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United States Court of Appeals

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 2002 Decided May 7, 2002

No. 00-1518

DaimlerChrysler Corporation, f/k/a Chrysler Corporation,
Petitioner

v.

National Labor Relations Board,
Respondent

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board

K.C. Hortop argued the cause for petitioner. On the briefs
was Theodore R. Opperwall.

Christopher W. Young, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Margaret A. Gaines,
Supervisory Attorney.

Before: Edwards and Randolph, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: In 1971, the National Labor
Relations Board ("NLRB" or "Board") rendered its seminal
decision in Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).
Collyer holds that when the parties to certain types of
disputes have provided for arbitration in their collective bar-
gaining agreement ("CBA") the Board will not pursue unfair
labor practice proceedings until arbitration has run its course.
Deferment under Collyer is appropriate only when the CBA-
provided arbitration offers an expeditious and fair means for
resolution of the parties' dispute. See id. at 842. Under a
closely related policy, the Board also defers to the results of
arbitration, so long as the arbitral decision meets certain
general criteria. See Hammontree v. NLRB, 925 F.2d 1486,
1491 (D.C. Cir. 1991) (en banc) (discussing Board's deference
policies).

Collyer is not without limits, however. Indeed, the scope of
the Collyer doctrine has changed over the years as the Board
has continued to shape a deferral policy that harmonizes
private contractual rights emanating from CBAs and public
statutory rights flowing from the National Labor Relations
Act ("NLRA" or "Act"). See 1 The Developing Labor Law
1378-90 (Patrick Hardin & John E. Higgins, Jr. Editors-in-
Chief, 4th ed. 2001). And in Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983), the Supreme Court indicated that
certain statutory rights are not subject to contractual abroga-
tion unless the aggrieved party has clearly and unmistakably
waived the statutory rights at issue. See also Wright v.
Universal Mar. Serv. Corp., 525 U.S. 70, 79-80 (1998).

An alleged refusal by an employer to furnish relevant
information needed by a union for use in collective bargaining
or grievance processing is a type of case that is not subject to
Collyer deferment absent a clear and unmistakable waiver.

Since at least 1984, the Board has consistently held that such
disputes will not be deferred to arbitration. This policy is
justified in part because the obligation to provide such infor-
mation is derived from statutory duties independent of the
labor contract, NLRB v. Acme Indus. Co., 385 U.S. 432, 437
(1967); American Standard, Inc., 203 N.L.R.B. 1132 (1973),
and in part because such information is essential to the union
if it is to function effectively as the bargaining agent for unit
employees, Acme, 385 U.S. at 435-36. The Board has also
declined to defer cases involving alleged refusals to furnish
information for fear of fostering a "two-tiered arbitration
process," in which parties first proceed to arbitration over
information requests and then proceed to arbitration over the
underlying grievances. See United Technologies Corp., 274
N.L.R.B. 504, 505 (1985) (quoting General Dynamics Corp.,
268 N.L.R.B. 1432, 1432 n.2 (1984)), supplemented on other
grounds by 277 N.L.R.B. 584 (1985).

The instant case involves DaimlerChrysler Corporation
("DC") and the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
Local 412, Unit 53, AFL-CIO (the "Union"). One of the
Union's stewards at DC sought relevant information from DC
in connection with employee grievances. When the informa-
tion sought was not furnished to the satisfaction of the Union,
an unfair labor practice ("ulp") charge was filed with the
NLRB. The Board found that DC's refusal to provide the
requested information violated the NLRA. See Daimler-
Chrysler Corp., 331 N.L.R.B. No. 174 (Aug. 25, 2000) ("Or-
der"), at 1. DC requested that the Board decline to adjudi-
cate the unfair labor practice charges and defer them to
arbitration under the parties' CBA. The Board, however,
adhered to its longstanding practice of refusing to defer
disputes over requested information to the arbitration pro-
cess. DC now asks this court to overturn the Board's policy.
We decline. While the Board may in the future decide to
reconsider the scope of the Collyer doctrine, this court has no
authority on this record to second-guess the Board's applica-
tion of well established precedent.

One of the grievances for which the Union steward sought
information involved an employee who was discharged pursu-
ant to a "last-chance" agreement into which he had entered
after being discharged a year earlier. Under established
practices between DC and the Union, "last chance" agree-
ments have no precedential value with regard to the treat-
ment of other employees. Because of this practice, DC
argues that it was not required to furnish information to the
Union on such agreements. The Board held that the infor-
mation could still be relevant to the Union in determining
whether to process a grievance to arbitration. In light of the
liberal, discovery-type standard that governs information re-
quests, the Board did not err in requiring DC to furnish the
information sought. Nor did the Board err in finding that
DC committed an ulp when it threatened the Union's steward
with disciplinary action, including possible discharge, if he
continued to request information. Accordingly, we deny DC's
petition for review and grant the Board's cross-application for
enforcement.

I. Background

After reviewing the record in this case, we conclude that
the Board's findings are supported by substantial evidence on
the record as a whole. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951). What follows is a summary
of the relevant facts found by the Board.

DC is a large automobile manufacturer employing more
than 100,000 employees in the United States. In 1997, Keith
Valentin was elected to be the chief steward at DC's plant in
Auburn Hills, Michigan, which employs about 130 engineers
represented by the Union. Order at 3-4; Br. of Petitioner at
5. This petition centers on a number of requests for informa-
tion made by Mr. Valentin in his capacity as chief steward.
DC furnished no information in response to the disputed
requests.

Most of Mr. Valentin's requests were related to employee
grievances. For example, between December 1997 and Janu-
ary 1998, he filed three grievances alleging that DC had

violated the CBA by offering more overtime to transmission
engineers than to engine engineers. He filed a request for
information, seeking an alphabetical list of access badge
swipes for all bargaining unit members for a period during
1997 and 1998, as well as lists of unit members on corporate
shuttle flights to and from Indiana (where DC had another
facility) for the same period. Order at 4-5. He also request-
ed a list of overtime hours that were offered to the transmis-
sion engineers but not to the engine engineers, along with
copies of the relevant time cards. Instead of providing the
requested information, DC sent Mr. Valentin a memo re-
questing the relevance of the information to any active griev-
ance, and expressing DC's "understanding" that the griev-
ance had already been resolved. Id. at 5; Memorandum from
DesirEe Redenz to Keith Valentin (Apr. 20, 1998), reprinted
in Joint Appendix ("J.A.") 149-51. Later, Mr. Valentin testi-
fied that the grievance had not been resolved to his satisfac-
tion and that it was his understanding that he could appeal
the grievance with information obtained through the informa-
tion requests. See Transcript of Administrative Law Judge
("ALJ") Hearing ("Tr.") at 121, reprinted in J.A. 62. Mr.
Valentin also filed information requests in connection with an
engineer named Kareem Schkoor claiming discrimination in
promotion. He also filed other requests related to other
grievances. Order at 4-7 (detailing requests).

Many of Mr. Valentin's memoranda contained language
that DC managers found objectionable. For instance, in
May, Mr. Valentin sent a memorandum to DC's diversity
manager regarding an ulp charge he had filed. Memoran-
dum from Keith Valentin to Monica Emerson (May 6, 1998),
reprinted in J.A. 169. He wrote: "As a matter of profession-
al courtesy, I strongly recommend that you seek private legal
counsel to protect your individual rights in the event that
Corporate and individual agent (yourself) interests diverge."
Id. Mr. Valentin also included the following sign-off, which is
found at the end of many of his memoranda to DC manage-
ment: "If you have any questions or concerns ... contact me
at your earliest convenience rather than feign confusion and
ignorance at a later date." Id.

Particularly relevant to this appeal is a request Mr. Valen-
tin made regarding so-called "last chance" data. In 1998,
engineer Arthur Sibert was discharged for being absent from
work. The Union filed a grievance in protest, which was
denied at the initial steps of the grievance procedure. Mr.
Sibert had been discharged by DC once before, in 1996, and
had returned to work on a "last chance" basis. Order at 5-6.
The Union and DC had agreed generally that matters re-
solved on a last chance basis could not be used in connection
with the resolution of any other grievance. Tr. 48, reprinted
in J.A. 45. In April 1998, Mr. Valentin requested information
regarding all employees disciplined pursuant to a last chance
agreement since 1993. Order at 6. DC refused to provide
the information because of the agreement that such cases
would not have any precedential value. Id. Mr. Valentin
also filed grievances in connection with Mr. Sibert's initial
1996 discharge. Pursuant to those grievances, he requested
records regarding, inter alia, Mr. Sibert's rights under the
Family and Medical Leave Act ("FLMA"). Order at 6.

In early May, DC gave Mr. Valentin a memorandum stat-
ing that most of his information requests and other communi-
cations were "inappropriate." Memorandum from Don Pen-
tecost to Keith Valentin (May 6, 1998), reprinted in J.A. 163.
The memorandum continued:

We feel [these information requests have] been an at-
tempt by you to harass, intimidate and create work
rather than pursue any legitimate need for information.
These letters are often sarcastic and demanding in tone,
which we find totally unacceptable, counter productive
[sic] to the resolution of grievance disputes and an abuse
of the grievance procedure. Additionally your requests
are either inappropriate, devoid of any apparent rele-
vance, and/or over-burdening on the Corporation, and
therefore the Corporation will not respond to any of your
previous requests.

Id. The memorandum concluded by advising Mr. Valentin
that "continuance of this type of inappropriate, harassing

activity may result in disciplinary action being taken up to
and including discharge." Id.

Following a two-day hearing, the ALJ found that DC had
violated NLRA s 8(a)(1) by threatening Mr. Valentin with
discharge for making further information requests. Order at
4. He also found that DC violated NLRA s 8(a)(5) by
refusing to provide the requested information. The ALJ
found, however, that DC had not violated the Act in refusing
to provide information about employees who had been disci-
plined pursuant to last chance agreements, because such
information was "irrelevant" to the Union's representational
duties. Id. at 6. A three-judge panel of the Board unani-
mously adopted all of the ALJ's findings, except with regard
to the last chance information. With one member dissenting,
the Board found that last chance information could, "at a
minimum, be useful to the Union in deciding whether" it was
worthwhile proceeding to arbitration on Mr. Sibert's griev-
ance. Id. at 2. In dissent, Member Brame contended that
the parties' agreement rendered last chance data irrelevant
because it had no precedential weight. Id. at 2-3.

DC argued to the Board that resolution of the s 8(a)(5)
allegations should be deferred to the parties' grievance and
arbitration procedure. The Board, however, held that allega-
tions involving an employer's refusal to furnish information
are not deferrable. Order at 1 n.3 (citing Clarkson Indus.,
312 N.L.R.B. 349, 353 n.21 (1993); United Technologies
Corp., 274 N.L.R.B. at 505).

II. Discussion

A. Challenges Regarding Employee Schkoor

Following the ALJ's decision, DC filed exceptions to most
of his findings. See Respondent's Exceptions to Administra-
tive Law Judge's Decision and Recommended Order (July 2,
1999), reprinted in J.A. 202-08. DC failed, however, to
except to five of the ALJ's findings regarding information
requested in connection with employee Schkoor. Specifically,
DC did not file exceptions to the ALJ's findings that DC

violated the Act with respect to the following Union informa-
tion requests: (1) a request in early March regarding the
factors used in deciding to promote other engineers to the
position that Schkoor had sought; (2) a March request for
Schkoor's performance evaluations; (3) an April request re-
garding one of the employees hired for the position Schkoor
had sought; (4) an April request regarding workplace diver-
sity policies; and (5) an April request regarding other em-
ployees who allegedly had not received their performance
evaluations on time. See Order at 1 n.2, 5; Respondent's Ex-
ceptions, reprinted in J.A. 202-08.

The NLRA provides that "[n]o objection that has not been
urged before the Board ... shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances." NLRA
s 10(e), 29 U.S.C. s 160(e). DC argues that it excepted
generally to the ALJ's alleged failure to consider whether DC
was excused from complying with all of Mr. Valentin's re-
quests on the grounds that he made the requests in bad faith.
DC also objected to the ALJ's alleged failure to consider
DC's assertion that all of the requests for information should
be deferred to the parties' grievance and arbitration proce-
dures. Reply Br. of Petitioner at 2-3. We need not decide
whether these two general exceptions gave the Board ade-
quate notice that DC intended to contest the violations sur-
rounding Mr. Schkoor's grievances. Assuming arguendo that
DC adequately challenged the findings before the Board, we
reject both of DC's general exceptions on the merits, as
explained infra.

B. The Unfair Labor Practices

This court's role in reviewing the Board's findings is limit-
ed. See Tasty Baking Co. v. NLRB, 254 F.3d 114, 123-24
(D.C. Cir. 2001). We must uphold the Board's findings of fact
as long as they are supported by substantial evidence in the
record, considered as a whole. Id.; NLRA s 10(e), 29 U.S.C.
s 160(e). The NLRA requires employers to bargain collec-
tively with the employees' lawfully designated bargaining
agent. NLRA s 8(a)(5), 29 U.S.C. s 158(a)(5). The duty to

bargain includes the obligation to provide information that a
union needs in order to perform its duties in grievance
processing and collective bargaining negotiations. See Acme,
385 U.S. at 435-37. This includes information relevant to the
processing of existing grievances and the investigation of
potential grievances. See id. at 437-38. While the informa-
tion must be relevant, "the threshold for relevance is low."
Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191
(D.C. Cir. 2000). The Supreme Court has described the
relevance standard as a liberal, "discovery-type" standard.
Acme, 385 U.S. at 437. Moreover, "[i]nformation related to
the wages, benefits, hours, [and] working conditions" of unit
employees is presumptively relevant. Country Ford Trucks,
229 F.3d at 1191. Other information must also be furnished
if the union can show that it is relevant to the performance of
its duties. See Local 13, Detroit Newspaper Printing &
Graphic Communications Union v. NLRB, 598 F.2d 267, 271
n.5 (D.C. Cir. 1979).

In this case, the requested information pertained to em-
ployee grievances and was limited by the Board to informa-
tion regarding bargaining unit employees. The requests
concerned disputes over the allocation of overtime, an em-
ployee who was discharged, an employee who was denied
promotion, and other appropriate subjects of representation.
DC did not provide any of the requested information, so it
clearly violated the Act.

DC now argues that many of the requests were overly
broad. DC did not raise this complaint with the Union at the
time when the requests were made, however. Nor did it
respond to the requests in part. Thus, as the Board found,
its belated objection rings false. See Country Ford Trucks,
229 F.3d at 1192 ("Even accepting, for the sake of argument,
that the Union's request was over-broad, this does not excuse
the Company from providing the requested information to
which the Union had an undisputed right.").

DC also argues that Mr. Valentin's requests were made in
bad faith, so it was under no obligation to respond to any of
them. This argument fails. First, nothing in the text or

context of his requests indicates bad faith. All of the re-
quests related to what appear to be legitimate grievances or
potential grievances. The Board presumes that requests for
presumptively relevant information are made in good faith,
until the company demonstrates otherwise. See id.; Colum-
bia Univ., 298 N.L.R.B. 941, 945 (1990). While Mr. Valen-
tin's memoranda contained unusual language (instructing re-
cipients not to "feign ... ignorance," for example), they were
not worded so offensively as to justify ignoring them entirely.

Moreover, DC's arguments that particular requests were
made in bad faith do not withstand scrutiny. For example,
DC argues that Mr. Valentin's request for FMLA information
regarding employee Sibert was made in bad faith, because
the only issue the Union was pursuing regarding Mr. Sibert's
termination was whether he had a legitimate justification for
failing to appear for work on the day in question. DC ignores
the fact that Mr. Valentin sought the information in connec-
tion with new grievances he had filed concerning Mr. Sibert's
initial 1996 termination. See Order at 6. The Board found
the FMLA information to be presumptively relevant to the
grievance Mr. Valentin had filed. Thus, the argument that
the request was made in bad faith fails.

Finally, DC argues that it was not required to provide the
last chance data, because of the Union's agreement that
resolution of last chance matters would not have precedential
value. As the majority of the Board panel noted, the infor-
mation could nonetheless prove useful to the Union "in decid-
ing whether even to proceed to arbitration on Sibert's griev-
ance." Order at 2 (citing, inter alia, United States Postal
Serv., 308 N.L.R.B. 547, 549 (1992)). In other words, the
Board found that the Union could use the information as a
non-binding indicator of the company's general practices re-
garding last chance agreements. While dissenting Member
Brame is correct that DC is not bound to treat the new
grievance in the same way it treated previous last chance
grievances, information about the past may nevertheless pro-
vide the Union with a helpful barometer as it decides whether
to pursue a grievance founded on a last chance agreement.
The information was therefore relevant under the liberal

standard of relevance that governs DC's obligation to provide
requested information.

DC also violated the act by threatening Mr. Valentin with
discipline and discharge if he continued to make information
requests. Section 8(a)(1) of the NLRA prohibits "coercive
statements that threaten retaliation against employees for the
exercise of their rights to organize and to participate in union
activities." Tasty Baking, 254 F.3d at 124 (characterizing 29
U.S.C. s 158(a)(1)). An employer's action violates the Act if,
"considering the totality of the circumstances, the statement
has a reasonable tendency to coerce or to interfere with those
rights." Id. While an employer may discipline employees to
maintain order, see J.P. Stevens & Co., 219 N.L.R.B. 850
(1975), enf'd, 547 F.2d 792 (4th Cir. 1976), it may not threaten
or discipline a union official when it dislikes the way he
carries out his union job, see NLRA s 8(a)(1), 29 U.S.C.
s 158(a)(1); ILGWU v. Quality Mfg. Co., 420 U.S. 276, 280-81
(1975).

The Board correctly found that the memorandum to Mr.
Valentin threatening discharge was overly broad, because it
could be read to threaten discipline for any future request for
information. This blanket threat was unwarranted and inter-
fered with Mr. Valentin's ability to perform his representa-
tional duties. As such, it violated the Act.

C. The Board's Collyer Doctrine

In the proceedings before the Board, DC maintained that
the allegations concerning its refusal to furnish information
should have been deferred under the Collyer doctrine to the
grievance and arbitration procedure set forth in the parties'
CBA. As noted above, however, the Board has long adhered
to a policy of refusing to defer disputes concerning informa-
tion requests. See, e.g., General Dynamics Corp., 270
N.L.R.B. 829 (1984). It is also clear that the Board is not
required by the NLRA or by "national labor policy" to defer
information request cases to arbitration. Acme, 385 U.S. at
438-39. Indeed, in Acme, the Supreme Court observed that
when the Board acts to ensure the flow of relevant informa-
tion, it does so "in aid of the arbitral process." Id. at 438.

The Court noted that "[a]rbitration can function properly only
if the grievance procedures leading to it can sift out unmerito-
rious claims," and that it would be inefficient to require "the
union to take a grievance all the way through to arbitration
without providing the opportunity to evaluate the merits of
the claim." Id.

This court is obliged to uphold the Board's policy on the
scope of Collyer so long as it is "rational and consistent with
the Act," and so long as the Board's reasoning is not "inade-
quate, irrational, or arbitrary." Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (internal
quotations omitted); accord NLRB v. Am. Nat'l Can Co., 924
F.2d 518, 522 (4th Cir. 1991) ("The Board's decision concern-
ing deferral to arbitration is to be affirmed unless found to be
an abuse of discretion."). The Board "acts unreasonably if it
departs from established policy without giving a reasoned
explanation for the change." Chelsea Indus., Inc. v. NLRB,
No. 00-1443, slip op. at 4 (D.C. Cir. Apr. 12, 2002) (citing
ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1443-44 (D.C. Cir.
1997)). As we have already indicated, the Board's decision in
this case is perfectly consistent with, not a change from, well
established precedent. Therefore, the Board had no obli-
gation to offer a reasoned explanation for any change. There
was no change of Board policy in this case and DC does not
suggest any.

DC's primary argument is that, in refusing to defer the
s 8(a)(5) allegations, the Board contravened its decision in
United Aircraft Corp., 204 N.L.R.B. 879 (1972), aff'd sub
nom. Int'l Ass'n of Machinists v. NLRB, 525 F.2d 237 (2d
Cir. 1975). In United Aircraft, the Board held that the
interpretation of the parties' CBA, particularly its provision
on the duty to furnish information at the second stage of the
grievance procedure, was best left to an arbitrator. Id. at
880. DC argues that United Aircraft governs, because the
parties' CBA states that, at Step Two of the grievance
procedure, each party will "endeavor in good faith" to furnish
all information available with respect to the grievance. See
Agreements Between Chrysler Corporation and the UAW
s 21(b) (Oct. 14, 1996), reprinted in J.A. 132-33.

DC's argument is unpersuasive. United Aircraft is an
almost 30-year-old case that does not reflect the Board's
current policy on the application of Collyer to information-
request cases. And United Aircraft is the only case cited by
DC in support of its position. At oral argument before this
court, DC's counsel acknowledged that the Board's policy
since United Aircraft has been entirely consistent in holding
that information cases will not be deferred under Collyer.
He also acknowledged that DC was seeking to overturn this
well-established policy and not that the Board's decision in
this case reflects a change in policy. Indeed, counsel ac-
knowledged that all of the Board's case law since United
Aircraft supports the Board's decision in this case.

At most, United Aircraft stands for the unsurprising prin-
ciple that "the union's right to disclosure of relevant and
necessary data can be waived by the union in a collective
bargaining agreement." 1 The Developing Labor Law, supra,
at 859. And after the Court's decision in Metropolitan
Edison, such a waiver must be "clear and unmistakable." 460
U.S. at 708. Otherwise

United Aircraft may have been overruled sub silentio.
In International Harvester Co., [241 N.L.R.B. 600
(1979)] without citing United Aircraft, the Board held
that a provision in a collective bargaining agreement that
vested the arbitrator of a grievance with authority to
order disclosure of information did not require deferral
of unfair labor practice charges alleging wrongful refusal
to turn over information that would assist the union in
determining whether to initiate the grievance process.
In later decisions, the Board has refused to defer to
arbitration in cases where the information sought relates
directly to the subject matter of other pending griev-
ances. Even where an employer claimed that the under-
lying subject matter was arbitrable, the Board refused to
defer to arbitration.

1 The Developing Labor Law, supra, at 888 (footnotes omit-
ted).

The Board's current practice appears to emanate from two
cases decided in the mid-1980's. In the first, General Dy-
namics Corp., the Board adopted the conclusions of the ALJ,
who had found that the union had a statutory right to receive
the requested information. 270 N.L.R.B. at 829-30. The
ALJ found that the union had not "clearly and unmistakably"
waived that right in the CBA, despite the presence of a clause
providing for factual investigation at Step Two of the CBA's
grievance procedure. Id. at 834-35 (citing Metropolitan Edi-
son, 460 U.S. at 708 & n.12). The Board held that it would
not defer the disputes over requests for information to arbi-
tration. The Board cited its earlier decision, also called
General Dynamics Corp., in explaining its Collyer policy of
refusing to defer information cases to the grievance and
arbitration process:

[T]he procedural issue of disclosure of the [information]
is merely preliminary to the resolution of the parties'
substantive dispute over the [issues raised by the griev-
ances]. In these circumstances, we find no merit in
encumbering the process of resolving the pending ...
grievances with the inevitable delays attendant to the
filing, processing, and submission to arbitration of a new
grievance regarding the information request. Such a
two-tiered arbitration process would not be consistent
with our national policy favoring the voluntary and expe-
ditious resolution of disputes through arbitration.

Id. at 829 (citing 268 N.L.R.B. at 1432 n.2) (brackets and
ellipses in original).

The Board reaffirmed the policy of General Dynamics in
United Technologies. In that case, the Board refused to defer
any of the unfair labor practices concerning requests for
information, notwithstanding the presence of an information
provision in "Step Two" of the parties' CBA. 274 N.L.R.B. at
505 (citing General Dynamics). The Board also found that
the union had clearly and unmistakably waived its statutory
right to receive certain information in connection with the
preparation of a future grievance. Id. at 507. However, the
"clear and unmistakable" waiver was not based on the "Step

Two" grievance provision alone. Instead, the Board's deci-
sion rested on the conjunction of the CBA's Step Two infor-
mation provision and a separate letter of understanding
between the union and the company in which the union
explicitly relinquished its right to certain requests for infor-
mation. Id. United Technologies thus demonstrates that a
Step Two information provision in the CBA, on its own, is not
enough to constitute a clear and unmistakable waiver of the
statutory right to receive information. The result in United
Technologies was not surprising, because the Board has long
held that "the mere existence of a grievance machinery does
not relieve a company of its obligation to furnish a union with
information needed to perform its statutory functions."
Timken Roller Bearing Co., 138 N.L.R.B. 15, 16 (1962), enf'd,
325 F.2d 746 (6th Cir. 1963).

The Board's policy of excluding information-request cases
from Collyer's reach has remained consistent since General
Dynamics and United Technologies. See Clarkson Indus.,
312 N.L.R.B. at 355 (holding that the Board "has not deferred
cases involving requests for information") (citing United
States Postal Serv., 276 N.L.R.B. 1282, 1285 (1985)); United
States Postal Serv., 307 N.L.R.B. 1105, 1108 (1992) (stating
that it is "the Board's general policy not to defer information
requests to the parties' arbitration process") (citing Clinch-
field Coal Co., 275 N.L.R.B. 1384 (1985)), enf'd, 17 F.3d 1434
(4th Cir. 1994). The crystal-clear nature of the Board's
Collyer doctrine was most recently highlighted by its opinion
in Ormet Aluminum Mills Products Corp., 335 N.L.R.B. No.
65 (Aug. 27, 2001), in which the Board adopted the ALJ's
finding that the company had violated NLRA s 8(a)(5) by
refusing to furnish certain requested information to the union.
Chairman Hurtgen dissented, arguing that it would be more
prudent to have an arbitrator decide both the contractual
question at issue in the underlying grievance and the "infor-
mational" issue. Id. at 4. Chairman Hurtgen argued that it
is "not sensible to have one forum (the Board) decide informa-
tion issues and another forum (the arbitrator) decide the
merits." Id. He "recognize[d] that the Board refuses to
'Collyerize' information cases," but he advocated abandoning

that policy and adopting his recommended approach, which,
he urged, would "prevent the waste of the Board's time and
resources." Id. (footnote omitted).

The majority rejected Chairman Hurtgen's approach, in
part because it found that his approach ignored "the benefit
to the grievance procedure derived from a party's prompt
fulfillment of its obligation to furnish requested information."
Id. at 3. The majority cited the Supreme Court's reasoning
in Acme, in which the Court disapproved of forcing a union to
"take a grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the claim."
Id. (citing Acme, 385 U.S. at 438). In short, the majority
found that the arbitration process could only function effec-
tively if the Board continued to enforce directly the duty to
furnish relevant information.

We do not purport to take sides in this colloquy between
Board members. The Board always will be free in the future
to consider expanding Collyer to include deferment of infor-
mation cases, either on a theory of "exhaustion," see Ham-
montree, 925 F.2d at 1496-99, or because the parties agreed
to arbitrate the claim, see id. at 1503 (Edwards, J., concur-
ring) (stating that even without a "clear and unmistakable"
waiver, the Board could still require deferment where parties
agree to arbitrate a statutory claim). Such a change, howev-
er, is squarely within the purview of the Board, not of this
court. That few cases challenging this aspect of the Board's
Collyer policy have been brought before the Courts of Ap-
peals in the past two decades suggests that the Board's
latitude in this regard is obvious. Cf. Am. Nat'l Can Co., 924
F.2d at 522 (upholding a refusal to defer requests for infor-
mation and recognizing that "the Board has traditionally
refused to defer in right-to-information cases"); NLRB v.
Safeway Stores, Inc., 622 F.2d 425, 428-29 (9th Cir. 1980)
(holding that the Board did not abuse its discretion by
refusing to defer an information dispute to arbitration).

One final word is in order. The Board's refusal to depart
from its Collyer policy simply because of the presence of a
Step Two information provision in the CBA grievance proce-

dure is perfectly consistent with established Board policy.
First, the mere reference to "information" in a single step of
a grievance procedure falls short of the Board's current
requirement of a "clear and unmistakable" waiver. Indeed,
DC did not mount a serious argument that the parties' CBA
in this case contained a clear and unmistakable waiver of the
Union's right to receive information at any stage of the
grievance procedure, or even outside the context of a formal
grievance. Nor could it have. The grievance procedure's
clause on information at Step Two is not, on its own, the kind
of express relinquishment of statutory rights that the Board
requires. See General Dynamics, 268 N.L.R.B. at 1432 n.2
(holding that the Step Two language "does not constitute a
'clear and unmistakable' waiver" and refusing to defer the
dispute over the union's request for information).

Second, when one considers that not all requests for infor-
mation arise in the context of a formal grievance, let alone at
"Step Two," it would make no sense to rely on such a
provision to overcome the Board's current policy under Col-
lyer. In this case, for example, the request for "last chance"
information was made after the employee's grievance had
already been denied at Step Two. Order at 1. As discussed
supra, the Union made the request in order to evaluate
whether it was worth proceeding to arbitration on the under-
lying grievance. In other cases, a union might make a stand-
alone request for information in order to determine whether
to initiate a grievance at all. It is therefore unsurprising
that, in United Technologies and in this case, the Board
refused to defer the issues notwithstanding the presence of a
Step Two information provision.

III. Conclusion

For the foregoing reasons, we deny the petition for review
and grant the Board's cross-application for enforcement.

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