Indulac, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 18, 2004

24-CA-009591 (N.L.R.B. Feb. 18, 2004)

JD(ATL)-05-04
Hato Rey, PR

UNTIED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

INDUSTRIA LECHERA DE PUERTO
RICO INC. (INDULAC, INC.)

and CASE 24–CA–9591

CONGRESO DE UNIONES INDUSTRIALES
DE PUERTO RICO

Venesa Garcia, Esq., for the Government.1
Fernando A. Baerga Ibanez, Esq., for the
Company.2
Jose Alberto Figueroa, President, for the
Union.3

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. The Government alleges the
Company, since on or about March 4, 2003, has failed and refused to bargain in good faith
with the Union as the admittedly exclusive collective-bargaining representative for a unit
(Unit) of its production and maintenance employees, chauffeurs and chauffeur helpers.4

Allegations

Specifically, the Government alleges the Company, on or about March 4, 2003,
unilaterally transferred its Unit employee Jose del Valle from the night to day shift without
prior notice to the Union and without affording the Union an opportunity to bargain with it
with respect thereto or the effects thereof on the bargaining unit. The Government alleges

1 I shall refer to Counsel for General Counsel as the Government.
2 I shall refer to the Respondent as the Company.
3 I shall refer to the Charging party as the Union.
4 This trial was held in San Juan, Puerto Rico on December 10, 2003, based upon a charge and amended
charge filed by the Union on May 12, 2003, and July 31, 2003, respectively. The Government issued
the Complaint and Notice of Hearing on August 29, 2003.
JD(ATL)-05-04

the transfer relates to terms and conditions of employment for bargaining unit employees and
is a mandatory bargaining subject. The Government also alleges that on or about March 4,
2003, the Union requested the Company furnish it with information regarding the transfer. It
is alleged the information is necessary for, and relevant to, the Union’s performance of its
duties as the exclusive collective-bargaining representative of the unit employees and that the
Company has failed and refused to provide the information. It is alleged the above actions of
the Company violate Section 8(a)(5) and (1) of the National Labor Relations Act (Act).

The Company admits that the Board’s jurisdiction is properly invoked5 and that the
Union6 is a labor organization within the meaning of the Act. The Company, however, denies
having violated the Act in any manner alleged in the complaint. The Company states
bargaining unit employee Jose del Valle requested a reasonable accommodation within the
meaning of the Americans with Disabilities Act of 1990. In doing so, Jose del Valle’s doctor
requested he be transferred from the night to the day shift. The Company asserts it had no
position on the day shift for Jose del Valle at the time of his request. The Company asserts it
created a position on the first shift to accommodate Jose del Valle and as such did not
transfer him to any then existing unit position on that shift. According to the Company,
positions on work shifts have traditionally been determined by seniority.

The Company asserts it could not, and did not, provide the Union with the
information requested regarding its decision to grant Jose del Valle a transfer because its
decision was based solely on Jose del Valle’s doctor’s written (one page) medical report. The
Company asserts the Americans with Disabilities Act forbids the release of information
regarding the actual illness of an individual seeking accommodation or any medication
prescribed for the individual. The Company asserts it offered to provide the requested one
page medical document to the Union if the Union obtained a release from Jose del Valle.7

I have studied the whole record, the briefs filed by the Government and the Company,
and the authorities they rely on. Based on more detailed findings and analysis below, I
conclude and find the Company violated the Act by unilaterally transferring its employee
Jose del Valle from the night to day shift without prior notice to the Union and without
affording the Union an opportunity to bargain with respect thereto and the effects of this
conduct. I find the Company did not violate the Act when it refused, in the manner it did, to
provide the Union with the information regarding Jose del Valle’s transfer from the night to
day shift.

5 The Company admits that annually it purchases and receives at its Hato Rey, Puerto Rico location,
goods and materials valued in excess of $50,000 directly from points located outside the
Commonwealth of Puerto Rico. The Company admits, the evidence establishes, and I find it is an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
6 I find the Union is a labor organization within the meaning of Section 2(5) or the Act.
7 The Company provided the Government, pursuant to subpoena, a copy of the actual one page medical
document in question with references to the illness and medication redacted therefrom.

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FINDINGS OF FACT8

I. Overview

The Company processes surplus “over produced” milk, butter and cheese which it
then sells. The business is somewhat seasonal. The Company, at seasonal times, employs
approximately 90 unit employees on three fixed shifts. The first shift is from 6 a.m. until 3
p.m.; the second shift from 3 p.m. until mid-night and the third shift from 9 p.m. until 6 a.m.
Employees prefer the first shift. Pertinent to this case the Company employs production and
maintenance employees serving as machine operators such as Jose del Valle.

The Union has been the certified exclusive collective-bargaining representative for
the unit employees since July 3, 2002. The Union and Company are negotiating toward an
initial collective-bargaining agreement. The Unit employees were represented in the past by
Seafarers International Union. The Company’s and Seafarers International Union’s most
recent collective-bargaining agreement for the Unit employees expired in May 2003. Jose
del Valle was a Unit Union shop steward for the Seafarers International Union.

The parties stipulated the Company transferred its employee, Jose del Valle, from the
night to day shift, on March 4, 2003, and further stipulated the Company’s past practice
regarding work shift assignments has been, and continues to be, dependent on employees’
plant seniority. The parties also stipulated that at the time of Jose del Valle’s transfer there
was a unit employee on the night shift more senior than he. It is acknowledged Jose del
Valle only worked on the first shift position he was transferred to until June 2003.
Additional positions were reopened on the first shift in June 2003 to process cheese. Jose del
Valle bid for and was awarded, by seniority, one of the reopened positions.

Jose Alberto Figueroa is President of the Union, unit employees Juan Hernandez and
Jines Arias are union shop stewards and Pedro Trinidad is Company Operations Director.

II. Alleged Unfair Labor Practices

A. Further Facts

As outlined above and more fully set forth here, unit employee Jose del Valle
requested on or about February 26, 2003, a reasonable accommodation from the Company
because of health concerns. Jose del Valle provided the Company a medical document
signed by Psychiatrist Doctor Emma Negron, M.D. dated February 26, 2003, in which it was
recommended he be reassigned from the night to day shift in that he was on controlled
medication at night that could affect his performance.

8 The essential facts are not significantly disputed. Unless I note otherwise, my findings are based on
admitted or stipulated facts, documentary exhibits, or undisputed and credible testimony. Specific
reference has from time to time been made to the particular witness providing certain facts.

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Company Operations Director Trinidad reviewed Jose del Valle’s medical document
checking the “letterhead” “address and telephone number” and ensuring a physician had
signed it. Trinidad explained management officials were not doctors, and in cases with
medical recommendations, did not try to second-guess or question a doctor’s
recommendations.

Company Operations Director Trinidad testified he accommodated Jose del Valle
because del Valle’s physician stated he was “under medication at night and this could
constitute a danger for other employees.” Trinidad explained it was his “obligation as
employer to immediately transfer … [Jose del Valle] … to another position with lesser
danger presented to his co-workers.” Trinidad also explained no vacancy existed on the first
shift as of March 3, 2003, so he created a position on that shift to accommodate Jose del
Valle. In creating the new first shift position Trinidad pointed out that “no employee on first
shift was displaced.” Trinidad acknowledged there was one employee on second shift that
had “a couple of days more” seniority than Jose del Valle.

Pursuant to the request for accommodation and management’s creating a position on
first shift, Jose del Valle commenced working that shift on March 4, 2003.

Union President Figueroa had a previously arranged meeting with the Company for
March 4, 2003, “in order to discuss a series of cases that were pending” at that time between
the parties. The meeting took place on that date with Figueroa, and seven union stewards
and/or unit employees meeting with Company Operations Director Trinidad. Figueroa told
Trinidad a claim had been made on behalf of the second shift employees regarding Jose del
Valle’s transfer from the second to first shift. Second shift union steward Jines Arias asked
Trinidad for an explanation of the transfer. Arias wanted to know if the reasons for the
transfer were “really valid” because the transfer was affecting seniority rights regarding
second shift employees seeking to work first shift. Union President Figueroa cautioned Arias
that he was “presenting serious accusations” that “could bring forth problems.” Arias said he
only needed some answers from the Company so he could explain to the unit employees why
Jose del Valle was transferred to first shift and he assured everyone he was not accusing
anyone of anything at that time.

Trinidad testified Arias told him “it was his understanding that [Jose del Valle] was
not sick that he had nothing.” Trinidad said he told Arias “these are your comments.”
Trinidad said he explained to Arias that Jose del Valle had “requested a reasonable
accommodation according to the ADA and he had medical records” to support his request.
Trinidad said Arias “insisted on seeing the documents and the evidence, the proof.” Trinidad
testified he suggested to Arias that if he wanted to see the medical document he should
negotiate with the employees, go to Jose del Valle and “allow the employee to authorize him
to look at these documents.” According to Trinidad the portion of the meeting dealing with
Jose del Valle ended shortly thereafter and he never heard about the transfer until the
underlying charge herein was filed.

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Union President Figueroa testified that at the time he requested a copy of Jose del
Valle’s medical document Trinidad told him he needed to get legal counsel regarding
whether he could provide the document and would get back with Figueroa. Figueroa
explained the Union needed the medical document “to corroborate or verify if indeed the
medical certificate was to validate the change from second shift to first shift.” Figueroa
specifically denied Trinidad told him or the Union they needed to get a waiver from Jose del
Valle to obtain the requested medical document. Employee Juan Hernandez testified
Trinidad declined to give them the requested document because he needed “to get advice
from his attorneys” and that “he would … get back with us,” and added “nothing else” was
said.

The document sought by the Union and not provided by the Company was provided
(in redacted form) to the Government pursuant to a subpoena. The redacted medical
document was received in evidence and follows:

Instituto Panamericano
Manati, Puerto Rico

February 26, 2003

TO WHOM IT MAY CONCERN:

By the present we are certifying that Jose Del Valle-Colón,
was/is under treatment at the Instituto Panamericano de Manati.

February 14, 2003 to February 26, 2002 and was hospitalized in Cidra from
February 11, 2003 to February 14, 2003. A change in shift is recommended,
during the day since he is on controlled medication at night that could affect
his performance.

For any additional information, please call us at 854-0001 - 854-1471.

Very truly yours, ( at
night ,
[Signed] at night,
Emma Negrón, MD 111539 at night .)
Psychiatrist

*The patient will continue ambulatory treatment and can return to work
March 3, 2003.

Carretera 2 Km. 46.1 Bo. Campo Alegre, Manati, P.R. 00674
(787) 854-0001 Fax: (787) 854-0030

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Union President Figueroa testified he also requested the medical document in a letter
directed to Company Operations Director Trinidad dated March 20, 2003. Figueroa testified
he also requested in his letter that the parties meet to discuss Jose del Valle’s transfer.
Figueroa asserts the letter was sent by mail and facsimile on March 20, 2003. Figueroa
testified the Company has never at any time provided the document nor did the Company
notify the Union, prior to Jose del Valle’s transfer, that he was being transferred.

Company Operations Director Trinidad testified he had not seen, nor was he aware
of, the Union’s March 20, 2003, letter until the trial herein. Trinidad testified specifically
that no request for information was made by the Union after the March 4, 2003, meeting.
Trinidad explained he did not notify the Union prior to creating the position on first shift:

because the rights of the employees in issue were not affected, because that
was a special situation a temporary situation, in which I wanted to follow his
physician’s recommendations and above all, protect the safety and integrity of
the rest of the employees.

Based upon testimonial demeanor, I credit the testimony of Trinidad, over that of
Figueroa and Hernandez, regarding their meeting on March 4, 2003, pertaining to the transfer
of Jose del Valle. I specifically credit Trinadad’s testimony that he suggested to the Union
they might obtain a waiver from Jose del Valle in order to obtain the medical documents. I
am not persuaded the Government established the Union sent the Company the letter
requesting information and bargaining on March 20, 2003, that the Union asserts was sent.
First, Trinidad denied receiving the letter. Second, the Government provided no proof of
service by mail nor any independent verification of the letter being sent by facsimile. I note
also Figueroa acknowledged he did not see nor sign, but authorized, the letter to be signed on
his behalf. The individual at the union who assertedly prepared, addressed, signed and
deposited the letter with the postal service and/or sent the letter by facsimile was not called to
testify by the Government or Union. Under these circumstances, I find the failure to produce
any direct evidence the letter was actually sent by any means calls into question the existence
of the letter at the time the letter is asserted to have been authorized, created and sent.

B. Positions of the Parties Unilateral Changes

Government Counsel notes it is not disputed that the Company created a first shift
position and transferred Jose del Valle to it, on or about March 4, 2003, without notification
to or bargaining with the Union. Government Counsel contends transferring an employee
from one shift to another relates to terms and working conditions of Unit employees and as
such is a mandatory subject for bargaining. Government Counsel asserts the Board has
consistently found work schedules and hours to be worked are mandatory bargaining
subjects. Government Counsel notes the Company’s past practice regarding work shift
assignments has been, and continues to be, dependent on the Unit employees’ seniority.
Government Counsel asserts, and correctly so, that as of March 4, 2003, there was an
employee on second shift more senior than Jose del Valle. Government Counsel argues the

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Company had a statutory, as well as past practice obligation, to bargain over the schedule
change before implementing it.

Anticipating some of the Company’s defenses, Government Counsel disputes any
claim the unilateral schedule change herein for Jose del Valle was de minimus and did not
rise to the level of a violation of the Act. Government Counsel argues the Board consistently
finds unilateral changes in employees’ work starting times and job assignments affecting
seniority rights to be material, substantial and significant changes. Government Counsel
asserts an employer, such as the Company herein, that effects unilateral changes in terms and
conditions that are mandatory subjects of bargaining commits a per se violation of Section
8(a)(5) of the Act.

The Company concedes it created a new position on first shift for a machine operator
in early March 2003. It acknowledges it transferred Jose del Valle from second to first shift
to fill the newly created position without notification to or bargaining with the Union. The
Company acknowledges that when a labor organization has been recognized or certified as
the bargaining representative of an employer’s employees Section 8(a)(5) of the Act
obligates the employer to bargain collectively over wages, hours and other terms and
conditions of employment. The Company also acknowledges an employer violates that duty
if it changes working conditions of represented employees without first giving the union
notice of the proposed changes and affording the union an opportunity to bargain.

The Company, however, argues it did not have an obligation to notify and bargain
with the Union about the terms of the charge in shift herein because the change in shift did
not constitute a change in working conditions of the Unit employees. The Company
contends it created a new first shift operator position to afford Jose del Valle an
accommodation pursuant to his request under the provisions of the Americans with
Disabilities Act of 1990, Section 2 et seq., 42 U.S.C.A. Section 12101 et seq. The Company
argues that once it had an employee with a qualified disability who had requested a
reasonable accommodation it was required to utilized an interactive process to identify and
propose solutions. Stated differently the Company contends that if an employee, such as Jose
del Valle, has a disability, but is qualified and can perform the essential functions of the job,
then the employer must reasonably accommodate the individual’s known disability unless the
employer proves such an accommodation would entail an “undue hardship.” The Company
asserts it did not contest the initial petition for relief of Jose del Valle but rather attempted to
afford him a reasonable accommodation. The Company contends there was no change in the
terms and conditions of employment of Unit employees. The Company asserts there is no
showing that the creation of the new first shift position affected the only employee that had
more seniority than Jose del Valle. The Company notes no employees on the first shift were
displaced in order to accommodate Jose del Valle. The Company argues none of the
employees of the second shift would have been transferred to the first shift at the time in
question, since there were no vacancies on the first shift nor any need for additional
employees on that shift. The Company notes no one from management received any claims
from any employees that their rights, seniority or otherwise, had been violated. The
Company argues there can be no violation of the Act because the shift change for Jose del

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Valle was not a material, substantial and/or significant change in the terms and conditions of
employment of the Unit employees. Additionally the Company argues, if any violation of
the Act should be found it could only be a de minimus violation and should be dismissed on
that basis.

C. Analytical Framework Unilateral Change

General speaking when a union has been certified (or recognized) as the exclusive
collective bargaining representative of employees in an appropriate unit an employer is
obligated, upon request, to bargain collectively over wages, hours and other terms and
conditions of employment. The subjects over which an employer is required to bargain
constitutes and are referred to as “mandatory” subjects of bargaining. Mandatory subjects of
bargaining, generally described, are those that regulate the labor relations between an
employer and its employees. Employers may not make unilateral changes in mandatory
subjects of bargaining unless or until they have satisfied their duty to negotiate. A unilateral
change not only violates the requirement to bargain over mandatory subjects, but also does
damage to the process of collective bargaining itself. See: Fresno Bee, 339 NLRB No. 158
slip op. p. 1 and 8 (August 21, 2003). An employer violates Section 8(a)(5) when it makes a
material and substantial change in wages, hours, or other terms or conditions of employment
that are mandatory subjects of bargaining and fails to give notice to and/or bargain with the
union representing its employees about such changes. To avoid a finding of a violation of
the Act an employer must establish that the unilateral change was in some way privileged.

D. Analysis and Conclusions Unilateral Change

It is undisputed the Company transferred unit employee Jose del Valle from the night
to day shift on March 4, 2003. It is likewise undisputed the Company did not provide the
Union with notice or an opportunity to bargain concerning this conduct and the effects of this
conduct on the Unit. The parties stipulated that the Company’s “past practice regarding work
shift assignments has been, and continues to be, dependent on employees’ seniority at the
plant.” It is stipulated there was an employee on the night shift, at the time of the transfer of
Jose del Valle from the night to day shift, that was senior to Jose del Valle. The transfer of a
unit employee from one shift to another is a mandatory subject for bargaining. Illiana
Transit Warehouse Corp., 323 NLRB 111 (1997) and Fresno Bee, 339 NLRB No. 158 fn. 2
(August 21, 2003). In agreement with Government Counsel, an employer, such as the
Company herein, that effects unilateral changes in terms and conditions of employment that
are mandatory subjects of bargaining commits a prima facie violation of the Act.

The Company’s defenses must be examined to ascertain if its unilateral change was in
some way privileged. The Company has the burden to demonstrate such, if in fact it can do
so. The Company contends its accommodation of Jose de Valle did not violate the Act in
any way. The Company contends that in accommodating Jose del Valle it “created” a
position on the first shift even though a vacancy did not exist nor was any additional help
needed on that shift. The Company notes no employee on first shift was displaced in order to
accommodate Jose del Valle. The Company asserts Government counsel “did not present

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any evidence that the creation of the new vacancy affected the only employee that had more
seniority than Jose del Valle.” The Company argues there was no change to the terms and
conditions of employment of the unit employees; therefore, no violation of the Act.

Some discussion of the Americans with Disabilities Act is perhaps helpful in
considering the Company’s defense. First, I am not unmindful of the stated purpose of
Congress when it enacted the Americans with Disabilities Act which was to provide a
national mandate for the elimination of discrimination against individuals with disabilities.
Was Jose del Valle a qualified individual with a disability and did the Company violate the
Act when it, in the manner it did, accommodated his disability? To evaluate the Company’s
defense I find it unnecessary to set forth an exhaustive review of the Americans with
Disabilities Act. Suffice it to say a qualified individual is an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions of the
employment position the individual holds or desires. If an employee cannot perform the
essential functions of his/her original job but could perform the essential functions of another
job at the employer the employee is still covered by the Americans with Disabilities Act. If
an employee has a qualified disability and requests a reasonable accommodation, an
employer is required to identify and propose solutions. An employer is not, however,
required to provide a specific accommodation to a qualified disabled employee but rather an
employer has significant discretion in determining what constitutes a reasonable
accommodation within the meaning of the Americans with Disabilities Act. An employer
need not make an accommodation at all if doing so would impose an undue hardship on the
operation of the employer’s business.

The Company herein assumed Jose del Valle was a qualified individual with a
disability under the Americans with Disabilities Act relying, as it did, on the medical
document he presented that indicated he was “on controlled medication at night that could
affect his performance.” For the purposes of evaluating the Company’s defense herein I need
not determine if being place on medication for a limited period of time that might affect an
employee’s performance constitutes a recognizable disability. I will assume, without
deciding, that it does. There is no question but that Jose del Valle could perform the essential
functions of the additionally created first shift operator position the Company transferred him
to. Not withstanding Jose del Valle’s established disability, I am persuaded the Company
may not avoid its bargaining obligations, pertaining to creating a new unit position on first
shift, and transferring Jose del Valle to it, simply by asserting it was accommodating an
employee with a disability. I so conclude because work shift assignments, schedules and
hours of work are mandatory subjects of bargaining. Work shift assignments at the Company
have always been and continue to be made by seniority. The accommodation the Company
made infringed on the seniority rights of other unit employees and as such was unreasonable
even pursuant to the Americans with Disabilities Act. Kralik v. Durbin, 130 F.3d 76, 83 (3rd
Cir. 1997). The Company’s argument that no employee rights were violated in the transfer
of Jose del Valle because no employee was displaced on first shift nor would any employee
have been transferred from second to the first shift if it had not created a new unit position on
first shift to accommodate Jose del Valle is invalid and misses a very crucial point. What the
Company did in accommodating Jose del Valle, in the manner it did, caused employees’ to

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lose some of the value of their seniority rights. Accordingly I find the Company’s attempt to
demonstrate its unilateral change was privileged fails.

I next examine the Company’s asserted defense that the unilateral transfer of Jose del
Valle from second to first shift did not violate the Act because it was not a “material,
substantial and significant one.” Contrary to the Company’s contention I conclude and find
the creation of a new unit position on the most desired work shift is a significant change.
The change impacted employees on the second shift and specifically the employee senior to
Jose del Valle. Additionally, if one employee’s seniority is violated it lessens the value of
seniority rights for all remaining unit employees. The Company’s assertion it had no
complaints from the second shift employees affords it no relief. There were complaints to
the Union and it was on the basis of those complaints that the matter was raised with
management. I reject the Company’s contention that the fact none of the employees on the
second shift would have been transferred to first shift at the time in question, absent the
creation of a new unit position on first to accommodate an employee with a disability, would
make the transfer immaterial, unsubstantial or insignificant. I find the creation of the first
shift position and the transfer of Jose del Valle to it was a material, substantial and significant
change in terms and conditions of employment of unit employees.

Finally the Company’s question “what could it have done differently than it did when
it was faced with an urgent disability accommodation request” is answered, namely, give
notice to and bargain with the Union about it. Perhaps Jose del Valle could have taken his
medication during the day and worked the night shift without affecting his performance on
that shift.

I find the Company failed to demonstrate it was privileged to implement the unilateral
transfer outlined above. I specifically find the Company violated Section 8(a)(5) and (1) of
the Act when on or about March 4, 2003, it unilaterally and without prior notice to or
bargaining with the Union, transferred its unit employees Jose del Valle from second to first
shift.

E. Information Request

Jose del Valle’s transfer on March 4, 2003, from second (night) to first (day) shift
was based solely on the one page medical document he provided to the Company seeking an
accommodation. The Company and Union met on March 4, 2003, to discuss various
concerns including the transfer of Jose del Valle. At that meeting the Union, through Union
Steward Arias and Union President Figueroa, asked to be provided Jose del Valle’s one page
medical document. The Union explained the document was needed to see if the transfer was
“really valid” because, it was affecting second shift Unit employees’ seniority rights. The
Union insisted it see the document as it alone constituted the “evidence” and/or the “proof”
that the transfer was valid. The credited evidence establishes Company Operations Director
Trinidad was concerned about the confidential nature of the medical information on the
document. Trinidad also believed the Americans with Disabilities Act prohibited the release
of the information. Trinidad suggested to Union Steward Arias and Union President

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Figeuroa that if the Union wanted to see the medical document they should negotiate with the
employees and seek Jose del Valle’s authorization to look at the document.

The Union claims it raised its request for information a second time with the
Company in a letter dated March 20, 2003. I concluded, as explained earlier, that I am
unwilling to find the letter was actually sent as contended by the Union. Accordingly, I find
the Union did not raise the issue again with the Company until it filed the underlying charge
herein.

F. Analytical Framework For Information Request

It is well-settled, if a union requests, an employer has an obligation to provide
information the union needs to fulfill its obligation to represent the unit employees and to
bargain on their behalf. Stated differently, an employer has a statutory obligation to provide
requested information in its possession that is relevant, or even potentially or probably
relevant to a union in fulfilling its responsibilities as the employees’ exclusive bargaining
representative. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Information concerning
terms and conditions of employment is presumably relevant and must be provided within a
reasonable time, or, if not provided, a timely explanation must be given. FMC Corp., 290
NLRB 483, 489 (1988). A union’s interest in relevant and necessary information; however,
does not always predominate over other legitimate interests. The Supreme Court in Detroit
Edison Co. v. NLRB, 440 U.S. 301, 99 S. Ct. 1123 (1979), explained “a union’s bare
assertion that it needs information to process a grievance [or potential grievance] does not
automatically oblige the employer to supply all the information in the manner requested.”
The duty to supply information turns upon the circumstances of the particular case, and much
the same may be said for the type of disclosure that will satisfy that duty. In dealing with a
union’s request for relevant, but assertedly confidential information possessed by an
employer, the Court requires the Board to balance a union’s need for the information against
any legitimate and substantial confidentiality interest established by the employer. The party
making a claim of confidentiality has the burden of proving that such interests are in fact
present and of such significance as to outweigh the union’s need for the information.
Jacksonville Association For Retarded Citizens, 316 NLRB 338, 340 (1995). To trigger a
balancing test, an employer must first timely raise and prove its confidentiality claim.
Additionally, an employer possessing the information and refusing to disclose it on
confidential grounds has a duty to seek an accommodation through the bargaining process.
The employer must bargain towards an accommodation between the union’s need for the
information and the employer’s justified confidentiality concerns. Exxon Co. USA, 321
NLRB 896, 898 (1996).

G. Positions of the Parties on Requested Information

The Government contends the Company’s refusal, on and after March 4, 2003, to
supply the Union with Jose del Valle’s medical documentation, as requested by Union
Steward Arias and Union President Figueroa, constitutes an unlawful refusal to bargain.

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The Company asserts it has not refused to bargain but rather has sought to protect
confidential information from unauthorized release. The Company further asserts it
attempted to arrive at an accommodation with the Union regarding the release of the
information.

The Union sought the information to see if it validated the employee’s change from
second to first shift because the change was affecting seniority rights of second shift
employees. I find the Union’s request was relevant and reasonably necessary to its
representative duty to investigate contractual and past practice seniority rights and to, if
necessary, prosecute (potential) grievances.

I find the Company alerted the Union of and established its confidentiality concerns.
The Company expressed its confidentiality concerns to the Union when Company Operations
Director Trinidad advised the Union that Jose del Valle had requested a reasonable
accommodation pursuant to the Americans with Disabilities Act and had supported his
request with the medical document in question. Company Operations Director Trinidad
suggested to the Union that it negotiate and specifically stated the Union should seek Jose del
Valle’s authorization for the Company to release the requested information. The Union
apparently never acted on the Company’s accommodation suggestion nor did the Union seek
any other accommodation that might satisfy its need for information while at the same time
protecting, to the extent possible, the confidential nature of the requested information. The
Board, with specific guidance from the U.S. Equal Employment Opportunity Commission
(EEOC), concluded in Roseburg Forest Products Co., 331 NLRB 999, 1003 (2000) that the
Americans with Disabilities Act permits an employer to give a union, in its role as bargaining
representative, medical information necessary to the Americans with Disabilities Act
reasonable accommodation process to enable the employer and union to make reasonable
accommodation determinations consistent with the Americans with Disabilities Act. The
Board; however, envisioned the parties would negotiate to determine what the employer
would be “permitted” to provide of medical information while recognizing the confidential
nature of medical information. Here the Union failed to respond to the Company’s
suggestion it seek a release from Jesse del Valle. Further the Union did not attempt in any
other way to negotiate concerning the confidentiality claims raised by the Company. The
Union did not, for example, come forward with any assurances it would limit access to the
information to those on a need to know basis.

I find the Company met its burden of showing it had a legitimate and substantial
interest in not releasing the medical document Jose del Valle presented to it in support of his
request for accommodation. The Americans with Disabilities Act requires the Company to
safe guard such medical information except it may be permitted to provide certain
information in order for it and the Union to make reasonable accommodation determinations
consistent with the Americans with Disabilities Act. I find the Union failed to follow
through with the Company’s offer that it seek a waiver from Jose del Valle for the
information, or that it proposed or sought any other solution to meet their need for the
information. Accordingly, I find the Government has failed to establish that the Company

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violated the Act by refusing, in the manner it did, to furnish the information the Union
requested on March 4, 2003. Accordingly I shall dismiss that complaint allegation.

III. REMEDY

Having found the Company has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and take certain affirmative action designed to effectuate
the policies of the Act. Specifically, the Company shall be ordered to bargain in good faith
with the Union regarding any requests for accommodations pursuant to the Americans with
Disabilities Act that impacts working conditions specifically including work or shift
assignments of any Unit employees. It does not appear any additional remedy would be
appropriate. The newly created first shift position no long exists. No employee lost money
or other benefits as a result of the Company’s unilateral transfer of Jose del Valle from
second to first shift. No seniority rights need be restored.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:9

ORDER

The Company, Industrial Lechera De Puerto Rico Inc. (Indulac, Inc.) its officers,
agents successors, and assigns shall:

1. Cease and desist from:

(a) Unilaterally transferring employees from one shift to another without
prior notice to the Union and without affording the Union an opportunity to bargain with
regard to the effects of such changes.

(b) In any like or related manner, interfering with, restraining or coercing
employees in the exercise of rights guaranteed them by the Act.

2. Take the following affirmative action necessary to effectuate the policies of
the Act.

(a) On request, meet and bargain in good faith with the Union regarding
transferring employees from one shift to another in order to accommodate employees
pursuant to the Americans with Disabilities Act, in the following unit appropriate for
purposes of collective bargaining:

9 If no exceptions are filed as provided by §102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.

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JD(ATL)-05-04

All production and maintenance employees employed by the Company at its
plant in Hato Rey, Puerto Rico, including chauffeurs and chauffer helpers;
excluding office clerical employees, administrative and executive employees,
guards and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at its facility in Hato
Rey, Puerto Rico, copies of the attached notices, both in English and Spanish, marked
“Appendix10.” Copies of the notice, on forms provided by the Regional Director for Region
24, after being signed by the Company's authorized representative, shall be posted by the
Company immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the Company has
gone out of business or closed the facility involved in these proceedings, the Company shall
duplicate and mail, at its own expense, a copy of the Notice to Employees employed by the
Company at any time since March 4, 2003.

IT IS FURTHER ORDERED that the Complaint be, and hereby is, dismissed insofar
as it alleges violations of the Act not specifically found.

Dated at Washington, DC

________________________________
William N. Cates
Associate Chief Judge

10 If this Order is enforced by a Judgment of the 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.”

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JD(ATL)-05-04

APPENDIX

NOTICE TO EMPLOYEES

Posted by the 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 benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT unilaterally transfer employees from one shift to another without prior
notice to the Union and without affording the Union an opportunity to bargain with regard to
the effects of these changes.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce you in the
in the exercise of your Section 7 rights.

WE WILL, on request, meet and bargain in good faith with the Union regarding transferring
employees from one shift to another in order to accommodate employees pursuant to the
Americans with Disabilities Act, in the following unit appropriate for purposes of collective
bargaining:

All production and maintenance employees employed by the Company at
its plant in Hato Rey, Puerto Rico, including chauffeurs and chauffeurs
helpers; but excluding office clerical employees, administrative and
executive employees, guards and supervisors as defined in the Act.

INDUSTRIA LECHERA DE PUERTO
RICO INC. (INDULAC, INC.)
(Employer)

Dated: By:
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.

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JD(ATL)-05-04

To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information for the Board’s website: www.nlrb.gov.

La Torre de Plaza – Suite 1002, 525 F.D. Roosevelt Avenue, San Juan PR 00918-1002
(787) 766-5347, Hours: 8:30 a.m. to 5:00 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERD, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL
OFFICE’S COMPLIANCE OFFICER, (787) 766-5377

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