Westinghouse Electric Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westinghouse Electric Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Case 6-CA-7680 October 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS. MURPHY. AND TRUESDALE On February 17, 1976, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief in support thereof. Respondent also re- quested oral argument. The Charging Party filed ex- ceptions and a memo in support of the Administra- tive Law Judge's Decision. The Charging Party also filed a motion to reopen the record for the purpose of receiving newly discovered evidence, which motion was opposed by Respondent. A brief amicus curiae was filed by the Equal Employment Advisory Coun- cil. On April 8, 1977, the National Labor Relations Board issued a notice of hearing for the purpose of scheduling oral argument in the instant case and in East Dayton Tool and Die Co., 239 NLRB 141 (1978). Respondent and the Charging Party submit- ted supplemental briefs. Oral arguments were heard on September 8, 1977. Amicus curiae arguments were also heard at that time.' On June 1, 1977, Respondent filed a motion to reopen the record to admit newly discovered finding, which motion was opposed by the Charging Party and the General Counsel. The Board has considered the record and the at- tached Decision in light of the exceptions, all briefs and statements of position, and the oral arguments, and, except as modified herein, has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge.2 The issue presented is whether Respondent vio- lated Section 8(a)(5) and (1) by refusing to provide the Charging Party, hereinafter referred to as the IUE or Union, with certain information concerning employment practices. Specifically, the IUE request- ed the following information: 3 The Equal Employment Opportunity Commission; the International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America-UAW; and the Equal Employment Advisory Council sub- mitted briefs and presented oral argument as amici curiae. The United States Department of Labor also filed a brief as amicus curiae. 2Member Truesdale points out that although he was not on the Board at the time the case was orally argued, he has read the transcnpt of the oral argument before joining his colleagues herein. The requested items are hereinafter referred to by their item numbers I. The number of male and female employees, blacks, and Spanish-surnamed employees at each labor grade. 2. The number of employees by race, sex, and Spanish surname in each classification in the bargaining unit and the wage rate for each classification. 3. The number of employees by race, sex, and Spanish surname in each classification in each plant who are paid on a daywork basis and who are paid on an incentive basis. 4. The number of employees by race, sex, and Spanish surname who have less than 1 year's seniority, 1-2 years' seniority, 3-4 years' se- niority, 5-9 years' seniority, 10-19 years' se- niority, and 20 or more years' seniority. 5. The number of persons hired in each classifi- cation during the 12-month period ending May 31, 1974, with a breakdown as to sex, race, and Spanish surnames, showing the sex of all black and Spanish-surnamed persons. 6. The number of promotions or upgrades for the 12-month period ending May 31, 1974, broken down by race, sex, and Spanish-sur- named 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. 7. A list of all complaints and charges filed against Westinghouse under the Equal Pay Act, Title VII, Executive Order 11246, and state fair employment practices laws, and cop- ies of each complaint or charge.4 8. The Employer's affirmative action plan and accompanying work force analysis.5 The Administrative Law Judge found that Re- spondent has engaged, and is engaging, in unfair la- bor practices within the meaning of Section 8(a)(1) and (5), by failing and refusing to provide the IUE, through its Conference Board, with requested infor- mation relevant to possible race or sex discrimination or the advancement of equal opportunities for female and minority group employees in the appropriate units. He ordered Respondent to produce, with cer- tain exceptions, the information sought by the IUE, insofar as the information relates to unit employees. We agree, with certain qualifications, with the Ad- 4The first seven items were requested by letter dated June 11, 1974. The letter further requested that the figures as to sex be broken down into cate- gories of white, black, and Spanish-surnamed. 5On April 23 and June 2. 1975, the IUE requested Respondent to furnish copies of the most recent affirmative action program (AAP) and accompa- nying work force analysis for each plant or location covered by the IUE- Westinghouse national agreement. 106 WESTINGHOUSE ELECTRIC CORPORATION ministrative Law Judge's Decision. In view of the oral argument and the briefs filed subsequent to the issuance of the Administrative Law Judge's Decision, we shall explicate fully our conclusions and rationale therefor. The threshold question is whether any or all of the information requested by the IUE is relevant and necessary to its role as collective-bargaining repre- sentative. With respect to the statistical data, Re- spondent contends that (I) as of June 1974, it did not possess all of the requested information, and the compilation would be expensive and burdensome; (2) the IUE, as distinct from its local unions, is not entitled to the requested information; (3) under the terms of the national agreement between the parties, the IUE waived any right to obtain the requested information; and (4) the request was made in bad faith because the IUE intends to use the information in lawsuits against Respondent. With respect to item 7 (list of all complaints and charges) and item 8 (af- firmative action plan and work force analysis), Re- spondent contends that this information is confiden- tial and covers nonunit employees. Before discussing the specific requests made by the IUE and Respondent's defenses thereto, it is neces- sary to restate certain general principles relating to a union's role as collective-bargaining representative. A union's obligation to the employees and its right to act on their behalf as bargaining representative stem directly from two independent, but overlapping, sources: the first from the statute, and the second from the collective-bargaining agreement. See Ohio Power Company, 216 NLRB 987 (1975). It is well established that a labor organization, ob- ligated to represent employees in a bargaining unit with respect to their terms and conditions of employ- ment, is entitled to such information from the em- ployer as may be relevant and reasonably necessary to the proper execution of that obligation.6 The right to such information exists not only for the purpose of negotiating a contract, but also for the purpose of administering a collective-bargaining agreement. The employer's obligation, in either instance, is predicat- ed upon the need of the union for such information in order to provide intelligent representation of the employees.' The test of the union's need for such in- formation is simply a showing of "probability that the desired information was relevant, and that it would be of use to the union in carrying out its statu- tory duties and responsibilities." 8The union need not 6 Vertol Division. Boeing Company, 182 NLRB 421 (1970); N.L.R.B. v. Whitin Machine Works, 217 F.2d 593 (4th Cir. 1954), cert. denied 349 U.S. 90O (1955). F. W. Woolworth Co., 109 NLRB 196, 197 (1954), enfd. 352 U.S 938 (1956). demonstrate that the information sought is certainly relevant or clearly dispositive of the basic negotiating or arbitration issues between the parties. The fact that the information is of probable or potential rele- vance is sufficient to give rise to an obligation on the part of an employer to provide it.9 The appropriate standard in determining the potential relevance of information sought in aid of the bargaining agent's responsibility is a liberal discovery-type standard.'0 There can be no doubt that information relating to possible race and sex discrimination is relevant to the IUE's role as collective-bargaining representative. The Supreme Court in Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50. 66 (1975), has stated that "national labor policy embodies the principles of nondiscrimination as a matter of highest priority [citing Alexander v. Gard- ner-Denver Co.. 415 U.S. 36, 47 (1974)], and it is a commonplace that we must construe the NLRA in light of the broad national policy of which it is a part." The Court, in Gardner-Denver, referred to Sen- ator Clark's interpretative memorandum, which stat- ed, "Nothing in title VII or anywhere else in this bill affects rights and obligations under the NLRA." In Emporium Capvwell, the Court stated: "Since the Senator's remarks were directed to the suggestion that enactment of title VII would somehow constrict an employee's access to redress under other statutory regimes, we do not take them as foreclosing the pos- sibility that in some circumstances nrights created by the NLRA and related laws affecting the employ- ment relationship must be broadened to accommo- date the policies of Title VII." " The Court reiterated the principle that "[t]he elimination of discrimination and its vestiges is an appropriate subject of bargain- ing." 12 The statements by the Court in Emporium consti- tute a reaffirmation of the Board's holding that the elimination of race or sex discrimination practices is a proper subject of bargaining.' Thus, in Handy And), Inc., 228 NLRB 447, 456 (1977), the Board majority 14 stated: [T]he Board has long recognized its obligation to consider issues concerning discrimination on the basis of race, sex, national origin, or other un- lawful, invidious, or irrelevant reasons when they are raised in an appropriate context, and we shall continue to do so. V L RB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). The Brooklyn Union Gas Company, 220 NLRB 189 (1975). 10 Atcme Industrial Co., supra. 11 Emporium Capwell. supra at 73, fn. 26. 2 Id. at 69. 1 Farmers' Cooperative Compress, 169 NLRB 290 (1968), enfd on this point 416 F.2d 1126 (D.C Cir. 1969). cert denied 396 U.S. 903. See alse Southwestern Pipe. Inc., 179 NLRB 364 (1969). 14 Member Jenkins dissented, but agrees with the statement quoted 107 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case, the collective-bargaining agree- ment contains a section dealing exclusively with dis- crimination. The pertinent parts of that section are as follows: Section IV--DISCRIMINATION 2. The Union agrees that neither it, nor its Locals, nor their respective officers and members, nor persons employed directly or indirectly by the Union or its Locals, will discriminate against any employee .... 3. The Union, the Locals and the Company reaffirm their intention that the provisions of this agreement and of local supplements will continue to be applied without discrimination because of race, creed, color, sex, age, or na- tional origin oi the employee.. The request for race and sex data constitutes an effort to determine whether the contractual policy was being implemented, and is certainly a legitimate effort by the Union to monitor and police the terms of the collective-bargaining agreement. Since the IUE has a legal right as a statutory bargaining repre- sentative to insure that discriminatory practices are not established or continued, it is entitled to informa- tion which relates to alleged discrimination. 5 Regardless of the existence of an antidiscrimina- tion clause in a collective-bargaining agreement, the very nature of the collective-bargaining representative's status as representative of all unit employees imposes on it a legal obligation to the em- ployees it represents to represent them with due dili- gence. This duty of fair representation requires it to represent fairly and in good faith the interests of mi- norities within the unit. 6 The Board has stated that a union's refusal to process grievances against racial discrimination, in violation of that duty, is an unfair labor practice." For breach of its duty of fair repre- sentation the union may be liable in a suit for dam- ages,'8 subject to injunction." or have its certification of representative revoked. '2 Passive ignorance will not relieve a union of its duty (Vaca v. Sipes, supra), and, if a discriminatory scheme exists, a union has 5 Member Jenkins considers that the Union has. in addition to and be- cause of its duty of fair representation, an obligation to endeavor to prevent the establishment of discriminatory practice. and thus has also the correla- tive right to information relating to such discrimination. 6 Emporium Capwell Co., supra at 64. 7 Independent Metal Workers Unior, Local No. I (Hughes Tool Compant). 147 NLRB 1573 (1964). This is also true with respect to sex discrimination. Local No. 106, Glass Bottle Blowers A s.so¢iation, A FL CIO (Owens-lllinois. Inc.., 210 NLRB 943 (1974). Vaca v. Sipes, 386 U.S. 171 (1967). i| Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944). 20 Hughes Tool Company, 104 NLRB 318 (1953). been required to propose specific contractual provi- sions to prohibit racial discrimination in terms and conditions of employment, and bargain in good faith to obtain such provisions in a written contract.2 Since the cases have plainly established that a union has a right to protect the employees it represents from discriminatory treatment by an employer, it fol- lows that a union needs information related to race and sex in order to make proposals and then to take other action to correct such discrimination. The Statistical Information Requested Items I through 6 contained in the IUE's letter of June 11, 1974, relate to certain statistical information concerning employment practices. In his oral argu- ment before the Board, Respondent's counsel con- ceded that there is no issue between Respondent and the IUE with respect to Respondent's legal obliga- tion to supply the information requested in items I through 6.22 He stated that Respondent's objection is simply to making the compilation. Respondent's counsel stated that the IUE is entitled to know the identity, race, and sex of the people it represents, but that the number of people in any such classification is not relevant. However, Respondent's counsel added that as far as Respondent was concerned, this is not the most significant part of this case. Respon- dent is willing to submit the information requested in items 1 through 6, but not in the precise form re- quested. Aside from the contention that the compila- tions requested would be burdensome, Respondent also contends that it refused to supply the informa- tion because the IUE would not keep it confidential and indeed intended to utilize the information in lawsuits against Respondent. Respondent's defenses are discussed infra. The first issue to be decided is whether the information contained in items I through 6 is relevant for purposes of collective bar- gaining. We find, in agreement with the Administra- tive Law Judge, that the statistical information re- quested in items I through 6, insofar as it relates to employees in the bargaining unit, is presumptively relevant. The nature of the Union's statutory duty and its rights have been set forth above. In addition it is plain that the information contained in items I through 6 is relevant to the administration of the col- lective-bargaining agreement, particularly article IV, I1 Local Union No. 12. United Rubber. Cork, Linoleum & Plastic Workers of America. AFL ('10 (Business League of Gadvden), 150 NLRB 312. 322 (1964) enfd 368 F.2d (5th Cir. 1966). 22Respondent contends however, that item 5, insofar as it relates to hir- ing. is not relevant for the purposes of collective bargaining. We do not interpret item 5 as requesting applicant information. In any event, that issue is discussed in East Dayton Tool and Die Co., 239 NL.RB 141 issued this da . 108 WESTINGHOUSE ELECTRIC CORPORATION which provides in essence that the provisions of the agreement and of local supplements will be applied without discrimination because of race, creed, color, sex, age, or national origin of the employee. The in- formation requested, that is, a breakdown by race, sex, and Spanish surname with respect to (I) labor grade; (2) classification and wage rate; (3) daywork and incentive basis; (4) seniority; (5) hiring: and (6) promotions or upgrades, is relevant in enabling the IUE to determine whether the collective-bargain- ing agreement is being discriminatorily applied or is adversely affecting minorities or women. Statistics of the type sought herein are clearly relevant to a deter- mination of whether discrimination exists.2 We em- phasize that our finding that the statistical data sought is relevant should not be construed as a find- ing that discrimination exists or that the contractual terms are not being adhered to. We are merely stat- ing that because statistical information of the type requested is relevant to a determination of whether discrimination exists, and the Union has a statutory and contractual right to make a good-faith effort to correct any discrimination, the relevance of the infor- mation for that purpose is clearly established. In view of the foregoing, we shall apply the same standard to requests for statistical data relating to employment practices as is applied to requests for wage data; namely, that such information is pre- sumed relevant to the collective-bargaining process. Thus we shall not require the Union initially to show the relevance of the requested information. In N.L.R.B. v. Yawman & Erbe Mfg. Co., 24 the court stated: The rule governing disclosure of data of this kind is not unlike that prevailing in discovery procedures under modern codes. There the in- formation must be disclosed unless it plainly ap- pears irrelevant. Any less lenient rule in labor disputes would greatly hamper the bargaining process, for it is virtually impossible to tell in advance whether the requested data will be rele- vant except in those infrequent instances in which the inquiry is patently outside the bar- gaining issue. 2 See, e.g.. M. Donnell Dougla ( ,rp v (;reen. 411 1 S 792. 805 1973): Stewart G (General MSotorr Corp,,rain. 542 F 2d 445. 449 450 t7th ( ir 1976). cert denied 98 S.Ct 244 (1977) Member Jenkins agrees and would add that in Hawklnsi ( onrfni, onr 'ompanm. 210 NLRB 965 (1974), the Board adopted the Administratise Law Judge's statement that statistical evidence of racial imbalance 1t suffl- cient to establish a prima facie case of racial dlscrimination In emplo? menl or union membership, and his conclusion that there is no valid justifiaitti'n for sanctioning a different standard of proof of racial discrimination in a Board proceeding than is utilized for a title VII or other clil right, pro- cecding concerned with the same question 14 187 F.2d 947. 949 (2d (ir. 1951) The application of this "broad rule" was illustrated by another circuit court 2 when it cited with ap- proval the following excerpt from Chairman Guy Farmer's concurring opinion in Uhitin Machine Works, 108 NLRB 1537, 1541 (1954): [T]his broad rule is necessary to avoid the dis- ruptive effect of the endless bickering and jock- eying which has theretofore been characteristic of union demands and employer reaction to re- quests by unions for wage and related informa- tion. The unusually large number of cases com- ing before the Board involving this issue demonstrates the disturbing effect upon collec- tive bargaining of the disagreements which arise as to whether particular wage information sought by the bargaining agent is sufficiently relevant to particular bargaining issues. I con- ceive the proper rule to be that wage and related information pertaining to employees in the bar- gaining unit should, upon request, be made available to the bargaining agent without regard to its immediate relationship to the negotiation or administration of the collective-bargaining agreement. The Board has adopted the foregoing statement 26 and has rejected the contention that the right to rele- vant information is dependent upon the existence of a particular controversy or the processing of a specif- ic grievance. As stated, the right includes all informa- tion which appears reasonably necessary to enable the Union to administer its agreement intelligently and effectively or to seek to modify it27 We have stated that this evidentiary standard is of a discovery type and we emphasize that this standard decides nothing about the merits of the Union's claims con- cerning discrimination; the standard applicable herein concerns only the potential relevance of the requested information. With respect to the information requested in items I through 6, insofar as it covers nonunit personnel. we agree with the Administrative Law Judge that the Union is not entitled to such information. We note that an employer is not relieved of its obligation to supply information to the exclusive bargaining agent merely because the information relates to nonunit employees. However. although a union need not make a special showing of relevance to obtain infor- mation about employment of employees within the bargaining unit, where the request for information concerns matters outside the bargaining unit the I I. R.B v. The enm ( om/'ani. 220 F. 2d 95h6 (5 th (it, 19551. :B Brllln //elrad TFraiier ( 'orpolratn. 1 NI.R B 2097. 2098 (1954). enfd 223 IF2d K58 0s ( ir 195 s ) Rohcr J If eher and Richard A W4ehcir d .a eI her I[ener & Plis ,-d ( omranr l 161 NLRB 1054 (1966) 109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union must ordinarily demonstrate more precisely the relevance of the data requested." We agree with the Administrative Law Judge that in the present posture of the relations between the parties that rele- vance has not been shown. Respondent's Defenses Respondent contends that the local unions, as dis- tinguished from the IUE and the Conference Board are the proper bargaining agents and the recipients of the requested information. The Administrative Law Judge set forth in detail the pattern of collective bar- gaining between the parties and the fact that the Conference Board, which was created pursuant to the IUE constitution, performs collective-bargaining functions on behalf of the IUE and its constituent locals. The Administrative Law Judge concluded that the Conference Board, as an agent of the local unions for collective bargaining, is a proper instru- mentality for obtaining the requested information even if the subject matter of the request were deemed to pertain solely to matters of local negotiation. However, the Administrative Law Judge found, and we agree, that there is substantial and persuasive evi- dence that the requests relate in no small measure to matters of national bargaining. There is no doubt that the information requested in items 1 through 6 is relevant and necessary to the IUE's administration of article IV of the national agreement and to the formulation and presentation of its demands in na- tional bargaining. The history of bargaining on the national level about discrimination supports this con- clusion. Moreover, in a recent case, the Board dis- missed a decertification petition because the unit in which the petitioner sought an election was not coex- tensive with the recognized multiplant collective-bar- gaining unit.29 The Board concluded that there ex- isted a controlling history of multiplant bargaining resulting in the establishment of a single multiplant unit embracing all those plants of the employer in which the IUE through its Conference Board has been recognized as the exclusive bargaining agent and which are covered by the national agreement. The holding in that case removes any doubt that the Conference Board is the proper bargaining agent to request and receive the information involved herein. We find that the Administrative Law Judge prop- erly rejected Respondent's contention that the IUE waived its right to obtain the information requested. Section VIII, paragraph 1, of the national agreement describes certain information that Respondent is re- Vertol Division, Boeing Ccmpany, supra at 425. 29 Westinghouse Electric Corporation, 227 NLRB 1932 (1977). quired to submit to the locals. Respondent contends that section VIII, read in conjunction with the "waiv- er" clause,3 0 constitutes a waiver of the Union's right to the requested information. There exists no sub- stantial evidence of the requisite "clear and unmis- takable" waiver of the statutory right to such infor- mation by the IUE,3' since it appears that throughout the bargaining history between the parties the IUE clearly evidenced its intention not to abandon or waive its right to the information sought. Moreover, as the Administrative Law Judge found, the provi- sions of section VIII simply purport to constitute a list of the minimal information which Respondent is required to furnish the local unions pursuant to the requirement of the national agreement, and does not purport to constitute a waiver of the Conference Board's right to request and obtain similar or other information, nor have the parties so interpreted that section. Respondent contends that the fact that the IUE seeks the information for title VII or similar litigation constitutes a valid basis for nondisclosure. In other words, Respondent asserts that the real reason the Union wanted the information was to prosecute law- suits against Respondent, and not for bargaining or administration of the contract. Respondent main- tains that litigation is not collective bargaining-in fact, it is the antithesis of bargaining. We disagree. The collective-bargaining process is continuous. It does not end once a contract is signed, or when arbi- tration is utilized, or when a charge is filed with the Board, or when a lawsuit is instituted. IUE General Counsel Newman testified that, with respect to the Union's responsibility to eliminate discrimination, "we felt that it was better to go through collective bargaining machinery than through [the] EEOC and the Courts," but that, if no agreement was reached about these matters, the Union "reserve[d] the right to use other forums to take care of the discrimination problem." We have found that the information requested in items I through 6 is presumptively relevant to the collective-bargaining process. If information is rele- vant to collective bargaining, it loses neither its rele- vance nor its availability merely because a union ad- ditionally might or intends to use it to attempt to D Sec XX, par. 3. in relevant part, states as follows: Therefore, except as hereinafter specifically provided for in this agree- ment. each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to or covered in this Agree- ment. or with respect to any subjects or matters not specifically referred to in this agreement which were discussed during the negotiation of this Agreement and the 1973 Supplement thereto. N.L. R. B. v. The Item Companv, supra. See also The Timken Roller Bear- ing Company. 138 NLRB 15 (1962). enfd. 325 F.2d 746 (6th Cir. 1963). 110 WESTINGHOUSE ELECTRIC CORPORATION enforce statutory and contractual rights before an ar- bitrator, the Board, or a court. The fact that other pending litigation exists does not offer an employer a defense to providing infor- mation. In Curtiss-Wright Corporation,32 the Board ordered the employer to furnish the union informa- tion concerning a pension fund, despite the fact that the union had filed a civil suit seeking audit of the pension fund. It is well established that in the field of labor relations a number of overlapping forums and remedies exist. For example, the Supreme Court has acknowledged that the Board and arbitrators have overlapping jurisdiction to enforce agreements,3 3 and has upheld the Board's requiring an employer to fur- nish information for the purpose of enabling a union to determine whether to process a grievance through contractual arbitration.' In N.L.R.B. v. C & C Ply- wood Corp.,35 the Court recognized that Congress spe- cifically rejected efforts to give the Board unfair la- bor practice jurisdiction over all breaches of collective-bargaining agreements. However, the Court rejected the inference that the Board is without power to decide any case involving the interpretation of a labor contract. Thus, the Board is not divested of its jurisdiction because a party has a contractual defense, which is subject to litigation before a state or Federal court under Section 301 of the Act. It is therefore logical that the availability of title VII does not restrict rights under the National Labor Relations Act, and the existence of title VII litigation should not restrict the Union's statutory right under the Act to relevant information concerning alleged discrimination.3 6 32 193 NLRB 940 (1971). 3J Caret v. Westinghouse Electric Corp., 375 US. 261. 272 (1964). N.L R.B v. Acme Industrial Co., supra. 35 385 U.S. 421 (1967). 36 Member Jenkins suggests that in Local U'mon Vo 12. ULnited Rubber, Cork, Linoleum & Plastic Workers of America, A FL CIO (Business League of Gadsden). 150 NLRB 312 (1964). the Board considered the effect of title VII of the Civil Rights Act of 1964 on the Board's powers and duties, and found that such powers were in no way limited by title VII. He finds the following excerpt from the Board's Decision significant: We are not unmindful that in title VII of the Civil Rights Act of 1964 the Congress has legislated concerning racial discrimination by labor organizations. But the reach of title VII goes far beyond such discrimi- nation, proscrinbing as it does discrimination on the basis of race, color. religion, sex, or national origin by employers. employment agencies. and joint labor-management committees, as well as labor organiza- tions. Moreover, the Board's power and duties are in no way limited by title VII. On June 12. 1964, before the passage of the Civsil Rights Act of 1964. the Senate rejected by a vote of 59 to 29 an amendment of title VII which had been proposed by Senator Tower (R.. Texas) and which perhaps would have had the effect of limiting the Board's powers. See the Congressional Record (daily copy). 88th Cong.. 2d sess. pp. 13171 13173 The proposed amendment read: EXCLUSIVE RIMEDY Sec. 717. Beginning on the effective date of sections 703. 704. 706. and 707 of this title. as provided in section 716. the provisions of this title shall constitute the exclusive means whereby any department. agency, or instrumentality in the executive branch of the Govern- ment. or any independent agency of the United States. may grant or The Supreme Court has acknowledged that Con- gress intended to accord parallel or overlapping rem- edies against discrimination. The Court referred to the 1964 legislative history: J' Nothing in title VII or anywhere else in this bill affects rights and obligations under the NLRA ... . If a given action should violate both title VII and the National Labor Relations Act, the National Labor Relations Board would not be deprived of jurisdiction. We find for the reasons set forth previously that the Union's actions in initiating and joining in the filing and prosecution of antidiscrimination charges and lawsuits are in no way inconsistent with its duty as bargaining representative.3 There is nothing in the record to indicate that the Union's actions in institut- ing the lawsuits were taken in bad faith. In fact, the long history of bargaining about discrimination com- pels us to conclude to the contrary. Further, we do not agree with Respondent's contention that the Union seeks the statistical data for the purpose of circumventing the discovery procedure available un- der the Federal Rules of Civil Procedure. In the first place, there is nothing in the record or in court deci- sions to suggest that the statistical information re- quested would not be subject to disclosure under the Federal Rules. Furthermore, the record clearly dem- onstrates that the Union's request for information was not made in "bad faith," but was made in fur- therance of its attempt to eliminate discrimination, which was plainly within its scope as bargaining rep- resentative. Although the IUE has indicated that, if necessary, it will use the information in litigation, that is not a valid basis for nondisclosure, since, as we have found, such course of conduct is a legitimate function of the Union and we find no basis for the conclusion that the Union is attempting to abuse the Board's processes by utilizing Section 8(a)(5) to by- pass the Federal Rules. We reject also Respondent's contention that the furnishing of the information requested would place an undue burden on it. We can place little credence on that contention because, in our view, Respondent has not made a legitimate effort to substantiate its claimrn seek relief from. or pursue an) remedy with respect to. any employ ment practice of any employer. employment agency, labor organiza- tion. or Joint labor-management committee covered by this title, if such employment practice may be the subject of a charge or com- plaint filed under this title [150 NL.RB at 321 ) 3 Aleoander v. Gardner-Denver Co., 41 US. 36, 48. fn 9. citing I 0 Cong Rec 7207 ( 1964) 18 The issue of whether a union's failure to initiate such lawsuits would constitute a breach of its duty of fair representation Is not presented in this case 39 See % 1 R B v Truirt Manufarcturmn ( o. 351 IS 149 (1956) IIl D)ECISIONS OF NATIONAL LABOR RELATIONS BOAR[) As a Government contractor, Respondent is sub- ject to various Federal regulations and Executive or- ders, which are set forth in the Administrative Law Judge's Decision.40 The primary regulation is Revised Order 4, which sets out the purpose and scope of affirmative action plans (AAPs), their required con- tents, and methods of implementing them. Order 4 was issued in 1970, revised in 1972, and further amended in 1974. The Revised Order requires that each AAP be accompanied by a work force analysis. It is stated at 41 CFR 60-2.11(a) that AAPs must contain, inter alia, the following information: (a) Workforce analysis which is defined as a listing of each job title as appears in applicable collective bargaining agreements or payroll 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 with- in a department a separate list must be provided 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 disci- plines, in order of wage rates or salary ranges. For each job title, the total number of incum- bents, the total number of male and female in- cumnbents, and the total number of male and fe- male incumbents in each of the following groups must be given: Blacks, Spanish-surnamed Amer- icans, American Indians, and Orientals. 'The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed. TIhat section further requires an "analysis of all major job groups at the facility, with explanation if minorities or women are currently being underuti- lized.... 'Underutilization' is defined as having fewer minorities or women in a particular job group than would reasonably be espected b, their availa- bility. In making the utIlization anal sis, the contrac- tor shall conduct such analysis separately for minori- ties and women." It is also provided at 41 ('FR 60( 2.12(1) that: 40(orntrary to ihe iAdllinistralr e l.aw Judge's finding. Revis..ed Order 14 of the Office of I ederal (ontralct ( tiplilance t'rogtaim, (O-( (P') apphles only to other (overuniment agencies charged vitil the responslbihl,, for en forcing the 01 ((' i's rules. regulations, and orders., and creates ml. dutil on the part of cuontrators such ais Rcslponlidenll Sec, in ?eneral. 4i ( I R ()0 Office of Federal ( ontract ( ornmplance Proi rails. Support data for the required analysis and program shall be compiled and maintained as part of the contractor's affirmative action pro- gram. This data will include but not be limited to progression line charts, seniority rosters, ap- plicant flow data, and applicant rejection ratios indicating minority and sex status. Further, as part of the AAP, 41 CFR 60-2.23 re- quires the following: (a) An in-depth analysis of the following should be made, paying particular attention to trainees and those categories listed in § 60- 2. I 1(b). (1) Composition of the work force by minori- ty group status and sex. (2) Composition of applicant flow by minori- ty group status and sex. (3) The total selection process including posi- tion descriptions, position titles, worker specifi- cations, application forms, interview procedures, test administration, test validity, referral proce- dures, final selection process, and similar fac- tors. (4) Transfer and promotion practices. (5) Facilities, company sponsored recreation and social events, and special programs such as educational assistance. (6) Seniority practices and seniority provi- sions of union contracts. (7) Apprenticeship programs. (8) All company training programs, formal and informal. (9) Work force attitude. (10) Technical phases of compliance, such as poster and notification to labor unions, reten- tion of applications, notification to subcontrac- tors, etc. In view of the foregoing reporting requirements, we find, in agreement with the Administrative Law Judge, that Respondent has most of the data requesl- ed by the Union. In his oral argument before the Board, Respondent's counsel conceded that the work force analysis called for by the AAP has made it pos- sible to produce items I, 2, and 3 with relative ease. lHe added that it has not made it easier to produce item 6 and was not sure of the effect on items 4 and 5. An examination of the reporting requirements in- dicates that Respondent is certainly required to make the compilations required in items 4 and 5, and we find that Respondent has or should have such data. IL;UE General Counsel Newman stated that the IUE's letter requesting the information clearly indicated that the IUE did not insist upon any particular form for the information. Thus, although it appears that 112 WESTINGHOUSE ELECTRIC CORPOR ITION Respondent has the requested statistical information in some form, we are unable to state with certainty whether Respondent has compiled all the informa- tion in the form requested. We shall order Respon- dent to provide the information in a reasonably clear and understandable form. While we shall order the Respondent to furnish the substance of all the infor- mation requested in items I through 6, it shall be the responsibility of the parties themselves, in the first instance, to apply the knowledge which they have. and we do not, about what might be involved in pre- senting this information in a clear and understanda- ble form."' As the Board has said, "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 access to records from which it can reasonably com- pile the information. If any dispute arises in applying these guidelines, it will be treated in the compliance stage of the proceeding." 42 Thus, Respondent must make an effort to inform the Union of the nature of the information compiled by it, so that the Union may, if necessary, modify its requests to conform to the available information. If substantial costs would in fact be incurred, we expect the parties to bargain as to the allocation of those costs. Charges and Complaints Item 7 sets forth the Union's request for a list of all complaints and charges filed against Respondent pursuant to various Federal and state fair employ- ment practices laws, and copies of each complaint or charge. As in the case of the statistical information, the first issue to be decided is whether the informa- tion contained in item 7 is relevant for purposes of collective bargaining. However, unlike the requested statistical information, the relevance of the charges and complaints is not plainly obvious. The Respon- dent contends that, where the relevance of some par- ticular information is not obvious, the Union should be required to specify the use to which it is to be put.43 The Union has indicated that it needs the in- formation contained in item 7 in order to ascertain what employees are complaining about with respect Food Employers Council, Inc., et al, 197 NILRB 651 (1972) .2 Ibid. 4 Citing Emeryville Research ('enter. Shell Dieloopmern (rompnam N.L. R.B., 441 F.2d 880 (9th Cir. 1971): United Furniture Work err f .4mer ica, AFL-CIO [White Furniture Cornpan] v. V1, R.B, 388 F 2d 880 (4th Cir. 1967); Anaconda American Bracs (Cmpmni, 148 NLRB 474 (1964I; lhe Kroger Co. v. NL R B., 347 F.2d 61. 69 (3d Cir 1965): (lu/a(r, lth,/,al(sa[ Drug Comtpany, Inc. 211 Nt RB 1063 (1974) to alleged discrimination. and if such charges relating to terms and conditions of employment are adjusted %with the Equal Employment Opportunity Commis- sion (EEOC), to the exclusion of the Union, then Section 9(a} of the Act is bypassed. We find merit in the Union's position and find that it has demon- strated its need for the information requested in item 7 insofar as it relates directly to its representation of unit employees. Although charges and complaints in- volving nonunit employees man affect the unit, the Union has not, at this point, demonstrated the rele- vance of such information. The Administrative Law Judge found that because article IV of the national agreement is not subject to binding arbitration the Union may not be able to ascertain. by reviewing employee grievances, the ex- tent to which emplo)ees believe that article IV has been violated. Respondent points out that the charges and complaints are not proof of the asser- tions therein. However, as found by the Administra- tive l.aw Judge. "a labor organization. in order to fully carry out its responsibilities, cannot merelr limit itself to consideration of employee grievances of proven merits. The Union must be in a position to gauge employee dissatisfaction in order to make a determination as to whether its contract provisions are being effectuated, in what ways they are defi- cient. and what new proposals it should make." Thus, in vie"w of the overlap between article IV and the vanous antidiscrimination laws, the Union needs to be informed of all charges and complaints filed by or on behalf of unit employees, as they are a signifi- cant indication of such dissatisifaction in the area of discrimination and equal opportunity. Additionally. the Union must be aware of these charges and coim- plaints in order to determine whether theV are being settled by conciliation agreements or consent decrees which man be inconsistent with the applicable collec- tive-bargaining agreements. Respondent contends that various statutes and court decisions have established that charges and complaints were intended to be confidential. Thus, Respondnet notes that title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e 8(e) ) and the EEOC's regulations (29 CFR 1601.20) prohibit the Commis- sion from making charges public. The Administrative Law Judge correctly found that the provision, and similar provisions cited by Respondent, are binding upon the governmental agencies involved, and do not govern the relations between private parties. The prohibitions against disclosure are "aimed at the making available to the general public of unproven charges."" 44 and, as has been demonstrated previous- 44 See H Ah, ler & (,, x tl 0( . 42 F d 1 1147. 1 I 0 (S)lh ( r 19'73) ccrt den led 412 I S II') i197t3 113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, the Union is far more involved in, concerned with, and, indeed, in part responsible for these matters than the "general public." Respondent intimates that the Union intends to publicize the information in a manner inconsistent with its bargaining obligation. We have carefully ex- amined the record and find no basis for concluding that the Union intends to abuse the knowledge that charges have been filed. We have found that the statutes governing the con- fidentiality of charges are inapplicable to the instant case, and the Board may require such disclosure. However, we are not unmindful of one of the pur- poses of the confidentiality provisions, i.e., to protect the identity of the charging party. Although the regu- lations provide for safeguards to protect the identity of the complainant (29 CFR 1601) if the complainant wishes, we fail to see why the Union needs the names of the complainants and charging parties. The Union has established that the charges and complaints in- volving unit employees are relevant, but has not demonstrated that it needs the names of the persons filing the charges. Accordingly, we shall order Respondent to furnish the Union a list of all complaints and charges filed against Respondent alleging discrimination with re- spect to the IUE-represented units, and copies of charges relating to the employees covered in the IUE-represented units, along with any related docu- ments and information pertaining to the status of such charges, provided that Respondent may delete therefrom the names of the charging parties.4 The Affirmative Action Programs and Work Force Analyses Executive Order 11246 requires Government con- tractors such as Respondent to take affirmative ac- tion to ensure that applicants are employed and em- ployees are treated without regard to race, color, religion, sex, or national origin. Revised Order 4, is- sued by the OFCCP, requires a Government contrac- tor with 50 or more employees and a contract of $50,000 or more to develop a written affirmative ac- tion compliance program for each of its estab- lishments. Section 60-2.10 of Revised Order 4 states the purpose of the affirmative action programs: An affirmative action program is a set of spe- cific and result-oriented procedures to which a contractor commits himself to apply every good faith effort. The objective of those procedures plus such efforts is equal employment opportu- 45 Respondent does not contend that copies of the charges are unavail- able. nity. Procedures without effort to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inade- quate. An acceptable affirmative action pro- gram must include an analysis of areas within which the contractor is deficient in the utiliza- tion of minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies and, thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his work force where defi- ciencies exist. The AAP is required to contain a work force anal- ysis (WFA) which has previously been described in great detail, and an underutilization analysis which must contain an explanation if minorities or women are currently being underutilized in any one or more job groups. (41 CFR 60-2.11.) Where underutiliza- tion exists, contractors must establish goals and time- tables to correct it (41 CFR 60-2.12.) The Union contends that it is entitled to the AAP's because otherwise it may find that Respondent has undertaken commitments inconsistent with the pro- visions of the collective-bargaining agreement. Re- spondent contends that the AAP's and WFAs should be kept confidential for two reasons: (I) the docu- ments contain confidential financial and commercial information which, when publicized, could harm Re- spondent's competitive position, and (2) the OFCCP's policy of candid self-analysis will be en- dangered by an NLRB order to disclose the informa- tion to a union that has promised publication. The threshold issue is, of course, whether the AAP's and WFA's are relevant for the purpose of collective bargaining. We have found that the statis- tical data contained in items I through 6 relating to employment practices are presumed relevant to the collective-bargaining process. We have also found that charges and complaints alleging discrimination are not presumptively relevant to bargaining, but that the IUE has demonstrated the need for such information. With respect to the AAP's, we find that the information required therein, such as projections, goals, and timetables, unlike statistical data, does not appear to be reasonably necessary to enable the Union to administer its contract intelligently and ef- fectively. We find therefore that the AAP's are not presumptively relevant, and the Union must demon- strate the relevance of the information requested. As previously stated, the Union contends that it needs the information in order to determine if Respondent has undertaken commitments inconsistent with the collective-bargaining agreement. We find this specu- lation insufficient to establish relevance. Respondent 114 WESTINGHOUSE ELECTRIC CORPORATION correctly points out that should it violate the contract by meeting its affirmative action obligations, the Union would have several remedies available at that time. Indeed, the Union does not contend that any violation has occurred because of the APP's. The Union also contends that Revised Order 4 contem- plates union involvement in the AAP. Thus in 41 CFR 60-2.21(a)(6) it is stated that the contractor should "[m]eet with union officials to inform them of policy, and request their cooperation." That provi- sion does not specify the extent of union involvement in the AAP's and clearly does not require that the entire AAP be submitted to the Union. It appears that Respondent chose not to consult with the Union regarding the formation of the AAP's, and there is no indication that the Union sought a role in the devel- opment of the plans. Nor is there any evidence that the Union complained to the OFCCP about its ex- clusion from the formulation of the AAP's or that the OFCCP or the appropriate compliance agency ha's disapproved any plan for that reason. Accordingly, we find that except for certain statistics contained therein, to be discussed infra, the AAP's are not pre- sumptively relevant or necessary for bargaining and the Union has not demonstrated the relevance of the plans. Therefore, we shall not require Respondent to furnish the AAP's to the Union. With respect to the WFA's contained in the AAP's, we find that the Union has demonstrated the relevance of certain requirements of the WFA's. The contents of the WFA's have been set forth in detail in the section dealing with Respondent's defenses. We have heretofore found that the Union is entitled to the information requested in items I through 6, and much of the information contained in the WFAs relates to those items. We shall therefore order Re- spondent to furnish to the Union copies of the WFA's filed with its most recent AAP's, but Respon- dent may delete therefrom information unrelated to the information requested in items I through 6. All of the considerations with respect to Respondent's de- fenses, which have been discussed supra, are applica- ble to the requirement that Respondent furnish the WFAs with the qualifications set forth. We note that 46 In view of our findings with respect to this issue. we need not consider Respondent's defense that the AAPs contain confidential information which could harm Respondent if released and that the OFFC's policy of candid self-analysis would be endangered by an order to disclose the infor- mation. In addition, we have previously noted that the Union filed a motion to reopen the record for the purpose of receiving discovered evidence, which motion was opposed by Respondent. The evidence allegedly concerned Re- spondent's confidentiality defense, and in any event is inconclusive. We shall therefore deny the motion. We also deny Respondent's motion to reopen the record to admit newly discovered evidence, to wit, a letter from the Regional Director of the New York Division of Human Rights to IUE Local 1581 President Dudek. The alleged circumstances involved therein are too remote to have any impact on our decision. the statistics contained therein require no "candid self-analysis" or any confidential information which could cause harm to Respondent. In sum, it should be understood that, by ordering Respondent to furnish certain information to the Union, we do not decide whether Respondent has discriminated against any group of employees, or, in- deed, whether Respondent has violated the terms of the collective-bargaining agreement. We are only en- forcing "a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and condi- tions of employment-to provide a means by which agreement may be reached." 47 THE REMEDY Having found that Respondent has committed vio- lations of Section 8(a)(5) and (I) of the Act, we shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has violated Section 8(a)(l) and (5) of the Act by failing and refusing to furnish the Union certain in- formation, we shall order Respondent to furnish the IUE with current information covering items I through 6 of the Conference Board's letter of June 11, 1974, with respect to employees in the units cov- ered by the national agreement. In addition, we shall order Respondent to furnish the Union a list of all complaints and charges filed against Respondent al- leging discrimination with respect to the IUE-repre- sented units, and copies of charges relating to em- ployees covered in the IUE-represented units, along with any related documents and information pertain- ing to the status of such charges, provided that Re- spondent may delete therefrom the names of the charging parties. Finally, we shall order Respondent to furnish the Union with copies of the work force analyses, filed with its most recent affirmative action plans, provided that Respondent may delete there- from information unrelated to the information re- quested in items I through 6. As discussed, the manner in which Respondent must make the statistical information available to the Union, and the allocation of "substantial costs," if an,. shall be determined in accordance with Food Employers Council, supra. We agree with the Admin- istrative Law Judge that, upon consideration of the unique facts of this case and the history of collective 47 N. L R.B v. (& (& Pl.s.o.d Corp. 385 IUS 421. 428 (196 7) W:e do not endorse the dissent's characterization of our decision. the Inferences it draws therefrom, or the legal analysis predicated thereon Further. we see no need to lecture labor organizatlons on the advantages of the ostrich I he labor movement ha, long since come of age and needs no one to stand in logo parct'ntis 115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining between the parties, a broad remedial or- der is not warranted, and we shall order Respondent to cease and desist from the unfair labor practices found, and from in any like or related manner in- fringing upon the employee rights guaranteed in Sec- tion 7 of the Act. OR1)ER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Westinghouse Electric Corporation, Pittsburgh, Pennsylvania, its officers, agents, successors, and as- signs, shall: I. Cease and Jesist from: (a) Refusing to bargain collectively with Interna- tional Union of Electrical, Radio and Machine Workers, AFL CIO CLC, as the exclusive bargain- ing representative, in conjunction with various of its constituent locals, of the Company's employees in the appropriate collective-bargaining units, by refus- ing to furnish the IUE, either directly or through its IUE-Westinghouse Conference Board, with informa- tion relevant to possible race or sex discriminations or the advancement of equal opportunities for female and minority group employees in said units. (b) In any like or related manner refusing to bar- gain collectively with the IUE, or interfering with, restraining, or coercing employees in the exe.rcise 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 the IUE, either directly or through its IUE-Westinghouse Conference Board, with the fol- lowing current information for each bargaining unit covered by the IUJE-Westinghouse national agree- ment; said information with respect to items I through 6 below, to be broken down into categories of white male, white female, black male, black fe- male, Spanish-surnamed male, and Spanish-sur- named female: (I) The number of male and female employees, blacks, and Spanish-surnamed employees at each labor grade. (2) The number of employees by race, sex, and Spanish surname in each classification in the bargaining unit and the wage for each classifi- cation. (3) The number of employees by race, sex, and Spanish surname in each classification in each plant who are paid on a daywork basis and who are paid on an incentive basis. (4) The number of employees by race, sex, and Spanish surname who have less than I year's seniority, 1- 2 years' seniority, 3-4 years' se- niority, 5 9 years' seniority, 10-19 years' se- niority, and 20 or more years' seniority. (5) The number of persons hired in each classi- fication during the 12-month period immedi- ately preceding the effective date of the infor- mation covered in items I through 4 above, or such other 12-month period as may be mutu- ally agreed upon by the parties with a break- down as to sex, race, and Spanish surnames, showing the sex of all black and Spanish-sur- named persons. (6) The number of promotions or upgrades for the same 12-month period, broken down by race, sex, and Spanish-surnamed persons showing the job level of each upgraded em- ployee prior to and subsequent to each such upgrade and the race, sex, and whether Span- ish-surnamed for each of these upgraded em- ployees. (7) A list of all complaints and charges filed against Respondent under the Equal Pay Act, title Vll of the Civil Rights Act of 1963, Exec- utive Order 11246, and state fair employment practices laws relating to IUE-represented units, and copies of each complaint or charge relating to employees in IUE-represented units, along with any related documents per- taining to the status of such charges, provided that Respondent may delete therefrom the names of the charging parties. (8) Copies of the most recent work force analy- ses filed under Executive Order 11246 and Revised Order 4 of the Office of Federal Con- tract Compliance Programs for or covering each plant or location covered by the IUE- Westinghouse national agreement; provided that Respondent may delete therefrom mate- rial unrelated to items I through 6 above. (b) Post at its principal office in Pittsburgh, Penn- sylvania, and at each of its plants or other locations where there is a bargaining unit covered by the IUE- Westinghouse national agreement, copies of the at- tached notice marked "Appendix." 48 Copies of the notice on forms provided by the Regional Director for Region 6, after being duly signed by Respon- dent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where 4s 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 N;tional Labor Relations Board" shall reac "Posted Pursuant to a Judgtmenlt of the t nited States ( ourl of Appeals Enforcing an Order of the Nationall I .abor Relations Board" 116 WESTINGHOUSE ELECTRIC CORPORATION notices to employees are customarily posted. Rea- sonable 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 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER MURPHY, concurring in part and dissenting in part: By its decision the Board majority has today ex- tended title VII beyond the wildest dreams of its framers, interfered with the confidentiality) guaran- teed to charging parties under other Federal statutes, and placed an unfair burden on both employers and unions. I realize these are strong words. But I feel strongly about the Board's decision to become a mini-EEOC without the EEOC's expertise or practi- cal knowledge. The Board majority here and in East Daiton Tool and Die Company 49 is conferring a new obligation on unions, for the absolute right to obtain information gives rise to a corresponding obligation to do some- thing about it. And as for employers, the Board's decision could well help to destroy their willingness to comply voluntarily with title VII and other fair employment statutes because, if they do, they will have to provide the union, upon request, with copies of their efforts under today's dual decisions. And af- ter these decisions, unions will be well advised to re- quest what the IUE has sought here. This case arose when the Union shortly after fil- ing suit against the Employer under Title Vll asked the Employer for a number of computations con- cerning the race and sex of its employees. The Com- pany refused stating the Union wanted this informa- tion not for purposes of collective bargaining, but for use in lawsuits. The Employer offered, as an alterna- tive, to hold discussions with the Union to resolve any equal employment problems. The Union coun- tered by filing 8(a)(l) and (5) charges against the Em- ployer. The Administrative Law Judge found the Employer had violated Section 8(a)(1) and (5) by not supplying the information which concerned employ- ment practices, as quoted by the majority at the be- ginning of their opinion. In general, the first six items relate to the break- down of the employee complement within the unit in terms of male, female, black, and Spanish-surnamed employees; the number of such employees in each classification in each plant with their method of pay- ment (daywork or incentive basis) and their senior- ity; the number of promotions for the same 12- 49 239 NLRB 141 (1978). month period also broken down by race, sex, etc.. and the job level of each. Item 7 sought a list of all complaints and charges filed under Title VIIl Equal Pay Act. Executive Order 11246, and state fair em- ployment practice laws, with copies of each com- plaint and charge. Item 8 sought a copy of the Em- ployer's affirmative action plant (AAP) and the accompanying work force analysis (WFA). The Board Majority Decision MN three colleagues are finding that all of the abo( e information (except the AAIP) is relevant to the Uinion's duty of fair representation. As for the AAP. the Board majority finds that the Union has not established its relevance to the Union's represen- tative duties and for that reason holds that the Em- ployer did not violate Section 8(a)(5) in the refusal to supply that information. In addition, my colleagues have rejected the Employer's contentions that the in- formation sought in items 7 and 8 are confidential matters not subject to disclosure and that the Union seeks the information for purposes of litigation, not for bargaining purposes. By its decision in this case, the Board is giving collective-bargaining representatives a directive to go on fish-and-sue expeditions as to employer personnel practices and is, as stated, creating an obligation upon any incumbent union to engage in such fish- and-sue expeditions or risk breaching its duty of fair representation. This the Board majority accom- plishes by the undue extension of existing law that where a grievance exists, the bargaining representa- tive is obligated to process it without discrimination on irrelevant or invidious grounds, and that such a representative is entitled to information from an em- ployer relevant to bargaining or administering a con- tract or in order to determine whether a pending grievance merits further processing. s0 I cannot subscribe to such an extention or miscon- struction of precedent. And most assuredly I cannot be a party to the Board majority's destruction of the confidentiality which other statutes and regulations guarantee to employers. unions, and to charging par- ties. Finally, even though my colleagues hold, and I agree, that AAP themselves need not be disclosed, their rationale for so finding is totally unacceptable to me. On the specific issues in this case, the decision of the majority requires that an employer supply a union with copies of charges and complaints filed against it with agencies which implement various fair employment practice laws and fair labor standards d) l'aca \. Sipes. 3806 LS. 191. 192 (1967)1 Mhranda Fuel ('omparn. inc, 140 NL RB 181 (1962) 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laws. The majority also requires that the Employer provide copies of most of its WFA submitted to the Office of Federal Contract Compliance Programs (OFCCP), disregarding the statutory requirements that these items be kept confidential. My colleagues state that under existing Board and court precedent the information requested by the Union 5 as items 1 through 6 of its June 11, 1974, letter must be supplied.5 2 Since I believe that the de- cisions in these two cases will have ramifications far beyond those contemplated by either the Union or the Board, I consider it appropriate to discuss the consequences of granting the Union's request. Statistical Breakdown of the Unit The majority's determination here that the Union is entitled to a statistical breakdown of the unit com- plement by race, sex, and Spanish surname of work- ers in various categories-like the decision in East Dayton Tool and Die Co., supra, that unions are enti- tled to information about the race and sex of appli- cants for employment-places a new and insupporta- ble burden on labor organizations. For, as I emphasized in East Dayton and again here, the enti- tlement to such information implies a duty and obli- gation to secure and act on it under the duty of fair representation. 53 This Board now holds that a union will have ac- cess to any detailed analysis prepared by an em- ployer as to, inter alia, the number of employees of a given sex who are members of a specific minority group and who are in a certain job classification or labor grade, or who have received recent promotions or, as in East Dayton, who have applied for such jobs but have not been hired. By virtue of this Decision, the Union here-and other unions as well-will be required to seek this information in order to protect itself from charges of unlawful discrimination or from violating the duty of fair representation under our Act. Aware that the Board construes Section 8(a)(5) of the Act to provide an avenue of access to detailed information about minority groups and female employees in various 51 It is apparent that here, unlike the situation in East Dayton Tooland Die Co., supra, the International has been a party to the negotiations with the Respondent. The Employer argues vigorously that in 1974, at the time of the Union's request, there was no requirement that such information be kept and hence the complaint must be dismissed. However, it appears clear that later re- quests were also made, and in any event the request was a continuing one which was effective at times when the information was requested or may have been available. Accordingly, there is no merit in this contention. See N.L.R.B. v. Fant Milling Co., 360 U.S. 301 (1959). 53 My colleagues accept this proposition that there is a duty to act by their expansion of the definition of the duty of fair representation as including the obligation to seek out the existence of discriminatory schemes and pro- pose specific contractual provisions to eliminate them, employment categories, agencies such as the Equal Employment Opportunity Commission which are re- sponsible for enforcing the different laws and regula- tions designed to afford all workers equal employ- ment opportunity, will require unions to seek such data.54 Labor organizations which do not avail themselves of the right to obtain and analyze this information will risk being found-because of their "[p]assive ig- norance" 55 -to have acquiesced in any subsequent unlawful discriminatory practices of employers with whom they have bargaining relationships. In this regard, Form EEO-I1, which must be filed with the EEOC by most private employers with 100 or more employees, requires employers to submit in- formation as to the number of employees, broken down, inter alia, by race and sex, in various job cate- gories such as professional, craft workers, laborers, etc.56 The instruction booklet which accompanies the form and is prepared by the EEOC specifies that "All reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by in- dustry or area, in such a way as not to reveal any particular employer's statistics, will be made pub- lic." 57 Thus, the anomaly arises that, although the EEOC itself cannot disclose the statistical information filed with it on Form EEO-I, the EEOC contends, in its amicus brief filed herein, that among those categories of information which should be "presumed relevant" are "statistics concerning the race, sex, and national origin of employees." In other words, the EEOC seeks to have this Board order employers to give to unions information which the EEOC itself assures employers will be maintained in strict confidence. Furthermore, disclosure of this type of information will defeat the main purpose of Form EEO-1. As the introduction to the instruction booklet notes, "this form should be a valuable tool for companies to use in evaluating their own internal programs for insur- ing equal employment opportunity." Requiring employers to make the information from the EEO-I form available to labor organiza- tions-as the Board majority does here-is hardly likely to further this goal for, knowing that the infor- 4 Indeed. the EEOC filed a brief in this case arguing strenuously that the Board must, under Sec. 8(a)(5) of the NLRA, require the employer to pro- vide the union with all of the material requested. EEOC counsel also partici- pated in oral argument held by the Board. 55 Supra, the majority opinion herein. The information the Union sought in this case is similar to that which the Employer is required to file on Form EEO-I. 5Although, under the instructions, reports by employers covered by Ex- ecutive Order 11246 (which includes this Employer) may not be confiden- tial, the majority here does not limit its holding to such reports In finding that statistical data must be disclosed. 118 WESTINGHOUSE ELECTRIC CORPORATION mation is not going to be kept confidential, em- ployers will be more and more hesitant about sub- mitting it voluntarily at all. Because of this new burden imposed by the Board in these two cases, unions with foresight will now routinely seek information similar to the statistical breakdown requested here. If the employer refuses to supply the information, then the union will be forced to engage in "preventive litigation"-unions will file unfair labor practice charges alleging that the em- ployer's refusals have violated Section 8(a)(5) of the Act. The matter then will be fully litigated before the Board, consuming time, energy, and expense in the process.5' Additionally and obviously, this type of lit- igation does not encourage the "friendly adjustment of industrial disputes" which Section I specifies as a purpose of the Act. 9 The Duty of Fair Representation The duty of fair representation should encompass precisely that-fair representation of all unit employ- ees.60 The duty of fair representation obviously in- cludes fairness in processing grievances 6t and in the negotiation and implementation of collective-bar- gaining agreements.6 By its decisions in this case and in East Dayton the Board is expanding the duty of fair representation far beyond its previous parameters.63 In so doing, the Board majority quotes from a series of cases which state a general hypothesis-with which I am in total 35 In this regard, I note that, according to the "Budget of the United States Government, Fiscal Year 1979" (pp. 857-858). in fiscal 1977, some 79.800 charges alleging violations of Title VII were filed with the EEOC. Assuming, arguendo, that only a small percentage of these charges were filed by individuals represented by a labor organization against their employer. it is nonetheless obvious that, if unions must seek statistical data to protect themselves from liability in such cases, the Board will be deluged by unfair labor practice charges alleging unlawful refusals to provide information. s Further and even more importantly, once a union receives the daia from the employer, either through the latter's voluntary response to the request or via resort to the Board and its process. the union acquires. as stated in my separate opinion in East Dayton Tool and Die Co., supra, along with the information. "a corresponding liability to police that information and act on it." e0 Thus, a bargaining representative has no nght to interject itself into the hiring process, absent a hiring hall provision or other contract clause pro- viding otherwise, simply because persons not yet hired are not yet unit employees and the union's duty extends only to those employees in the unit. In Bell a Hov ell Company, 230 NLRB 420 (1977), the Board observed that 'lilt is undisputed that no duty of fair representation anses until the union actually represents employees in a specific bargaining unit." See also Handy Andr, Inc., 228 NLRB 447 (1977). See, e.g., Independent Metal Workers Union, Local No. I (Hughes Tool Company), 147 NLRB 1573 (1964): Local Union No. 12, United Rubber, Cork, Linoleum d Plartic Workers of America. AFL-CIO (Business League of Gadsden), 150 NLRB 312 (1964), enfd. 368 F.2d 12 (5th Cir. 1966). 62 Local 1367, International Longshoremen's Association, AFL-CIO, et al. (Galveston Manritime Association. Inc.), 148 NLRB 897 (1964). 63 Whether the ma ority calls it a nght or a duty, the result is the same. Unions are now required to seek this information or run the risk of violating the duty of fair representation. agreement-that our country's national policy em- bodies the principles of nondiscrimination and that the NLRA is part of this national labor policy.' But the Board majority then reaches a shocking result-it creates an affirmative duty for unions to become agents of the EEOC with respect to ferreting out em- ployment practices-regardless of the absence of any complaints by unit members, any grievances, or even any suspicions.65 It is a well-established principle that elimination of discrimination is a term and condition of employ- ment about which a union is entitled to bargain.6 However, the fact that a union may seek bargaining about such matters or may seek to remedy comp- laints of unit employees is not-contrary to the hold- ing by the majority here-tantamount to requiring a bargaining representative to seek out possible dis- crimination concerning applicants as well as unit em- ployees and then take every possible action including litigation under other statutes to determine whether the information obtained under Section 8(a)(5) does in fact constitute a prima facie case of discrimination under all employment law statutes. No case or legal theory cited by the majority justifies such a far- reaching and burdensome obligation. Be not surprised that the agencies which adminis- ter fair employment practice laws will now require unions to take strong measures to find any indication of an employer's possible discrimination. And unions which do not take such action will run a very real risk of being found jointly liable for the employer's unila:erally instituted hiring and placement practices if violations are found at some future date. Thus, as a result of the majority's decision in this case, unions will find themselves burdened with a responsibility 64 Emporium Capwell Co v. Western Addition Community Organization, 420 U.S. 50, 66 (1975); Alevander v. Gardner-Denver Co., 415 U.S. 36. 47 (1974): Betty Southard Murphy with Ella B. Chatterjee. Sex Discrimination and the National Labor Relations Act, I Harv. Women's L.J.. 87. 89 (1978). 65 By way of further example, the majonty cites Business League of Gads. den, supra, fn 61, as requinng that a labor organization, to fulfill its bargain- ing obligation, must propose specific contractual provisions to prohibit ra- cial discnmination. when in fact the requirement there was to remedy the respondent union's own discriminatory conduct in ignonng a prior settle- ment and continuing to enforce illegal clauses in that case, and in no sense was it set out as a general requirement of aggressive affirmative action by all bargaining agents in every case. And they cite Vaca v. Sipes for the proposi- tion that "'IPassive ignorance will not relieve a union of its duty" (appar- ently construing this to mean that a union may be liable for discriminatory practices of which it is not aware?), but no spot citation is provided and I have found no statement to this effect in the Supreme Court's opinion. On the contrary, the Court there held that a labor organization is not liable for an employer's breach of contract and that a labor organization is free to settle a gnevance short of arbitration but stated that the union "might well have breached its duty had it ignored [the employee's] complaint [when he supplied the union with medical evidence supporting his position] or had it processed the grievance in a perfunctory manner" Vaca v. Sipes. 386 U S. 171, 193-194 (1967). This is a far cry from holding--as the Board does here-that a union must seek out possible discrimination and take steps to try to correct any it believes may have occurred. Farmers' Cooperarive Compress, 169 NLRB 290 (1968). 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which they cannot reasonably or financially be ex- pected to fulfill.67 Furthermore, information submitted pursuant to items I through 6 will not in fact help unions to fulfill their duty of fair representation. As the Supreme Court stated in International Brotherhood of Team- sters v. United States, 431 U.S. 324 (1977), in order to establish a pattern and practice of discrimination, the Government: 68 ultimately had to prove more than the mere oc- currence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a pre- ponderance of the evidence that racial discrimi- nation was the company's standard operating procedure-the regular rather than the unusual practice.69 The Supreme Court further emphasized that: Statistics are. . . competent in proving employ- ment discrimination. We caution only that sta- tistics are not irrefutable; they come in infinite variety, and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and cir- cumstances.7 0 Finally, the Supreme Court noted: Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of pur- poseful discrimination . . . . [Emphasis sup- plied.] 7 The point is, of course, that statistical data-such as the WFA sought by the Union here--are for utili- zation in proceedings instituted pursuant to Title VII to establish a primafacie case of unlawful discrimina- tory conduct by the employer.72 As already stated, 67 The majority's reference to my alleged "lecture Ito] labor organizations on the advantages of the ostrich" presumably refers to that bird's supposed propensity to bury its head in the sand to avoid danger. However, according to the "Encyclopedia Americana" this is a myth -the ostrich never takes such action. Instead, "it runs away swiftly but if cornered or wounded fights viciously with its big legs." (Vol. 21 at 36. 1974) It may be that unions should make the attempt to run as far and as fast as possible from the consequence of the majority's decision herein, and, thus, they well might have something to learn from the ostrich. In any event, methinks the majori- ty emulates the White King in "Alice in Wonderland" who "struggled with a pencil for some time without saying anything." See "Alice's Adventures in Wonderland," Lewis Carroll, Rand McNally & Company, New York. 1916. p. 129. 65 At the time the action arose, only the United States Attorney General was authorized to institute pattern and practice suits. 69 431 U.S. at 336. 70431 U.S. at 339-340. 71 431 U.S. at 340, fn. 20. 72 See also McDonnell Douglas Corp. v. Green, 411 U.S. 792. 805 (1973). cited in Teamsters v. United States, supra, in which the Court noted "statis- tics as to [the employer's] emnployment policy andpractice may be helpful to a determination of whether [the employer's] refusal to rehire [the discharged employee] in this case conformed to a general pattern of discrimination against blacks." (Emphasis supplied.) obtaining it carries a correlative responsibility to act upon it. Consequently, Unions will be obliged to an- alyze carefully the data provided by employers in or- der to determine, as best they can, whether the statis- tics indicate, prima facie. unlawful discrimination. If so, then, under the holdings of these two cases, the Union will be required to institute proceedings against the employer under Title VII, or the Equal Pay Act, or the Age Discrimination in Employment Act, or other appropriate statutes or Federal or state regulations. Certainly such a Board holding, which encourages litigation between employers and unions, rather than cooperative endeavors to provide equal employment opportunity, cannot be said "to effectuate the pur- poses of the Act." Even if the information acquired pursuant to the majority's two decisions does not indicate on its face that the Employer has engaged in unlawful discrimi- nation, the Union will still have been required to go through the process of analyzing the data concerning applicants as well as unit employees. This time-con- suming and expensive endeavor will contribute noth- ing to the Union's primary responsibility to represent employees, and representation of employees is, it should be remembered, a labor organization's raison d'etre. Notwithstanding my fear that the Union here, in obtaining the information sought, will be getting "more than it bargained for," examination of Board and court cases involving the right of a statutory bar- gaining representative to obtain information from the employer whose employees it represents impels me to the conclusion that a union could well be enti- tled to the information requested in items I through 6 listed in its June 11, 1974. letter, if sought for use for bargaining purposes. Here, as the majority opinion emphasizes, a "discovery-type standard" 73 is used in determining whether requested information is rele- vant, and the language ised in lead cases dealing with right to information, such as that from N.L.R.B. v. Yawman & Erbe MIfg. Co.,74 quoted by the majori- ty, is broad enough to cover the Union's request for statistical data. Thus, I agree that it may be given in a proper case.7 5 However, this is not such a case. It is patent and admitted-and the Administrative Law Judge so found-that the Union sought the in- formation here for purposes "other than collective bargaining." The record, the Administrative Law N. L. R.B. v. Acme Industrial Co.. 385 U.S. 432 (1967). 187 F.2d 947 (2d. Cir. 1951). I agree with the majority that the information requested in item 5 did not refer to applicants for employment. If I viewed the request otherwise. then, as set forth fully in my dissenting opinion in Last Dayton Tool and Die Co., supra, I would not find the Union entitled to such information under any circumstances. 120 WESTINGHOUSE ELECTRIC CORPORATION Judge's Decision, and the transcript of the oral argu- ment are replete with evidence and statements that the Union's real purpose for seeking this information was to protect itself in Title VII litigation or to file additional charges against the Employer pursuant to Title VII and other statutes. As stated by the Admin- istrative Law Judge: In the present case, pending or prospective liti- gation is not merely incidental or coincidental with the Union's requests; rather, it is a major reason why the requests were made. The Union has shown no hesitancy in utilizing Company- furnished information for this purpose, and has made clear that it will not hesitate to do so in the future. There is nothing in the NLRB itself or in the right- to-information cases which interpret Section 8(a)(5) of the Act as requiring that employers supply infor- mation for use in other situations or for purposes other than collective bargaining. Thus, I cannot agree with the majority that the statistical data re- quested is relevant to the Union's obligations vis-a-vis unit employees. The majority states that the Union is entitled to the information both because of the con- tractual nondiscrimination clause and because the Union has "a right to protect the employees it repre- sents from discriminatory treatment by an em- ployer." But, as I have demonstrated above, the Union sought the information-not to implement the contract provision-but as part of its litigation strat- egy. Consequently, here as in East Dayton, supra. it is clear that "neither this nor any other union is auto- matically entitled to any and all information an em- ployer possesses with respect to a subject merely be- cause that subject is mentioned in the contract." The majority nevertheless finds that the Union's right to protect employees from employer discrimina- tion is exercised by the filing of the lawsuit. In this regard, however, the majority decisions amounts to a requirement for preheating discovery, a procedure which this Board has assiduously resisted with re- spect to its own documents. 7 6 My own views on pre- hearing discovery are well known-I favor it under certain conditions and would extend its use by ap- propriate means and under appropriate circumstanc- es. However, this is not the appropriate situation and this proceeding is NOT an appropriate means, inas- much as the Union is not seeking the information for any purpose related to collective bargaining. It is the Board's mission, as prescribed by Section I of the Act, to bring the parties together at the table and to leave them there-this does not include com- 7r E.g., N L.RB. . Robbins Tire and Rubber ('.. 98 S.(t. 2311 idecided June 15, 1978) pelling any party to pursue any particular course of action or aiding a party once another course is decid- ed upon. It is well settled, and I agree, that filing a lawsuit or taking other legal action to enforce a claim does not constitute a violation of the NLRB.77 By this decision, however, the majority holding will re- sult in the Board's finding violations because a suit has not been filed.78 Accordingly, for all the reasons discussed above, I conclude that the Employer here is not obligated to supply the Union with the information sought be- cause there is no showing that the Union requested it for bargaining purposes. Confidential Charges and Complaints I do not agree with my colleagues that the Union here is entitled to any of the information requested in item 7-the charges and complaints filed against the Employer pursuant to Federal and state fair employ- ment practice laws. With regard to the charges and complaints, many of the agencies established to im- plement various antidiscrimination laws hold as con- fidential any charges filed alleging unlawful conduct. In fact, in some such agencies, confidentiality is stat- utorily mandated." As the majority correctly notes, for example, both Title VII of the Civil Rights Act of 1964 and the EEOC's implementing regulations pro- hibit disclosure of charges.8 ° Indeed, the United States Court of Appeals for the District of Columbia Circuit has recently held that the EEOC is even pre- cluded from disclosing any information obtained by it from charged parties in a national proceeding (dur- ing either the investigation stage or in the course of settlement negotiations) to any member of the pub- lic, including individual charging parties who have filed their own law suit against the charged party.8 ' In so holding the court emphasized that the legisla- 4irp4rr I.inlimousin Seriice, Innc. et al. 231 NLRB 932. 934 (1978); Lu- bhrrers Iniernaurtlnul f nion l' North 4 merica, Local No 79, 4FL CIO (Harri ( lallor, d h a Tilar (on.struction (o). 230 NLRB 638 (1977) K Of course. unions should and do have the same access to the courts and other forums as any other parts has There is not the slightest doubt of that. But by directly encouraging litigation. as the Board's decision here does, parties run the risk of having the courts set the terms of their contracts This is the antithesis of collective bargaining and the voluntar, resolution of disputes One was or the other the Board and the courts will decide the is.ues put before thenm issues which I maintain should he decided by the parlies 7F E.g . sec. 4(1). New York Division of Human Rights Revised Rules. 8 BNA FEP Manual. p 451 885: Sec. 5 11 10 of West Virginia Human Rights Act J42 U S C. § 20003 8 pro, ides, in part: (e) It shall be unlawful for ans officer or employee of the C(ommis- sion to make public In any manner whatever an) information obtained bs the ( omrlnission pursuant to its authorits under this Section prior to the institution oIf an) proceeding under this subchapter Involving such information 8 SearL Ruhrwt, and ('i . ani, Eft O(, 435 at Supp. 751 (If).C ir. 1978} 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive history of Title VII demonstrates that the pur- pose of the prohibition against disclosure contained in Section 709(e) 82 and 709(b) 83 "was to forbid dis- closure of sensitive data to any person outside the government." 84 The United States Court of Appeals for the Seventh Circuit has recently taken a similar position in Burlington Northern, Inc. v. EEOC.8 5 I recognize that some Federal or state agencies with which charges alleging violations of fair employ- ment practice laws are filed may not be subject to the same strict requirement of confidentiality that binds the EEOC. 8 6 However, it is not within the province of this Board to decide which of the many agencies po- tentially involved in the Union's request at issue are prohibited from revealing the information sought by the Union here. Nor does the Board majority have the power it exercises here to declare that the confi- dentiality of other statutes falls where Section 8(a)(5) of the Act is involved. Rather, the confidentiality of such information is a serious concern and it is totally inappropriate for this Board cavalierly to order an employer to give such information to a labor organi- zation simply in order to allow the Union an oppor- tunity to "gauge employee dissatisfaction." My colleagues in the majority state they "are not unmindful" of the need to protect the identity of a charging party, but conclude that sufficient protec- tion is afforded by ordering the Employer to provide the charges with the name of the charging party de- leted. The conclusion that such a "sanitizing" of doc- uments will actually protect the identity of a charg- ing party is, charitably described, simplistic. For, if the Union wants to learn the identity of a charging 8: 42 U.S.C. § 2000e-8(e), quoted, supra. Sec. 706(b), title VIi of the Civil Rights Act of 1964, as amended, which provides, in pertinent part, as quoted by the court: nothing said or done during and as part of .. informal endeavors las conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. 4' 17 FEP at 898. 85 17 FEP 1358 (Civil Action No. 78C1257. 7th Cir., August 15. 19781. 1 note that the majority orders Respondent to furnish not only) charges and complaints but also "any related documents and information pertaining to the status of such charges." Clearly, such information could not be disclosed by the EEOC under the cases cited above. 86 Wage-hour is not one of them. The Division of Wage Hour of the Department of Labor which has the responsibility to administer the Fair Labor Standards Act and over 60 other Federal labor statutes regards all of its charges and complaints as confidential, not to be disclosed, and fights to preserve their confidentiality. A number of circuit courts have found that the Secretary of Labor may not be compelled in discovery to inform the employer which of its employees has given the Department information regarding the employer's possible noncompliance with statutory wage stan- dards. See, e.g., Mitchell v. Roma, 265 F2d 633 (3d Cir. 1959): trrtz v. B. A. C. Steel Products, Inc., 312 F.2d 14 (4th Cir. 1962): United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966); Wirtz v. Continenrtal Finance d Loan Co. of West End, 326 F.2d 561 (5th Cir 1964): Hodgson s. Charles Marlin Inspectors of Petroleum, Inc.. 459 F.2d 303 <5th (Cir. 1972) Brennan s Engi- neered Products, Inc., 506 F.2d 299 (8th Cir. 1974): Userv v. Ritter, 547 F2d 528 (1Oth Cir. 1977). party-assuming it actually has the charge instead of the "Notice of Charge" 8 7 -it will be able to deduce the name from the information supplied in the charge. For example, the "Charge of Discrimination Form" utilized by the EEOC requires the charging party to list, inter alia, the "cause of discrimination"; i.e., race, color, religion, sex, or national origin, and the date of the alleged discrimination, and to "Ex- plain what unfair thing was done to you and how other person(s) were treated differently." Certainly the Union, armed with this information as well as information from stewards or other "grass roots" union representatives about specific unit employees and general attitudes within the unit, may make a reasonable guess as to which individuals filed the charges. Accordingly, for all of the foregoing reasons I can- not agree with the majority that the Union is entitled to charges and complaints filed with other agencies against the Employer, nor that the Board has the "right" to require the Employer to supply these other charges filed pursuant to different statutes. 88 Affirmative Action Plans I agree with the majority that the Employer is not obligated to furnish the Union with copies of AAP's developed pursuant to the Office of Federal Contract Compliance Programs' Revised Order 4, but not be- cause relevance has not been established. At a time when AAP's, which I support, are being attacked all over the country, the Board majority is trying to put out a fire with bellows.89 The whole purpose of AAP's is to enable employers to monitor their own fair employment program and to provide equality of employment opportunity without regard to artificial barriers. The spirit and motive behind Title Vll itself was to encourage voluntary compli- ance.9( If employers stop taking action on a voluntary 87 The Board's attempt to preserve the nghts of charging parties who file title VII charges by requinng the employer here to delete the name of the charging party from the charges it supplies to the Union is well intended. However. it demonstrates the Board's lack of expertise in this area. For the EEOC does not send the employers copies of the charges filed. Instead, in order to protect the confidentiality of the charging party, the EEOC only gives the employer a notice of charge filed, which does not contain the name of any charging party 8 Nor would I. in the next logical extension of the Board majority's ratio- nale here. order a union to supply an employer with copies of charges filed against the union. See, e.g.. Board of Regents of the Universilty of California v. Bakke, 438 U.S. 265 (1978): Weber v. Kaiser Aluminum & Chemical Corporation, 563 F.2d 216 (5th Cir. 1977), petition for certiorari filed September 14, 1978. 90 See Sec. 706(b). Title VII of the Civil Rights Act of 1964. as amended: If the Commission determines after . .investigation that there is rea- sonable cause to believe that the charge is true. the Commission shall endeavor to eliminate amn such alleged unlaaful employment practice bh informal methods of conference. conciliation, and persuasion. [Emphasis supplied.] 122 WESTINGHOUSE ELECTRIC CORPORATION basis, Title VII will fail. There is no way that the EEOC or private litigants "can sue everybody." The same philosophy prevails under the National Labor Relations Act. This past year over 55,000 charges and petitions were filed with our Regional Offices. There is no way the General Counsel could litigate or the Board issue decisions on all those charges and petitions. Voluntary elections, voluntary compliance, and voluntary settlements are the life blood of this Agency. It is no less so under Title VII. If employers must-and under the majority deci- sion they now must-hand over under Section 8(a)(5) their race and sex statistics and certain infor- mation contained in their AAP-by whatever name-and run the risk of a union lawsuit, I think experienced counsel will make sure that employers will be less than candid in preparing the data in the future. In fact here the Union has openly admitted that it intends to use the Board-disclosed documents in Title VII litigation. Why then should any em- ployer prepare statistics to use as a tool to improve its employment practices, envision advances, and take other voluntary action to end employment discrimi- nation when the very admissions that such action should be taken could well result in a prima facie case under Title VII? Further, I agree with the Employer that by this decision the Board is substituting its dis- closure requirement for prehearing discovery proce- dures of the courts and/or other agencies. For the same reason, I cannot agree that the Em- ployer must supply WFA's under penalty of violating Section 8(a)(5). In addition, the majority states that the Employer may delete from the WFA's "informa- tion unrelated to the information requested in items I through 6" but does not specify what information is "unrelated." Section 60-2.11(a) of Revised Order 4 of OFCCP 9' states: Workforce analysis is defined as a listing of each job title as appears in applicable collective bar- gaining agreements or payroll records (not job group) ranked from the lowest paid to the high- est 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 provided 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 Sec also In. 85, supra 9141 CFR 60-2.1 l(a) usual promotional sequences, job titles should be listed by department, job families, or disci- plines, in order of wage rates or salary ranges. For each job title, the total number of incum- bents, the total number of male and female in- cumbents, and the total number of male and fe- male incumbents in each of the following groups must be given: Blacks, Spanish-surnamed Amer- icans, American Indians, and Orientals. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles must be listed. Comparison of this definition with items I through 6 of the Union's information request does not readily indicate what information contained in the WFA is "unrelated" to the statistical data requested by the Union. Furthermore, such information as the order of jobs in any given line of progression or a listing of job titles ranked from lowest to highest rate of pay is presumably already available to the Unions inas- much as its collective-bargaining agreement with the Employer provides, in section VIII, 6.c., that: Each local will be furnished a schedule of rates or keepsheets, applying to the employees in the bargaining unit.... Job descriptions will be made available, upon request, for examination by Local representatives and new or revised job descriptions. .... including the classification by labor grade or rate range of the job, will be fur- nished to the local Union office. Thus, it appears that the Union is already entitled to or has some of the data-albeit in different form-in the WFA which is identical to that requested in items I through 6 pursuant to the Board's Order herein; other information contained in the WFA is already in the Union's possession or readily available to it. The majority's failure to describe with any specificity what material in the WFA is "unrelated" to items I through 6 renders it impossible for the Employer to ascertain what other "material" from the WFA the Board is ordering it to make available. I, therefore, am compelled to disagree with the majority's holding that the Employer here and employers elsewhere are required to furnish the Union with "portions of WFAs." In sum, the Board is embarking on dangerous seas in promulgating these two decisions. I realize that the Board does this impelled by the highest motivation to end any semblence of employment discrimination in the private sector. I have long had that same desire. I have worked hard toward this goal both in private practice and in Government and I have had some impact in achieving equal opportunity of employ- ment without regard to artificial barriers in these ar- 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eas. But it is the fact that I have had this experience which leads me sadly to conclude that the Board's decisions here will create only confusion and will lead to more charges, less settlements, more hearings, more decisions, more litigation in the courts, and I repeat-more confusion in the law of the workplace and more delay under the National Labor Relations Act. I dissent. APPENDIX NoTIwIE To EMPLOYEES POSF ED BY ORDER OF rHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportu- nity to present 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 bargaining representative, in conJunc- tion with various of its constituent locals, of our employees in the collective-bargaining units cov- ered by the IUE-Westinghouse national agree- ment, by refusing to furnish IUE, either directly or through its IUE-Westinghouse Conference Board, with information relevant to possible race or sex discrimination or the advancement of equal opportunities for female and minority group employees in said units. WE WILL NOT in any like or related manner refuse to bargain collectively with the IUE, or 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 WILL furnish the IUE. either directly or through its IUE-Westinghouse Conference Board, with the following current information for each bargaining unit covered by the IUE- Westinghouse national agreement; said infor- mation with respect to items I through 6, to be broken down into categories of white male, white female, black male, black female, Spanish- surnamed male, and Spanish-surnamed female: (I) The number of male and female em- ployees, blacks, and Spanish-surnamed em- ployees at each labor grade. (2) The number of employees by race, sex, and Spanish surname in each classification in the bargaining unit and the wage rate for each classification. (3) The number of employees by race, sex, and Spanish surname in each classification in each plant who are paid on a daywork basis and who are paid on an incentive basis. (4) The number of employees by race, sex, and Spanish surname who have less than I year's seniority, 1-2 years' seniority, 3-4 years' seniority, 5-9 years' seniority, 10-19 years' seniority, and 20 or more years' senior- ity. (5) The number of persons hired in each classification during the 12-month period im- mediately preceding the effective date of the information covered in items I through 4 above, or such other 12-month period as may be mutually agreed upon by IUE and this Company, with a breakdown as to sex, race, and Spanish surnames, showing the sex of all blacks and Spanish-surnamed persons. (6) The number of promotions or upgrades for the same 12-month period, broken down by race, sex, and Spanish-surnamed persons, showing the job level of each upgraded em- ployee prior to and subsequent to each such upgrade and the race, sex, and whether Span- ish-surnamed for each of these upgraded em- ployees. (7) A list of all complaints and charges filed against us under the Equal Pay Act, Title VII of the Civil Rights Act of 1964, Executive Order 11246, and state fair employment prac- tices law relating to IUE-represented units, and copies of each complaint or charge relat- ing to employees in IUE-represented units, along with any related documents pertaining to the status of such charges provided that we may delete therefrom the names of the charg- ing parties. (8) Copies of our most recent work force analysis filed under Executive Order 11246 and Revised Order 4 of the Office of Federal Contract Compliance Programs for or cover- ing each plant or location covered by the IUE-Westinghouse national agreement, re- serving our right to delete those portions unre- lated to items I through 6 above. WES-I IN(;HOJSE EI. ECTRIC CORPORA ION DECISION STATEMENT OF THE CASE MARVIN ROIH. Administrative Law Judge: This case was heard at Pittsburgh, Pennsylvania, on July 14, 15, 16, and 31 and August I and 27, 1975. The charge was filed on 124 WESTINGHOUSE ELECTRIC CORPORATION August 13, 1974, by Westinghouse Conference Board of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, and amended on November 21. 1974, to name International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC (herein IUE and collec- tively with its constituent locals, the Union), as the Charg- ing Party. The complaint, which issued on November 27. 1974, and was amended at the hearing, alleges that West- inghouse Electric Corporation (herein the Company or Re- spondent), violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. The Company's answer denies the commission of the alleged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file bnefs. Upon the entire record in the case ' and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs submitted by the parties, I make the fol- lowing: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Company, a Pennsylvania corporation whose prin- cipal office is located in Pittsburgh, Pennsylvania, is en- gaged in the manufacture, sale and distribution of electri- cal products in various states of the United States. In the operation of its business the Company annually purchases and receives goods and material valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania for use at its facilities within Pennsylvania. I find, as the Company admits, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED IUE and its constituent local unions are labor organiza- tions within the meaning of Section 2(5) of the Act. III THE ISSUES The principal issues in this case, reduced to their sim- plest form, are: (I) whether the Company has refused and continues to refuse to provide IUE with certain requested information relevant to possible race and sex discrimina- tion, and (2) whether by such refusal the Company is vio- lating Section 8(aX5) and (1) of the Act. More specifically, by letter dated June 11, 1974, Robert Nellis, chairman of the IUE - Westinghouse Conference Board, requested of W. A. Towle, the Company's director of personnel rela- tions, that the Company furnish IUE with the following information as of May 31, 1974, "for each location covered by the IUE - Westinghouse National Agreement:" 2 1. The number of male and female employees, blacks, and Spanish-surnamed employees at each labor grade. Errors in the transcript have been noted and corrected 2 The requested items are hereinafter referred to by their item numbers. 2. The number of employees by race, sex, and Spanish surname in each classification in the bargaining unit and the wage rate for each classification. 3. The number of employees by race, sex, and Spanish surname in each classification in each plant who are paid on a daywork basis and who are paid on an incentive basis. 4. The number of employees by race, sex, and Spanish surname 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 se- niority. 5. The number of persons hired in each classification during the twelve month period ending May 31, 1974, with a breakdown as to sex, race, and Spanish surnames showing the sex of all black and Spanish- surnamed persons. 6. The number of promotions or upgrades for the twelve month period ending May 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. 7. A list of all complaints and charges filed against Westinghouse under the Equal Pay Act, title VII, Executive Order 11246, and state fair employment practices laws and copies of each complaint or charge. The letter further requested that the figures as to sex be broken down into categories of white, black, and Spanish surnamed. Thereafter, by telegram of April 23, 1975, and letter of June 2, 1975, IUE's Assistant General Counsel, Melvin Warshaw, requested on behalf of IUE and its Westinghouse Conference Board, that Towle furnish cop- ies of the most recent affirmative action program (AAP) and accompanying work force analysis filed under Execu- tive Order 11246 and Revised Order 14 of the Office of Federal Contract Compliance (OFCC) for each plant or location covered by the IUE - Westinghouse national agreement. The Company's alleged refusal to comply with the foregoing requests forms the predicate of the complaint in this case. In his detailed opening statement, company counsel con- tended that as of June 1974, the Company did not have the compilations requested in items I through 6 of the Confer- ence Board's June 11, 1974, letter. He stated that by April or May 1975, the Company had compiled studies from which items I and 2 could be determined, but that the Company still did not have the compilations requested in items 3 through 6. However, company counsel contended that IUE could compile such statistics by obtaining from its constituent locals, information furnished or offered to the locals by the Company at each plant location, e.g., se- niority lists of employees, marked up as to sex and minori- ty status (e.g., black or Spanish surnamed), and records of hires and promotions. He admitted that items I through 6 were relevant for local bargaining purposes, but questioned their relevance to national bargaining, indicating however, that this was not the basis for the Company's objection to 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the request for the same. Rather, he contended that the request was improper because: (1) the request encompass- es nonunit employees; (2) the Company is not required to make expensive studies for IUE's benefit; (3) under the provisions of the national agreement between the parties, IUE waived any right to obtain the requested information; and (4) the request was made in bad faith, specifically for use in lawsuits against the Company. As to item 7 (list and copies of complaints and charges), Company counsel con- tended that the request was improper because the comp- laints and charges are confidential, IUE would publicize the information, the request encompasses nonunit employ- ees, and such unproven charges and complaints are irrele- vant to collective bargaining. As to the request for AAP's and work force analyses, company counsel contended that the documents were confidential, and covered nonunit em- ployees, and to the latter extent were irrelevant to any legit- imate collective-bargaining purpose, that IUE would publi- cize the information therein and perhaps utilize such information to instigate lawsuits, that IUE could obtain the work force analysis information from its locals, that IUE's requests were ambiguous, and that there can be no pre- sumption that the Company in meeting its affirmative ac- tion obligations, would violate its contract or obligation to bargain, and even if it did, other remedies, i.e., grievance and arbitration, court action, or National Labor Relations Board charge, would be available. In his opening statement, counsel for the General Coun- sel contended that IUE, as distinct from its affiliated lo- cals, was entitled to the requested information because: (1) IUE represents the employees in a single multiplant unit; (2) at some locations IUE itself is the certified collec- tive-bargaining agent; (3) the elimination of sex and race discrimination is a matter which is peculiar to national bar- gaining; and (4) IUE has an affirmative duty to remedy discrimination practiced by some of its local units. At the hearing, I ruled that the complaint did not adequately ap- prise the Company that the first contention would be liti- gated in this proceeding. Moreover, for reasons which will be discussed herein, I have further concluded that the first and second contentions are irrelevant to the essential issues in this case, and would not be dispositive of those issues. The remaining contentions, and the Company's defenses set forth above, are indicative of the issues posed by the parties' contentions in this case. The principal issues are: (I) whether the requested information is relevant to and reasonably sought for legitimate collective-bargaining pur- poses, and in particular, whether either generally or in the context of this case, the maintenance of and defense against lawsuits is a legitimate function of collective bar- gaining; (2) whether IUE or IUE - Westinghouse Confer- ence Board, as distinct from IUE's constituent local unions, is entitled to the requested information, either as requested or in some other form; and (3) whether compli- ance with the requests would have imposed an unreason- able burden upon the Company so as to relieve the Com- pany of any obligation to furnish the information in the form requested. Resolution of these and other issues raised by the parties, initially necessitates a review of the pattern of collective bargaining between the Union and the Com- pany, the history of their bargaining on matters related to the advancement of equal opportunities for female and mi- nority group employees, including the elimination of actual or apparent discriminatory practices, and the negotiations (if they may be called that) between the parties concerning the current requests for information. IV. BACKGROUND: THE PATTERN OF COLLECTIVE BARGAINING BETWEEN THE PARTIES, AND THE HISTORY OF BARGAINING WITH RESPECT TO DISCRIMINATION AND RELATED MATTERS The Company operates 89 manufacturing plants and about 250 offices, repair shops, and other facilities at vari- ous locations throughout the United States. From 1943 to 1950, United Electrical, Radio and Machine Workers of America (UE) and its constituent local unions represented units of employees at nearly 40 of the Company's loca- tions, and the parties negotiated a series of national con- tracts with local supplements. In 1949 IUE broke away from UE. The next year, in a consolidated representation proceeding (Westinghouse Electric Corp., 89 NLRB 8), in which IUE participated, the Board directed elections in 40 units. The choice was between locals of UE and IUE (usu- ally bearing the same local numbers), or no union; in a few instances one or two other labor organizations were listed on the ballot. IUE won approximately 22 of these elec- tions. On October 1, 1950, IUE and the Company executed their first full national collective-bargaining contract (na- tional agreement). Successive national supplementary agreements were executed in 1952 (incorporating interven- ing supplements), 1953, 1954, 1956, 1957, 1960, 1963, 1966, 1970, and 1973. The most recent and current national sup- plementary agreement, executed on June 16, 1973, is effec- tive to July 11, 1976. The national agreement defines the signatory union as IUE "acting for itself and on behalf of and in conjunction with its various locals herein specified . ." and provides that the Company agrees to recognize the Union, on behalf of and in conjunction with its locals, for those units where IUE or its locals, through a lawful NLRB certification, have been lawfully designated as ex- clusive collective-bargaining representative for purposes of collective bargaining. The contract further provides that units for which IUE or its locals are subsequently certified by the Board, will be covered by the national agreement upon assent by the certified union, subject to 30 days' no- tice in which any party may withhold application of those portions of the national agreement deemed inapplicable to such units. In practice, the parties have always agreed to include such units under the national agreement, although sometimes with a qualification that certain provisions of the national agreement will not apply to the new unit. In two instances the Company asserted that two facilities were in fact operated by corporate subsidiaries, but even- tually agreed to include the units under the agreement. Most certifications since the original 1950 certification have been in the name of IUE itself. However, at no loca- tion does IUE function as a local union. Rather, at each location there is a local union, designated in the national agreement, for local bargaining. At a few locations there are two local unions, e.g., at Bloomfield, New Jersey, Local 410 represents the production and maintenance employees and Local 412 represents a unit of salaried employees. The 126 WESTINGHOUSE ELECTRIC CORPORATION 1973 national supplement lists 42 units covered thereun- der; in addition, two other units have been placed under the national agreement as a result of recent Board certifica- tions. On March 1, 1975, the Company sold several of its facilities to White Consolidated Industries; six of the units listed in the National Agreement are located at the divest- ed facilities. According to the Company's statistics, IUE, as of May 1975, represented approximately 22,000 of its em- ployees. The largest units are the hourly rated unit at East Pittsburgh, the Company's largest plant, containing about 7,000 employees, and the production and maintenance units at Buffalo, New York, Sharon, Pennsylvania, and Fairmont, West Virginia, with approximately 3610, 3408, and 1433 employees, respectively. The remaining units range in size from Muncie, Indiana, with about 1270 pro- duction and maintenance employees, to a unit of service center employees in Dallas, Texas, with five employees. The Company has collective-bargaining agreements with about 48 other unions. However, at most of the facilities where there is an IUE unit, the overwhelming majority of the employees are in that unit. The IUE constitution establishes Conference Boards, whose function, inter alia, is to coordinate the collective- bargaining activities of local unions which deal with em- ployers having many plants. The IUE - Westinghouse Conference Board (herein Conference Board) consists of the IUE president and from one to four delegates from each local union, who in turn select a chairman. Robert Nellis, a member of IUE's Executive Board, is the present chairman, and Vincent Vingle is secretary of the Confer- ence Board. The functions of the Conference Board in- clude formulating collective-bargaining demands, desig- nating committees to negotiate contracts, and determining whether contracts shall be accepted. Its approval of a na- tional agreement is binding on all covered locals. The Con- ference Board, in conjunction with the IUE's legal depart- ment, selects cases for arbitration and the legal department presents the cases. The chairman is responsible for keeping the locals informed concerning matters related to wages, hours, and working conditions, and for arranging arbitra- tion proceedings and meetings with the Company to dis- cuss settlements of grievances or questions of contract in- terpretation. The Conference Board's representatives meet periodically with the Company to discuss such matters, some of which may affect only one plant. The National Agreement provides that the Company and Union shall each have a committee of 12 as its repre- sentatives, for the purpose of considering pursuant to the provisions of the agreement, all matters relating thereto which said representatives of the Union and the Company "respectively," may deem companywide and generally ap- plicable to the various collective-bargaining units. Thus, each party unilaterally decides what matters warrant con- sideration as a companywide problem. The Union's com- mittee, known as the National Negotiating Committee of the Westinghouse Conference Board, functions as a com- mittee of the Conference Board, and includes Nellis, Vin- gle, and other delegates to the Conference Board. The Company's committee consists of Personnel Relations Di- rector Towle, his assistants, experts, and management per- sonnel from some plants. The Conference Board is initially responsible for the de- velopment of contract proposals. Some proposals are sub- mitted to the Board by local unions. The proposals are then submitted to the Steering Committee of the Coordi- nated Bargaining Committee (CBC) consisting of 14 Inter- national Unions who deal with the Company and General Electric Company. Nellis represents IUE on the CBC. Af- ter CBC makes tentative proposals, IUE conducts "grass roots" meetings at 14 locations throughout the country, at which the CBC proposals and local proposals are received. These meetings take place 2 to 3 months before the com- mencement of national negotiations. All proposals are again submitted to CBC, which prepares its final recom- mendations, which in turn are usually followed by IUE. IUE's entire package is usually submitted at the first con- tract bargaining session by Nellis, acting as spokesman for the Union. The national agreement is characterized in certain major areas by broad, general provisions which provide for the negotiation of details in local contract supplements. Thus, while the national agreement defines employee seniority for purposes of layoff, recall, transfer, and upgrading, the agreement leaves to local negotiation for embodiment in local supplements, the composition of seniority units and various aspects of the procedures to be followed in layoffs, recalls, and promotions, including the posting of job op- portunities. Wage schedules are negotiated locally and are reduced to writing in statements known as key sheets, which indicate, by grades, what an employee will be paid for a particular classified job. The grades usually range upwards from I to 14 and sometimes higher (e.g., to about 20) at the larger plants. Every job title is keyed to a labor grade; however, there is no uniformity among locations either as to the wage scale or job title. Thus, the pay scale for each labor grade varies from one location to another, and a particular job does not always fall into the same labor grade, e.g., janitors are usually in labor grade 4 or 5, and assembly jobs, usually held by women, are usually in labor grade 2, but may be classified in grade 3 at larger plants. There are separate key sheets for daywork and in- centive jobs. Amendments to the key sheets, e.g., to up- grade a job, are known as "slotting agreements," and are negotiated locally. Notwithstanding the extent of these lo- cal negotiations, both IUE through its Conference Board and the Company through its personnel relations depart- ment maintain control over local negotiations. No local supplement may be inconsistent with the national agree- ment. The Conference Board reviews and sometimes par- ticipates in the negotiation of local supplementary agree- ments, including key sheets and slotting agreements. However, this activity is conducted on a sporadic rather than a systematic basis, as indicated by Vingle's lack of knowledge concerning such agreements. On the Company side, plant officials regularly consult with corporate head- quarters in the negotiation of supplements, and the person- nel relations department systematically reviews and main- tains on file all such agreements. For many years, the Company classified men's jobs and women's jobs separately, with differing rates of pay. In 1945, the War Labor Board found that the Company and General Electric Company had longstanding wage differ- 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entials between rates for women's jobs and men's jobs, as a result of which women were paid significantly less than men for performing the same work. The WLB did not dis- turb the distinction between men's jobs and women's jobs, but found that the wage differentials were unjustified, and granted relief sought by UE by directing that the pay curve for women's jobs be moved up to coincide with the curve for men's jobs involving the same work. The Company. General Electric, and UE were the parties to that case, which is reported at 28 W.L.B. Reports 866. The 1950 IUE - Westinghouse national agreement acknowledged the sex distinction in job categories, providing that "women placed on jobs classified by (the Company] as men's jobs shall receive men's rates of pay." In 1954 IUE and the Company inserted in the national agreement for the first time, a pro- vision "reaffirm[ing] their intention that the provisions of this Agreement and of local supplements will continue to be applied without discrimination because of race, creed, color or national origin." In the 1954 national negotiations the Union unsuccessfully proposed contract clauses pro- viding for equal pay without distinction as to sex, and ex- tention of hospitalization benefits to cover pregnancy and childbirth. In 1958 IUE added a proposed clause eliminat- ing wage differentials based on sex, and in 1960, also pro- posed extending contractual pension provisions to widows and survivors. In 1963 IUE again submitted the above pro- posals, together with a proposal to amend the antidiscrimi- nation clause of the national agreement (sec. IV, par. 3), to include a reference to sex. The latter proposal was resub- mitted and adopted by the parties in 1966, and the refer- ence to women's and men's jobs was simultaneously delet- ed from the contract. In 1970 the antidiscrimination clause was again amended to add a reference to age. The clause is not subject to contractual arbitration, although the na- tional agreement leaves the Union free to strike over non- arbitrable grievances. In 1966, 1970, and 1973, the Union unsuccessfully proposed that the clause be made subject to binding arbitration. In these negotiations IUE made other proposals which related or purported to relate to the status of female and minority group employees. In 1966 and 1970, IUE proposed clauses to prohibit sex discrimination in upgrading and layoffs, extention of disability insurance coverage to pregnancy, and training of females for higher paying jobs. In 1970 and in 1973, IUE proposed a layoff and recall system based on plantwide seniority, and plant- wide posting of job opportunities. In 1973 IUE also pro- posed a joint employer-union committee, coupled with binding arbitration, to review rates alleged to be discrimi- natory, and elimination of all contract provisions which treated pregnancy in a different manner from other forms of disability; e.g., a provision requiring 9 months employ- ment as a prerequisite for receipt of benefits. IUE was substantially unsuccessful in achieving these goals in the 1973 negotiations. However, in June 1973, the Company did agree to indemnify the Union for any liabili- ty resulting for application of the Company's insurance plan exempting pregnancy from disability payments. The Company also proposed a pilot program at four plants, whereby, during a posting period, any female employee could apply for any five jobs. This proposal was rejected by IUE. The Company submitted this proposal because in its view, many female employees were not making use of advancement opportunities which were available to them. With respect to its proposal for binding arbitration of grievances relating to alleged sex or race discrimination, IUE expressed the viLw and continues to assert that the absence of such provision might in itself be discriminatory and unlawful. IUE cites as authority, a preliminary admin- istrative determination of an EEOC district director, issued in 1972 in a case known as the Bentley case, involving IUE and the Company. The Bentley case was subsequently set- tled through conciliation. IUE has made clear at least since 1972, that in the absence of arbitrability, the Union stands ready and willing to institute lawsuits against the Company in order to eliminate what it considers to be discriminatory practices. As IUE General Counsel Newman put it, if the matter is not arbitrable, if deemed advisable "we gear up for a lawsuit" to enforce the contract, or a title VII pro- ceeding or other action. Indeed, Newman admitted that even as to arbitrable matters, the Union does not necessar- ily pursue the contractual grievance procedure when a "top level issue" is involved. The Union has in fact, filed charges with EEOC and instituted pending class actions against the Company to remedy alleged sex discrimination. In the Everts case, IUE joined with its Locals 410 and 1581 and individual employees to allege discriminatory practices at the Company's Bloomfield and Buffalo plants. In the Adams case, IUE joined with its Locals 449 and 627 and individual employees to allege discrimination at the Tren- ton and Fairmont plants. Both actions were instituted in 1974 in the United States District Court for the Eastern District of Pennsylvania, where they are pending trial. In both actions the plaintiffs have, inter alia, alleged the Com- pany's application of provisions of the national agreement and local supplements, e.g., in making disability benefit payments, to be unlawful. Both the Union and the Compa- ny agree that the Union is potentially liable to employees for entering into and participating in enforcement of such provisions: indeed, in 1974 the Company filed a "precau- tionary" charge with the EEOC alleging as much. How- ever, the Company has adhered to its contractual rights by declining IUE's requests to submit to binding arbitration, proposed revisions of contractual provisions which might be discriminatory. IUE contends that any violation of Title VII of the Civil Rights Act of 1964, including the maintenance of specific- provisions of the national agreement and local supple- ments, are ipsofacto also violative of the antidiscrimination clause of the national agreement, and must be corrected in order to achieve compliance with that clause. With respect to its contract proposals calling for plantwide seniority, IUE contends, in essence that existing local practices whereby seniority for purposes of layoff, recall, or promo- tion is followed by departmental lines, or along specific occupational ladders or progressions, tends to perpetuate longstanding practices whereby female and minority group employees tended to be concentrated in the lower labor grades. However, IUE's zeal in the area of equal opportu- nity is not uniformly shared by its local unions. In 1973 IUE initiated a program whereby the locals were urged to review local contract provisions and practices which tend- ed to be discriminatory, and if possible to negotiate 128 WESTINGHOUSE ELECFRIC CORPORATION changes to correct such deficiencies, along lines recom- mended by IUE. The responses promoted IUE's president to observe that some locals recognized only pregnancy as a discrimination issue, or manifested a lack of understanding of how the courts interpret title VII. Some locals even failed to respond to IUE's repeated requests. IUE General Counsel Newman opined in his testimony that "generally. local people are not able to recognize discrimination even when it is there." On April 4. 1972. over I year prior to the 1973 national contract negotiations, Conference Board Chairman Nellis sent a letter to Clark Frame, Towle's predecessor as direc- tor of personnel relations. Invoking guidelines recently promulgated by the EEOC and Revised Order 4 of the OFCC, Nellis proposed revision of various contract provi- sions dealing with pensions, insurance, and maternity ben- efits which the Conference Board viewed as having thereby been rendered unlawful. Nellis alleged other discrimina- tory practices, and noted the pendence of two consolidated lawsuits, known as the Reinhart and Albrecht cases, in which IUE alleged discriminatory practices at the Com- pany's Mansfield, Ohio, plant. Prehnli:ary to discussions concerning these proposals, Nellis requested that the Com- pany furnish the Conference Board with copies of the EEO-I forms which it had filed with the EEOC and copies of Affirmative Action Programs which it maintained on file for the OFCC.3 Nellis indicated that if the request im- posed an unreasonable burden on the Company, he was willing to look at a representative sample of these docu- ments. Frame rejected Nellis' proposals, asserting that they should have been made when the 1970 national agreement was negotiated, and that the guidelines promulgated by EEOC and OFCC did not constitute law until the courts ruled on them. Frame added that the request for EEO I reports and AAP's were not relevant to matters of contract negotiation, but that the Company was willing to discuss the request. In June 1972, the Conference Board and the Company met to discuss the Conference Board's proposals for revising the national agreement. 4 No agreement was reached. At the same time, the Conference Board broaden- ed its request for data, requesting that the Company fur- nish figures for each plant showing the number of female, black, and Spanish-surnamed employees by grade, wage scale, and job classification, together with similar data per- taining to hiring and promotions, and copies of complaints and charges against the Company relating to alleged sex and race discrimination. In substance, the Conference Board requested the same type of information at that time which it requested in its subsequent letter of June I I, 1974. Nearly a year later, on May 1, 1973. the Company. in par- tial satisfaction of the Conference Board's requests, fur- nished figures for each plant showing the number of male and female employees at each plant, broken down by labor grade. Towle, in his testimony. was unable to explain the 3 The EEO I forms contain statistical data. hut are nol as detailed s, the AAPs and work force analyses hereinafter described 4 Nellis and Frame were the principal negotiators for the lespet.tlte par- ties at this meeting and In the subsequent 1973 contralr ct negotl.ititr , tl.s - ever. ('onference Sectetar, Vingle and A' A ts 'le, then: Frame '., asllirntl who testified in this case, participated in those negoiatilns and were famll- iar with them. Company's delay in furnishing this information, or why other requested data, including copies of charges and complaints, was not also furnished. Towle testified that the plants did not record the number of employees at each grade by race, but also testified that they did not record such information by sex. The Conference Board did not expressly, limit its request to unit employees: however. the data furnished was so limited, and no question was raised by either party in this regard. At no time did the Company take the position that the Conference Board should seek to obtain such information through the local unions. The data furnished uniformly indicated that female employees were preponderantly employed at lower grades than men, except at Attica, where no females were employed, and at Muncie, where there were only six women in the unit. IUE main- tains that the data was inadequate, and by reason of its method of developing contract proposals, came too late to be of any significant value in the 1973 national negotia- tions. However, the Union did submit the data in support of its contract proposals, and also utilized and alleged such data in its complaints in the Everts and Adams cases. The national agreement contains no provision expressly covering the furnishing of information pertaining to the race or sex of employees or to possible race or sex discrimi- nation, nor does the national agreement contain any provi- sion governing the furnishing of information to IUE or the Conference Board, except for the commitment of the sig- natory parties "to exchange such information with respect to [the national agreement] as is mutually deemed essential for the furtherance of harmonious relations." Although, prior to the 1973 negotiations, the Conference Board re- quested the information described above, the parties have never negotiated over the inclusion in the national agree- ment of any clause expressly governing the furnishing of such information. However, section VIII of the national agreement. which covers the subject of wages, contains cer- tain provisions regarding the kinds of information which the Company is contractually required to furnish the local unions. Thus, the Company is required to furnish the locals with: (a) those portions of the Company's instructions in its Comptrollers and Industrial Relations Manual which concern government orders and laws affecting employees and deal with Company or government interpretations of such laws, and (b) Company instructions on interpretation of the national agreement, as they are issued. These in- structions are contained in documents known as IG (Infor- mation General) letters, which eminate from corporate headquarters in Pittsburgh, and cover a wide range of mat- ters. including some which are negotiable at the local level. such as leave time and changes in key sheet rates, as well as the Company's interpretations of Federal and state antidis- crimination laws. Local plant management is also required to furnish its interpretations of the orders and laws de- scribed above, and its interpretations of local supplements. The Company' is also required to furnish each local with a schedule of rates or key sheets for unit employees, to pe- riodically furnish them with a record of transfers, hires, rehires, and releases. and to furnish upon request, job de- scriptions, including job classification by labor grade, and the rate range for each job. Section VIII, paragraph 6, of the national agreement. which contains these provisions, 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not on its face purport to be a complete enumeration of all information which the Company is required to fur- nish to the Union. However, the "zipper" clause of the national agreement (art., par. 3), provides, with exceptions not here pertinent, that the signatory parties are not obli- gated to bargain concerning matters referred to or covered in the national agreement, or other matters which were dis- cussed during the negotiation of that agreement and its 1973 supplement. V. THE ALLEGED UNFAIR LABOR PRACTICES: THE COMPANY'S ALLEGED REFUSAL TO FURNISH THE REQUESTED INFORMATION The negotiations or discussions between the parties con- cerning the requests for information which constitute the basis for the present complaint, are substantially embodied in a series of correspondence between the parties during the period from June 11, 1974 through July 3, 1975, shortly before the commencement of the hearing in this case. Most of the correspondence was nominally conducted, i.e., the letters were signed by Nellis for the Conference Board and Towle for the Company. However, IUE Attorneys New- man and Warshaw for the union side, the Company Attor- ney Ingham and Robert F. Kennedy, the Company's direc- tor of equal opportunity and affirmative action, for the company side, were consulted and actively participated in the formulation of the positions set forth in these letters. Newman testified concerning IUE's asserted reasons for wanting the requested information. As to items I and 2 in the June 11 letter, Newman testified that the Union wanted to know whether a segregated pattern existed within the various labor grades and classifications; and as to item 3, whether there was any discrimination between incentive and day rates. Newman testified that item 4 (categories of seniority) related to promotions; e.g., whether if the higher rated jobs were predominantly occupied by white males, they were the most senior employees. At to item 6, the Union wanted to know at what levels the promotions were taking place; e.g., if the preponderance of promotions from labor grade 4 to grade 5 involved male employees while most promotions from grade I to grade 2 involved females, this might show a segregated pattern. Newman expressed the Union's view that a departmental seniority system built around a segregated pattern was unlawful (citing, inter alia, United States v. Jacksonville Terminal Company, 451 F.2d 418, 457, 459 (5th Cir. 1971)), and ergo, violative of the national agreement. Conference Board Secretary Vingle as- serted in his testimony that a segregated pattern did exist. He pointed out that when the Company combined its male and female key sheets in 1957, the female rates were placed at the bottom of the grade scale, and that consequently, many women were still paid less than men who performed less demanding work. As to item 7, Newman testified that such complaints and charges might be settled by concilia- tion agreements, without the participation or knowledge of the Union, on terms which were inconsistent with the na- tional agreement or a local supplement. Newman testified that he did not know of any such cases involving the Com- pany, but that he was aware from his own experience, in- cluding service as an attorney with the EEOC, that this practice was sometimes followed in EEOC cases and in the settlement of private lawsuits. (As a result of an EEOC conciliation agreement involving the Company's Union City, Indiana, plant, employees who left their employment by reason of pregnancy were granted the same benefits as other disabled employees, notwithstanding their lack of the contractually required 9 months prior service; however, the Union was apparently notified of or participated in this agreement). The parties agree that the law, specifically, Ti- tle VII, the Equal Pay Act, state fair employment laws, and the Company's affirmative action obligations under Execu- tive Order 11246, supersede the Company's contractual obligations. Newman asserted the Union's position that it was entitled to items 1 through 7, without limitation to unit employees, but that it was prepared to accept such data limited to employees represented by the Union. However, the June I I request was not expressly limited to unit em- ployees, and the Union did not thereafter so limit its re- quest. With respect to the AAP's, Newman asserted with- out qualification that the Union was entitled to copies of such documents even insofar as they applied to nonunit employees, because under decisional law, where discrimi- nation exists, an employer may be required to permit em- ployees to transfer across bargaining unit lines and carry their seniority with them. Newman further asserted that IUE, as distinct from its affiliated locals, was entitled to all of the requested information because: (1) IUE was at- tempting to carry out a program, mandated by its 1972 and 1974 conventions, to remedy discrimination; (2) IUE has an affirmative duty to root out discrimination; and (3) the local officials generally lacked the legal and technical ex- pertise to recognize situations of discrimination where they existed. Upon receiving the June II letter, Towle discussed the Conference Board's request with Director of Equal Oppor- tunity Kennedy, Company Attorney Ingham, and Harry Crook, the Company's director of personnel practices and benefits. Towle and Kennedy appeared as witnesses for the Company. Their testimony indicates that, rather than en- deavoring to obtain the requested information or ascertain- ing how much of it could be made available to the Confer- ence Board, the company officials devoted their efforts to formulating a negative reply. Towle was vague about his discussions with Kennedy. Towle testified that Kennedy gave him the information with which to prepare a re- sponse: in substance, the text of Towle's letter of July 15, 1974. According to Towle, Kennedy said that the requested data would be burdensome to compile, but made clear that the reason was that much of the data was in "the field," i.e., that it would be difficult to compile the data at corpo- rate headquarters. Indeed, Towle testified that "we told representatives of the Conference Board many, many times in meetings and correspondence that the place for [sic] this kind of information could be obtained is locally . . . we are having to get it from local management because that it where the information is." Towle further conceded that he never discsussed with Kennedy any specific documents or other material which might contain the requested data. Towle also indicated that the Company's position was predicated not upon any possible difficulty in compiling the requested data, but upon the Company's position that the matter of equal employment opportunity should be ne- 130 WESTINGHOUSE ELECTRIC CORPORATION gotiated at the local rather than the national level. Thus, Towle testified that he told the Conference Board that its request should be handled locally because seniority proce- dures and rates of pay are negotiated locally, and there- fore, the local people were "the best qualified people to direct themselves to these kinds of problems or questions." Kennedy testified that he did not have items I through 6 of the June II letter compiled as of that date, nor did he have any such compilations as of the time of this hearing. As will be discussed hereafter, Kennedy's testimony in this regard is misleading, and at least in large part, false. Ken- nedy did admit that the charges and complaints requested in item 7 are catalogued and filed in the Company's law department. According to Kennedy, the requested statisti- cal data could have been compiled at the plant locations in a variety of ways, e.g., by analyzing the job card or record of individual employees, by print out of data coupled with manual identification of employees by race and sex, or by the use of records and reports customarily furnished to the local union. Kennedy admitted that he made no review of materials contained in the affirmative action programs be- cause "I knew what was in . . . them," that he made no review of key sheets or seniority lists and that he did not request any information from the locations relative to the June II letter. Kennedy testified that it would take 5,000 hours of work, at a cost of approximately $25,000. to com- pile the requested data covering IUE represented em- ployees. However, this estimate was predicated on the premises that: (I) the data were not available , and (2) the data would have to be compiled at corporate headquarters rather than at the plant locations. By letter of June 5, 1974, Towle responded to the June II request. Towle, in substance rejected the Conference Board's request on four asserted grounds: (1) IUE had shown no legitimate purpose for the information, rather, it was apparently intended for use in lawsuits; (2) the infor- mation was burdensome to compile; (3) the matter should be handled at the local level; and (4) the local unions had much of the requested information. Towle made no asser- tion of confidentiality as to any of the items, including item 7. On August 13 the Conference Board filed the present charge, and on August 29 Nellis sent a letter replying to Towle. Nellis asserted that the requested information was needed to police the administration of section IV of the national agreement, to secure its full benefits to the em- ployees, to determine whether the present system of pro- motions and wage rates provided equal opportunity, and to determine whether seniority clauses should be carried out as written. Nellis further asserted that IUE intended to fur- nish the information to its locals, and was itself obligated to establish fair employment practices, and denied that the Union was using the request as a discovery vehicle. There- after, no further correspondence took place with regard to the Union's requests for information until April 1975.5 5 During the first half of 1975. the parties engaged in correspondence and discussion concerning certain contract proposals by the Union relative to the subject matter of equal employment opportunities. In view of the pen- dency of the present case, and the fact that the correspondence and discus- sions took place far in advance of the next national contract negotiations, I am not inclined to attach any weight to these exchanges, which contain statements strongly smacking of self-serving declarations. In December 1974, IUE unsuccessfully attempted to ob- tain by way of subpoena duces tecum in this case, some of the same information which it is now attempting to obtain by way of a Decision and Order on the merits of the unfair labor practice case. On April 23, 1975, IUE Assistant Gen- eral Counsel Warshaw sent his telegram requesting the Company's AAP's and accompanying work force analyses, and proposing that the Company "may delete references to employees for whom the IUE or any of its Locals have not been designated as the exclusive bargaining represerta- tive." Towle did not reply to this telegram because of the Company's belief that it had simply been submitted ir lieu of the quashed subpoena duces tecum. By letter dated June 2, 1975, Warshaw reiterated the request. this time without any language limiting the request to unit employees. In the circumstances, including the testimony of Newman con- cerning the Union's asserted need for the AAP's. I find that the June 2 letter was intended to supersede the prior telegram. By letter of June 10, 1975, Towle rejected the request. Towle asserted that the request was improper be- cause the AAP's contained (I) information related to non- unit employees; (2) confidential financial information; (3) hiring and utilization data which covered matters with- in the Company's discretion; and (4) "perhaps most im- portantly," confidential information consisting of "candid self-analysis of utilization." However, Towle declared that the Company had offered to provide work force data to the locals, and had provided it when requested. IUE seized upon this declaration, and by letter of June 19, 1975, Nel- lis, on behalf of the Conference Board requested that the Company furnish each local with a copy of the work force distribution data for the pertinent facility. By letter of July 3, Towle stated that the June 19 letter was "a reasonable alternative" to the prior request for AAP's, and proposed to furnish the work force data if the Union "will agree to treat this information as strictly confidential commercial or financial information and agree not to release it or publi- cize it in any way." Towle further declared that the prof- fered data "is in all substantial respects the information requested in the first three items in your letter of June I 1, 1974." Towle added that "we had not compiled this infor- mation at that time, but since each of our locations have subsequently completed such compilations as a part of the work force analysis covering all employees at the location, preparing such detail for IUE represented employees would not be as burdensome." As to item 4 in the June 11, 1974, request, Towle offered to furnish the locals with sen- iority lists, marked to indicate race and sex. However, Towle asserted that the Company did not have items 5 and 6, and that a compilation of such data "would be difficult, time consuming, burdensome and expensive." Towle's let- ter was prepared in collaboration with Kennedy, who re- viewed the final draft. The parties' disagreement as to the meaning of "confi- dentiality" for collective-bargaining purposes, proved to be the ultimate barrier to resolution of their differences. By letter of July 10, 1975, Attorney Warshaw, under Nellis' signature, offered to treat the proffered information as con- fidential for "representation purposes," which Warshaw 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defined as its use: (I) to formulate demands for collective- bargaining negotiations; (2) to decide on the most appro- priate course of action in connection with employee griev- ances; (3) to determine the need for proceeding before Federal and state courts and agencies to protect the rights of employees; and (4) for use as evidence in grievance pro- ceedings or proceedings before administrative agencies or courts. The parties thus reached an unabridgeable gap on the question of whether the Union's participation in litiga- tion involving alleged race or sex discrimination was a le- gitimate function of collective bargaining. Vi. THE COMPANY'S AFFIRMATIVE ACTION OBLIC(ATIONS, 1 HE AVAILABILITY OF THE REQUESTED INFORMAlION, AND FHE EXTENT TO WHICH SUCH INFORMATION WAS FLURNISHED ro ilE LOCALI UNIONS Executive Order 11246 (30 C'FR 12319; 42 U.S.('. § 2000(e) ), originally issued by President Johnson in 1965, in substance requires government contractors and subcon- tractors to take affirmative action to insure against race and sex discrimination in employment, and in connection therewith, to file such reports and information as might be required by the Secretary of Labor. The Company is a Government contractor subject to the provisions of Execu- tive Order 11246 and to the orders of the OFCC issued pursuant thereto. The Department of Defense is the Company's cognizant agency, i.e., the agency responsible for determining compliance with its affirmative action obli- gations, for about 90 percent of its facilities, although other agencies are cognizant compliance agencies for certain plants. Order 14 of the OFCC, establishing standardized con- tractor evaluation procedures, originally was issued to the heads of all federal agencies on January 14, 1972, and im- plemented on July 1, 1972. It was revised and reissued on February 6, 1974, effective April 15, 1974, and issued in completed form, including clarifying amendments on July 12, 1974. Order 4 of the OFCC, setting forth affirmative action guidelines, was originally issued on September 30, 1972. As subsequently revised, Order 4 became effective on July 12, 1974. Revised Orders 14 and 4 require each con- tractor to develop an acceptable written affirmative action program for each of its facilities, and to maintain on file such programs (AAPs) for examination by a compliance officer. Order 4 defines an AAP as: a set of specific and result-oriented procedures to which a contractor commits himself to apply every good faith effort. The objective of those procedures plus such efforts is equal employment opportunity .... An acceptable affirmative action program must include an analysis of areas within which the contrac- tor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be di- rected to correct the deficiencies and, thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his work force where deficiencies exist. Government contractors have been required to prepare written AAP's since 1969, and commencing in that year, the Company has annually prepared, on a calendar-year basis, AAP's for each of its plants and facilities. The Com- pany also annually files EEO I reports for each of its plants, containing a current inventory of minority and fe- male employees; and since 1972, the Company has also prepared detailed utilization analyses required by OFCC. However, the requirement that each AAP be accompanied by a work force analysis, at least as presently defined, did not become finalized until July 1974. Revised Orders 14 and 4 define a work force analysis as: a listing of each job title as appears in applicable collective bargaining agreements or payroll records (not job group) ranked from the lowest paid to the highest paid within each department or other similar organization unit including departmental or unit su- pervision. If there are separate work units or lines of progression within a department a separate list must be provided 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 salary 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 be given: Blacks, Spanish-sur- named Americans, American Indians, and Orientals. The wage rate or salary range for each job title must be given. All job titles including all managerial job titles, must be listed. Revised Order 4 further provides that the AAP shall con- tain: "An analysis of all major job groups at the facility, with explanation if minorities or women are currently being underutilized in any one or more job groups (job groups' herein meaning one or a group of jobs having sim- ilar content, wage rates and opportunities). 'Underutiliza- tion' is defined as having fewer minorities or women in a particular jo', group than would reasonably be expected by their availability. In making the utilization analysis, the contractor shall conduct such analysis separately for mi- norities and women." It is difficult to see how the Company could make the required work force analysis for each of its locations, with- out in the process, compiling the very same information which the Conference Board requested in items I and 2 of the June 11, 1974, request. In view of the fact that the Company utilizes separate key sheets for daywork and in- centive jobs, it is also difficult to see how the Company could have avoided making the compilation requested in item 3. Moreover, OFCC Revised Order 14 requires a con- tractor to make available to its compliance officer, data which will enable the officer to determine whether minori- ties or women are assigned to jobs where incentive earn- ings are more difficult. Considering the Company's wage structure and systematic recordation of that structure, cate- gorized at each plant into labor grades with corresponding wage rates, and with each job title keyed to a particular 132 WESTINGHOUSE ELECTRIC CORPORATION grade, the data which the Company is required to compile for its work force analyses is in substance, the same data which the Company was requested to furnish in items I, 2, and 3. Indeed, the Company conceded in its July 3, 1975, letter to the Conference Board, that its location had in fact, compiled substantially that data in the course of preparing their work force analyses. However. Equal Opportunity Director Kennedy testified that, as of July 1974, the Company had not developed a format for the preparation of its work force analyses. Ken- nedy has broad corporate responsibility in the area of equal opportunity. Kennedy and his department are re- sponsible for developing the format by which the localities develop their AAP's and work force analyses, interpreting laws in conjunction with the Company's law department. reviewing internal compliance with the Company's poli- cies, and furnishing problem solving assistance to local plants. According to Kennedy, his department worked with the Department of Defense on the development of a format, but a final consensus was not reached until Janu- ary 1975. In thc meantime, the format ultimately adopted by the Company was substantially utilized at 12 locations to prepare data for the fourth quarter of 1974. According to Kennedy, the format of the work force analyses, insofar as pertinent to items 1, 2, and 3, differed in two substantial respects from statistical data compiled in the Company's AAPs at the end of 1973: (1) the data was broken down into broad job categories instead of specific job titles. and (2) the numbers of female and minority employees in each category were simply shown under those headings, instead of broken down by minority group within each sex. A com- parison of the format of a work force analysis prepared early in 1975, with the format of an AAP prepared early in 1974, corroborates Kennedy's testimony. However, it does not follow from this fact, that the Company had not com- piled the more detailed statistics in 1974 or even earlier. In order to compile the statistics for each job category, the Company would first have to determine which job titles fell within that category. Similarly, in order to determine whether an employee was a minority employee, the Com- pany would first have to know to which minority group he belonged. These facts are further borne out by documents which the Company itself offered in evidence in order to show the extent to which it had furnished relevant data to the local unions. In October 1974, the Trenton plant fur- nished Local 449, apparently at the l.ocal's request, with a computer runoff containing data for each employee, in- cluding seniority date, job (by number), classification. la- bor grade, pay basis, union code (i.e.. whether in a particu- lar bargaining unit), sex, and most significantly. a minority code. The minority code or MC was keyed to the word COINS, i.e., C for Caucasian, O for Oriental. I for Indian. N for Black, and S for Spanish surnamed, the same catego- nes which are utilized by the OFCC. Kennedy testified that the race and sex data had been fed into a computer as of January 21, 1974, long before the Local made its re- quest. I find it difficult to believe that the Trenton plant would have compiled such sensitive data on its own, and without doing so as part of a uniform company policy. Kennedy also testified that the Company's job application forms indicate the race, national origin, and sex of each applicant. In sum, I find that. even as of June 1974. the Company was not called upon to make a manual identifi- cation of the sex or minority designation of its employees at any' plant, because it had already compiled such infor- mation. Assuming arguendo, that the Company did not have the requested data as of June 1974, but thereafter proceeded to develop a method of compiling its work force analysis which failed to take the Conference Board's request into consideration, or made it difficult or burdensome to meet that request. I would find such a course of action to mani- fest bad faith bargaining. In addition to the Company's obligation under the Act to furnish the Union with infor- mation relevant to legitimate collective-bargaining pur- poses, chapter 3 of the OFCC's current Compliance Manu- al states that "Union officials should be involved in developing and implementing the AAP from the start." The Manual further states that, "potential areas of discrim- ination which require review and action include" among others, union contract provisions affecting areas such as seniority, promotions, concentrations of women and mi- norities in various job titles and job groups, and maternity leave policies and fnnge benefits. In view of the many ar- eas in which affirmative action and contract provisions ov- erlap, and indeed may conflict. OFCC's policy favoring inclusion of unions in the formulation of AAP's is under- standable. Nevertheless, notwithstanding the Company's professed policy of complying with all federal regulations in the area of equal opportunity, the Company views the formulation of affirmative action policy, in effect, as none of the Union's business, and maintains, in substance, that the Union is entitled to know only the Company's publicly declared policy after it has been formulated. The Company cannot seriously maintain that it would be unduly burdensome, costly, or time consuming to fur- nish the seniority data requested in item 4. Personnel Di- rector Towle admitted that all plants have seniority lists and that in the larger plants such lists are maintained by computer printout. The Company regularly furnishes to the local unions. seniority lists of employees in order of their seniority. and indeed, has furnished directly to the Conference Board. seniority data no less complex than that requested in item 4, when such data was requested in a context other than equal opportunity. Thus, in connection with the 1973 negotiations relating to the pension plan, the Company furnished the Conference Board with data show- ing the distribution of employees by length of service (i.e.. less than I year. I 5 years, 5 10 years. etc.) broken down by age, service group, and percentage of female employees. 1he Company did not contend at that time that it was inappropriate or burdensome to furnish such information to the C(onference Board. The Company did. however, contend in its July 3, 1975. letter, and continues to assert in this case, that it does not have the compilations requested in items 5 and 6, and that such compilations would be unduly burdensome, time con- suming, and expensive. I find, in light of the Company's affirmative action obligations pursuant to the rules and regulations of the OFCC, that the Company either had or should have had such compilations at least as far back as June 1974. and therefore, that its contention is without 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merit. Those rules and regulations contain provisions which implicitly require essentially the same compilations requested in items 5 and 6, as well as item 4. Revised Order 14 requires the contractor to "maintain applicant flow data" showing name, race, sex, job applied for, source of referral, date of application, and disposition. The contrac- tor is required to maintain on file data which will "reflect applicant activity for the past year," and enable a compli- ance officer to comply with the following directive: Summarize total applicants by total, male, female, and male and female minority classifications. While in many cases applicants are not classified by particular job, it should be possible to provide some separation of the applicant flow count into at least broad occupa- tion groups. Report the number of offers of employ- ment for each category and by total, male, female, and male and female minority classifications. The accep- tances should be related to the job groups outlined by you in your review of the workforce analysis. The contractor is further required to prepare an "analysis of promotions and transfers in his affirmative action pro- gram" or a list of promotions (a promotion being defined as "any personnel action resulting in movement to a posi- tion of greater skill, effort or responsibility"); which will enable the compliance officer to "relate name or other identification to minority/majority group status, sex, previ- ous job, department and pay, and new job and department and pay." The contractor is further required to provide data which would enable the compliance officer to "pre- pare an analysis which includes an identification of those specific jobs wherein the minority or female incumbents could have been denied placement, promotion or transfer due to discrimination." Order 14 further provides that: For all the job groups cited, the contractor should be asked to prepare a list by department line of progres- sion or unit within which promotion normally occurs of all employees ranked by job in order of progression and indicating for each: name, job title, rate of pay, sex, minority group or nonminority identification, original hire date, and other apnropriate seniority dates considered in promotion, transfer or layoffs. If department, job, company or plant seniority dates are utilized by the contractor such dates must be included. Usually, even if seniority is not a guiding factor in promotions, in all but managerial positions, total length of service will be correlated to job entitlement. OFCC's affirmative action guidelines further direct the contractor to maintain as part of its affirmative action pro- gram, data including but not limited to "progression line charts, applicant flow data, and applicant rejection ratios indicating sex and minority status." These and the fore- going requirements were substantially in effect in connec- tion with the utilization analysis which the Company was required to make at least as far back as 1972. Thus, Equal Opportunity Director Kennedy testified that since 1972, the Company has reviewed promotional opportunities and patterns for women and minority groups and maintains a 4-year backup of pertinent data. It is no defense to a union's request for information, that compilation of the requested information would be unduly burdensome, time consuming or expensive, where the em- ployer has compiled, or is required to compile that same or substantially the same information for law enforcement purposes. That is the situation in the present case. Assum- ing arguendo, that the Conference Board's request called upon the Company to tabulate total figures based on data which (as I found here) the Company has in its possession, I do not find that the necessity of such compilation pre- cludes the propriety of the request. In the circumstances of this case, the requirement of such tabulation would not be unreasonable. In particular, I note that: (I) the Company has regularly furnished to the local unions and to the Con- ference Board, compilations of data involving a compara- tive degree of effort; (2) the Company utilizes computers to compile the requested data and similar data; and (3) the Company has at its disposal a director and full staff whose responsibilities and functions are in the area of affirmative action and equal opportunity, including the compilation of detailed pertinent statistical data. If it is not unduly bur- densome for the Company's plants to furnish the requested data to the local unions, upon their request, then it is not burdensome for the plants to mail the same data to the International or to the Conference Board. Moreover, in view of the close control which the Company maintains over the affirmative action programs at its various loca- tions, and the fact that the Company keeps a file of de- tailed personnel information, including copies of all key sheets and slotting agreements, at its Pittsburgh headquar- ters, I am not inclined to credit the Company's assertion that the requested data can only be found at the plant locations. In sum, I find without merit the Company's as- sertion that compliance with the Conference Board's re- quest for items I through 6 would be unreasonably burden- some, time consuming, or expensive. VII. CONCLUDING FINDINGS AND ANALYSIS OF THE ISSUES PRESENTED A. The Propriety of the Conference Board as a Recipient of the Requested Information General Counsel's contention that IUE, as distinct from its local unions, is entitled to the requested informaton, rests in part on the premise that IUE represents the em- ployees in a single multiplant unit, and upon the fact that IUE is the Board-certified bargaining representative at some locations. Neither premise addresses itself to the question presented. There is no question that IUE repre- sents all of the employees, whether they be in a single unit or many units. Nevertheless, it is still possible, as contend- ed by the Company. that the parties either expressly or impliedly designated the local unions as the instrumentali- ties through which such requests would be made and such information be furnished. However, the Company's effort to draw a distinction between IUE and the Conference Board on the one hand, and the local unions on the other, falls into a more fundamental error. The requests were made by the Conference Board, which is an instrumentali- ty of both IUE and its local unions which deal with the Company. The Conference Board was created pursuant to 134 WESTINGHOUSE ELECTRIC CORPORATION the IUE constitution, consists of delegates chosen by the local unions, and performs collective-bargaining functions on behalf of both IUE and its constituent locals. These functions have included requests for information from the Company. The Conference Board has indicated that it in- tends to furnish the requested information to the local unions. Therefore, the Conference Board is an appropriate instrumentality for requesting and receiving data relevant to collective bargaining, whether the request is deemed to have been made on behalf of IUE or on behalf of its locals. In sum, the Conference Board is an agent of the local unions for collective bargaining, and the Conference Board is a proper instrumentality for obtaining such information, even if the subject matter of the request were deemed to pertain solely to matters of local negotiation. See Pine In- dustrial Relations Committee, et al., 118 NLRB 1055 (1957). Moreover, insofar as the requests are deemed to have been made on behalf of IUE, there is substantial and per- suasive evidence that the requests relate in no small mea- sure to matters of national bargaining. IUE contends that the information requested in items I through 6 is relevant and necessary, inter alia, to its administration of article IV of the national agreement, and to the formulation and pre- sentation of its demands in national bargaining. The his- tory of bargaining between the parties bears out the valid- ity of this contention. The NLRB has taken cognizance of "the great weight of authority that statistical evidence of racial imbalance is sufficient to establish a prima facie case of racial discrimination in employment or union member- ship." Hawkins Construction Company, 210 NLRB 965, 968 (1974), citing N. L R. B. v. Mansion House Center Manage- ment Corporation, 473 F.2d 471, 475-477 (8th Cir. 1973); and United States v. Ironworkers Local 86 et al., 443 F.2d 544, 551 (9th Cir. 1971). IUE also correctly points out that it has an affirmative duty to root out discrimination. See, e.g., Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), in which the Supreme Court noted that the NLRB has ordered a union implicat- ed in discrimination with an employer by reason of provi- sions of their collective-bargaining contract, to propose specific contractual provisions to prohibit racial discrimi- nation, citing Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v. N.L.R.B., 368 F.2d 12 (5th Cir. 1966). IUE is entitled to race and sex data pertaining to the makeup of the employ- ee complement, and the Company's hiring and promotion patterns, in order to assist in determining whether article IV is being fully implemented, and to determine whether existing provisions in the national agreement and local sup- plements tend to perpetuate discrimination or frustrate equal opportunity. The item 5 data, while superficially not pertinent to matters heretofore negotiated between the par- ties, is relevant if for no other reason that to keep current the kind of information called for in items I through 3, and to ascertain trends which might affect the employee pat- tern indicated by those items. Items I through 6 relate or are potentially relevant to various matters which are subjects of bargaining at the lo- cal level; e.g., job posting and the composition of seniority units, However, the request is principally and basically ad- dressed to information relevant to the advancement of equal opportunities and working conditions for female and minority group employees. For many years, the parties have recognized this to be an appropriate subject for na- tional bargaining; indeed, the record is nearly devoid of evidence that this subject matter has been bargained at any other level. Thus, for example, when the parties negotiated a provision in the national agreement which made avail- able maternity leaves of absence, and which had the effect of voiding a Columbus, Ohio, local supplement, thereby taking away accumulated leave from some Columbus em- ployees, the problem was taken up at the national level. In Emporium Capwell, supra, the Supreme Court held that the elimination of discrimination and its vestiges is an appro- priate subject of bargaining. In the context of a union vis-a- vis its members, the Court concluded that a union "has a legitimate interest in presenting a united front on this as on other issues and in not seeing its strength dissipated and its stature denigrated by subgroups within the unit separately pursuing what they see as separate interests." (420 U.S. at 70) These considerations are also applicable to situations, as here, involving dual bargaining at the national and local levels. I do not interpret the information provisions of section Vll of the national agreement as constituting a clear and unequivocal waiver of the Conference Board's right to ob- tain the kind of information presently requested. It may be true, as the Company asserts, that the records described therein, e.g., key sheets and records of transfers and hires, constitute the raw data (exclusive of sex or minority group identification), from which items I through 6 may be tabu- lated. However, statistical data concerning the Company's work force, broken down by sex and minority group, is a matter of sui generis, and not covered by the provisions of section VIIIl. Thus, it is not a valid defense to the Confer- ence Board's request, for the Company to assert that the Conference Board could compile the requested statistics from information furnished to the local unions pursuant to section VIII because the Union, presumably through its plant stewards, knows or is in a position to know the sex and racial composition of its membership. Cf. Anaconda Wire and Cable Company, 182 NLRB 272, 273 (1970), enfd. 444 F.2d 1028, 1036 (7th Cir. 1971). The provisions of sec- tion VIll on their face, simply purport to constitute a list of the minimal information which the Company is required to furnish the local unions pursuant to the requirement of the national agreement. Section VIII does not, on its face, pur- port to constitute a waiver of the Conference Board's right to request and obtain similar or other information, nor have the parties so interpreted that section. Thus, the Com- pany has furnished to the Conference Board at the latter's request, statistical data pertaining to the makeup of the work force, notwithstanding that such data may have been compiled from the kind of documents described in section VIII. Although, in 1972 and 1973, the Conference Board requested and ultimately obtained in part, sex and minori- ty statistics, its requests were made preliminary to national contract negotiations, and not in the context of a proposal to define the Union's right to information in the national agreement. Thus, the national agreement does not purport to define IUE's right or lack of right to obtain the request- ed information, nor did the parties bargain about that mat- 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ter in the course of their national contract negotiations. In this context, section VIII, even when read in conjunction with the zipper clause of the national agreement, does not constitute a clear and unequivocal waiver of that right. The Company contends that the Conference Board's re- quest is improper because it is not expressly limited to data pertaining to IUE-represented employees, and because the Union is not entitled to information pertaining to non- unit personnel. I agree that the request is not so expressly limited, and that the Union has failed to show that items I through 7, insofar as they cover nonunit employees, are relevant and necessary for any legitimate collective-bar- gaining purpose. The Union would have a legitimate inter- est in knowing whether the Company, as part of its affir- mative action program, intended to disregard unit lines in order to remedy discrimination outside of the IUE bar- gaining unit. But the initial determination of whether or not such discrimination exists is not a matter within the Union's province. The Union is charged with the responsi- bility of collective bargaining for employees within, not outside those units. Nor does the evidence indicate that the Union needs statistical data covering nonunit personnel (e.g., managerial and professional personnel), in order to determine whether there is actual or apparent discrimina- tion within the IUE units. It is possible that future devel- opments, such as positions taken by the Company in na- tional negotiations, might make such data relevant. In the present posture of the relations between the parties, that relevancy has not been shown. However, when the Union's request is viewed in the context of the past and present dealings between the parties, it becomes clear that the par- ties never viewed this matter as a stumbling block to com- pliance with the Conference Board's request of June II, 1974, insofar as it pertained to unit employees. Thus, when the Conference Board made a similar request for informa- tion in 1972, the Company complied in part with the re- quest by furnishing data limited to unit employees, and no question was raised by either party. Similarly, the Compa- ny did not raise this objection in its response to the June 11 request. In sum, I do not view the Company's contention in this regard, as a valid basis for refusing to furnish items I through 7 insofar as they pertain to IUE-represented employees. B. Whether the Use of the Requested Information in Litigation Would Constitute a Legitimate Function of Collective Bargaining In the quarterly report of the NLRB's General Counsel for the first quarter of 1975, which was issued shortly after issuance of the complaint in this case, the General Counsel described an 8(a)(5) case involving the refusal of an em- ployer to furnish a union with copies of antidiscrimination charges and complaints. The General Counsel administra- tively determined the 8(a)(5) charge to be meritorious, "ab- sent evidence that the Union intends to use the informa- tion for the purposes of 'publicizing' it rather than for representation purposes." The General Counsel further in- dicated that if the employer could establish through evi- dence a good faith reason to question the Union's assur- ances that it would respect the "confidentiality" of the information, then "we would not proceed further on the case." The quarterly report does not define the terms "pub- licizing," "confidentiality," and "representation purposes." It takes little imagination to realize that the General Coun- sel was referring to the present case, and the Company has cited the quarterly report in its brief. The General Counsel was, prior to the commencement of this heanng, presum- ably aware of the Conference Board's letter of July 10, 1975. It is apparent, in view of the Union's method of for- mulating its demands in national bargaining, that the Con- ference Board contemplates wide dissemination of the re- quested information even for that function.6 The Company's concept of "confidentiality," plainly does not square with the Union's admitted intention to use the requested information, if deemed necessary, in litiga- tion against the Company. Therefore, at the close of the hearing, I requested the parties to submit briefs covering, inter alia, the question of whether such use would consti- tute a legitimate function of collective bargaining. Unfor- tunately, General Counsel's otherwise able brief did not directly address itself to this question. General Counsel did advance the proposition that "the fact that other pending litigation exists, does not offer an employer a defense in providing information," citing Curtiss-Wright Corporation, 193 NLRB 940, 953 (1971). That is not exactly the question here presented. In Curtiss-Wright, a union sought informa- tion concerning a pension fund, in order to use that infor- mation in connection with negotiations with the employer. The Board concluded that the union was entitled to the information notwithstanding that the union had brought suit against the employer for an audit of the fund. In the present case, pending or prospective litigation is not merely incidental or coincidental with the Union's requests; rath- er, it is a major reason why the requests were made. The Union has shown no hesitancy in utilizing company-fur- nished information for this purpose, and has made clear that it will not hesitate to do so in the future. If, as con- tended by the Company, such use of the information is improper, then, in view of the Union's letter of July 10, 1975, the Company would be correct in asserting that it had good cause to believe that the request was made in bad faith. The question is thus squarely presented of whether either generally or in the context of this case, maintenance or participation of a union in litigation against an employer can be a legitimate function of collective bargaining. The starting point for consideration of this question is N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). In Acme, the Supreme Court, interpreting "the general obliga- tion of an employer to provide information that is needed by the bargaining representative for the proper perfor- mance of its duties," held that that obligation required an employer to furnish information for the purpose of en- abling a union to determine whether to process a grievance through contractual arbitration. Inherent in the Acme De- "'I his finding is not intended as passing judgment on the validity of the Lnion's practice of consulting with other international unions in the formu- lation of its contract demands, except to the extent that it may lawfully seek their nonhbinding advice in formulating those demands. However, putting aside this practice, the Union's method of developing its contract proposals. including its "grass roots" meetings, plainly contemplates dissemination of the requested information to numerous persons 136 WESTINGHOUSE ELECTRIC CORPORATION cision are two further premises concerning the "discovery- type standard" for obtaining information: (I) that a bar- gaining representative is entitled to obtain information for use in processing grievances, if necessary, through contrac- tual arbitration, without first requesting that information from the arbitrator; and (2) that consequently, an em- ployer is required to furnish a bargaining representative not only with information which is relevant to across-the- table bargaining, but also with information which is rele- vant to a grievance or to the administration or policing of the contract, including litigation against the employer, al- beit, litigation in the form of an arbitration proceeding brought pursuant to the contract. The factual context of the present case differs from that of Acme in two significant respects. First, the present case relates to the Union's efforts to police the administration of a contract provision which prohibits discrimination against employees by reason of race, national origin, or sex; and second, the provision is not subject to binding arbitration. These factors place the Union on the horns of a dilemma. The Union places a broad interpretation on section IV of the national agreement. The Union has further indicated its view that some Company practices, and some provisions of the national agreement and of local supplements, may be violative of section IV. and at least, that it wishes to obtain the requested information from the Company in or- der to determine whether in the Union's opinion, this is the case. The Company denies that there is any discrimination, and has refused to furnish the requested information. The Union is, of course, free to strike in order to enforce its interpretation of article IV; however, this courFe of action would be unsatisfactory for several reasons. The Union here, like the Union in Acme, would be forced to proceed ahead without the benefit of information which would ena- ble it to determine whether its cause was meritorious, and if so, what concessions it should seek from the employer. Also, economic action in the form of a strike would plainly be the least desirable recourse. And a strike in furtherance of the asserted rights of female or minority group employ- ees, might have a divisive effect among the Union's mem- bership, and lack the broad support needed to wage suc- cessful strike action. Of course, the Union could take no action, and leave effectuation of its interpretation of article IV to individual employees who felt that they were being deprived of their rights under article IV and/or Federal and state laws, and who could file charges with the appro- priate agencies or institute lawsuits. These employees would lack the Union's overview of company practices and policies, and of the various local supplements. Additional- ly, the disposition of such charges and complaints is a mat- ter of general importance to all of the Company's employ- ees. Such proceedings, like the processing of grievances referred to in Emporium Capwell, supra, are not "inherently limited to the correction of individual cases of discrimina- tion .... one would hardly expect an employer to contin- ue in effect an employment practice that routinely results in adverse arbitral decisions." (420 U.S. at 66-67.) More- over, such inaction by the Union would leave the Union open to charges that it was failing to carry out its responsi- bilities as bargaining representative, or becoming a party to discriminatory practices, and thereby subject it to potential liability. Cf. Hughes Tool Co., 147 NLRB 1573, 1574 (1964), cited in Emporium Capwell, supra, 420 U.S. at 64. The Union's remaining option is, as it has in fact done, to initiate or join in the filing and prosecution of antidiscn- mination charges and lawsuits. Hereagain, as with the bar- gaining representative in Acme, the Union would he re- quired to proceed ahead against the Company without the benefit of information which it deems necessary in order to determine whether the charges have merit. It is true, as the Board pointed out in Bekins Moving & Storage Co. ol Flor- ida. Inc., 211 NLRB 138, 139 (1974), that "we should not attempt to usurp the functions which Congress entrusted to the [EEOC] and other agencies." But this statement was coupled with the proviso that "the Board must interpret the Act with due regard for Federal policy against racial or other arbitrary or individuous discrimination." In the pres- ent case, the substantive statutory rights of IUE - repre- sented employees, and their contractual nghts, at least as interpreted by the Union, are inextricably interwoven. We must also heed the admonition of the Supreme Court that "national labor policy embodies the principles of nondis- crimination as a matter of the highest priority" (citing Al- exsander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974), and that the Act must be construed in light of that policy. Fur- thermore, as was pointed out in the dissenting opinion of Members Fanning and Penello in Bekins (211 NLRB at 148, fn. 48), the filing of charges with a governmental agen- cy. and maintenance of the consequent litigation of those charges, does not necessarily constitute conduct outside of the scope or in derogation of a collective-bargaining rela- tionship, but might well constitute conduct to preserve that relationship. The dissenting members were referring to an employer who might file 8(b)(3) charges with the Board, alleging that a bargaining representative was demanding continuation or institution of discriminatory practices. Members Fanning and Penello reasoned that such charges would be designed to bring about elimination of that union's actions in seeking to involve the employer in the offending practices, and were thereby directed at preserv- ing the bargaining relationship. Here, the same considera- tions are pertinent to the Union's past and contemplated actions in initiating or joining in the filing of charges with EEOC or state agencies or filing or joining in lawsuits ad- dressed to alleged sex or race discrimination. In sum, such course of conduct is a legitimate function of the Union's collective-bargaining obligations. I find that the Union has thereby acted in good faith, and consequently, that the Union's declared intention to use the requested informa- tion in considering or maintaining legal action against the Company, does not constitute bad faith as would militate against a requirement that the Company furnish that infor- mation. C. Item 7. The List and Copies of Antidiscrimination Charges and Complaints, and the Company's Defenses of Irrelevancy and Confidentiality IUE General Counsel Newman testified that the Union needed item 7 because such charges or complaints might be settled by conciliation agreements, or otherwise, without the knowledge or participation of the Union, on terms 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were inconsistent with the national agreement or a local supplement. I find it unlikely that the EEOC would knowingly approve a conciliation agreement which operat- ed to set aside or modify a provision of a collective-bar- gaining contract, without at least notifying the signatory union of that fact, and I would hope that the Company would so notify the Union. In a recent decision, a Federal court of appeals held that a union had a right to intervene in a proceeding for the entry of a consent decree which had been agreed to in an EEOC conciliation, notwithstanding that the union had declined to participate in the concilia- tion. The court concluded that the union was entitled to intervene because it had an interest in provisions of its contract with the employer which might be modified or invalidated by the memorandum of agreement and consent decree, thereby impairing the union's ability to protect and enforce those provisions. E.E.O.C. v. American Telephone and Telegraph Company, 506 F.2d 735, 741 (3d Cir. 1915). However, it is still possible that EEOC, or other cognizant agencies or courts, might approve settlement agreements without fully appreciating their impact on the continued viability of pertinent collective-bargaining contracts. Fur- thermore, there is another and perhaps more fundamental reason why item 7 is relevant to the Union's collective- bargaining functions. Because article IV of the national agreement is not subject to binding arbitration, the Union may not be able to ascertain, by reviewing employee griev- ances, the extent to which the employees themselves be- lieve that article IV has been or is being violated. It is true, as the Company points out, that charges and complaints are not proof of the assertions therein. But a labor organi- zation, in order to fully carry out its responsibilities, cannot merely limit itself to consideration of employee grievances of proven merit. The Union must be in a position to gauge employee dissatisfaction, in order to make a determination as to whether its contract provisions are being effectuated, in what ways they are deficient, and what new proposals it should make. In view of the overlap between article IV and Federal and state antidiscrimination laws, charges and complaints filed by or on behalf of unit employees are a significant indication of such dissatisfaction in the area of discrimination and equal opportunity. The Company correctly points out that title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5), and the EEOC's regulations (29 CFR 1601.20), prohibit the com- mission from making charges public prior to the institution of court proceedings involving such charges, except for such disclosure to the charging party, respondent, witness- es, and interested government agencies as may be appro- priate or necessary to the carrying out of the commission's functions. The Company further correctly points out that complaints filed under the Equal Pay Act have been ac- corded similar confidentiality by the Wage-Hour adminis- trator, and that various state antidiscrimination laws and regulations issued pursuant thereto contain similar re- strictions on disclosure by the cognizant agency. In the congressional debates, Senator Humphrey, who sponsored the compromise amendment which ultimately became sec- tion 2000e-5, stated that the amendment was intended to prevent the commission from making unproven charges available to the general public. 110 Cong. Rec. 12723; see also H. Kessler & Co. v. E.E.O.C., 472 F.2d 1147 (5th Cir. 1973), cert. denied 412 U.S. 939. This provision, and simi- lar provisions cited by the Company, are binding upon governmental agencies, and do not govern the relations be- tween private parties. Thus, in a recent decision, a Federal District Court held that Title VII did not preclude certain labor unions from being required to divulge information to private parties relating to discrimination charges. Gray v. Electrical Workers, 10 EPD paragraph 10, 453 (D.D.C., 1975). The concern expressed by Senator Humphrey, which presumably motivated similar provisions under other antidiscrimination laws, is not addressed to the col- lective-bargaining relationship. The Union is not merely a part of the general public; as bargaining representative it has a vital role to play in eliminating discrimination and assuring equal opportunity for all employees. The various Federal and state restrictions on disclosure are a factor to be taken into consideration when evaluating the merits of an alleged violation of Section 8(a)(5) by reason of a refus- al to furnish information. However, those restrictions and the considerations embodied therein, are inapposite to the present case, and are greatly outweighed by the relevancy and need for the requested information for use in collective bargaining. D. The Affirmative Action Programs and Work Force Analyses Company Equal Opportunity Director Kennedy testified that the present format for the Company's AAP's contains sections dealing with the following topics: (I) reaffirmation of company policy, (2) internal and external dissemination of that policy, (3) responsibility for imple- mentation, (4) utilization analysis, (5) problem identifica- tion, (6) action oriented approaches to overcome prob- lems, (7) monitoring the AAP, and (8) support of community organizations. According to Kennedy, the work force analyses, which are now a part of the AAP, contain a list of job titles by department which are now a part of the AAP, contain a list of job titles by department from the lowest paid to the highest paid (through division manager), showing rates of pay and the total number of employees by department or sub-department, designated by sex and four minority classifications. The AAP's define, inter alia, the Company's deficiencies in terms of its utiliza- tion of female and minority group employees, and contain an analysis of its utilization of minorities and females, i.e., where they are placed in the work force and what they do, and an analysis of the number of promotable female and minority employees. The Company's position, as testified to by Kennedy, is that the AAP's, including the work force analyses, are con- fidential, and need not be disclosed to the Union, essen- tially for two reasons. First, the AAP's contain candid self- analysis of the Company's deficiencies, i.e., the Company is required to "hear its own soul," and if the Union had access to this data, the Company would be inhibited from making a full and candid disclosure of information to the cognizant government agencies. Second, the AAP's contain confidential commercial and financial information con- cerning personnel matters, plans, projections, and person- 138 WESTINGHOUSE ELECTRIC CORPORATION nel utilization. The Company offered to prove, through the testimony of Professor David P. Rutenberg, a specialist in corporate strategy and business policy, who was not per- sonally familiar with the Company's AAP's, that AAP's generally contain significant information which if dis- closed, would result in disadvantages to the employer. In support of its position, the Company relies on certain OFCC regulations governing nondisclosure of portions of AAP's, and court decisions in this area. OFCC Revised Order 14 provides that information obtained from contrac- tors pursuant thereto, shall be subject to the Freedom of Information Act. That Act, in pertinent part (5 U.S.C. § 552(bX4)), exempts from disclosure "trade secrets and commercial or financial information obtained from a per- son and privileged or confidential." OFCC regulations (29 CFR § 6040.3) specifically exempt from the general re- quirement of agency disclosure: (I) those portions of AAP's such as goals and timetables which would be confi- dential commercial or financial information because they indicate, and to the extent that they indicate, that a con- tractor plans major shifts or changes in his personnel re- quirements and has not made this information available to the public; and (2) those portions of AAP's which consti- tute information on staffing patterns and pay scales, to the extent that their release would injure the business or finan- cial position of the ccntractor, would constitute a release of confidential financial information of an employer or would constitute an unwarranted invasion of the privacy of an employee. In National Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) the court held that commercial or financial information was confidential for purposes of 5 U.S.C. § 552(b)(4) if the disclosure was likely either: (I) to impair the government's ability to obtain necessary information in the future; or (2) to cause sub- stantial harm to the competitive position of the person from whom the information was obtained. In Westinghouse Electric Corp. v. Schlesinger, 7 FEP 682 (E.D.Va., 1974), the court, after hearing the testimony of Professor Ruten- berg, declined to direct disclosure of certain portions of the Company's EEO-I reports and AAP's, which had been re- quested by two private associations. In a recent unreported decision (Sanday v. Carnegie-Mellon University, 12 FEP 101 (D.C.Pa. 1975), the court refused to direct disclosure of AAP's through discovery in a class action alleging sex dis- crimination, because of the "candid reflection" and "inter- nal evaluation" contained therein. None of these cases arose in the context of a collective-bargaining relationship. The Company's AAP's, including the work force analy- ses, insofar as they cover or may potentially affect the em- ployees in the IUE-represented units, are relevant to legiti- mate collective-bargaining functions. The work force analyses contain much of the same data requested in items I through 6 of the June 11, 1974, request, and the relevancy of such data has heretofore been discussed. Much of the AAP's are relevant because the Company's plans, projec- tions and present and proposed utilization of women and minorities, may operate to modify or annul provisions of the national agreement or local supplements, and are fac- tors which the Union is entitled to take into consideration in policing article IV of the national agreement, and in formulating its contract proposals. Indeed, as heretofore noted, OFCC contemplates that revision of collective-bar- gaining agreements may be necessary in order for the em- ployer to formulate and carry out an acceptable affirma- tive action program. It is not enough to say, as does the Company, that the Union may initiate grievance or other proceedings if the contract should be violated. The Union here, like the union in Acme, is first entitled to information which would enable it to determine whether there has been a violation of the contract. The Company's first, or "self-analysis" argument of con- fidentiality, rests on an erroneous premise. As heretofore indicated, the OFCC's program for development of AAP's contemplates that employers and unions will work together in that task, i.e., that they will mutually "bear their souls." Had the Company developed its AAP's in this matter, the issues here presented should never have arisen. The second argument, regarding commercial and financial data, simi- larly disregards the nature of the collective-bargaining rela- tionship. When a bargaining representative seeks data for legitimate collective-bargaining purposes, and the data is relevant to such purposes, an employer cannot refuse to furnish that data on the ground that disclosure of the data to his competitors might injure him in his business. Frontier Homes Corporation, 153 NLRB 1070, 1086 (1965); The In- galls Shipbuilding Corporation, 143 NLRB 712, 717-178 (1963); Hastings & Sons Publishing Company, 102 NLRB 708, 715 (1953); see also Lewis & Cooke, Ltd., 153 NLRB 1542, 154647 (1965). Compare American Cyanamid Com- pany (Marietta Plant), 129 NLRB 683 (1960), wherein the Board, in a decision confined to the particular circum- stances of that case, declined to find an 8(a)(5) violation, because the bargaining representative's adamant demands precluded negotiations to protect against improper dissem- ination of data concerning unique manufacturing tech- niques and processes. No similar information is involved here, and the Union has credibly indicated that it does not intend to use the requested information for any improper purpose. Although Frontier, Ingalls, and Hastings involved wage data, which is per se relevant to bargaining, their ra- tionale is equally applicable to subject matter which has been shown to be relevant. The testimony of Professor Ru- tenberg in the Schlesinger case, which the Company sought to reintroduce in this case, simply bears out the fallacy of the Company's reasoning. Professor Rutenberg testified that by analyzing an AAP, a competitor could deduce wage rates, thereby inferring the labor cost of the facility, and would also know from the number of senior engineers and maintenance workers, whether the employer was working on new product development. But here, the Union already knows the Company's wage rates and the number of maintenance employees, and its right to such informa- tion is unquestioned. However, some of the material in the AAP's has not been shown to be relevant to any bargaining purpose, and for this reason, I shall not recommend that the Company be ordered to produce such material. Specifically, the Company's analyses, plans, policies, and projections with respect to the recruitment and hiring of minority employ- ees, have not been shown to be relevant to any bargaining purpose. Additionally, the Union is not entitled, by reason of Section 8(aX5) of the Act, to any statistical data or other 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material covering managerial or professional personnel, statistical data pertaining to non-IUE represented person- nel, or analyses, plans, projections, or policies covering non-IUE represented employees, except insofar as such analyses, plans, projections, or policies may affect employ- ees in the IUE - represented units. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. IUE and its constituent local unions are each labor organizations within the meaning of Section 2(5) of the Act. 3. Conference Board is an agent of IUE and its constitu- ent locals for purposes of collective bargaining with the Company. 4. The various certified units of the Company's employ- ees described in the appendix to the national agreement between IUE and the Company, or included under said national agreement by agreement between the Company and the Union, constitute units appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 5. At all times material, IUE for itself and on behalf of and in conjunction with various of its constituent locals, has been and is, the exclusive collective-bargaining repre- sentative of the Company's employees in the units referred to above. 6. The Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(L) and (5) of the Act, by failing and refusing to provide IUE, through its Conference Board, with requested information relevant to possible race or sex discrimination or the ad- vancement of equal opportunities for female and minority group employees in the units referred to above. THE REMEDY Having found that the Company has committed viola- tions of Section 8(aX)() and (5) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company has violated Section 8(aX)() and (5) of the Act by failing and refusing to furnish certain information requested by the Conference Board in its letters of June 11II, 1974 and June 2, 1975, I shall recommend that the Company be ordered to furnish IUE with current information covering items 1 through 7 of the June Il letter with respect to employees in the units covered by the national agreement, and to furnish IUE with copies of the most recent AAP and accompany- ing work force analysis for each plant or location covered by that agreement, with the qualifications indicated in sec- tion VIII, subsection D, of this Decision. I find upon consideration of the unique facts of this case and the history of collective-bargaining between the par- ties, that the Company's conduct does not reflect a general disregard or hostility to the Act. Accordingly, I find that a broad remedial order is not warranted. Rather, I shall rec- ommend that the Company be ordered to cease and desist from the unfair labor practices found, and from in any like or related manner infringing upon the rights guaranteed in Section 7 of the Act. [Recommended Order omitted from publication.] 140