General Motors Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Motors Corporation and International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC. Case 9-CA-9275 June 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANDI) MEMBI RS MURPIiY AND TRUESl)A.L- On November 3, 1976, Administrative Law Judge Bernard Ries issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein. 1. The Administrative Law Judge recommended that Respondent be ordered to furnish certain statisti- cal information regarding hiring, seniority, job classi- fications, and promotions of employees that the Union represents, arranged by sex and certain racial groupings.' For the reasons set forth in Westinghouse Electric Corporation, 239 NLRB 106 (1978), we con- clude that the Union is entitled to this information and find that Respondent's refusal to furnish same is violative of Section 8(a)(5) of the Act. We shall order Respondent to furnish the requested data for the most recent 12-month period. Respondent contends that compilation of the re- quested data would require 18,000 20,000 hours of work. In Food Employer Council, Inc., et al., 197 NLRB 651 (1972), the Board stated, "If there are sub- stantial costs involved in compiling the information in the precise form and at the intervals requested by the Union, the parties must bargain in good faith as to who shall bear such costs, and, if no agreement can be reached, the Union is entitled in any' event to ac- cess to records from which it can reasonably compile the information. If any dispute arises in applying these guidelines, it will be treated in the compliance stage of the proceeding." If the production of the in- formation ordered herein involves substantial costs, we expect the parties to bargain over the allocation of these costs. See also Westinghouse Electric (Corpora- tion, supra at 107. I This information is specified in subpars. 7(d) through (h) o the com- plaint. 2. The Administrative Law Judge also recom- mended that Respondent be ordered to furnish to the Union copies of all charges presently on file with any Federal, state, or local agency, alleging that Respon- dent has discriminated because of race, color, na- tional origin, religion, or sex together with copies of all administrative and court decisions relevant thereto and information as to the correct status of all such charges. For the reasons set forth below and in Wes- tinghouse, supra, we find that the Union is entitled to this information insofar as it relates to employees rep- resented by the Union, provided that Respondent may delete the names of the charging parties. Unlike the statistical information requested by the Union, as discussed above, the Union must demonstrate the rel- evance of the charges. We find that the Union has done so. Respondent has recognized the Union as the collective-bargaining representative for certain em- ployees at five of its plants. The collective-bargaining agreement executed by the parties on November 26, 1973, contains a clause prohibiting discrimination on the basis of race, religion, color, age, sex, or national origin. During the negotiations related to this con- tract, several proposals dealing with the subject of discrimination were presented and discussed. The Union's general counsel also testified that the parties discussed Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972), wherein Respondent had been found to have engaged in discriminatory promo- tional practices at its Atlanta plant, a facility not in- volved in this unfair labor practice proceeding. Dur- ing the contract negotiations the Union used Rowe as an indication of the fact that General Motors did have a discriminatory policy, asserting that similar em- ployment patterns existed at plants the Union repre- sented. Respondent stated that it did not discrimi- nate, and that the facts concerning the Atlanta plant were different from those at any plants the Union represented. The Union's representatives replied that the Union was looking for data that would pinpoint the problems that did exist. In addition, on Septem- ber 7, 1973, the chairman of the Equal Employment Opportunity Commission filed a commissioner's charge against Respondent alleging discrimination on the basis of race, sex, and national origin with regard to recruitment, hiring, selection, job assignment, pro- motion, transfer, training, layoffs and recall, compen- sation, discipline, benefits, and other terms and condi- tions of employment at eight of Respondent's divisions, none of which is involved herein. On Sep- tember 25. 1974, Respondent supplied the Union with a summary of discrimination charges which had been filed against Respondent but with insufficient detail to satisfy the Union. Thus, the Union has demon- strated a need for the charges in order to determine the areas of employee complaints. thereby providing 243 NLRB No. 19 186 GIENERAL MOTORS CORP. the basis for further remedial action during contract negotiations or through the greivance procedure. The Union has not, however, demonstrated the relevance of the charges relating to employees it does not repre- sent. Respondent need not produce charges which re- late only to nonunit employees. Furthermore, the Union has not demonstrated the need for the names of the persons filing the respective charges. Accord- ingly, we shall order Respondent to furnish copies of all charges against Respondent relating to employees represented by the Union along with any related documents and information regarding the status of these charges provided that Respondent may delete therefrom the names of the charging parties. 3. Finally, the Administrative Law Judge recom- mended that Respondent be ordered to furnish the Union with a copy of the most current affirmative action programs filed pursuant to Executive Order 11246 and Revised Order 4 of the Office of Federal Contract Compliance Programs. We find merit to Re- spondent's exceptions on this point. Respondent has refused to supply the Union with its affirmative ac- tion plans (AAPs) although it has furnished the Union with a copy of the work force analysis portion of the AAPs for 1974 and 1975 while contending that it is not obligated to do so. For reasons set forth in Westinghouse, supra, we will not require Respondent to furnish a copy of the AAPs' inasmuch as the Union has not affirmatively established a need for that information. The work force analysis includes a listing of all job titles in a plant with the corresponding wage rates shown in lines of progression and a listing of the num- ber of incumbents by sex and minority designation. It is evident that certain data contained therein is rel- evant and, indeed, has been requested specifically by the Union as is discussed in paragraph 1, above. wherein we find that Respondent must produce the information. Therefore, we shall order Respondent to furnish the Union with the current work force analy- ses provided that Respondent may delete therefrom any information not related to the data referred to in subparagraphs 7(d) through (h) of the complaint.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Gen- eral Motors Corporation, its officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively with Interna- 2 See Westinghouse, supra at 116 tional Union of Electrical, Radio and Machine Work- ers. AFI. CIO-CLC. as the exclusive collective-bar- gaining representative of the production and maintenance employees at its plants in New Bruns- wick, New Jersey: Dayton. Ohio: Kettering. Ohio: Warren, Ohio: and Rochester. New York, by refusing to furnish the Union with information relevant to possible race or sex discrimination or to the advance- ment of equal employment opportunity for female and minority group employees. (b) In any like or related manner interfering with. restraining, or coercing emploxees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Furnish to the Union. in accordance with the procedures set forth in the foregoing Decision, the following information pertaining to the employees represented by the Union: I ) A copy of Respondent's most current work force analyses contained in the affirmative action programs filed pursuant to Executive Order No. 11246 and Revised Order No. 4 of the Office of Federal Contract Compliance Prograins. (2) Copies of all charges presently on file with any Federal, state, or local agency. alleging that Respondent has discriminated because of race. color, national origin, religion, or sex, together with copies of all administrative and court deci- sions relevant thereto, and information as to the correct status of all such charges, provided that Respondent may delete therefrom the names of the charging parties. (3) The number of males and females, blacks. and Spanish-surnamed persons hired, together with their job titles and classifications into which they were hired, during each month of the most recent 12-month period. (4) The number of employees by race, sex, and Spanish surname who have less than -year seniority, 1-2 years' seniority. 3-4 years' senior- ity, 5-9 years' seniority. 10 19 years' seniority, and 20 or more years' seniority. (5) The number of black and Spanish-sur- named employees, together with their respective job titles and classifications and their respective years of service as of the end of the year, for the most recent 12 month period, with a designation of whether these employees are on incentive or day work jobs and of their base earnings. (6) The number of female employees, together with their job titles and classifications and years of service for the most recent 12-month period, with a designation of whether these employees 187 )ECISIONS OF NATIONAL LABOR RELATIONS BOARD are on incentive or day work jobs and of their base earnings. (7) The number of promotions or upgrades for the most recent 12-month period broken down by race, sex, and Spanish-surnamed persons, and the race, sex, and whether Spanish-surnamed for each of these upgraded employees, including a showing of the sex of all white, black, and Span- ish-surnamed employees, i.e., white male, white female, black male, black female, Spanish-sur- named male, Spanish-surnamed female. (b) Post at each of the plants where the Union is the collective-bargaining representative of Respon- dent's production and maintenance employees copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be. and it hereby is, dismissed insofar as it alleges violations not found herein. MEMBER MURPHY, dissenting: This is the eighth decision in 8 months which has issued in the EEOC information disclosure area.4 Each decision goes further than the last.5 Here the Board is ordering the Employer to com- pile literally thousands of statistics concerning em- ployees and former employees in five different plants. The Board is also ordering the Employer to prepare similar statistics concerning the seniority of its minor- ity, female, and Spanish-surnamed employees for up to 20 years. In so doing the Board is unconcerned 3 In the event that 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." 'Title VII of the Civil Rights Act of 1964. 42 U.S.C. §2000(e). Westinghouse Electric Corporation. 239 NLRB 106 (1978): The East Da;'- ton Tool and Die Co.. 239 NLRB 141 (1978): Safewav Stores. Incorporated. 240 NLRB 836 (1979); Automation Measurement Division, The Bendir Corporation. 242 NLRB No. 8 (1979): The Bendix Corporation, 242 NLRB No. 170(1979); Markle Manufacturing Compansv of San Antonio. 239 NLRB 1353 (1979); Kentile Floors, Inc., 242 NLRB No. 115 (1979) with the burden it is placing on the Employer here or with the cost involved. 6 Although there is a great deal of awareness in the United States these days as to the cost of regulation, evidently there is not enough.' Unlike the other decisions in this area, the Board in this case has additionally ordered the Employer to supply numerous combinations of statistics involving employees and former employees which are "con- tained somewhere in Respondent's records."8 This "Remedy" is outside the Board's power to effectuate, as indeed it should be. In order to put this case in its proper perspective, it is necessary to set forth the items (hereinafter referred to by item number), which the Board has ordered the Employer here to produce: (I) A copy of Respondent's most current work force analyses contained in the affirmative action programs filed pursuant to Executive Order No. 11246 and Revised Order No. 4 of the Office of Federal Contract Compliance Programs. 9 (2) Copies of all charges presently on file with any Federal, state, or local agency, alleging that Respondent has discriminated because of' race, color, national origin, religion, or sex, together with copies of all administrative and court deci- sions relevant thereto, and information as to the correct status of all such charges, provided that Respondent may delete therefrom the names of the charging parties. (3) The number of males and females, blacks, and Spanish-surnamed persons hired, together with their job titles and classifications into which they were hired, during each month of the most recent 12-month period. (4) The number of employees by race, sex, and Spanish surname who have less than -year seniority, 1-2 years' seniority, 3-4 years' senior- ity. 5-9 years' seniority. 10-19 years' seniority, and 20 or more years' seniority. (5) The number of blacks and Spanish-sur- named employees, together with their respective job titles and classifications and their respective years of service as of the end of the year, for the most recent 12-month period, with a designation of whether these employees are on incentive or day work jobs and list their base earnings. I The Employer points out that compiling this information requested by the Union - and ordered by the Board-would entail "18-20 thousand man hours" of work. The majority. although recognizing this tremendous cost factor, merely tells the parties to bargain about it. If that fails, the majority cavalierly leaves it to "the compliance stage of proceeding." The Commission on Federal Paperwork estimated recently that Federal regulation and recordkeeping currently cost private industry from $25 billion to $32 billion a year Murra5 1. Weidenbaum and Robert De Fina stated. "The cost of Federal regulation of economic actlsit.'" American Enterprise Institute, May 1978. p. 30. 'AIJD. sec III.D.3 par 17. 1 4. Hereinafter called OF((''P 188 GENERAl. MOT()RS CORP. (6) The number of female employees, together with their job titles and classifications and years of service for the most recent 12-month period, with a designation of whether these employees are on incentive or day work jobs and list their base earnings. (7) The number of promotions or upgrades for the most recent 12-month period broken down by race, sex, and Spanish-surnamed persons, and the race, sex, and whether Spanish-surnamed for each of these upgraded employees, including a showing of the sex of all white, black, and Span- ish-surnamed employees, i.e., white male, white female, black male, black female, Spanish-sur- named male, Spanish-surnamed female. Having shown neither relevancy nor the necessity of collective bargaining, it is obvious that the Union is not entitled to any of the above informationa I say this even though I do not doubt that this Union which has been a prime mover for equality in the workplace--seeks this information with the best of motives. The Union is dedicated to bettering the working conditions of its members and is equally dedicated to wiping out any vestige of employment discrimination based on artificial grounds. This Union and its general counsel have contributed im- mensely to achieving these goals. Although I do not fault them for bringing these actions to test the appli- cability of the statute, I do not agree that these docu- ments are properly obtainable under the National La- bor Relations Act, as amended, 29 U.S.C. §151, et seq. My reasons for dissenting are stated in Westing- house and East Dayton, supra. Suffice it to say here that I believe the Board's primary purpose is to bring the parties to the collective-bargaining table, not to require unions to file protective suits against employ- ers under Title VII and other fair employment prac- tice laws as the Board has unwisely decided to do in these decisions. This, I fear, will only lead to a great mischief. Work Force Analysis Although my colleagues of the majority have de- cided correctly not to order the Employer here to fur- nish the Union with its "most current affirmative ac- tion programs filed pursuant to Executive Order 11246 and Revised Order 4" of OFCCP, they have ordered the Employer to turn over to the Union its "most current work force analyses" (WFA). '°The Administrative Law Judge points out in his Decision that the Em- ployer advanced no IO(b) defense in its brief although it was raised in its answer to the complaint. However. Sec. 10(b) of the Act is inapplicable since the request and refusal occurred within 6 months prior to the filing of the charge. As I first stated in my dissent in Westinghouse, su- pra, the main purpose of AAPs and WFAs is to en- able employers to monitor their own fair employment practice programs and to provide equality of oppor- tunity to applicants and employees without regard to the artificial standards of race, creed, color. sex, or national origin. The goal of compliance with our Na- tion's primary equal employment opportunity policy is the reason why Executive Order 11246 and Title VII of the Civil Rights Act of 1964 require employers to report to the Office of Federal Contract Compli- ance Programs and to the Equal Employment Oppor- tunity Commission and why these Government agen- cies are statutorily mandated to keep these reports confidential. ' In this regard, section 706(b) of title VII states: If the Commission determines after ... investiga- tion that there is reasonable cause to believe that the charge is true, the Commission shall en- deavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. And section 706(b) of title VII makes it perfectly clear that: Nothing said or done during and as a part of... informal endeavors [as concilation] may be made public by the Commission, its officers or employ- ees, or used as evidence in a subsequent proceed- ing without the written consent of the persons concerned. Ignoring the provisions of title VII, the Board has directed that the work force analyses' be turned over 1 Sear, Roebuck and Company . E EOC., 581 F.2d 941, 947 (D.C Cir 1978). There the court held that the legislative history of title Vll demon- strates that the purpose of the prohbhition against disclosure contained in secs. 7 09(e) and 709(h) "was to forbid disclosure of sensitive data to an) persons outside the government." See also Burlington Northern, Inc., v. EEOC. 582 F.2d 1097 (7th Cir 19781. See Natural Resources Defense Council. Inc. v. Securiies & Exchange (Com- mission. 19 FEP Cases 724 (D.C.Cir. 19793, holding that the SEC acted reasonably in deciding not to require disclosure to stockholders by corpora- tions of data from the EEO- I reports. 41 CFR 60-2.1 I(a), sec. 60 2.1 I(a) of Revised Order 4 of OFC(CP states: Workforce analysis . . . is defined as a listing of each job title as appears in applicable collective-bargaining agreements or pa roll rec- ords (not job group) ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision. If there are separate work units or lines of progression within a department a separate list must be pro- vided for each such work unit. or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line. Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department. job families, or disciplines, in order of wage rates or salar) ranges. For each job title the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must he given: Blacks, Spanish-surnamed Americans. American Indians., and Orien- tals The wage rate or salary range for each job title must he glen All job titles. including all managerial job titles, must be listed IX9 DECISIONS OF NA'IONAL LABOR RELATIONS BOARI to the Union "provided that Respondent may delete therefrom any information not related to the data re- ferred to in subparagraphs 7(d) through (h) of the complaint." However, the majority neglects to specify what part of the information called for in section 60 (i.e., in the work force analysis), is in fact "unrelated" to the statistical data requested by the Union. As in Westinghouse, the majority's failure here to describe with any specificity what material in the work force analyses is "unrelated" makes it impossible for the Employer to ascertain exactly what it is being ordered to do. Thus, I am compelled to dissent from whatever it is the Board is attempting to do here. EEO Charges, Administrative and Court Decisions In paragraph two of the Order herein, the Board is requiring the Employer to supply the Union with copies of all charges on file with "any Federal, state, or local agency" together with copies of all adminis- trative and court decisions concerning these charges and information concerning the current status of each charge. The Board has provided that the Employer might delete the names of the charging parties from these documents. As I have stated in a number of decisions," the Board's attempt to protect the confi- dentiality of these employees by deleting their names is, although well intended, ineffective. Anyone who has ever seen such charges and administrative deci- sions would immediately inform my colleagues that it is very simple to deduce the names of the charging parties from the information supplied in the charge itself or in the administrative decision. I dissent from the Board's decision to violate the confidentiality of employees and employers for all of the reasons I stated in my dissents in Westinghouse and Bendix Corporation, supra. EEO Statistical Data The Board has ordered the Employer to prepare charts containing massive amounts of statistics as listed in items 3 through 7 above. General Motors has approximately 30,000 employees in the five cities cov- ered by the Board's Order. The record does not show what the amount or frequency of turnover has been at these various plants for the disclosure period or- dered by the Board, but in plants of this size there are numerous hirings and departures over any 12-month period. Therefore, in order to comply with items 3 through 7 directing the production of five sets of statistics and information of various types for each month of the most recent 12-month period, the Employer will have aJ See fn. 5, supra. to supply the Union with at least 60 charts for each plant or 300 charts for all five plants. Records will have to be culled to obtain the number of males, fe- males, blacks, and Spanish-surnamed persons hired together with their job titles (each month), and the classifications into which they were hired and now occupy. To say the least this is a time consuming and nonproductive undertaking. Item 4 above requires the Employer to compile sta- tistics concerning blacks and Spanish-surnamed em- ployees with job titles, classifications, seniority, work type, and amount of pay. Item 5 requires the same statistics concerning female employees. The Board has also ordered this Employer in item 6, above, to prepare charts for every month for the most recent 12 months showing the number of em- ployees by race, sex, and Spanish surname showing the job level of each upgraded employee prior to and subsequent to each such upgrade and the race, sex, and whether Spanish surnamed fior each of these up- graded employees. But this is not all. The Board has further directed the Employer to prepare documents showing the se- niority of employees by race, sex, and Spanish sur- name from I year to 20 years. The Employer might just as well stop producing automobile parts and accessories and put everyone to work compiling these statistics. And I must empha- size that all of this material is required to be supplied for the Employer's plants in five different cities- namely, New Brunswick, New Jersey; Dayton, Ohio; Kettering, Ohio; Warren, Ohio: and Rochester, New York. It cannot be disputed that forcing any employer to compile statistics of this magnitude is on its face bur- densome under Section 8(a)(5) of the National Labor Relations Act and borders on harassment, notwith- standing the Order to bargain about costs.'4 Further- 1 As noted in our decision in United Aircrali Corporation (Pratt and Whit- ney Division), 192 NLRB 382. 389 (1971): "An employer, ifit is to fulfill its bargaining obligation under Section 8(a)15), is required to furnish relevant information requested by the employee representative. But it does not follow that the Union is entitled to such information in the exact foirm or on the exact terms requested. 'I is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process of bar- gaining.' Good-faith bargaining requires only that such information be made available at a reasonable time and in a reasonable place and with an oppor- tunity for the Union to make a copy of such information if it so desires.' " (Emphasis supplied.) This case arose in the context of the administration of a collective-bargaining contract and a strike settlement agreement. Implicit in the quoted passage is the notion that a union's demands upon an em- ployer for information must not be burdensome or unreasonable. Upon application for enforcement in Lodges 743 and 1746, International Associatlion of Machinists and Aerospace Workers, A FL (-10 v. United Air- craft Corporation, 534 F.2d 422 (1975). cert. denied 429 U.S. 825 (1976), the Second Circuit agreed with the Board's finding that the employer had not violated Sec. 8(a)(5) of the Act by refusing to furnish certain personnel infor- mation to the union since the union did not accept the employer's terms that it pay for the preparation and reproduction of the records. The court agreed 190 GENERAL MOTORS CORP. more, I fail to see that the data to be compiled by this horrendous task are relevant to collective bargaining. In my earlier dissents in iUestinghouse and East Dayton, supra, I warned that the Board was getting into an area where it had no expertise and that it was dangerous for an agency dedicated to the principles of collective bargaining to do so. I sadly conclude that the Board's entry into this area can create only confusion leading to more charges, less settlements, more hearings, more decisions, more litigation in the courts, and-I emphasize-more confusion in the law of the workplace and more delay under the National Labor Relations Act. This decision is proof of that. and I dissent. with the Board's conclusion that the cost and burden of complying with the union's request for information should rest with the union. So too,. here. is this principle applicable. Why my colleagues feel constrained to impose on the Employer herein an obligation which they felt too burdensome to impose on another employer in a similar context escapes me. See also Globe-Union. Inc. 233 NLRB 1458 (1977). where the Board found the request not burden- some where a maximum time of 100 staff hours was necessars to comply with the union's request and the records were already available. APPENDIX Norcn(E To EMPI.OYEiES POSTED BY ORDER OF THE NATIONAL LABOR RlATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT refuse to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, as the exclusive representative for collective-bargaining purposes of our production and maintenance employees at our plants in New Brunswick. New Jersey; Dayton, Ohio; Kettering, Ohio; Warren, Ohio; and Rochester, New York, by refusing to furnish the Union information relevant to possi- ble race or sex discrimination or to the advance- ment of equal employment opportunity for fe- male and minority group employees. WE WILL NOT in any like or related manner interfere with, restrain. or coerce our employees in the exercise of their rights guaranteed in Sec- tion 7 of the National Labor Relations Act. WE Wnl.L furnish to the Union such informa- tion as was required by the National Labor Rela- tions Board in its Decision and Order. GENERAI. MO()ORS CORPORA ION DECISION SIAIIMENT ()I 11t: CASI BIRRNARI) Rl.s. Administrative Law Judge: Pursuant to a charge filed on April 9. 1975. and a complaint issued on June 26h. 1975, a hearing was held in this proceeding on June 14 and July 8. 1976. at Cincinnati, Ohio. At issue is whether Respondent has refused to furnish certain infirma- tion to the Charging Party in violation of Section 8(a)(5) of the Act. Briefs were received from all parties on or about September 20, 1976. Upon the entire record and after due consideration of the briefs filed by the parties, I make the following: FIN)IN(;S ()Of FA('I I. Jt;RISt)DI( tON Respondent. a Delaware corporation, is engaged in the manufacture and sale of' automobile parts and accessories at its plants in New Brunswick New Jersey: Dayton, Ohio: Kettering. Ohio; Warren. Ohio: and Rochester, New York. During the 12 months preceding the hearing, a representa- tive period, each of the foregoing plants had a direct out- flow of goods valued in excess of $50,000 which it sold and caused to be shipped from said plant directly to points lo- cated outside the State in which each plant is located. Re- spondent's answer to the complaint concedes, and I find. that Respondent is. and has been at all times material, an employer engaged in commerce within the meaning of Sec- tion 2(2) and 6) of the Act. II, ttlE SAIL S OF()I I1 I.ABR OR(ANIAIION() The answer admits, and I find, that International Union of Electrical. Radio and Machine Workers. AFI. CIO CLC. is a labor organization within the meaning of Section 2(5) of the Act. 11. t111 FIA(IUAI SIFI IN(i A. The Background For some years. Respondent has recognized the Union as the collective-bargaining representative of the production and maintenance employees at five of its plants in New Jersey, Ohio. and New York. Pursuant to resolutions passed at its 1972 convention aimed at eradicating racial and sex discrimination in all plants in which the Union is the collective-bargaining rep- resentative, in 1973 the Union began an internal nvestiga- tion in which local unions were required to reveiw "con- tracts and practices in their plants" to determine the existence of or the potential for such discrimination. Around the same time, the Union undertook to bargain a new agreement covering the five plants of Respondent at which the Union is the bargaining representative: in the course of these negotiations, the Union began requesting information relating to the subject of discrimination. 191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's general counsel, Winn Newman, testified that the Union was aware of the case of Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972), in which Respondent had been found to have engaged in discrimina- tory promotional policies at its Atlanta plant, largely on the basis of a statistical analysis, and the Union told Respon- dent it believed that "we had pretty much the same kind of segregated patterns in the plants we represented." The Union asked for "data to pinpoint the kind of changes needed." By letter of July 16, 1973, not in the record, the Union requested certain information not specified at the hearing. By letter dated July 27, written to Edward Hodge, Re- spondent's chief negotiator in dealing with the Union, Wil- liam Pierce, the Union's principal negotiator, requested in- formation relating, inter alia, to the monthly hiring pattern on the basis of sex at each plant from November 20, 1970, through the most current month in 1973; a year-end break- down as of 1970, 1971, and 1972 at each plant location of the employee complement on the basis of sex and minority, together with job titles, years of service, and a designation of whether the employees were on incentive or daywork jobs, as well as their base rates compared to their average piecework earnings; and copies of all discrimination charges filed and decisions and Orders issued involving Re- spondent under various state and Federal statutes and Ex- ecutive Orders. The letter noted that the Union would ac- cept the information in such form "as may be convenient to the Corporation." On August 7, 1973, Respondent gave the Union some detailed information showing employee classifications at each plant as of March 18, 1973, indicating male and fe- male incumbents and the applicable wage rate or range. By letter of August 29, 1973, Hodge stated that all the informa- tion requested was not available but supplied the Union with some detailed information, by job classification, about the sex and minority composition of the work force as of March 18, 1973.' On September 7, 1973, the Chairman of the Equal Em- ployment Opportunity Commission (EEOC) filed a com- missioner's charge against Respondent with respect to eight of its divisions, none which include the plants which con- cern us here, alleging that Respondent had violated title VII of the Civil Rights Act of 1964 "by discriminating on the basis of race, sex and national origin respectively, with regard to recruitment, hiring, selection, job assignment, pro- motion, transfer, training, layoffs and recalls, compensa- tion, discipline, benefits, and other terms and conditions of employment." The commissioner's charge further alleged that the instant Union and another union had acquiesced in many of these alleged discriminatory practices of Respon- dent and had "failed fairly and equally to represent blacks, females, Spanish-surnamed Americans, and other minori- ties." During the negotiations the Union continued to press for the requested information to no avail. On November 14, 1973, Newman, by letter, reiterated the Union's request for I The August 29 letter is in evidence both as G.C. Exh. 6 and Resp. Exh. 3. It seems obvious that the attachments appended to Resp. Exh. 3 are the ones which were sent to the Union with that letter, rather than the single page attached to G.C. Exh. 6. copies of "charges, complaints. settlements, and other mat- ters involving General Motors' civil rights problems." The Union had advanced certain contract proposals aimed at eliminating discrimination which were rejected by Respon- dent. On the day of contract execution. November 26. 1973, the Union handed Respondent a letter withdrawing its pro- posals relating to race and sex discrimination and "reserv- ing all rights to continue its pending suits and to take other appropriate action to eliminate all discriminatory prac- tices." In February 1974, at one of the quarterly meetings of the General Motors-IUE conference board, general counsel Newman asked Hodge for the information previ- ously requested. Hodge said "they would need more time on it."' On July 9, 1974, Pierce wrote to Hodge. summarizing the foregoing history and making "a renewal of our request, incorporating all earlier requests fr race and sex data not furnished." The letter listed five separate categories of re- quested information on a plant-by-plant basis (and brought the request up to date as of June 30, 1974): four of the categories dealt with statistical information on a sex and minority basis,3 and the fifth sought a list of and copies of complaints and charges filed against General Motors in ad- dition to copies of administrative decisions, court decisions. and conciliation or settlement agreements relevant to such charges. On September 25, 1974, Respondent furnished the Union with a summary of discrimination charges which had been filed against Respondent but without supporting detail. No copies of the charges were furnished. Newman told Respondent that the information supplied was "totally unresponsive." At the same time Respondent furnished some fairly detailed statistical information to the Union but which again did not satisfy the Union requests.4 According to Newman Respondent stated that it was not going to furnish any additional data, and Newman threat- ened to file a charge with the Board. I think Hodge's testi- mony-that he said he was willing to "explore" the requests further is probably more reliable; Newman's recollection of the sequence of events seemed somewhat hazy. At the end of October Hodge presented the Union with an analysis of racial and sex data at one plant for 2 or 3 years, includ- ing hiring information. The analysis, for various reasons, did not comply with the Union's requests. Either in October 1974 or January 1975 the Union asked Respondent to furnish a copy of the affirmative action pro- gram (AAP) which Respondent was required to furnish to the government pursuant to regulations issued by the Office of Federal Contract Compliance (OFCC) in accordance with Executive Order 11246. In March 1975 Newman again 2 Hodge's testimony, closely read, is not materially different from New- man's. i.e., that Respondent never definitely refused the requests. Although Hodge testified that on a number of occasions he gave reasons for not sup- plying information, he would later either give some information on the sub- ject or, as at an August 1974 meeting, say he "would take the request under advisement .. . [landj would get back" to the Union, as Hodge testified. As to the charges, howexer. Hodge seemed firm from the beginning against releas- ing them. Encompassing and enlarging upon some of the categories previously re- quested in July 1973. 'The only information supplied which pertained to each plant was evi- dently based on the forms filed by Respondent with EEOC. showing a break- down b minority and sex at the end of 1971. 1972. and 1973 in five broad groupings of employee functions. 192 GENERAL MOTORS CORP. asked Hodge for the earlier requested material. In April the Union filed the underlying charge here. Sometime subse- qent to September 1975 Respondent supplied to the Union a copy of the nationwide "affirmative action program for- mat" which it had negotiated in that month with appropri- ate government agencies and which was to be applied to all of its facilities uniformly. In November 1975 Respondent furnished the Union with a copy of the "workforce analy- sis" which is part of an AAP. The work force analysis. which is not in evidence, appears to he simply a listing of all job titles in a plant (with corresponding wage rates) shown in lines of progression, if any, listing the number of incum- bents by sex and minority designation. The work force analysis supplied in November 1975 pertained to 1974; in 1976 Respondent again furnished the Union with a copy of the most recent work force analysis. pertaining to the year 1975. B. The Issues Based on the previously described continuing and cumu- lative history of the Union's requests for information. the complaint as issued alleged the following: 7. Since on or about July 27, 1973, and continuing to date, the Union has requested, and continues to re- quest, that Respondent supply it with the following information and data: (a) A copy of all Affirmative Action Plans filed by Respondent with any federal. state, or local agency. (b) A copy of all conciliation and other settlement agreements relating to race, national origin or sex en- tered into by Respondent. (c) A copy of all charges filed with any federal. state, or local agency, alleging that Respondent has discriminated because of race, color, national origin, religion or sex, together with a copy of all administra- tive and court decisions and conciliation and settle- ment agreements relevant thereto, and information as to the correct status of all such charges. (d) The number of males and females, blacks and Spanish-surnamed persons hired, together with their job titles and classifications into which they were hired, during each month from November. 1970 to date. (e) The number of employees by race, sex and Span- ish-surnamed who have less than one year seniority, 1- 2 years seniority, 3-4 years seniority. 5-9 years senior- ity, 10- 19 years seniority, and 20 or more years senior- ity. (f) The number of blacks and Spanish-surnamed employees, together with their respective job titles and classifications and their respective years of service as of the end of each year, from 1970 through 1974, with a designation of whether these employees are on incen- tive or day work jobs and list their base earnings. (g) The number of female employees, together with their job titles and classifications and years of service for 1973 and 1974, with a designation of whether these employees are on incentive or day work jobs and list their base earnings. (h) The number of promotions or upgrades for the 12-month period ending December 31, 1974. broken down by race, sex and Spanish-surnamed persons showing the job level of each upgraded employee prior to and subsequent to each such upgrade and the race. sex and whether Spanish-surnamed for each of these upgraded employees, including a showing of the sex of all white, black and Spanish-surnamed employees, i.e.. white male, white female, black male, black female, Spanish-surnamed male. Spanish-surnamed female. It is obvious that the Union has not, in fact. requested all of the foregoing information since "on or about July 27. 1973." However. it is clear that beginning around that date and continuing to the time of the hearing the Union has asked Respondent. at one time or another, to furnish the described information.' There can be no doubt that from the time of its original request in July 1973 until the date of the hearing the Union continued to seek the information originally requested and that which it subsequently re- quested, intended that the requests be kept current? and never abandoned, any of its requests. While Respondent's answer to the complaint asserted that the complaint was time barred by Section 10(b) of the Act, it did not repeat that assertion at the hearing, and it advances no Section 10(b) defense in its brief. C. General Principles Subsumed in an employer's duty to bargain with the cho- sen representative of its employees is the requirement that the employer furnish "such information as is necessary to the proper discharge of the duties of the bargaining agent." N. L.R.B. v. 1Whitin Malchine WIorks. 217 F.2d 593. 594 (4th Cir. 1954). In N.L.R.B. v. Acmne Industrial Co.. 385 U.S. 432. 437 (1967), the Supreme Court stated the standard broadly: "[The Board] was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities."' Insofar as the Union here sought in- formation relating to possible race and sex discrimination for use in the 1973 negotiations and continued to seek such information thereafter for use in future bargaining, it was plainly seeking information which could be deemed rel- evant to its authority. In Eriporium Capwell Co. v. 4'estern Addition Community Organi:ation. 420 US. 50, 66, 69 (1975), the Supreme Court gave voice to an unassailable truth: "Plainly, national labor policy embodies the princi- ples of nondiscrimination as a matter of highest priority." It follows, as the Court went on to say, that "Itihe elimination of discrimination and its vestiges is an appropriate subject of bargaining." Since a union may properly insist upon bar- At the hearing General Counsel moved to amend the complaint so as to substitute, in item (f) above. the words "1970 to date" for the words 1970 through 1974"; in item (g) to substitute the word "1973 and in successive years" for the words "1973 and 1974": and in item (h) to add after the words "December 31. 1974." the words "and for each successive calendar year." The purpose of the amendments was to indicate that the requests have been continuing ones. their scope expanding with the passage of time. I granted the motion to amend. 6 See the Union's July 9, 1974. letter updating its Jul) 1973 request to include 1974 information. ' Followed in L. RB. v Rockwell-Standard Corporation, Transmission and Arel Division. Forge Divrsion. 410 F.2d 953. 957 (6th Cir 1969), and General Electric Co. v. N L.R.B. 466 F 2d 1177, 1182 (6th Cir. 1972). 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining about invidious discrimination, it may also demand from an employer information which would be relevant to the existence of discrimination. In the contract executed by the parties on November 26, 1973, the special emphasis given to the subject of equal employment opportunity is highlighted in a preface to the agreement which states, "General Motors Corporation and the IUE-AFL CIO-CLC recognize their respective respon- sibilities under federal, state, and local laws relating to fair employment practices. The Company and the Union recog- nize the moral principles involved in the area of civil rights and have reaffirmed in their collective-bargaining agree- ment their commitment not to discriminate because of race, religion, color. age, sex or national origin." A section of the agreement entitled "Recognition of Rights" provides, "It is the policy of General Motors and IJE AFL CIO CLC that the provisions of this agreement be applied to all em- ployees covered by this agreement without regard to race, color, sex, religion, age or national origin. Any claims of violation of this policy may be taken up as a grievance, provided that any such claim must be supported by written evidence by the time it is presented by the Shop Committee at a meeting with Management." Thus, by their contract, the parties committed themselves to a grievable "policy" of nondiscrimination. Insofar as the Union's continuing pur- suit of pertinent information constituted an effort to deter- mine whether that contractual policy was being imple- mented, it may be considered a legitimate effort by the Union to monitor and police the terms of the bargaining agreement. Finally, to the extent that the Union's informa- tion demands encompassed employer commitments to Fed- eral agencies which might have the effect of creating con- flicts with the provisions of the bargaining agreement between the Union and Respondent. the requisite relevance would clearly be established.8 D. The Specific Requests lor InJortmtlion I. Item 7(a) Item 7 (a) of the complaint alleges that Respondent should have furnished to the Union "a copy of all Affirma- tive Action Plans filed by Respondent with any Federal. state, or local agency." Government contractors such as Respondent are re- quired by Executive Order 11246 to take affirmative action to eradicate race and sex discrimination in their employ- ment practices. Order 4, issued by the OFCC, requires gov- ernment contractors to develop written "affirmative action I see no need here to explore the question of the extent to which. as contended by the Charging Party and the General Counsel. "the Union's duty of fair representation includes an obligation to fulfill its duty by work- ing to prohibit sex and racial discrimination" (G.( brief). In Local Union No. 12, United Rubber Workers of America v. N.L.R.B.. 368 F.2d 12, 18 (1966). the Court of Appeals lor the Fifth Circuit stated. "Undoubtedly, the duty of fair representation can be breached by discriminatory inaction in refusing to process a grievance as well as by active conduct on the part of the Union." Whether a union may be held to have violated its duty of flair representation by merely failing to seek out information relevant to the issue of the existence of invidious discrimination in the workplace, or whether the breach only occurs when a union may be said to have acquired sufficient knowledge of discrimination reasonably to cause it to examine into the mat- ter, raises complicated questions which need not be faced here. programs" for each of their facilities. Those programs con- tain procedures for the achievement of equal employment opportunity. Section 60 2.10 of Revised Order 4 presently describes an AAP as follows: An affirmative action program is a set of specific and result-oriented procedures to which a contractor com- mits himself to apply every good faith effort . . . an acceptable affirmative action program must include an analysis of areas within which the contractor is defi- cient in the utilization of minority groups and women, and further, goals and timetables to which the contrac- tor's good faith efforts must be directed to correct the deficiencies and, thus, to achieve prompt and full utili- zation of minorities and women, at all levels and in all segments of his work force where deficiencies exist. While AAPs must, inter all/i contain sections called a "workforce analysis" and an "underutilization analysis." it would appear that such requirements swere not included, at least in their present form, until the amendment of Order 4, efifective Juls 12, 1974. As indicated above. Respondent has supplied to the Union the "workforce analysis" portion of its AAPs for the years 1974 and 1975, although it apparently contends that it is under no legal obligation to do so. It does not appear that Respondent has also furnished the "underutilization analysis." The Union requests that Respondent furnish the entire AAP, noting, however, in its brief, that "we do not expect to receive proprietary information that is not rel- evant to the scope of our representation and our need to fulfill our obligations under Title VII." As the bargaining representative of the employees, the Uinion has a vital interest in commitments made by Re- spondent to a government agency which affect Respon- dent's personnel policies. It seems clear from the record that the AAP spells out detailed projections and procedures for reaching specific goals related to such matters as assign- ments, hires, transfers, and promotions. The Union clearly is entitled to be made aware of the extent and nature of those commitments in order to test whether they contra- vene the provisions of the collective-bargaining agreement or if they' do not, whether the desired objectives may he realized by other, perhaps more satisfactory, courses of ac- tion. As the Union's general counsel Newman testified at the hearing. "There ma be, and is, more than one was frequently to correct discrimination, and where there is more than one way we think it is a bargainable issue." Respondent argues, inter alia, that disclosure of the AAP would be contrary to the public policy of Executive Order 11246, in that the Order and the regulations promulgated thereunder "call for a searching and frank self-analysis by the contractor" which could not be accomplished "in the context of the adversarial relationship fostered by the Union." The OFCC, presumably more expert in assessing the impact of union involvement in the AAP than 1, has taken quite the contrary position. In its compliance manual specific provision has been made that "union officials should be involved in developing and implementing the AAP from the start." Why Respondent has failed to abide by this requirement is not disclosed by the record. What is plainly called for here is mature acceptance of the implications of this particular controversy. Redress for 194 GE NERAL MOFORS CO)RP. past discriminatory practices and prevention ol future ones are as fundamental to the preservation of this society as any' project upon which the Nation is now embarked. This is not or ought not be still another traditional battle- ground on which the perceived opposing interests of labor and management clash. It is, rather, a struggle in which the interests of capital and labor must be seen as common, re- quiring a pooling of strength, knowledge, and will, in order to destroy a virulent enemy which may well otherwise de- stroy both of them. To the extent that union awareness of existing corporate data relating to the possible presence of discrimination and union access to corporate plans and methods for its elimination can be helpful in that effort, it seems obvious that such information should be made avail- able to the Union. Hodge testified that he initially rebuffed the Union's re- quest for the AAP because it contained information about nonunit employees and was "confidential" in nature. The "confidentiality" claim appears to be based only on the nonunit aspect of the information. Respondent makes no specific claim on brief that disclosure of the plans and pro- jections contained in the AAP might be damaging to its business. Such cases as Boston Herald-Traveler Corporation v. N. L. R. B., 223 F.2d 58, 60 ( Ist Cir. 1955), and N. I. R. B. v. Frontier Homes Corporation. 371 F.2d 974, 979 (8th Cir. 1967), make it clear that such an assertion would not stand on sound footing. However, the Union indicates that it has no need for proprietary information contained in the affir- mative action program, and I shall accordingly recommend that any such data and data relating to nonunit employees which are not relevant for the Unionl's purposes ma be deleted from the AAP which, I shall recommend, should be furnished to the Charging Party.? 2. Items 7(b) and (c) Paragraph 7(b) of the complaint asserts that Respondent should furnish to the Union "a copy of all conciliation and other settlement agreements relating to race, national origin or sex entered into by Respondent." Paragraph 7(c) alleges that the Union is entitled to "a copy of all charges filed with any federal, state, or local agency, alleging that Respondent has discriminated because of race, color. national origin, religion or sex, together with a copy of all administrative and court decisions and conciliation and settlement agree- ments relevant thereto. and information as to the correct status of all such charges." At the hearing Respondent stated that it has entered into no "consent agreements" which relate to the employees rep- resented by the Union at the five plants. and that if it were to do so it would supply the Union with a copy of any such agreement. I shall accordingly find that Respondent has not violated Section 8(a)(5) by failing to furnish the Union cop- ies of any' "conciliation and other settlement agreements." With regard to item (c). as discussed above. Respondent went to considerable effort to compile summary of discrimi- 9 Respondent has, as noted, given the nion copies of the work force analysis portion of the AAP for the years 1974 and 1975. As Respondent's representative Hodge testified. Respondent did so as a matter of grace and without conceding that it Aas required to d so I find here that the tnmon was entitled to the entire program, except as qualified above. nation charges filed against Respondent. without disclosing any of the details of the charges or the names of the com- plainants.' Respondent contends on brief that "the federal and state statutes and decisions have established the right of com- plainants and respondents to avoid publication of such charges." citing section 709(e) of the Civil Rights Act of 1964 (42 U.S.C. §2000e 8(e) ). That section, however. only imposes an obligation of confidentiality upon the Equal Employment Opportunity Commission. The statutory pro- hibition is, as the court pointed out in H. Kessler dc (om- patn) v. Equal Enmplosment Opportlitv (Comnmissionl, et l.., 472 .2d 1147, 1150 (5th Cir. 1973), " 'aimed at the making available to the general public of unproven charges.' " But in this context, the Union occupies a more critical status than "the general public." Nothing in the statute torbids revelation of such charges by the employer itself, and it the National Labor Relations Act requires such disclosure. I see nothing in title VII which forbids it. The Board and the courts have often rejected the claim of confidentialit in the fatce of a union need tfor the information. See 7/'e( Dclrol Edison (ompaure. 218 NLRB 1024 (1975). and cases cited in ALJD at 1035. Respondent further cites, as "an even more basic reason for denying the Union the documents which it sought." the fact that the charges are merely allegations of discrimina- tcr action. But claims of discrimination, whether ulti- mately proven to be founded or not, may well be useful to the Union in detecting pockets and patterns of discrimina- tion within the plants covered b the bargaining agreemlent: in leading the Union into areas in which it ma unearth additional victims of discrimination who have theretofore been silent: and in generallx apprising the Union of viola- tions of the bargaining agreement which may lead to appro- priate grievances or contract proposals. As noted above. in N. L. R.B. v. .4 cn Indlu.lrizl ('o., strr. the Court held that it was enough that there existed a "probability that the de- sired information was relevant. and that it would be of use to the union in carrying out its statutory duties and respon- sihilities." In the nationally significant arena in which we deal here, that test should be liberally applied. Accordingly. I find that Respondent was obliged to fur- nish the Union with copies of charges filed against it alleg- ing discrimination for irrelevant and invidious reasons. with any related documents and information pertaining to the status of such charges. 3. The statistical information Items (d) (h) of complaint paragraph 7 were requested in the Union's letter of July 9, 1974. Each of the items pertains to a statistical breakdown by minority designation and sex of various aspects of the employment picture at the perti- nent plants. Item (d) asks for a numerical picture of the hiring pattern on a monthly basis from November 1970 to date. Item (e) seeks a complete picture of the seniority. at given levels. of employees in each plant b "race. sex and Spanish-surnamed." Items (f) and (g) ask for a surve of 10 Hodge also credibly testified that he offered ito supply the nilon ilth "the acts of the individual charges" but without providing the specifics 195 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD the number of blacks, Spanish-surnamed employees, and female employees, with job classifications and seniority, as of the end of the years 1970 74, with a designation of the base earnings of the employees and whether they were on incentive or daywork jobs." The final request by the Union in its July 9, 1974, letter was a statistical breakdown of promotions or upgrades for the 12-month period ending June 30, 1974, showing information relevant to each pro- motion or upgrade." Respondent employs more than 30,000 employees in the relevant plants. When the Union first began requesting the statistical analyses in July 1973, Respondent's position was that the data was "not available or it would be burdensome to develop." according to Hodge. As discussed above, Re- spondent occasionally furnished information, some of which came from reports it yearly flied with the EEOC. However, none of the material furnished went into the de- tail asked for by the Union or even touched upon certain of the subject areas in the Union's request. Hodge estimated that the information requested in the July 9, 1974, letter would have taken 18,000-20.000 man hours to compile. He said that the work would have had to be accomplished by a manual examination of each employ- ee's personnel file (plus those of other employees who had changed employment). It is difficult to state with any preci- sion exactly what information was available to Respondent in and after July 1973. Hodge testified that the Union had been given the information which the Company had com- plied for EEOC for year end 1971. 1972, and 1973, and that the work force analysis given to Respondent in 1975, cover- ing year end 1974, was the first such analysis worked up by Respondent under the requirements of the OFCC ("the year end of 1974 was the first time we had put together that information on a classification by classification, male-fe- male breakdown.").' 3 The General Counsel and the Charging Party rely upon relevant Federal regulations in arguing that the data re- quested should have been supplied to the Union in July 1973 and thereafter. I am persuaded that the contention is, at least in part, valid, as explained below. The primary regulation is Revised Order 4, "Affirmative Action Guidelines," which sets out the purpose and scope of AAPs, their required contents, and the methods of imple- menting them. Order 4 was issued by OFCC on September 30, 1972, and was substantially amended effective July 12, 1974. The record suggests that Respondent was filing AAPs prior to 1973, but Hodge, Respondent's only witness, had only scant knowledge of this area of Respondent's busi- ness, except for his understanding that until a nationwide " While, prior to amendment. the complaint in item (g) asked for the foregoing information as to female employees only for the years 1973 and 1974. this is explained by the fact that during the 1973 negotiations Respon- dent had given the Union a breakdown of the employee complement by sex and job classification, as previously discussed. By the amendment made at heanng, the request was brought up-to-date to include "successive years." 12 As amended, the complaint seeks similar information for "each succes- sive calendar year." 'J Although an honest witness, Hodge's other testimony that he knew little about the preparation of AAP's leaves me in some doubt about he definitive character of this testimony. "It should be noted that G.C. Exh. 13, which purports to be a complete copy of Revised Order 4, does not contain the last few pages of the Order. AAP format agreement between Respondent and the De- partment of Defense was reached in September 1975, there was no uniform pattern to the AAPs formulated by Re- spondent's various plants. A review of Order 4. as revised effective July 12. 1974, suggests that Respondent's plants were probably required to maintain detailed equal opportu- nity statistics.'5 Revised Order 14. which was originally effective on July 1. 1972, and revised effective April 15. 1974. sets out the evaluation procedures which should be followed by govern- ment compliance officers in conducting compliance reviews. It is a more specific regulation that Revised Order 4. It provides, iner alia, that for the "desk audit," which is the first step in a compliance review and which is performed before the compliance officer goes to the plant for an "on- site review," the officer must "[prepare, as a part of this report. your analysis of the contractor's data on recruit- ment, hiring, selection and placement." A similar instruc- tion is given with respect to "the contractor's analysis of promotions and transfers in his affirmative action program .... If the number of promotions in the last year was less than 100. your analysis should include all such promotions. If the number of promotions in the last year was more than 100. your analysis should include an appropriate sample of 10 percent of such promotions or 100. whichever is greater .... The review should relate name or other identification to minority/majority group status, sex. previous job. de- partment and pay, and new job and department and pay." The foregoing and the remainder of the Orders indicate that Respondent. as a government contractor, must have been supplying the government with considerable data prior to 1973 and thereafter. I cannot say, however, that it had been doing so for a sufficient period of time or in a format which would easily have met all of the Union's re- quirements. There is nothing in the record to indicate, for example. that Respondent was in position to readily supply the Union with a month-by-month listing of males and fe- males hired and their job classifications between November 1970 and July 1973. and latter date being when this request was first made. However, once this and other requests were made, it seems likely to me that Respondent, in keeping current the data required by both EEOC and OFCC. could have begun to do so with an eye to the sort of information being sought by the Union. With the adoption of the agreed-upon nationwide AAP format for General Motors plants in September 1975. it became apparent that Respondent was building the capa- bility to provide much of the kind of data the Union was E' E.g. Support data for the required analysis and program shall be compiled and maintained as part of the contractor's affirmative action program. This data will include but not be limited to progression line charts. seniority rosters, applicant flow data. and applicant rejection ratios indi- cating minority and sex status. (§60-2.12(1 ) An in-depth analysis of the ollowing should be made. . (1) Composition of the work force by minority group status and sex. (2) Composition of applicant flow by minority group status and sex. (4) Transfer and promotion practices. 196 GENERAL MOTORS CORP. requesting. That format requires, inter alia, that Respon- dent, at each of its facilities, establish an "internal audit and reporting system" with respect to the following "personnel transactions": applicant flow, job offers, hires, transfer, pro- motion, training, and terminations. The format includes the following requirements: Each facility will hereafter undertake to collect data by total, total male, total female, total minority, and where more than one minority group constitutes 2 or more of the labor area population, for each such group, total Black male, total Oriental male, total American Indian male, total Spanish surnamed male, total Black female, total Oriental female, total Ameri- can Indian female, and total Spanish surnamed Ameri- can [sic] female, for each of the above personnel trans- actions. Once gathered, this data will be reviewed monthly by the EEO Coordinator. On a quarterly basis, the data will be analyzed, and the results of that analysis will be reviewed .... That review will include a report of progress toward goal accomplishments during the prior quarter. Copies of such reports will be provided to General Motors Central Office .... The contractor will prepare and submit as requested for desk audit a year-end summary of results which consolidates all data previously prepared .... It is obvious that in the process of complying with the foregoing requirements a great deal of data has been and will be collated regarding the seven "personnel transac- tions" at each facility which will he useful to the Union in meeting its informational needs. I cannot say, however, that Respondent will be collecting all of the type of data origi- nally requested by the Union or in the basic format desired by the Union. I think that the data requested is relevant and should be supplied to the Union.'6 As the foregoing discussion indi- cates, however. I am somewhat in the dark here as to the precise nature and form of the information available to Re- spondent in July 1973 and thereafter. General Counsel and the Union urge me to conclude from the governing Federal regulations that the requested information was either read- ily available to Respondent or relatively easy to compile. The breadth of the language in the regulations, however, and the scope of the information requested by the Union leave me in some doubt as to my ability confidently to draw such a conclusion." Two cases point the way to a resolution of the issue. The first, discussed below, indicates that Respondent violated Section 8(a)(5) by its conduct from July 1973 on. While I cannot say with certainty whether Respondent had avail- able all of the information requested in the form desired or l6 Respondent's argument that hiring information is not relevant to the Union's statutory responsibilities has been rejected by the Board in Tanner Motor Livery, Ld., 148 NLRB 1402, 1404 (1964) ("an employer's hiring policies and practices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and conditions of employ- ment."). [ The General Counsel seems to share my uncertainty. In his brief he states. "the information requested by the Union could be compiled, no douut at some effort and expense, dunng the course of compliance with the OFCC regulations." could easily have adapted the information available to it to conform to the Union requests, it is evident that in coniply- ing with EEOC and OFCC requirements Respondent must have had considerable data which was relevant to the Union's requests. The supporting data necessary to satisfy the compilations required by the government was never supplied to the Union. although it was obviously relevant to the requests. In such circumstances, an employer may not tall back on common law pleading but must offer the union any' relevant information in its possession. As the C'ourt said in N,. . R. B. v. General Electric Conan.v, 418 F.2d 736. 753 (2d ('ir. 1969). enfg. 150 NLRB 192: "[The employerl had most of the information in some form that would have been useful to the Union. and easily could have either pre- sented it in that form. or at least advised the Union that it had other relevant information." See also N./I.R. v. es. t- ern Wirebhound Bo Co., 356 F.2d 88. 92 (9th Cir. 1966). enfg. 145 NLRB 1539. By failing to furnish the Union with what pertinent data it surely had available regarding the matters inquired into, both as of Jui, 1973 and thereafter. Respondent breached its obligation to supply in good faith relevant information sought bh the Union.' As stated, I do not know the extent to which the re- quested statistical information has been or is being com- piled by Respondent in order to meet its Federal regulatory requirements, but I do know that the information is con- tained somewhere in Respondent's records. The Board faced the same problem in Food EmploVer Council, Inc.. et al., 197 NLRB 651 (1972) (cited by both the General Coun- sel and the Union), and resolved it as follows: While we shall order the Respondent to furnish the substance of all the information requested, therefore, it shall be the responsibility of the parties themselves, in the first instance, to apply the knowledge that they have, and we do not, about what might be involved in presenting this information on a timely basis and in a clear and understandable form. Guided by their good faith and commonsence. we have no doubt that they can arrive at a means of supplying the information which will meet the Union's needs and keep the costs of compilation within reason. They shall also be guided by what we have said here, including the fol- lowing: The Respondents are not obliged to supply again any information they have been furnishing the Union in clear and understandable form on a reasonably cur- rent periodic basis. If there are substantial costs in- volved in compiling the information in the precise form and at the intervals requested by the Union. the parties must bargain in good faith as to who shall bear such costs, and, if no agreement can be reached, the Union is entitled in any event to access to records from which it can reasonably compile the intformation. [i Respondent's contention on brief that the Union's general counsel New- man "remained firm, rejecting any compromise" misses the mark. Respon- dent's "compromise" information fell far short of meeting the Union's re- quest, and a more promising "compromise" offer--to supply data which Respondent must have had was never made. 197 I)8l('ISIONS ()1 NATIONAIL LABOR REILATIONS BOARI) I understand the Board to be saying that if Respondent has the information, the Union is entitled to access to it in some manner." Respondent must make a cooperative effort to inform the Union of the nature of the information col- lected by it so that the Union may. if it deems appropriate, modify its requests to conform them to the available infior- mation. If the Union insists upon the information in the form demanded and Respondent must incur "substantial" costs in order to meet that demand, the parties must bar- gain as to the allocation of those costs. If agreement cannot be reached, Respondent must afford the Union access to the underlying records. The problems may be simplified by the Union's conces- sion on brief that, "iln effect, the Workforce Analysis will substantially satisfy Items (e), (f) and (g) of Allegation Seven of the Complaint except that the Analysis fails to disclose the relative seniority (years of service) of the em- ployees listed in each of the job titles." Since it is apparent that the work force analyses for the years 1974 and 1975 which were given to the Union only conveyed a picture of the composition of the complements at the end of those years,20 it seems unlikely that the analyses "will substan- tially satisfy" that aspect of' items (f) and (g) relating to years prior to 1974. 1 think that the Union is intimating that its prior requests, insofar as they relate to specific years, are now thought to be stale, and that the work force analyses already supplied and those expected in the future "will . . . satisfy" the essence of the ongoing requests for statistics. In determining whether the compilation of a particular item involves "substantial costs" which, according to Food Employer Council, Inic. supra. the Union must bargain about with Respondent, the following considerations apply. As I construe them and as Respondent assuredly must have construed them, the Union's continuing requests were for current information. e.g.. the most recent seniority brack- eting by race and sex or the most recent 3 year monthly hiring data. After the Union began making its requests in July 1973 it became incumbent upon Respondent, in gath- ering its information in compliance with OF('C and EEOC requirements. to compile that information with a view also to satisfying the Union's demands. To the extent that Re- spondent failed to take any relatively simple steps to sup- plement or adjust the information being collected for the government to the format sought by the Union, Respon- dent may be said to have violated its obligation to be coop- eratively attuned to the Union's requests, and it should now be required to bear any burden of"substantial costs" which could otherwise have been avoided. The September 1975 nationwide AAP format agreement certainly suggests that much useful information would have been gathered in accordance therewith which would rather easily be adaptable to satisfaction of the Union's requests. "Compare Westinghouse Electric (orporalion. 129 NLRB 850. 866 (1960). where the inquiry ended with the conclusion that it would have been "ex- tremely burdensome, time-consuming, and expensive" for the employer to have complied the requested information, and, consequently. the failure to comply did not violate the Act 201 so conclude from the definition ofa "workforce analysis" contained in revised Order 4. §60-2.11 (a). The actual analyses given to the Union are not in evidence, presumably pursuant to a commitment made by the Union in a letter of November 19. 1975. "not to utilize the Work Force Analysis . in any judicial proceeding." Similarly, with respect to items (f) and (g). given the fact that during this time Respondent was furnishing F EO('C with year end calculations of' the number of males, females. and minorities in five broad "job categories." it must have had to start that process with a review of the raw files, noting the race and job classification or title of each em- ployee in order to arrive at the cumulative figures. In doing so Respondent could have, it would seem, relatively easily accumulated additional information in the process as to se- niority and a designation of' rate and method 2' of pay. It could have at least formalized and given the Union the underlying calculations as to job classifications which were necessary to the formulation of the EEOC yearly reports once Respondent was put on notice of the kind of informa- tion desired by the Union. In any event, such consider- ations must be deferred to the compliance stage. With respect to item 7(h), Respondent has never fur- nished to the Union any substantial information about pro- motions (except for a summary of promotions, by "male." "female." and "minority." at one plant in 1973), although it is patent that compliance with OFCC' regulations, at least since July 1974, must have required it to assemble data on that subject. The Union's letter of July 9, 1974. asked only for "The number of' promotions or upgrades for the twelve month period ending June 30. 1974. broken down by race, sex and Spanish-surnamed employees for each of the up- graded persons." Although I find no evidence in the record to show that the request was ever expanded, the complaint asks for more. 2? I see no warrant for affording the Union more information than it requested, and I shall confine the recommended remedy to the information asked for in the July 9 letter. E. 1The' roiver Dc/elfl.ve Respondent takes the position that the Union waived ans claim to additional information by entering into the No- vember 26, 1973, bargaining agreement. The agreemnent contains the following provision: WAIVER The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlim- ited right and opportunity to make demands and pro- posals with respect to an) subject or matter not re- moved by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and op- portunity are set forth in this Agreement. Therefore. the parties, for the life of this Agreement. voluntarily ' Hodge testified that only a few emploees at one of the five plants are on the incentive method 22 The latter information was requested In a catch all paragraph of the Jul 9 letter: The number of promotions or upgrades flr the 12-month period ending December 31, 1974. and for each successive calendar near. broken down by race, sex and Spanish-surnamed persons shoving Ihejoh level of each upgraded employee prior to and subhequent to, each upgrude and the race. sex and whether Spanish-surnamed for each of these upgraded employ- ees. including a showing of the sex of all white, black and Spanish- surnamed employees. i.e.. white male, white female. black male, black female. Spanish-surnamed male. Spanish-surnamed female. 198 GENERAI. MOTORS CORP. and unqualifiedly waive the right, and each agrees that the other shall not be obligated, except as otherwise specifically provided in Paragraphs (3) through (106) inclusive hereof, to bargain collectively with respect to any subject or matter referred to. or covered in this Agreement. Further, the parties, for the life of this Agreement, voluntarily and unqualifiedly waive the right, and each agrees that the others shall not be obli- gated to bargain collectively with respect to any sub- ject or matter not specifically referred to or covered in this Agreement. even though such subject or matter may not have been within the knowledge or contem- plation of any of the parties at the time this Agreement was negotiated or signed. The foregoing language is virtuallk identical to the "zip- per" clauses in Rockwell-Standard ororporation, 166 NI.RB 124. 126 (1967), enfd. 410 F.2d 953 (6th Cir. 1969), and Unit Drop Forge Division, Ealon, Yale & 7odwne,l I.. 171 NLRB 600. 609 (1968), enfd. as modified 412 F.2d 108 (7th Cir. 1969). In the latter case, the Board discussed the former case and the relevant principles as follows (171 N.RB at 601): In Rockwell-Standard, which involved a waiver pro- vision identical to the one herein. the Board adopted the Trial Examiner's finding that "even when a 'waiver' is expressed in a contract in such broad, sweeping terms ... it must appear from an ealuation of ... negotiations that the particular matter [in issue] was fully discussed or consciouslN explored and the union consciouslx yielded or clearly and unmistakablN waived its interest in the matter." Appl\ing this test to the situation herein. it does not appear from the record or the various contractual provisions alluded to b the Trial Examiner and analyzed herein that the Union consciously ielded or clearls waived its interest in changes such as the one in dispute herein. The Board has further held that the identical clause in issue here has no application to a request for iniformation. where the union was not seeking to "bargain" about the underlying subject. Scandia Restaurants. I.. 171 NLRB 326 (1968): The Sawhrook Steel Castings (Compan,. 173 NLRB 381 (1968). In this case the Union asked for some information relat- ing to sex and race discrimination prior to the execution of the agreement. It also bargained about certain informa- tional requirements which were included in the final con- tract. By letter of November 14, 1973, prior to execution of the contract, the Union reiterated its request for "copies of charges, complaints, settlements, and other matters involv- ing General Motors' civil rights problems." Just before the contract was signed, the Union, by letter, stated that it was "withdrawing its proposals aimed at correcting race and sex discrimination and is reserving all rights to continue its pending suits and to take other appropriate action to elimi- nate all discriminatory practices." On such a record. I find it difficult to conclude that the Union "consciously yielded or clearly and unmistakably waived its interest" in the discrimination data. In addition. since the intended uses of such information after negotia- tion of the 1973 contract were plainly not for the purpose of "bargain[ing] collectively" during the tenure of that agree- ment but rather for the multiple objectives of policing com- pliance with the agreement, detecting possible conduct b Respondent which would be inconsistent with the agree- ment. and preparing corrective proposals, if necessary, for the next agreement, the waiver clause is inapposite. Scandia Restaurants, Inc., lupra. F. The Improper s' Dc/,'Ic Running throughout Respondent's brief is the theme that the Union is not entitled to any of the requested informa- tion because it intends to use it "not to bargain. but rather to pursue successful litigation against (i M." I do not accept that analsis of the evidence. When the Union began requesting information prior to the 1973 nego- tiations. I believe it was doing so or the purpose of prepar- ing possible contract proposals. When t continued to press for such material after execution of the agreement, it was motivated. at least in part, hby a desire to monitor the imple- mentation of the antidiscrimination claiusc of( the agree- ment. to determine whether Respondent had miade commit- ments to the government which were in conflict with the agreement, and to laN the grolnd l ork for tfuture contract demands. Union general counsel Nevw man did concede at hearing. however, that if the informa;tion were to estahlish groulnds for asserting a claim of discriminatiol and if inltralmural eflirts to remedl the situati)ln were to t'ail. the Ulnion might file charges with FE()(' against Respondenl and might thereafter bring suit. he fct that the Union entertained this speculative alternaiiive does not, in m ieu. so inftct the alidit o tlie other purposes as to con'.ert a properl motivated request into in im xalid onle. 2' (' Is( I I S)S I l.A\, . eneral Motors ('Corporatlon is tin employer engaged in commerce aithin the meaning of Section 2(2) and 6() of the Act. 2. International U'nion of lectrical. Radio. and Ma- chine Workers. AFII ('10 (I.C ("the Union"), is a labor organization within the meaning of Section 2(5) of the Act. 3. At all material times the l' nion has been and is the exclusive collective-bargaining representative of Respon- dent's employees at the plants referred to aboxe. 4. B refusing since July 1973 to make a good-Liith effort to provide the Ulnion with requested informlation relevant to possible race and sex discrimination Respondent has io- lated Section 8(a)(5) and (I) of the Act. THE REMEDY Having found that Respondent has committed violations of Section 8(a)(5) and ( I ) of the Act. I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectualte the policies of the 2' On this dispolsilion otf the isue I need nl pass n the question whether a request for information solel) designed io eclci a potential predicate it)r liigation mal he said io tall vlihou l the .Inlambi a union's leluiiiile tiun- Illons 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. Specifically, I shall recommend that Respondent be ordered to furnish the Union with current information cov- ering items 7(a) (h) of the complaint, with the exception of 7(b).24 With respect to item 7(a). Respondent shall be enti- tled to delete any information contained in the affirmative action programs which relate to financial information, man- agerial personnel, and employees not represented by the 24 As indicated, Respondent stated at the hearing that it would make avail- able "consent agreements" to the Union. I assume that Respondent intended by this to mean that it would disclose the sort of "conciliation and other settlement agreements" referred to in item 7(b) of the complaint. Union, if the information has no direct bearing on the working conditions of Union represented employees. As discussed, the manner in which Respondent must make the requested statistical information available to the Union and the allocation of "substantial costs." if any, shall be deter- mined in accordance with Food Emplqver Council. Inc., su- pra. Finally, I shall recommend that Respondent be ordered to cease and desist from the unfair labor practices found. and from, in any like or related manner. interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. [Recommended Order omitted from publication.] 200