N.L.R.B. 2020)

369 NRB No. 128
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
TDY Industries, LLC d/b/a ATI Specialty Alloys and
Components, Millersburg Operations and United
Steelworkers of America, Local 6163. Cases 19–
CA–227649 and 19–CA–227650
July 22, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On September 25, 2019, Administrative Law Judge El-
eanor Laws issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief. The
General Counsel filed an answering brief to the Respond-
ent’s exceptions.1
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,2 and conclusions only to the
extent consistent with this Decision and Order.3
We adopt the judge’s finding, for the reasons set forth
in her decision, that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to provide information
about death benefits paid to beneficiaries under the pen-
sion plan in response to the Union’s May 25, 20184 re-
quest.5 We find it unnecessary to pass on the judge’s find-
ing that the Respondent unlawfully failed to provide infor-
mation regarding the last 30 employees to pass away be-
cause this additional finding would not affect the remedy.
For the reasons explained below, we reverse the judge’s
conclusion that the Respondent violated Section 8(a)(5)
1 The Respondent has requested oral argument. We deny the Re-
spondent’s request, as the record, exceptions, and briefs adequately pre-
sent the issues and positions of the parties.
2 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
3 We shall amend the judge’s conclusions of law and modify the
judge’s recommended Order to conform to our findings herein and to the
Board’s standard remedial language, and in accordance with our recent
decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020),
and our decision in Excel Container, Inc., 325 NLRB 17 (1997). We
shall substitute a new notice to conform to the Order as modified.
4 All dates are in 2018 unless otherwise indicated.
5 However, in affirming the judge’s finding of this violation, we do
not adopt her finding that the Union failed to meaningfully respond to
the Respondent’s Human Resources Director of Benefits Terrence
Brown’s request for clarification about which death benefit the Union
was referring to in its information request.
and (1) of the Act by unreasonably delaying in providing
the Union with the information requested on June 12 re-
lating to the qualifications of a newly hired unit machinist.
I. BACKGROUND
The Respondent manufactures specialty alloys and
components in 39 locations nationwide, including the ATI
Millersburg facility located in Albany, Oregon. It has had
a long-standing relationship with the Union as the bargain-
ing representative of its approximately 500 employees at
the ATI Millersburg facility.
The parties’ collective-bargaining agreement contains
an in-house bidding procedure for certain positions, in-
cluding the Respondent’s machinists. Machinists may
also attain the position of “A” Machinist by meeting spe-
cific training, time, and qualification requirements.
On June 12, Watts filed a grievance with the Respond-
ent’s outside counsel Ursula Kienbaum, alleging that the
Respondent had denied unit employees promotional op-
portunities in violation of the collective-bargaining agree-
ment by hiring underqualified machinists from outside the
unit. Later that day, Watts emailed Kienbaum requesting
information about all the qualifications of a newly hired
unit machinist, including his “resume, prior work experi-
ence, any prehire testing and results, interview Q&A, tran-
scripts and any other information referenced during the
hiring process.” Watts also asked about the specifics of
the new machinist’s position and the related bid notice.
Kienbaum responded that she was out of state through the
following week and that she would turn to the information
request upon her return.
On June 27, 2 days after her return, Kienbaum sent an
email with some responsive information, including the
new machinist’s date of hire, the name of the employee he
Brown had taken over processing the May 25 request after the benefits
lead at Millersburg, Hilary Stephens, went on leave. Brown conceded at
the hearing that he never asked the Union whether the death benefit at
issue related to insurance or the pension plan. Union Grievance Chair-
person Aaron Watts also testified that Brown never asked him which
death benefit was at issue. The record shows that, on July 17, Brown
asked Watts: “Can you please also clarify the ‘death benefit’ you men-
tioned [in your email] below? Are you saying there were two recent
deaths of active employees, and no benefit was paid to a beneficiary?”
Watts responded: “Yes, we are concerned eligible beneficiaries may not
be getting their death benefits.” Brown’s specific question referred to
the underlying issue—the reported failure of beneficiaries to receive
death benefits—and Watts answered that question. Thereafter, Brown
did not indicate that he had any lingering uncertainty about what Watts
was referring to or that there was any reason why he could not move
forward with the request. In fact, following the July 17 exchange, the
Union did not hear from Brown until Watts prompted him on August 15.
At that point, Brown said, “I'm still unclear on the issue you mentioned
on death benefits, but Hilary [Stephens] and I are happy to investigate
further if you could provide more details.” Watts replied, “If we could
get our information requests fulfilled, I should be able to provide more
specifics.” Once again, Brown did not respond.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
replaced, and a copy of the job posting. She stated that the
new hire “is currently training on day shift but will even-
tually move to the C crew rotation as an A Machinist.”
Kienbaum then suggested a meeting about the request,
stating:

I do have some concerns about the scope of your request
for information relating to [the new machinist’s] appli-
cation and interview materials, and I question the rele-
vance of this information to the Union's deferred ULP
charge and the corresponding grievance. I also have con-
fidentiality concerns regarding [the] application and in-
terview materials. If the Union is questioning the depart-
ment's conclusion that there were no qualified internal
bidders, we can discuss that and the Company's basis for
going outside to hire an A Machinist. What I can tell you
is that [he] graduated with an AAS degree in Machine
Tool Technologies from Linn Benton Community Col-
lege. He did not undergo any pre-hire testing.
. . .[ I] would be more than happy to sit down with you
to discuss if you have any questions about the internal
bidding process, but it would be helpful for me to have
a better understanding of the basis for your request for
[the] application information before I respond further.
Watts did not express any concerns about the contents of
Kienbaum’s email.
Between August 8 and 9, Watts and Kienbaum ex-
changed email messages regarding the grievance, whether
it was at Step 1 or Step 2, and revisions to the grievance
form. On August 15, after returning from a vacation,
Kienbaum emailed Watts stating that she was reviewing
the grievance and was updating the grievance form as dis-
cussed. On August 17, Kienbaum emailed Watts to sched-
ule pending Step 2 grievance meetings and discuss the
grievance about the new hire. Citing her busy schedule,
Kienbaum offered to meet the week of September 10, and
the meeting took place on September 13.6 At the meeting,
Kienbaum and Watts discussed the new hire’s “A” Ma-
chinist qualifications and the Union’s need for additional
information. On September 14 and 17, Kienbaum sent
Watts all remaining information: the new machinist’s re-
sume and cover letter, additional documentation that the
Respondent received demonstrating his machining abili-
ties and testing scores, two letters of recommendation, his
final grades for his machine-tool technology degree, and
photographs of machining work he had provided with his
application. The Union does not contend that any of the
information requested has not been provided.
6 Prior to the meeting, Kienbaum provided Watts the new machinist’s
“Certificate of Machine Tool.”
II. JUDGE’S DECISION
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unreasonably delaying
providing some of the requested information for more than
3 months. She found that the information was presump-
tively relevant because it directly related to unit employ-
ees, and she noted that the final group of documents pro-
vided to the Union were not complex or voluminous and
were readily available to the Respondent.
III. ANALYSIS
“When a union makes a request for relevant infor-
mation, the employer has a duty to supply the information
in a timely fashion or to adequately explain why the infor-
mation will not be furnished.” Regency Service Carts, 345
NLRB 671, 673 (2005). The duty to furnish information
requires a reasonable, good-faith effort to respond to the
request as promptly as circumstances allow. See Good
Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993).
“An unreasonable delay in furnishing relevant requested
information is as much a violation of Section 8(a)(5) as a
refusal to furnish the information at all.” CPL (Linwood)
LLC d/b/a Linwood Care Center, 367 NLRB No. 14, slip
op. at 4 (2018).
To determine whether requested information has been
provided in a timely manner, the Board considers a variety
of factors, including the nature of the information sought,
the difficulty in obtaining it, the amount of time the em-
ployer takes to provide it, the reasons for the delay, and
whether the party contemporaneously communicates
these reasons to the requesting party. Safeway, Inc., 369
NLRB No. 30, slip op. at 7 (2020); see also Linwood Care
Center, 367 NLRB No. 14, slip op. at 4–5 (finding 6-week
delay in providing requested information about wage in-
creases unreasonable where information was not difficult
to retrieve and respondent provided no justification for the
delay). A respondent’s legitimate confidentiality claims
may justify a refusal to furnish or a delay in furnishing
otherwise relevant requested information. Detroit Edison
Co. v. NLRB, 440 U.S. 301, 319–320 (1979). However,
“a party refusing to supply information on confidentiality
grounds has a duty to seek an accommodation” between
the union’s needs and the employer’s legitimate interests,7
and a respondent normally must raise any confidentiality
claim in its initial response to the information request.
West Penn Power Co., 339 NLRB 585, 590 (2003), enfd.
in relevant part 394 F.3d 233 (4th Cir. 2005). In West
Penn Power, the Board found that the respondent did not
violate the Act by delaying 6 months before providing rel-
evant, requested information produced in an investigation
7 Pennsylvania Power & Light Co., 301 NLRB 1104, 1105 (1991).
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY ALLOYS & COMPONENTS, MILLERSBURG OPERATIONS 3
into a workplace altercation. 339 NLRB at 590. There,
the respondent asserted its confidentiality and privacy
concerns in its initial response to the union’s request and
continued to communicate with the union throughout the
6-month period until it furnished the information while
preserving the privacy of those involved. Id. at 589–590.8
In this case, Kienbaum raised her relevance and confi-
dentiality concerns in her initial response to Watts’s infor-
mation request.9 She promptly provided some of the in-
formation. She did not flatly refuse to furnish the remain-
ing information, but requested a discussion and possible
meeting, to which Watts did not object. She remained in
contact with Watts prior to their meeting while she contin-
ued working on other grievance-related matters. Follow-
ing their September meeting, she promptly furnished the
remainder of the requested information.10 Contrary to the
judge, the fact that the Respondent ultimately furnished
the information does not indicate that Kienbaum’s con-
cerns were not legitimate. Further, although the specific
confidentiality concerns that she discussed with Watts are
not in the record, no party contends that these concerns
were baseless. We readily infer that releasing certain in-
formation disclosed in application materials that relate to
an applicant’s experience prior to his employment would
reasonably implicate privacy and liability concerns for the
Respondent, and we find, therefore, that it was not unrea-
sonable for the Respondent to seek, at minimum, a discus-
sion about the Union’s need for some of the requested in-
formation. Under the circumstances, the 3-month delay in
the timing of the meeting to accommodate Kienbaum’s
travel and vacation schedule and the resulting delay in
providing the information did not violate the Act.
Accordingly, the allegation is dismissed.
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 2 and renumber
the subsequent paragraph accordingly.
8 The Board found that the 6-month delay was not unreasonable be-
cause numerous information requests were being processed at the time,
the Respondent had legitimate concerns about the confidentiality of the
information, and the Respondent continued to communicate its concerns
to the union. See also Dallas & Mavis Forwarding Co., 291 NLRB 980,
983–984 (1988) (7-month delay in providing requested information jus-
tified by respondent’s confidentiality concerns where the parties were in
continuous contact over the way the information would be provided),
enfd. mem. 909 F.2d 1484 (6th Cir. 1990).
9 We base our decision solely on Kienbaum’s stated concern about
confidentiality and privacy, not on her challenge to the relevance of cer-
tain information nor on the Respondent’s contention that it rebutted the
presumption of relevance.
10 Although there was some back and forth after the meeting about
whether the Union had agreed to modify its request, that has no bearing
on our decision, as there is no contention that Kienbaum failed to furnish
all requested information within 3 days of the meeting.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, TDY Industries,
LLC, d/b/a ATI Specialty Alloys and Components, Mil-
lersburg Operations, Albany, Oregon, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Cease and desist from
(a) Refusing to bargain collectively with the United
Steelworkers of America, Local 6163 (the Union) by fail-
ing and refusing to furnish it with information that is rele-
vant and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of the Re-
spondent’s unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation requested by the Union on May 25, 2018.
(b) Post at its Albany, Oregon facility copies of the at-
tached notice marked “Appendix.”11 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. The
Respondent shall take reasonable steps to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
11 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 em-
ployees employed by the Respondent at any time since
May 25, 2018.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 22, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 ac-
tivities.
WE WILL NOT refuse to bargain collectively with the
United Steelworkers of America, Local 6163 (the Union)
by failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s
1 All dates are in 2018 unless otherwise indicated.
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on May 25, 2018.
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY
ALLOYS AND COMPONENTS, MILLERSBURG
OPERATIONS
The Board’s decision can be found at www.nlrb.gov/case/19-
CA-227649 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
Sarah C. Ingebritsen, Esq., for the General Counsel.
Daniel Adlong, Esq. and Ursula Kienbaum, Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Portland, Oregon, on June 3, 2019. The United Steel-
workers of America, Local 6163 (Charging Party or Union) filed
the charges on September 20, 2018,1 and the General Counsel
issued the complaint on January 31, 2019. TDY Industries, LLC,
d/b/a ATI Specialty Alloys and Components, Millersburg Oper-
ations (the Respondent) filed a timely answer denying all mate-
rial allegations.
The complaint alleges the Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by failing
to provide the Union with requested information.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY ALLOYS & COMPONENTS, MILLERSBURG OPERATIONS 5
and place of business in Albany, Oregon, manufactures specialty
alloys and components. The parties admit, and I find, that the
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Un-
ion is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The Respondent and the Union
The Respondent is comprised of two business segments: flat
rolled products and high-performance materials and compo-
nents, referred to as HPMC. The ATI Millersburg facility at is-
sue here is part of the HPMC segment.2 The Respondent has 39
locations across the United States, with 36 collective-bargaining
agreements (CBAs).
At all relevant times, Terrence Brown was the Respondent’s
director of benefits for approximately 7000 employees across the
United States. Hilary Stephens was the process leader of bene-
fits, responsible for insurance benefits matters at the Millersburg
facility. She reported to the HPMC benefits manager, which was
vacant during the relevant time period. The vice president of
operations at Millersburg was Mike Bernard.
The Respondent and the Union have entered into successive
CBAs, the most recent effective as of June 1, 2018, with the fol-
lowing unit of employees:
All employees of Respondent at the Albany facility, excluding
office, clerical employees, technical and laboratory employees,
professional employees and guards and supervisors as defined
in the Act.
The bargaining unit consists of approximately 500 employees.
Aaron Watts has worked for the Respondent since February
1995 and has been the Union’s grievance chairperson for about
13 years. In his capacity as grievance chairperson, Watts advises
union stewards and works with human resources (HR) on griev-
ances and contract administration. Joseph Eddings, a press op-
erator who has worked for the Respondent since 2007, serves as
the local Union’s president.
2. Death benefit information request
The CBA covers various employee benefits, some of which
survive the employee. A pension plan provides survival benefits.
Surviving spouses remain eligible for medical insurance of a re-
tiree, and dependents are entitled to medical insurance for spec-
ified time periods following the death of an active employee.
The CBA also provides for various types of life insurance that
confer a benefit once an employee dies, as well as a disability
benefit with an optional benefit available on the employee’s
death. Other policies, such as an accidental death and dismem-
berment policy, a 401k, and a business travel accident plan, pro-
vide for payment upon an employee’s death.
2 The terms “Albany facility” and “Millersburg facility” are inter-
changeable.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for the General Counsel’s exhibit; and “R Exh.” for
the Respondent’s exhibit. Although I have included some citations to
Importantly here, the Respondent oversees administration of
a pre-retirement death benefit, which provides for a lump sum
payment to a surviving spouse in the event a covered employee
or former employee passes away. (GC Exh. 7, p. 15.)3 The Un-
ion learned that a widow of one of its members may not have
received this benefit, prompting concern that other members also
may not have received it.
On May 25, 2018, Watts sent the following email to Stephens:
Its (sic) been brought to my attention that we need to audit the
death benefits. Is there an easy way to get records on death
benefits paid out over the last 10 years? Also the surviving
spouse benefits and earned pension benefits after deaths for
both active and terminated, as well as retired employees. Please
let me know if you have questions, I will work with you best I
can. Thanks.
(GC Exh. 2.) Stephens responded the same day, stating, “I’m
sure it’s possible. Let me see what all I can gather. I'll reach out
for specifics if I need anything additional. Is there something not
going right? I haven’t heard any rumbling on that.” Later that
evening, Stephens reached out to Brown to ask if the information
Watts requested could be easily obtained. Brown responded on
May 29, “What is he referring to . . . life insurance, pension or
both? It would help if he could point to a few examples we could
research.” (R. Exh. 2.)
Watts and Stephens met a few times to discuss, among other
matters, how best to obtain the information regarding the death
benefit. During one such meeting with Eddings also present,
Watts showed Stephens the summary plan description (SPD) for
the pension plan and showed her where the lump sum death ben-
efit was described within the SPD. Watts and Stephens agreed
to start with a snapshot of employees who had passed away and
determine whether or not they had received the benefit.
Shortly after this meeting, Stephens was on extended leave
tending to her terminally ill husband. In Stephens’ absence,
Watts spoke to Stephanie O’Connor in HR, who in turn referred
him to Brown.4 On July 12, Watts sent an email to Brown stating
that he and Stephens had been working on outstanding issues,
including employee years of service, pension credits, 401k ques-
tions, and unpaid death benefits. Watts asked if Brown could
help facilitate audits Stephens was going to look into performing
for “multiple problems” with the initial issues being years of ser-
vice and death benefits. (GC Exh. 3.)
Brown responded to Watts the same day, stating he was una-
ware of the specific issues Stephens and he had been working on,
voicing his hope that Stephens would return on August 1, and
stating he would do some research in the meantime. Watts re-
plied that the Union had been trying to get correct calculations
for employees’ and retirees’ years of service, and he and Ste-
phens had been working together and experiencing some frustra-
tion from the benefits center on the matter. With regard to the
death benefit, Watts stated:
the record, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited, but rather are based on my re-
view and consideration of the entire record.
4 O’Connor did not know the details of what Watts and Stephens dis-
cussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
As for the death benefit, I don’t recall ever receiveing [sic] no-
tification when a payment is made. Of recent deaths, we called
two. One did not know if a payment was received, the other
was told they were not entitled to payment. While we do not
agree this spouse was not entitled, we asked for clarification
from the company to this effect, and requested records of pay-
ment that have been made. This may also benefit from an audit.
Please let me know what other details you may need to look
into this further.
Brown responded on July 17 with a question about the years
of service issue. He also asked Watts the following two ques-
tions: “Can you please also clarify the ‘death benefit’ you men-
tioned below?”; and “Are you saying there were two recent
deaths of active employees and no benefit was paid to a benefi-
ciary?” Watts responded, in pertinent part, “Yes, we are con-
cerned eligible beneficiaries may not be getting their death ben-
efits.” (GC Exh. 3.)
Watts sent a follow-up status check email to Brown on August
15. Brown responded the same day, apologizing for the delay.
He clarified the issue with regard to years of service and con-
cluded by stating, “I’m still unclear on the issue you mentioned
on death benefits, but Hilary and I are happy to investigate fur-
ther if you could provide more details.” Watts replied, express-
ing some confusion on the years of service matter, and stating,
“I appreciate your willingness to look into the death benefit fur-
ther. If we could get our information requests fulfilled, I should
be able to provide more specifics.” Watts perceived Brown was
resistant to respond, so he tried to be more clear and asked on
September 5, “Who were the last 30 employees to pass away?”
(GC Exh. 3; Tr. 30.) He did not receive a response.
3. Michael Marthaller information. request
On June 12, the Union filed a grievance alleging the Respond-
ent had denied promotional opportunities to bargaining-unit em-
ployees by hiring underqualified employees from outside to per-
form machining duties. (GC Exh. 8.) The grievance was filed
with Ursula Kienbaum, an outside attorney the Respondent had
hired to help with HR matters.
The Union’s grievance was based on Watts’ belief the Re-
spondent had hired an underqualified employee, Michael Mar-
thaller, to perform in the “A machinist” position. On June 12,
Watts sent Kienbaum an email referencing the grievance, and re-
questing the following information:
On the recent machinist hired off the street (Michael Marthal-
ler) , please provide all of his qualifications, resume, prior work
experience, any prehire testing and results, interview Q&A,
transcripts and any other information referenced during the hir-
ing process.
What job, area, shift is he hired for?
Please provide the bid notice for the position which went va-
cant, resulting in hiring off the street.
We are grieving this hiring action and see it as related to the
5 Prior to the substantive June 27, response, Kienbaum told Watts on
June 12 that she was going out of state for a week and would turn to the
information request when she got back. (R. Exh. 1.)
deferred board charge. We are willing to amend the deferred
grievance to include this because the issue is directly related.
(GC Exh. 4.)
Kienbaum responded on June 27, providing the date of hire,
shift, position, the name of the person Marthaller was hired to
replace, and a copy of the job announcement.5 Kienbaum ex-
pressed concerns about the scope of Watts’ request, the rele-
vance to the grievance, and confidentiality concerns regarding
Marthaller’s application and interview materials. She informed
Watts that Marthaller graduated with an AAS degree in machine
tool technologies from Linn Benton Community College, and he
did not undergo pre-hire testing. Kienbaum offered to discuss
any questions Watts had about the bidding process and told him
it would help to have a better understanding of the basis for his
request for Marthaller’s application materials before responding.
(GC Exh. 4.)
Kienbaum went on vacation in August and had difficulty get-
ting home due to severe weather. (R. Exh. 3.) On August 17,
Kienbaum sent Watts an email informing him she wanted to
schedule some step-2 meetings. Kienbaum noted she had back-
to-back arbitrations over the next couple of weeks and offered to
meet the week of September 10. (R. Exh. 4.)
At some point prior to September 13, Kienbaum provided
Watts with Marthaller’s certificate of machine tool. On Septem-
ber 13, Watts and Kienbaum discussed Marthaller’s qualifica-
tions at a grievance meeting, and Watts explained why he re-
quested the information about Marthaller.6 On September 14,
Kienbaum provided Marthaller’s resume and cover letter, as well
as information about his machining abilities and test scores. (GC
Exh. 5.)
On September 17, Watts asked if there was any other infor-
mation regarding Marthaller, including transcripts. Kienbaum
responded, stating, “You didn’t ask for his transcript in our meet-
ing—you asked for his resume. Why do you need his transcript
now? Does he know that you're asking for all of this infor-
mation?” Watts replied, reminding Kienbaum he had previously
requested all of Marthaller’s qualifications. Later that afternoon,
he asked if the information could be provided by tomorrow, to
include, “Everything the company has on file including but not
limited to, any interview Q&A, transcripts, previous work his-
tory, tests (that have not yet been provided), any communication
with LBCC, letters of recommendation, etc.” (GC Exh. 5.)
Later the same evening, Kienbaum emailed Watts, expressing
her belief that his request for all of Marthaller’s application ma-
terials was overly broad, and stating she would need an explana-
tion of relevance before providing additional application mate-
rial. She attached two letters of recommendation for Marthaller,
as well as his final grades for his machine tool technology degree
and photographs of the machining work he had provided with his
application.
B. Decision and Analysis
Pursuant to Section 8(a)(5) of the Act, each party to a bargain-
ing relationship is required to bargain in good faith. Part of that
6 The grievance meetings occurred on roughly a monthly basis. In
the mid-September meeting, Eddings and Bernard were present, and
grievances other than the one filed regarding Marthaller were discussed.
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY ALLOYS & COMPONENTS, MILLERSBURG OPERATIONS 7
obligation is that both sides are required to furnish relevant in-
formation upon request. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967).
The employer’s duty to provide relevant information exists
because without the information, the union is unable to perform
its statutory duties as the employees’ bargaining agent. Like a
flat refusal to bargain, “[t]he refusal of an employer to provide a
bargaining agent with information relevant to the Union's task of
representing its constituency is a per se violation of the Act”
without regard to the employer’s subjective good or bad faith.
Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter
& Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d
1310 (8th Cir. 1979). In determining possible relevance, the
Board does not pass upon the merits, and the labor organization
is not required to demonstrate that the information is accurate,
not hearsay, or even ultimately reliable. Postal Service, 337
NLRB 820, 822 (2002).
In relation to information sought during the term of an existing
contract, a Union’s responsibilities include: (a) monitoring com-
pliance and effectively policing the collective-bargaining agree-
ment, (b) enforcing provisions of a collective-bargaining agree-
ment, and (c) processing grievances. Am. Signature, Inc., 334
NLRB 880, 885 (2001). If the information sought relates to the
processing of a grievance, (or potential grievance), the legal test
is whether the information is relevant to the grievance and the
determination of relevancy is made based on a liberal, discovery
type of standard. Acme, 385 U.S. at 437; Knappton Mar. Corp.,
292 NLRB 236 (1988).
Information concerning employees in the bargaining unit and
their terms and conditions of employment, is deemed “so intrin-
sic to the core of the employer-employee relationship” to be pre-
sumptively relevant. Disneyland Park, 350 NLRB 1256, 1257
(2007); Sands Hotel & Casino, 324 NLRB 1101, 1109 (1997).
Presumptively relevant information must be furnished on request
to employees’ collective-bargaining representatives unless the
employer establishes a legitimate affirmative defense to the pro-
duction of the information. Metta Electric, 349 NLRB 1088
(2007); Postal Service, 332 NLRB 635 (2000). “If an employer
effectively rebuts the presumption of relevance, however, or oth-
erwise shows that it has a valid reason for not providing the re-
quested information, the employer is excused from providing the
information or from providing it in the form requested.” United
Parcel Service of America., 362 NLRB 160, 162 (2015).
When the requested information does not concern subjects di-
rectly pertaining to the bargaining unit, such material is not pre-
sumptively relevant, and the burden is upon the labor organiza-
tion to demonstrate the relevance of the material sought. Disney-
land Park, supra, at 1257; Richmond Health Care, 332 NLRB
1304, 1305 fn. 1 (2000). To determine relevance, the Board uses
a “liberal, discovery-type standard” that requires only that the
requested information have “some bearing upon” the issue be-
tween the parties and be “of probable use to the labor organiza-
tion in carrying out its statutory responsibilities.” Public Service
Co. of New Mexico, 360 NLRB 573, 574 (2014); Postal Service,
332 NLRB at 636.
1. Death benefit information request
The information request pertaining to the death benefit is
presumptively relevant, as the benefit pertains to the terms and
conditions of employment for bargaining unit employees, as em-
bodied in the CBA.
The context of this case presents a highly unique situation.
Stephens, the individual who was cooperatively working with
the Union to respond to the information request, left the work-
place under dire emergency circumstances. The position above
Stephens was vacant, leaving the response to the information re-
quest to Brown, who worked at the national level overseeing 36
collective-bargaining agreements. Brown, who was not involved
in the communications between Watts and Stephens about the
specific death benefit contained in the SPD, promptly asked
Watts to clarify what he meant by the death benefit, as the record
shows several benefits are triggered by an employee’s death.
Even the Union’s local president, when asked about a death ben-
efit, mentioned more than one benefit, and his response makes
clear the term “death benefit” is vague:
Q. To your knowledge, are you aware of whether Re-
spondent provides anything you would call a death benefit
to unit employees?
A Yes. There’s a life insurance benefit that’s in the
contract—the CBA. And then there's an additional—I
guess you'd call it additional death benefit.
(Tr. 104.) I find the Union failed to meaningfully respond to
Brown’s request for clarification about what “death benefit” the
Union was referring to in its information request, thwarting his
attempts to comply.
The General Counsel asserts that Stephens’ knowledge re-
garding which benefit the Union was requesting information
about should be imputed to Brown. “[I]t is well established that
the Board imputes a manager’s or supervisor’s knowledge of an
employee’s protected concerted activities to the decisionmaker,
unless the employer affirmatively establishes a basis for negating
such imputation.” G4S Secure Solutions (USA) Inc., 364 NLRB
No. 92, slip op. at 3 (2016). The evidence of the unique circum-
stances detailed above establishes a basis for negating the impu-
tation of liability in the wake of Stephens’ absence.
That said, the Respondent, without any justification, failed to
respond to Watts’ follow-up request for the names of the last 30
employees to pass away. Moreover, at least by the time of the
hearing, the Respondent knew which death benefit was the sub-
ject of Watts’ information request. The Respondent’s failure to
provide the information regarding the last 30 employees to pass
away, and the Respondent’s failure to provide information about
the death benefit in response to Watts’ May 25, 2018 request
once the confusion subsided, constitute violations of Section
8(a)(5) and (1) of the Act.
2. Michael Marthaller information request
The request for Marthaller’s qualifications is clearly relevant
to the grievance the Union filed alleging the Respondent had de-
nied promotional opportunities to bargaining-unit employees by
hiring underqualified employees from outside to perform ma-
chining duties.
“An unreasonable delay in furnishing such information is as
much of a violation of Section 8(a)(5) of the Act as a refusal to
furnish the information at all.” Valley Inventory Service, 295
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
NLRB 1163, 1166 (1989). “The duty to furnish information re-
quires a reasonable good-faith effort to respond to the request as
soon circumstances allow.” Monmouth Care Center, 354 NLRB
11, 52 (2009), reaffirmed, 356 NLRB 152 (2010); Good Life
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). When evalu-
ating the promptness of responding to an information request,
“the Board will consider the complexity and extent of the infor-
mation sought, its availability and the difficulty in retrieving the
information.” West Penn Power Co., 339 NLRB 585, 587
(2003). “Absent evidence justifying an employer’s delay in fur-
nishing a union with relevant information, such a delay will con-
stitute a violation of Section 8(a)(5) inasmuch ‘as the Union was
entitled to the information at the time it made its initial request,
[and] it was Respondent's duty to furnish it as promptly as pos-
sible.’” Woodland Clinic, 331 NLRB 735, 737 (2000), quoting,
Pennco, Inc., 212 NLRB 677, 678 (1974).
Here, Kienbaum provided some of the information promptly
upon her return to the office following Watts’ June 12 request.
She waited until September 14, to provide Marthaller’s resume
and cover letter, as well as information about his machining abil-
ities and test scores. Finally, on September 17, she provided two
letters of recommendation and Marthaller’s final grades for his
machine tool technology degree and photographs of the machin-
ing work he had provided with his application. This information
was not complex or voluminous, and it was readily available to
the Respondent. It should have been provided without incident.
The Respondent cites to United Parcel Service of America,
supra, to argue that once the employer articulates concerns about
an information request and makes an offer to cooperate, the Un-
ion may not ignore the employer’s concerns or refuse to discuss
a possible accommodation even when the requested information
is presumptively relevant.7 But the issue here is one of delay,
thus arguments about whether the Respondent had good reason
to withhold the information are inapposite. The presumptively
relevant information was eventually produced, leading to the
conclusion that any confidentiality, overbreadth, or concerns
were not in the end legitimate justifications for withholding the
information. Moreover, the evidence points to unnecessary de-
lay. Watts clearly included Marthaller’s transcripts in his June
12 written request. Yet on September 17, Kienbaum said, “You
didn’t ask for his transcript in our meeting—you asked for his
resume. Why do you need his transcript now?” Watts was not
required to repeat his request for the transcript at the subsequent
meeting in order to keep it alive.
Put simply, the request should have been responded to when
it was made to the best of the Respondent’s ability. See Michi-
gan Bell Telephone Co., 367 NLRB No. 74 (2019) (7-week delay
in responding to simple request unlawful). The Union was not
required to wait for a meeting with the Respondent and was not
required to narrow its basic request.
Considering the totality of the circumstances, I find the Re-
spondent violated Section 8(a)(5) and (1) of the Act by failing to
7 United Parcel Service involved requests, every 10 days, for volu-
minous detailed information relating to each of 45 drivers in the bargain-
ing unit.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
respond fully to the Union’s June 12 information request for
more than 3 months.
CONCLUSIONS OF LAW
1. By failing to provide the Union with relevant requested
information, the Respondent has violated Section 8(a)(5) and (1)
of the Act.
2. By unreasonably delaying providing the Union with rele-
vant requested information, the Respondent has violated Section
8(a)(5) and (1) of the Act.
3. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and 2(7) of the
Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, my recommended order requires them to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Affirmatively Respondent must forthwith furnish the infor-
mation necessary and relevant to the performance of the Union’s
duties as the exclusive collective-bargaining representative of
Respondent’s employees that it unlawfully withheld.
The Respondent will be ordered to cease and desist from re-
fusing to provide relevant information or unduly delaying in
providing relevant requested information to the Union.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, TDY Industries, LLC d/b/a ATI Specialty
Alloys and Components, Millersburg Operations, Albany, Ore-
gon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
United Steelworkers of America, Local 6163 (the Union) by de-
laying or refusing to furnish it with information that is relevant
and necessary to the Union’s performance as the collective-bar-
gaining representative of Respondent’s bargaining unit employ-
ees in its Albany, Oregon facility.
(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 effectu-
ate the policies of the Act.
(a) Within 14 days, provide to the Union an audit of the death
benefits paid out over the last 10 years as well as surviving
spouse benefits and earned pension benefits for both active and
terminated, as well as retired employees.
(b) Within 14 days after service by the Region, post at its Al-
bany, Oregon facility copies of the attached notice marked “Ap-
pendix.”9 Copies of the notice, on forms provided by the
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.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY ALLOYS & COMPONENTS, MILLERSBURG OPERATIONS 9
Regional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness 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 em-
ployed by the Respondent at any time since June 12, 2018.
(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.
Dated, Washington, D.C., September 25, 2019.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce you in the
exercise of the above rights.
WE WILL NOT refuse to bargain collectively with the United
Steel Workers of America Local 6163 (the Union) as your exclu-
sive collective-bargaining representative by failing and refusing
to furnish it with requested information that is relevant and nec-
essary to the Union's performance of its functions as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT refuse to bargain collectively with the Union by
failing to respond in a timely manner to the Union's requests for
presumptively relevant information.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL provide the Union with an audit of the death benefits
paid out over the last 10 years as well as surviving spouse bene-
fits and earned pension benefits for both active and terminated,
as well as retired employees.
TDY INDUSTRIES, LLC, D/B/A ATI SPECIALTY ALLOYS
AND COMPONENTS, MILLERSBURG OPERATIONS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-227649 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”