The East Dayton Tool and Die Co.

THE EAST DAYTON TOOL AND DIE CO. The East Dayton Tool and Die Co. and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 668. Case 9-CA- 8887 October 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS. MURPHY. AND TRUESDALE On May 30, 1975, Administrative Law Judge Hen- ry L. Jalette issued the attached Decision in this pro- ceeding. Thereafter, Respondent and the Charging Party, herein also called the Union, filed exceptions and supporting briefs. On April 8, 1977, the Board, having determined that this and another case involving an employer's obligations to furnish certain types of information to the collective-bargaining representative of its em- ployees presented issues of importance in the admin- istration of the National Labor Relations Act, as amended, scheduled oral argument for May 18, 1977. Thereafter, oral argument was rescheduled to Sep- tember 8, 1977, at which time the General Counsel. the Charging Party, and amici curiae presented argu- ments. l The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, oral arguments, and the amicus briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consis- tent herewith.2 The Union was certified as representative of Respondent's production and maintenance employ- ees in December 1971. Subsequently, the parties exe- cuted a collective-bargaining agreement effective April 1, 1972, through March 31. 1975, which con- tained, inter alia, the following provisions: 4.01 The provisions of this Agreement shall be applied to all employees by the Company and The Equal Employment Ads isor' (Council and the International L nion: United Automobile. Aerospace & Agricultural Implement Workers of America: UAW, presented oral argument as arric ciiurae and the Equal Employment Opportunity Commission, as armtui ciuritae, presented oral ar- gument and submitted a brief Counsel for Respondent, by letter dated April 25, 1977, averred that Re- spondent had ceased doing business and, therefore, moved that this pro- ceeding be dismissed. "It is well settled that mere discontinuance in business does not render moot issues of unfair labor practices alleged against a re- spondent." Armitage Sandand Gravel. Inc, 203 NLRB 162, 166 (1973), enfd in part 495 F.2d 759 (6th Cir. 1974). See also Southp.ort Petroleum (Comparn v. N.L.R.B.. 315 U.S. 100 (1942). Accordingly, the motion to dismiss is denied. 2 Member Truesdale points out that although he was not on the Board at the time the case was orally argued he has read the transcript of the oral argument before joining his colleagues herein the Union and all employees in the bargaining unit in accordance with the provisions of appli- cable law without discrimination with respect to any term or condition of employment, as a re- sult of and/or on the basis of said employee's race, color, creed, age (from age 40 to age 65) sex, national origin, union membership or non- membership in the Union. 4.02 The Company and the Union agree to pro- vide equal employment opportunities without regard to race, color, creed, or national origin. This Agreement shall apply to hiring, placement, upgrading, transfer or demotion, recruitment, advertising or solicitation for employment, treat- ment during employment, rates of pay or other forms of compensation, selection for training (including apprenticeship), layoff or termination and both the Company and the Union pledge to do any and all things which may be necessary in the future to provide equal employment oppor- tunities. By letter dated July 19, 1974, the Union advised Respondent that the Union had undertaken an affir- mative action program "to eliminate all race and sex discrimination in plants represented by IUE-AFL- CIO-CLC and its locals." Further, in order "to com- plete an appropriate analysis and reach the correct conclusions concerning potential race and sex dis- crimination problems at East Dayton," the Union re- quested, in pertinent part, the following informa- tion: 3 !. The total number of males, females, whites, blacks, and other minorities who sought employ- ment, and the total number in each group who were actually hired in 1973 and 1974, respectively. 2. The master plans containing the agreements be- tween Respondent and insurance carriers who pro- vide medical insurance coverage, sickness and acci- dent insurance coverage, and life insurance coverage for the unit employees. 3. The reason or reasons why Respondent em- ployed so few females and blacks. Respondent refused to supply the information re- quested and the Union consequently filed the charge initiating this proceeding. The Administrative Law Judge found, and we agree for the reasons stated by him and those set forth below, that the Union was entitled to the re- The dissent gies credence to Respondent's belated assertion that it was under no dutl to furnish information to the International because the Local was the exclusise bargaining representatlse of its employees. Ans doubt Respo,ndent could have had on that score was removed when the Local joined in filing the charge and a complaint issued alleging that Respondent had unlawfully refused to furnish the information See Earas 7leas Steel (Ca.srngi ('orpan, Inc . 191 NLRB 113 (1 9 7 1), enfd 457 F.2d 879 (5th ( ir 1972) 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quested information regarding applicants for enl- ployment. As indicated by the July 1974 letter and the uncon- troverted testimony of the Union's witnesses at the hearing, the Union was aware at the time of its re- quest for information that Respondent employed no female and only 3 black workers in a unit of approxi- mately 105 employees, and it requested the statistical information regarding the race and sex of applicants for employment in order to make a preliminary as- sessment of possible explanations for the situation. In our view, the Union was properly seeking to ascer- tain whether the Respondent might be engaging in discriminatory hiring practices. As the Board stated in Tanner Motor Livery, Ltd., quoted by the Adminis- trative Law Judge, "an employer's hiring practices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and con- ditions of employment." 4 Under these circumstances, we conclude that the information sought as to applicants was relevant and necessary. As the Supreme Court has observed: There can be no question of the general obli- gation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties.... Similarly, the duty to bargain unquestionably extends beyond the period of contract negotia- tions and applies to labor-management relations during the term of an agreement.5 Indeed, as quoted above, the collective-bargaining agreement in effect between Respondent and the Union at the time of the Union's request for informa- tion specified that the parties would "provide equal employment opportunities without regard to race, color, creed, or national origin"; that "[t]his Agree- ment shall apply to hiring"; and that "the Company and the Union pledge to do any and all things which may be necessary in the future to provide equal em- ployment opportunities." Far from considering hir- ing a management prerogative, it is clear that the parties themselves considered nondiscrimination an appropriate subject for collective bargaining and agreed to include explicit provisions proscribing dis- crimination and requiring equal employment oppor- tunities in their agreement. We do not agree with our dissenting colleague that because the Union's request was not based on the 4148 NLRB 1402. 1404 (1964), enforcement denied on other grounds 419 F.2d 216 (9th Cir. 1969). Our dissenting colleague argues that our reliance on Tanner is misplaced because that case did not involve alleged violations of Sec. 8(aX5) of the Act. However. we are not citing Tanner for the proposition that an employer is obligated to bargain about hinng, but only for its holding set forth above N L.R.B. v. Acme Industrial Co., 385 U.S. 432. 435 436 (1967). need to implement the nondiscrimination provisions of the contract, and because the Union may have been seeking the information at least in part in order to protect itself from charges that it had engaged in unlawful discrimination, it is not entitled to informa- tion. It is undisputed that the collective-bargaining agreement required each of the parties thereto to re- frain from discriminating on the basis of race and/or sex, and it is equally clear that the Union was con- cerned about the possibility that Respondent may have discriminated in its hiring practices. In these circumstances, we do not see any persuasive reason for requiring the Union to cite specifically the con- tract provisions, i.e., to say the "magic words," in order to find that the information is relevant to the Union's right to police the contract. We further con- clude that the Union's expressed concern that it may be required to defend against a charge of unlawful discrimination based on alleged acquiescence in Re- spondent's hiring practices is not inconsistent with its representative function. Accordingly, on the basis of the foregoing, we agree with the Administrative Law Judge that the requested information as to race and sex of appli- cants for employment is necessary and relevant to the Union's performance of its bargaining obliga- tion.6 Notwithstanding this conclusion, we disagree with the Administrative Law Judge's further finding that Respondent was required to respond to the Union's query as to why Respondent had no female and very few black employees. In asking Respondent to pro- vide reasons for its failure to hire more black and female employees, the Union is not requesting data on which to base informed decisions as to how to best carry out its responsibilities as collective-bar- gaining representative. On the contrary, it appears that by this request the Union is seeking a subjective response or argument rather than objective informa- tion. Indeed, it may be that disclosure of the data as to race and sex of applicants for employment will 6 We find no merit to Respondent's contention that it is not obligated to provide this information because the Union seeks it in furtherance of its "internally adopted affirmative action program." Once requested informa- tion is found to be relevant to the Union's representative function, it is not controlling that such information might also be used for other purposes. See (urtis.s-Wright Corporation, 193 NLRB 940. 953 (1971): Metropolitan Life Insuraune (oompans. 150 NL.KRB 1478 (1965). Having found that the Union has demonstrated the relevance of the re- quested information as to race and sex of applicants for employment, we find it unnecessary to determine whether such information is presumptively relevant. Cf. C'urtiss-Wright Corporation, Wright Corporation, Wright Aero- nautical Divsion v. N L RB.. 347 F.2d 61 (3d Cir. 1965). We further agree with the Administrative Law Judge that the Union is entitled to the information requested as to the race and sex of those appli- cants for employment actually hired. As fully discussed in our Decision in Westinghouse Eleetris Corporation, 239 NLRB 106. also issued today, a col- lective-i-argaining representative is entitled to information as to the race and sex of employees in the unit it represents 142 THE EAST DAYTON TOOL AND DIE CO. provide the answer to the question of why Respon- dent does not have any female or more black em- ployees in the unit; i.e., it is possible that there have been no black or female applicants. Accordingly, we conclude that Respondent has not violated Section 8(a)(5) and (I) of the Act by refusing to provide its reasons for not hiring more female and black em- ployees. With regard to the Union's request for copies of master agreements between Respondent and various insurance carriers, the Administrative Law Judge ap- parently found that the Union had not met its bur- den of showing that such agreements were relevant and/or necessary to the Union's function as collec- tive-bargaining representative and, therefore, con- cluded that Respondent was under no obligation to produce them. Contrary to the Administrative Law Judge, we conclude that the Union is entitled to cop- ies of the master insurance agreements insofar as such agreements pertain to unit employees. 7 It is well established that "group insurance is en- compassed within the concept of wages" and, there- fore, information about insurance is presumptively relevant.8 Booklets merely containing summaries of insurance benefits are not sufficiently comprehensive to provide a bargaining representative with all the information necessary to adequately perform its function of policing the contract. In this regard, it is pertinent that the Union alleges that it is requesting only information to which its collective-bargaining agreement with Respondent refers, and the record indicates that the insurance policies which the con- tract specifies were to be attached thereto in the form of various appendixes are not, in fact, so attached. As noted, supra, however, it is not entirely clear whether the Union seeks copies of the insurance agreements in their entirety or only those portions of the plans which pertain to unit employees. Inasmuch as the presumption of relevance does not apply to informa- 7 The original request for copies of the master agreements, contained in the above-discussed July 19, 1974, letter from the Union's district general counsel to Respondent's president, requested in part: A copy of the master plan or the master agreement for the following: (a) Medical insurance coverage (b) S & A benefit coverage (c) Life insurance coverage and did not specifically limit the request to insurance as to unit employees. The complaint herein, however, alleged that Respondent unlawfully refused to furnish the Union "the master plans containing the agreements between Respondent and insurance carners who provide medical insurance cover- age. sickness and accident insurance coverage and life insurance coverage for the unit employees." (Emphasis supplied.) Thus, it is not entirely clear whether the Union and the General Counsel allege that Respondent is obh- gated to furnish the Union with the master plans only insofar as such plans pertain to unit employees or with copies of all plans which contain coverage for unit employees regardless of what other information may be included in the latter plans. 8 Siowe-Wood'ard. Inc., 123 NLRB 287 (19591. tion concerning nonunit members and the Union has neither argued nor adduced evidence as to the necessity for such information as it relates to nonunit employees, we shall order Respondent to furnish only those portions of the master insurance agree- ments which pertain to unit employees.t' Upon basis of the foregoing and the entire record, we issue the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, the East Dayton Tool and Die Co., Dayton, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain with International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC, and its Local 668, as the exclusive bar- gaining representatives of Respondent's employees in the appropriate unit described below, by refusing to furnish the information requested on July 19, 1974. respecting the race and sex of applicants for employ- ment during the years 1973 and 1974, including the race and sex of those applicants hired. The appropri- ate unit is: All production and maintenance employees of Respondent at its Dayton, Ohio, plant, exclud- ing designers, checkers, and detailers in the de- sign room, and guards and supervisors as de- fined in the Act. (b) Refusing to bargain with the above-named la- bor organization, as the exclusive bargaining repre- sentative of the employees in the unit described above, by refusing to furnish copies of the master plans, insofar as such plans pertain to unit employ- ees, containing the agreements between Respondent and insurance carriers who provide medical insur- ance coverage, sickness and accident insurance cov- erage, and life insurance coverage for unit employ- ees. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives 9Cf ('ur/iss- right Corporation, Hr/t~rl A4eronautical Di:rsron v .. LR B. 347 F.2d 61 3d ('ir 1965) enfg 145 Nl.RB 152, 157 (19631. i1The Lnion apparently initially requested the Information as to insur- ance agreements in order to determine whether the plans contained ani. provisions which might unlawfully discriminate on the basis of sex As ds- cussed above. we conclude that the insurance plans, insofar as they appl\ to unit employees. are presumptively relevant. It is. therefore. immatenal whether the Union also sought the information in order to ascertain whether the plans might contain discriminators pr-'Mslons 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their own choosing, and to engage ini concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Sec- tion 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, furnish to the above-named Union a copy of the data respecting the race and sex of applicants for employment including those hired, during the years 1973 and 1974, as requested in the Union's letter of July 19, 1974. (b) Upon request, furnish to the above-named Union copies of the master plans, insofar as such plans pertain to unit employees, containing the agreements between Respondent and insurance car- riers who provide medical insurance coverage, sick- ness and accident insurance coverage, and life insur- ance coverage for unit employees. (c) Post at its Dayton, Ohio, facility copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Di- rector for Region 9, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER MURPHY. concurring in part and dissenting in part: I cannot join in this decision requiring an em- ployer to supply a union with information about the race and sex of applicants for employment-- -regard- less of whether the applicants ever became members of the unit represented by the onion. By so holding, my colleagues are expanding the responsibility and liability of unions under this Act and under Title VII of the Civil Rights Act of 1964 '2 as well. Since I agree with the majority that the International Union was not entitled to Respondent's reasons for not hir- ing more female and black employees (though not their rationale for so holding), and inasmuch as I l In the event that this Order is enforced by a judgment of a Inited Staite, (Court o1 Appeals. thb words iI tuhe notice reading "Posted bh Order of the National Laboir Relations Board"'' shalil read "Posted Pursuant to a Judgment of the United Siaics ('ourt of Appeals Enforcing anl Order .of the National Labor Relations Board" II 42 I S.('. 2000e find for other reasons that the requesting Interna- tional Union was not the party entitled to informa- tion about the insurance contracts, I would dismiss the complaint in its entirety. The Board in this case is placing a heavy burden on unions-albeit here at the Union's request- which unions are ill equipped to handle; that is, the duty to represent applicants for employment even though the applicants are not hired for reasons other than those barred by the National Labor Relations Act. At no time in the 43 years of this Act's existence has a Board or court decision held a union responsi- ble for an employer's exercise of its management pre- rogative-the right to hire so long as the decision was not made to encourage or discourage union or other concerted activity. The majority is thus in effect leg- islating and extending the provisions of this and other laws.' For, if the majority decision here pre- vails, be not surprised that unions in future cases un- der title VII, and under other statutes as well, will be found liable if an applicant is not hired for reasons of race, creed. color, sex, national origin, age, handicap, Vietnam veteran status, marital status, and the like.'4 Giving the Union the right to obtain this type of in- formation, which the majority now confers, gives birth to a corresponding liability to police that infor- mation and act on it;'5 obviously this is correct, for to conclude otherwise would negate the reasons for establishing this new right. Counsel for the Equal Employment Opportunity Commission, appearing as amicus curiae, stated during the oral argument in this case that the EEOC had not to that date held a union responsible for the employer's exercise of its manage- 'For the Board's extension of Title VII and disregard of the confiden- tiality requirements of other statutes, see Westinghouse Electric Corp., 239 NLRB 106. issued this date. and my dissent therein. iq Employers are currently required to hire without regard to the above- listed factors See, e.g.. itle VII. supru: Equal Pay Act of 1963. 77 Stat. 56. 29 l: S.(' § 206{d): Executive Order 11246. as amended by Executive Order 11375 (1967): Age iscrimination in Employment Act of 1967. 81 Stat 602; and Department of Labor Order 4 (1970), as revised April 2, 1972. I applaud the enactment of laws in the past 15 years to eliminate discrimi- nation based on artificial barriers in the workplace. T'he last six Presidents iof the U:nited State'. including President Carter. have affirmed equality of opportunitt as part of our country's national goals. [lnions do, of course, have a duty of fair representation to all employ- ee, once ihes are within the unit. Iiranda Fuel Companrv, Inc., 140 NLRB 181 (1962): lhe Ballluce ( orpoirton v ,V.I RB, 323 U.S. 248 (1944). See the discussion of this doctrine in Handv .4nd,. Inc., 228 NLRB 447, 455. et seq (1977). Nevertheless, two of my colleagues on the majority had held that in the exercise of that fiduciary dut) the bargaining representative may not require a nonmember who is within the unit to pay the equivalent of dues in order to have the representative process a grievance beyond the first step. See my partial dissent in Imernatuirnal A.sociation of Machinists and Aerospace 4oirkArv. .I sl lnion No 697, 4 FL-('1I0 (The H. O. (anfield Rubber Com- mnirt o I irginia. Inc i. 223 Ni RB 832. 836-837 (1976) Apparently that holding would also apply here. My colleagues seem to increase the obhlga- lion, of exclusive representatis es without affording them additional reve- nues with which to finance those functions 144 THE EAST DAYTON TOOL AND DIE CO. ment prerogative in hiring. Thus, the EEOC had not gone as far as the majority is going here. While I find on the peculiar facts of this case that the Union is not entitled to the information sought herein for fundamental reasons, as set forth below,'6 my colleagues address themselves to important poli- cy considerations which extend beyond the facts of this case and therefore require discussion, particu- larly because I cannot agree with their assessment of the situation or the practical detriment it will bestow. Accordingly, even assuming that no technical grounds existed for dismissing this complaint, I would dismiss the allegations on their merits insofar as information as to applicants and hiring practices are concerned. For I find no relevance of the infor- mation sought to any collective-bargaining obliga- tion of the Union. Nor does it become relevant because the collec- tive-bargaining agreement between Respondent and the Local Union provided for equal employment op- portunities without regard to "race, color, creed, or national origin" in hiring, recruitment, or advertising for employment, inter alia. For these prehire activi- ties are solely within the control of the employer; they are not matters related to wages, hours, or work- ing conditions and hence are not mandatory subjects of bargaining. Accordingly, an employer is free to take unilateral action with respect to such nonman- datory subjects, even where covered by a contract," 16 The request here was made by the General Counsel for District Council 7 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. However, the coUective-bargaining agreement explicitly states that the recognized exclusive representative is Local 668. Internation- al Union of Electnrical. Radio and Machine Workers. AFL-CIO-('LC. It is firmly established that an employer is obligated to bargain only with the exclusive representative of its employees. NL.R.B v. Wooster Division of Borg-Warner Corporation, 356 1U.S. 342 (1958). (I point out that in cases brought under title Vll international unions correctly urged an analogous position: that the International should not be found liable if it either was not a signatory to the collective-bargaining agreement, or if the title VII charge was brought against the local union. See, e.g., Sinvard v. McCall Corp., II FEP Cases 431 (D.C.N.D. Ga., 1975); Wells v. Meyer's Bakery IS FEP Cases 928 (D.C.E.D. Ark.. 1976): EEOC v. Container Corp, of America. 5 FEP Cases 108 (D.C.M.D. Fla., 1972).) Accordingly, the employer is un- der a duty to furnish information only to such recognized representative. and, inasmuch as here that representative is only the Local, the request for information by an agent of the International was totally without force or effect. I further note that East Texas Steel Castings Company, Inc., 191 NLRB 113 (1971), enfd. 457 F.2d 879 (5th Cir. 1972). cited by the majority) in fn. 3, is inapposite. That decision merely held that a union's filing of an unfair labor practice charge and subsequent issuance of a complaint alleg- ing that respondent had unlawfully refused to sign an agreed-upon collec- tive-bargaining agreement put respondent on notice that the union sought execution of the contract. There was no issue as to whether the union seek- ing the contract was the exclusive bargaining representative of respondent's employees. In any event. the validity of the request for information must be determined as of the date it was made and based on its nature. and the later joining of the Local in the charges if it did so in fact. could not cure any deficiency in the demand that was made earlier, especially where, as here, there is no indication that the Local made a request for the information. Because the request was not made by the exclusive representative. I also find that Respondent was not obligated to furnish copies of the insurance agreements. Had the recognized Local made that request. I would reach a different conclusion. and a refusal to discuss or supply information relat- ing thereto would equally be not unlawful. Nor can I see how information concerning the number and types of applicants for employment can be relevant or necessary to the Union's performance of its functions in representing employees on the pay- roll in the unit. The holding of Tanner Motor Livery, Ltd., 148 NLRB 1402 (1967), that hiring practices may "inherently affect terms and conditions of em- ployment," does not require a contrary conclusion, The Board there held only that employee picketing to protest discriminatory hiring policies and practices was concerted activity protected by Section 7 of the Act; it did not involve any labor organization or union activity and there was no alleged violation of Section 8(a)(5). It does not follow from the holding therein that a bargaining representative is entitled to information concerning applicants and hiring prac- tices; 18 to conclude that it does is a complete non sequitur. The majority's reliance on Tanner to sup- port a finding that Section 8(a)(5) has been violated is thus obviously misplaced. There is a clear distinc- tion between the employees' right to protest a man- agement policy, and the right-or responsibility-of a bargaining representative to demand information about applicant or hiring procedures which have not been attacked or questioned. Furthermore, the Union here never at any time asserted that the information was needed to imple- ment the nondiscrimination provision, or any other aspect, of the collective-bargaining agreement. On the contrary, the Union's witness who drafted and signed the letter requesting the information testified: I saw this [imbalance of race and sex in the unit] as a potential problem, in fact, when the EEOC comes in and in plants where we have been joint defendants there will be a work-up on this and if they see that the employer employs no females and no blacks, they consider that to be a prima facie case of discrimination. [Emphasis sup- plied.] t9 Obviously the Union here was not seeking the infor- mation for any purpose related to representation of employees in the unit or for administration of the contract. In fact, there is no evidence that such a request for information regarding applicants was made during negotiations for a new collective-bar- I? See, e.g., Allied Chemical & .4 kah Workers of America. Local Union No. 10 v Pittsburgh Plale Glass C(o., (hemical Division. 404 U.S. 157 (1971). SCf. Ladish Co. 219 NLRB 354 (1975). which enumerates some of the many subjects about which an employer is required to bargain, but empha- sizes that "the Board has never taken the position that Section 8(d) requires bargaining about everything that might possibly bear on the employment relationship" (219 NLRB at 356.) This was reaffirmed by counsel for the International Ilnion during oral argument of this case. 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement. The majority is thus attributing to the Union a purpose which it has not asserted and which is not necessarily to be inferred from the facts. No evidence was adduced that any grievances had been filed under the nondiscrimination provisions of the contract or that any charges of unlawful discrimi- nation had been filed against Respondent before the Board or in any other forum. From all the facts, as well as from the Union's admissions, it can only be concluded that the infor- mation was sought in order that the International Union might protect itself from possible future charges before the EEOC that it had engaged in un- lawful discrimination, rather than to police the con- tract in existence here. The claim to a right to the information is, as noted above, based in part on the contractual language. However, neither this nor any other union is automatically entitled to any and all information an employer possesses with respect to a subject merel because that subject is mentioned in the contract.' The possibility that there may eventually be a find- ing that Respondent has engaged in unlawful race or sex discrimination, and that there could be some ad- verse impact on unit employees in consequence, is too remote to warrant this Board's novel order re- quiring Respondent to provide the information re- quested as to applicants. As the United States Court of Appeals for the Ninth Circuit stated in affirming the Board's dismissal of the complaint in San Diego Newspaper Guild, Local No. 95 of the Newspaper Guild, AFL-CIO-CLC [Union-Tribune Publishing Co.] v. N.LR.B.: 21 When [the] union asks for information which is not presumptively relevant, the showing by the union must be more than a mere concoction of some general theory which explains how the in- formation would be useful to the union in de- termining if the employer has committed some unknown contract violation. I recognize, as my colleagues discuss in Westing- house Electric Corporation, supra, also issued today, that Congress has acknowledged that statutes, execu- tive orders, and regulations involving the elimination of employment discrimination make a certain degree of overlapping jurisdiction among various Federal agencies, as well as the courts, virtually inevitable. Nonetheless, the purposes stated in Section I of the National Labor Relations Act-which include provi- sions of orderly and peaceful procedures for prevent- ing the interference by either employers or employees 20 See fn. 18, above. 21 548 F.2d 863, 868 (1977), affg. Union-Tribune Publishing Co.. 220 NLRB 1226 (1975). I did not participate in the Board decision. with the legitimate rights of the other, and protection of employees in their relations with labor organiza- tions-are not promoted by a decision of this Board adding its own processes to the plethora of regula- tory procedures implementing the Federal policy of equal employment opportunity.22 It is, of course, well known that Title VII prohibits employers from discriminating in hiring on the basis of race, creed, color, sex, or national origin. Obvious- ly, then, if the Employer here refused to hire any applicants for employment on the basis of their race or sex, as the International Union intimates, Respon- dent would thereby violate Title VII and the appli- cants discriminated against would have their remedy under that title. Finally, it is equally obvious that if the International Union were concerned about "the possibility" that the Employer had violated the provi- sions of a statute other than the National Labor Re- lations Act, the appropriate procedure for the Inter- national Union to pursue is the one mandated by that statute. In simple language, if the Union believes that the Employer has violated Title VII, the Union has the obligation to file a charge with the Equal Employment Opportunity Commission. Thereafter, the Union would follow the procedures set forth in that statute; i.e., filing of a charge, investigation thereof by the EEOC, and subsequent action as ap- propriate. With regard to investigation of charges, the EEOC regulations provide for production of documentary evidence "to effectuate the purposes of Title VII." ' However, section 709 of the Civil Rights Act 24 pro- hibits disclosure of any information received by the EEOC in its investigation of the charge "prior to the institution of any proceeding. . . involving such in- formation." Indeed, the circuit court has recently so held.2 5 Thus, the International Union is not only ask- ing the Board to compel Respondent to provide in- formation regarding possible violations of a statute other than the Act we administer, but is seeking in- formation unobtainable from the agency which is the proper forum for litigation of Respondent's alleged unlawful hiring.2 6 For the Board to be the instrument 22 See President Carter's Reorganization Plan No. I. submitted February 23, 1978, consolidating Federal equal employment opportunity programs. 124 Cong. Rec. 23, S. 141 thru 143; House Doc. # 95-295 (Feb. 23, 1978). 23 29 C.F.R. § 1601.15. 2442 U.S.C. I 2000e-7. 5 Sears, Roebuck and Company v. E.E O.C., er al., 435 F. Supp. 751 (D.C. Cir. 1978). The court there stated: We hold that by enacting § 709 (e), Congress meant to prohibit the EEOC from giving information from its investigative files to any indi- vidual outside the government. Although the legislative history is sparse, we believe that Congress' intention in enacting § 709(e) . . was to forbid disclosure of sensitive data to any persons outside the government. 26 As my colleagues noted in Westinghouse, supra, the Supreme Court has 146 THE EAST DAYTON TOOL AND DIE CO. of the International Union's circumvention of the ex- plicit strictures of the Civil Rights Act of 1964 is wholly improper and at variance with the purposes of our Act." For all the foregoing reasons, I respectfully dissent from my colleagues' conclusion that the Internation- al Union is entitled to information from Respondent regarding the race and sex of applicants for employ- ment. Having so concluded, it follows that I would not find either the International or the Local Union enti- tled to information concerning Respondent's "rea- sons" for not hiring more female or black employees. I find such subjective information unrelated to its performance of any collective-bargaining responsi- bility. Furthermore, it is undisputed that before the Board majority acted here the Union exercised no control over Respondent's hiring. Indeed, the man- agement rights clause of the parties' collective-bar- gaining agreement explicitly provides, in pertinent part, that "the right to hire ... is vested exclusively in the Company." Inasmuch as the Local Union has no right to determine who is hired by Respondent, I see no basis for requiring Respondent to provide the International Union or the Local with the reasons underlying its hiring decisions, or for making the Union jointly responsible, as my colleagues now do, for any violation under title VII of the Employer's initial hiring process. said that 'li]f a given action would violate both title VII and the National Labor Relations Act, the National Labor Relations Board would not be deprived of junsdiction." Alexander v. Gardner-Denver Co.. 415 U.S. 36, 48. fn. 9 (1974), citing 110 Cong. Rec. 7207 (1964). However. that is a far cry from a holding that a violation of Title VII is also a violation of the Na- tional Labor Relations Act. Accordingly. in the circumstances of this case, the principle that in some situations both the Board and the EEOC may provide an appropriate forum is inapposite and irrelevant. 27 The majonty's holding in this case is particularly anomolous in view of the Board's assiduous resistence of disclosure of its own documents. See, e.g., N.LR.B. v. Robbins Tire and Rubber Compaony. 98 S.Ct 2311 (decided June 15, 1978). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIILL NOT refuse to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 668, by refusing to furnish information relevant and necessary for the Union to fulfill its obligation to represent all employees fairly. The appropriate bargaining unit is: All production and maintenance employees, excluding designers, checkers, and detailers in the design room, all office clerical employees, sales engineer trainees, professional employ- ees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization; to form, join, or assist the above-named labor organization, or any other labor organization; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL. upon request, furnish the Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 668, with data respecting the race and sex of appli- cants for employment during the years 1973 and 1974. WE WILL. upon request, furnish the above- named labor organization with copies of the master plans, as such plans pertain to unit em- ployees, containing our agreements with insur- ance carriers who provide medical insurance coverage, sickness and accident insurance cover- age, and life insurance coverage, for unit em- ployees. THE EAST DAYTON TOOL AND DIE CO DECISION STATEMENT OF THE CASE HENRY L. JALETTE. Administrative Law Judge: This case presents the question of a bargaining representative's right to information from an employer relating to matters of minority groups and women as they may affect the Union's duty to fair representation. The proceeding was initiated by a charge filed by the above-named Union ' on October 22, 1974, pursuant to which complaint issued on December 11, 1974. On January 21, 1975, heanng was held in Oak- wood, Ohio. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs by Gen- eral Counsel and Respondent, I make the following: 2 IThe International and Lx oal 668 are referred to collectively .; the Union. - Prior to hearing. Respondent had requested that the General Counsel furnish it with certain informsataion pursuant to the Freedom of Information Act. 5 U S.C. § 552 This request was denied on the ground the information requested was exempt from disclosure. At the hearing. Responden! moved to dismiss on the ground it had been denied the info,rmation requested. he motion was denied Respondent has renewed its motion in its brief For ( ntin ued 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE ALLEGED REFUSAL TO BARGAIN A. Factual Setting Respondent is engaged in the manufacture and sale of machine tools and dies at a plant in Dayton, Ohio, employ- ing about 80 employees.' Since December 17, 1971, the Union has been the certified representative of Respon- dent's employees in a production and maintenance unit and has been party to a collective-bargaining agreement with Respondent covering such employees effective from April 1, 1972, through March 31, 1975. On July 19, 1974, the Union requested that Respondent supply it with certain information. The complaint alleges, and it is not disputed, that Respondent refused to supply the Union with the following information: 1. The total number of males, females, whites, blacks, and other minorities who sought employment, and the total number in each group who were actually hired, in 1973 and 1974 respectively. 2. The master plans containing the agreements be- tween Respondent and insurance carriers who provide medical insurance coverage, sickness and accident in- surance coverage, and life insurance coverage for the unit employees. 3. The reason or reasons why Respondent employs so few females and blacks. The Union's request was made in a letter of July 19 and subsequently renewed on August 8 by letter to Respon- dent's president and on September 5 by letter to Respon- dent's attorney. On September 18, Respondent's attorney responded by letter stating merely that Respondent was making no response to the Union's request. B. Analysis and Conclusions Both parties have filed rather lengthy briefs. An analysis of the briefs reveals, however, that they are agreed on the general principles; that is, Respondent admits that an em- ployer is required to supply a union, upon request, infor- mation relevant and necessary for the Union to fulfill its obligations under Sections 9 and 8(b) of the Act, including information sufficient to enable it to understand and intel- ligently discuss issues raised in bargaining, information necessary for the processing of grievances or to police the terms of an existing agreement, or information to prepare for contract negotiations. Respondent contends, however, that the information here requested was not requested for any of those purposes and that it is not relevant and neces- reasons stated by Judge Ordman in Papercraft (Corporation, 212 Nl.RB 241) (1974). the motion is again denied. Moreover. in VN R B v. Seaur. RKabhusc & Co., 421 U.S. 132 (1975). the court stated at fn. 10 that "lhe Act is fundamentally designed to inform the public about agency action and not to benefit private litigants." Respondent's motion is erroneously premised on the view that the Act created new discovery rights for use in litigation Jurisdiction is not in issue. The complaint alleges. the answer admits. and I find that Respondent meets the Board's S50.0OX direc: outflou stan- dard for the assertion of jurisdiction. sary to any bargaining purpose or for the fulfillment of any obligation of the Union under Sections 9 and 8(b) of the Act. According to Respondent, the narrow issue presented in this case is whether an employer's duty to bargain in good faith under Section 8(a)(5) and (d) of the Act requires that information be provided to a union "for the sole purpose of aiding the Union in implementation of its own unilater- ally, internally adopted affirmative action program to elim- inate race and sex discrimination within its locals." Were the issue as thus presented, one might agree with Respon- dent's development of its argument and conclude that the Union was not entitled to the information it requested. However, Respondent's statement of the issues is not cor- rect and much of its legal argument is irrelevant. It is true that the information in question was requested in implementation of a unilaterally adopted program to eliminate race and sex discrimination. However, this was not a program to eliminate race and sex discrimination within the locals of the International Union, but rather, as expressly stated in the Union's request of July 19, 1974, "an affirmative action program to eliminate all race and sex discrimination in plants represented by IUE-AFL- CIO-CLC and its locals." It is evident from this that the program in question did not involve internal union affairs. Nor could Respondent have entertained any doubt about the nature of the Union's program and the purpose of the information requested, because the Union's letter also stat- ed, "I have done a preliminary review of the employment situation at the East Dayton Tool and Die Company in reference to this program. I note that East Dayton employs no females and only three blacks. In order that I might complete an appropriate analysis and reach the correct conclusions concerning potential race and sex discrimina- tion problems at East Dayton, it is necessary that I have certain information which is not available through the Lo- cal Union." In short, on its face the Union's request related to condi- tions of employment at the plant, namely, possible race and sex discrimination. The question then arises whether possible race or sex discrimination in conditions of em- ployment is a subject within the purview of the Union's obligations under Sections 9 and 8(b) of the Act. Respon- dent concedes that a union has a duty of fair representa- tion to all employees of a bargaining unit, breach of which may be the basis of an unfair labor practice finding. Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (The Business League of Gadvhen (David Buckner, et al.)) 150 NLRB 312 (1964), enfd. 368 F.2d 12 (5th Cir. 1966), cert. denied 389 U.S. 837 (1967). Respondent contends, however, that "there is nothing in the statutory duty of fair representation under the National Labor Relations Act which requires a union to engage in affirmative action to eliminate race or sex discrimination by employers." It is unnecessary to decide whether a union is required by the Act to engage in affirmative action to eliminate race or sex discrimination by employers. The fact of the matter is that the Union in this case has adopted a program to that end and "[t]he elimination of discrimina- tion and its vestiges is an appropriate subject of bargaining, 148 THE EAST DAYTON TOOL AND DIE CO. .. ." Emporium Capwell Co. v. IVestern Addition Commu- nity Organization, 420 U.S. 50, 69 (1975). Respondent contends that in any event any duty of fair representation owed by the Union would not extend to its hiring policies, because the Union owes no duty to repre- sent those whom the employer has not hired. General Counsel appears to contend othcrwise on the theory that applicants for employment are employees within the mean- ing of Section 2(3) of the Act. In addition, General Counsel contends that the Union has a duty of fair representation in matters of hiring under title VII of the Civil Rights Act and decisions of the EEOC and the courts, and that a union may be held liable for discrimination in hiring under title VII. For these reasons, General Counsel contends the Union is entitled to the information in question. Respondent disputes the assertion that a union may be held liable for discrimination in hiring where hiring is sole- ly in the control of the employer, citing Meadows v. Ford Motor Co., 6 FEP Cases 795 (D.C.W.D. Ky. 1973). 1 agree. In the cases cited by General Counsel, the unions were, so to speak, in pari delicto with the employers. Assuming, ar- guendo, that the Union could be held liable under title VII for employer discrimination in hiring, Respondent con- tends it is not the function of the Board to ensure compli- ance with title VII. I agree. "While the Board must interpret the Act with due regard for Federal policy against racial or other arbitrary or invid- ious discrimination, we should not attempt to usurp the functions which Congress entrusted to the Equal Employ- ment Opportunity Commission and other agencies." Be- kins Moving & Storage Co. of Florida, Inc., 211 NLRB 138, 139 (1974). This does not mean, however, that issues of race or sex discrimination are outside the purview of the Act as indicated earlier. I also agree with Respondent that a union owes no duty of representation to applicants for employment, albeit they are employees within the meaning of Section 2(3) of the Act. Nevertheless, the racial or sex identity of applicants for employment is relevant to the Union's performance of its obligations under Sections 9 and 8(b) of the Act, be- cause ". . . an employer's hiring policies and practices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and conditions of em- ployment. Tanner Motor Livery, Ltd 148 NLRB 1402, 1404 (1969), enforcement denied on other grounds, N. LR.B. v. Tanner Motor Livery, Ltd, 419 F.2d 216 (9th Cir. 1969). There is no showing here that any employees of Respon- dent have expressed a concern over its hiring policies, but under the statutory scheme that is not essential as they are deemed to be expressing their concern through their bar- gaining representative. On the basis of the foregoing, I conclude that informa- tion respecting the racial and sex identity of applicants for employment is relevant and necessary to the Union's per- formance of its obligations under Sections 9 and 8(b) of the 4As a matter of fact. the Local Union gave less than enthusiastic response to the International's requests for assistance in implementing the nondiscn- mination program. Act. Respondent argues, however, that in any event the Union did not request the information for such a purpose. rather, that it requested the information for the purpose of avoiding liability under title VII and to forestall the Board's refusal of certifications to the Union in future cases. The record indicates that the Union's purposes were, in part, as Respondent asserts. Respondent overlooks, however, the testimony of Attorney Janetzke that "after meeting with the Employer, if we are not able to resolve the problem, most of them are resolved at one point during the negotiations, some are not, we then, our program calls for the filing of charges with the Equal Employment Opportu- nity Commission seeking to eliminate the discrimination we feel exists in the plant and the Employer has refused to eliminate." In short, if the information is furnished, it is used at the outset to negotiate whatever changes are neces- sary to eliminate discrimination. This is integral to the Union's fulfillment of its obligations under Sections 9 and 8(b) of the Act. That the Union may have other purposes in mind for the information does not detraci from the rele- vant purpose thus expressed at the hearing and subsumed in its July 19 letter. It is evident from the foregoing that the information re- quested by the Union respecting the total number of males, females, whites, blacks, and other minorities who sought employment and who were actually hired in 1973 and 1974 is relevant and necessary to enable the Union to fulfill its duty of fair representation to unit employees under Sec- tions 9 and 8(b) of the Act. Linked to the foregoing is the Union's request for the reason why Respondent employs no females and so few blacks. In addition to its assertion that this information is not relevant and necessary for the Union to fulfill its obli- gations as bargaining representative, Respondent asserts that it was not required to answer because an answer might well constitute an admission against interest. I am uncer- tain about the significance of this defense. If the racial and sex composition of the bargaining unit is a proper subject of bargaining, should the Union be foreclosed from inquir- ing into the Employer's reasons for the existence of a par- ticular condition of employment because his answer may constitute an admission against interest? For example, if an employer discharges an employee for discriminatory rea- sons and the union asks the reason for the discharge in order to determine whether to file a grievance, can the em- ployer decline to do so because a truthful reply would con- stitute an admission against interest? Obviously not. Where an employer has taken some action on a matter which is a proper subject of collective bargaining, he cannot avoid his obligation to furnish information to the union on the ground his reply might constitute an admission against in- terest. The test is, as with the other information requested, whether or not the information is relevant and necessary to the union's performance of its bargaining obligation. I have already found that information regarding the Re- spondent's hiring practices with regard to minority groups and women is relevant and necessary for the Union to ful- fill its bargaining obligations. It follows from this and the facts of this case that the Union had cause to question Respondent about the composition of the unit in terms of race or sex. The unit consisted of 105 employees, none of 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was female, and only 3 were black. As Janetzke stat- ed, these figures are sufficient for a prima facie case of discrimination. Certainly, they would justify the filing of a grievance under the no-discrimination provision of the contract. True, no grievance had been filed, but this is not a condition precedent where information is otherwise shown to be relevant and necessary. Respondent's reply might very well negate an appearance of discrimination based only on numbers and thus obviate the necessity for filing a grievance. Also true is the fact that the Union did not advert to the contract provision or claim any breach of contract in mak- ing its request. This also was not a condition precedent; the letter of July 19 indicated sufficiently the relevance and need for the information by adverting to a program to eliminate discrimination in plants represented by the Union. In short, inasmuch as the race and sex of applicants for employment is an appropriate subject of bargaining, and as the Union had cause to believe discrimination against a minority and women might exist in Respondent's hiring practices, it was entitled to know the reason why Respon- dent employed no women and so few blacks and Respon- dent's refusal to supply the information was violative of Section 8(aX)(5) and (1) of the Act. The Union's request for master agreements between Re- spondent and insurance carriers who provide medical in- surance coverage, sickness and accident insurance cover- age, and life insurance coverage for unit employees stands on a different footing from the other requested informa- tion. As with the other requested information, the ostensi- ble purpose for the request was to determine whether the insurance plans contained any provisions which discrimi- nated against females in the benefits provided for pregnan- cies. As to the life insurance agreement between Respondent and the carrier, I cannot conceive of its relevancy for the purpose stated by the Union. The contract, provides for life insurance of $1,500 ". . . to all employees with senior- ity. . -6 On its face the contract is nondiscriminatory and the Union has not shown there is any basis for it to believe the master life insurance agreement contains dis- criminatory provisions. Accordingly, I find no relevancy or necessity for Respondent to produce the master life insur- ance agreement. The sickness and accident insurance benefits provided for in the collective-bargaining agreement are set forth in general terms and are also applicable to all employees, without discrimination. Again, I fail to conceive what mat- ter could be contained in the master insurance agreement 5 Art. IV provides, inter alia, that: "The Company and the Union agree to provide equal employment opportunities without regard to race, color, creed, or national ongin. This agreement shall apply to hiring. placement, upgrading, transfer or demotion, recruitment, advertising or solicitation for emgployment .. Exh B, sec. B,.OI0 of the contract (G.C. Exh. 2a). which would be relevant or necessary for the Union to fulfill its bargaining obligation. As to the major medical benefits, it appears that the Union does know what benefits are provided for pregnan- cy cases and does not need to study the master insurance agreement to determine whether those benefits discrimi- nate against females. If the benefits are discriminatory against females it would be in their capacity as dependents of employees inasmuch as no females are employed in the bargaining unit. It is not my understanding that the duty of fair representation which a union owes under Sections 9 and 8(b) of the Act would extend to such a question as possible sex discrimination involving dependents of em- ployees. It may be that Respondent is discriminating in not hiring females and that females may be hired in the future. If so, the master insurance agreements may then become relevant and necessary. That issue can be decided another day. General Counsel asserts that apart from any question of possible sex discrimination, the Union is entitled to the master insurance agreements because they contain the ad- ministrative details of the benefit package, and the Union is entitled to examine them to determine whether the ad- ministration of the benefit package provides the unit em- ployees in actuality the benefits for which it bargained. I am not persuaded that General Counsel's position is the correct one. In some circumstances, I can see that a union could be so ignorant of the medical insurance benefits agreed to in collective bargaining that it would be entitled to examine the master insurance agreement between the employer and its carrier. In this particular case, one cer- tainly cannot determine from Exhibit B of the collective- bargaining agreement what medical benefits were bar- gained for; however, section B,2.02 adverts to specific in- surance policies and states they are appended to the agreement (although they are not). Accordingly, the Union's ignorance of the benefits to be provided under the agreement can be cured by its requesting the insurance policies referred to in section B,2.02, and the master insur- ance policy may then not be necessary for the Union to fulfill its bargaining obligations. If the policies referred to in section B,2.02 are insufficient, the Union may then be entitled to master insurance policies, but that also is a question for another day. Apart from the foregoing, assuming, arguendo, that the Union desired the master insurance agreements in order to police administration of the collective bargaining agree- ment, the Union did not request them for that purpose. General Counsel asserts that the fact the Union asserted one purpose for the request does not mean it may not as- sert other bases at another time. I agree. The Union has the right to request the information in question for such rele- vant purpose it may have, but that request must be ad- dressed to the Respondent and not expressed for the first time at the hearing. It may very well be that Respondent would have complied with the request for master insurance policies had the Union indicated they were necessary to police administration of the contract. For this reason, the Respondent may not now be held in violation of Section 8(a)(5) and (1) of the Act for refusing to produce the mas- ter insurance policies. 150 THE EAST DAYTON TOOL AND DIE CO. 11 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with its operations described above, have a close, intimate, and substantial relationship to trade. traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. III. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(aXI) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take appropriate and affirmative action designed to effectuate the policies of the Act, specif- ically, that Respondent be ordered to furnish to the Union the information which I have found herein was unlawfully denied to it. CONCLUSIONS OF LAW 1. East Dayton Tool and Die Co., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, and its Local 668 are, each of them, labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Re- spondent at its Dayton, Ohio, plant, excluding designers, checkers, and detailers in the design room, guards and sup- ervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, and its Local 668, are, and at all times herein have been, the exclusive representa- tive of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. By refusing to furnish the above-named Union, upon request, with the information requested on July 19, 1974, concerning applicants for employment according to sex or minority grouping, for the years 1973 and 1974, and by refusing to state the reason why it employed no females and few blacks, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tions 8(a)(5) and (I) and 2(6) and (7) of the Act. 6. Respondent's refusal to furnish the Union with copies of its master insurance agreements pursuant to the request of July 19 was not violative of Section 8(a)(5) and (1) of the Act. [Recommended Order omitted from publication.] 151