Tool & Die Makers' Lodge 78, IAM

TOOL & DIE MAKERS' LODGE 78, IAM 111 Tool and Die Makers' Lodge No 78 of District No 10 of the International Association of Machinists and Aerospace Workers, AFL-CIO and Square D Com- pany, Milwaukee Plant. Case 30-CB-803 May 25, 1976 DECISION AND ORDER On September 29, 1975, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding Thereafter, the Respondent filed excep- tions and a supporting brief The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings of the Adminis- trative Law Judge, but not to adopt his findings, con- clusions, or recommended Order The Respondent Union and the Charging Party Employer have had a contractual relationship for more than 20 years The current agreement includes a grievance procedure which, after the third step, may be referred to arbitration On March 7, 1975, the Union filed a grievance relating to the alleged con- tracting out of work customarily performed by unit employees At the first and second steps, the Compa- ny resisted the grievance During the discussion at the third step the Union's representative, Heiden- reich, drew from among his papers a typewritten document which, he asserted, was signed by a com- pany executive and would win the case for him at the arbitration hearing The Company's personnel man- ager, Thinnes, asked to see the document, but Heidenreich refused to turn it over to him Subse- quently, the Company's attorney, Weidemann, re- quested in writing that Heidenreich produce the doc- ument, but again Heidenreich refused A search of their files by Thinnes and Weidemann failed to re- veal a document signed by a company executive which they believed could "win" the grievance for the Union at an arbitration hearing The complaint alleges, and the Administrative Law Judge found, that the Union's refusal to provide the Company with the above undisclosed document, conceded by the Union to be relevant to the griev- ance proceeding, is violative of Section 8(b)(3) on the analogy to cases involving an employer's refusal to furnish information to a union, generally found by the Board to be violative of Section 8(a)(5) At the hearing Heidenreich further asserted that he had in his possession another relevant document, which he had signed and sent to the Company, but, upon re- quest, refused to produce this document His refusal with respect to the second document is alleged in the complaint and found by the Administrative Law Judge to be an additional violation of Section 8(b)(3) The rule requiring an employer to furnish a union representing its employees with wage data and other pertinent information related to bargaining in the employer's but not the union's possession has long been established in Board and court decision I The rule is not, however, a per se rule and in several his- toric cases its application produced a sharply divided Board 2 In some cases the Board has refused to re- quire the production of relevant bargaining informa- tion on the ground that the union had waived its statutory right,' that the related grievance was not a proper one under the contract,4 or that the informa- tion sought, though arguably relevant, was too "in- significant" to support a violation of the Act 5 In all of the above cases, the requested information was specifically identified by the party making the request Thus, it was possible for the Board to de- termine initially whether such information was, in- deed, relevant to bargaining and, if relevant, suffi- ciently important or needed to invoke a statutory obligation of the other party to produce it For, as the Supreme Court pointed out in Acme case, supra, it is the Board's function to make the "threshold de- termination" as to the alleged relevancy of any re- quested bargaining information NLRB v Acme Industrial, 385 U S at 438 6 In our opinion, the facts in the instant case are not of the stature to bring it within the rule of the cases cited above or to otherwise warrant a finding that the Respondent Union has committed an unfair labor practice We may assume arguendo, without deciding, that a union's duty to furnish information relevant to the bargaining process is parallel to that of an em- ployer There is, nevertheless, no statutory obligation on the part of either to turn over to the other evi- dence of an undisclosed nature that the possessor of the information believes relevant and conclusive with respect to its rights in an arbitration proceeding The 1 J 1 Case Company (Rock Island Illinois) 118 NLRB 520 (1957) enfd 253 F 2d 149 (C A 7, 1958) Otis Elevator Company, 102 NLRB 770 (1953) enfd as modified 208 F 2d 176 (C A 2, 1953) The Timken Roller Bearing Company 138 NLRB 15 (1962), enfd 325 F 2d 746 (C A 6, 1963) Acme Industrial Company 150 NLRB 1463 (1965), enfd 385 U S 432 (1967) 2 Whiten Machine Works 108 NLRB 1537 (1954) enfd 217 F 2d 593 (C A 4 1954) cert denied 349 U S 905, Hercules Motor Corporation, 136 NLRB 1648 (1962) 3 International News Service Division of the Hearst Corporation, 113 NLRB 1067 (1955) 4 Hercules Motor Corporation supra 5 American Standard Inc 203 NLRB 1132 (1973) 6 In this respect we cannot agree with our dissenting colleagues that the disputed documents are relevant" solely on the ground that such relevance has been openly proclaimed" by the Respondent We know of no case nor do our dissenting colleagues cite any where such a proclamation by one of the parties has been accepted as a substitute for the Board s legally de- termined standard 224 NLRB No 18 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrary view, logically extended, would impose a statutory obligation on an employer or a union to examine, upon request, all evidence in its possession relating to a particular grievance and to turn over for the inspection of the other party the evidence deemed "relevant" to the grievance We do not be- lieve that discovery of this broad nature is necessary or desirable in unfair labor practice cases We need not speculate whether Heidenreich had the important evidence he professed to have or whether his conduct amounted to mere puffing or gamesmanship, a normal byproduct of collective bar- gaining In either event, his claim to ultimate victory does not warrant, and we shall not accord it, a great- er significance In all of the cases cited above and in the dissent, the question of relevancy was the single most impor- tant issue in the determination that the documents must or must not be produced Our dissenting col- leagues, however, appear to argue that the docu- ments should be produced whether or not relevant This is a suprising departure from the above cases, particularly the Supreme Court's decision in N L R B v Acme Industrial Co, supra, upon which the dissent purports to rely Nor is this novel ap- proach warranted simply because the Respondent's representative boasted that he had relevant informa- tion in his possession Board law and Board policy is not made on the basis of the subjective opinion of one of the parties Apart from the fact that the issue would be moot once the Respondent delivered the documents to the Employer, the dissenting view, as indicated above, would require all parties in unfair labor practice cases to open their files to the oppos- ing party for the widest possible scrutiny If, as the dissent contends, these documents, putatively rele- vant, must be produced whether or not relevant, all such documents would have to be produced Clearly, such a policy is contrary to existing precedent and, indeed, captious in its consequences Accordingly, we shall dismiss the complaint in its entirety ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety CHAIRMAN MURPHY and MEMBER WALTHER, dissent- ing Contrary to the majority, we believe the Adminis- trative Law Judge correctly found that Respondent violated Section 8(b)(3) of the Act by refusing to dis- close to the Company, before arbitration, certain documents the Respondent claimed to have in its possession which were relevant to a grievance it had filed Accordingly, we dissent An employer has a duty to furnish information to a union so the union can intelligently decide whether to proceed on a grievance N L R B v Acme Industri- al Co, 385 U S 432 (1967), The Timken Roller Bear- ing Company, 138 NLRB 15 (1962), enfd 325 F 2d 746 (C A 6, 1963) This duty is based not only on the policy that the opposing party is entitled to relevant information to evaluate its position, but also on the very sound policy that an exchange of information often eliminates grievances without merit, thereby re- ducing the number of grievances which are submit- ted to arbitration As stated by the Supreme Court in NL R B v Acme Industrial Co, 385 U S at 438 Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woe- fully overburdened It [respondent's refusal to give the union information relevant to griev- ances which had been filed] would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim It is no doubt true that the occasions will be infre- quent when a union will have information relative to a grievance which is not also available to the employ- er But the fact of infrequency does not render the reason for the rule requiring furnishing of relevant information as to grievances inapplicable Accepting the Respondent's evaluation at face value, it is entire- ly possible that if shown the documents which Re- spondent claims will win its case at the arbitration hearing, the Company will acquiesce in the griev- ance, and thus remove the necessity for arbitration It should at least have the opportunity to make this decision in advance of arbitration I We may assume, arguendo, that, as stated by the majority, a party is not under a statutory obligation, sua sponte, to turn over to the other party evidence of an undisclosed nature that the possessor of the infor- mation believes relevant and conclusive with respect to its rights in an arbitration proceeding That is not this case There is no occasion for Respondent to search its records for evidence which may be helpful to the Company's case in the arbitration proceeding Respondent has openly proclaimed that it has two documents which will win its case It must know 7 Chairman Murphy would as a general rule, require full disclosure by all parties to any proceeding in accord with the Federal Rules of Civil Proce dure TOOL & DIE MAKERS' LODGE 78, IAM 113 what these documents are and their relevancy would seem to be indisputable inasmuch as they would re- sult in a favorable determination for Respondent 8 Finally, the Company has requested Respondent to furnish it with these documents since it has been un- able to find any such documents by a search of its own files The policy reasons underlying the Supreme Court's decision in the Acme Industrial case are as applicable to employer as to union requests for infor- mation relative to existing grievances We believe that Respondent violated its bargaining obligation by refusing to furnish the Company with the request- ed information 9 Accordingly, we would affirm the Administrative Law Judge's finding that Respondent violated Section 8(b)(3) of the Act 6 Unlike our colleages on the majority-who apparently are clairvoyant- we know of no way to determine the relevance of an unidentified document by any means other than the declaration of the party who assertedly has that document in its possession Only by examination of the document can the claim and "admission of relevance be evaluated The best evidence rule is still the law 9 Our colleagues' discussion of the hypothetical effect which our view would have of requiring full disclosure of all facts by all parties in every situation is obviously pure rhetoric and cannot have been seriously ad- vanced Obviously, as always, unless otherwise stated we are deciding the issue raised by and limited to the facts before us and do not purport to speak concerning the obligation of every party in all instances bitration hearing (the final step in the procedure provided for in the bargaining agreement between the Union and the Company for the settlement of their disputes) I held a hearing in this matter on July 29, 1975, at Mil- waukee, Wisconsin, at which all parties were represented I Thereafter, the General Counsel and the Respondent filed briefs with me, which I have duly considered Upon the entire record in the case, including my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Square D Company, a Michigan corporation, is engaged in the manufacture of electrical equipment at its Milwau- kee, Wisconsin, plant During the past calendar year, in the course and conduct of its business, it both shipped and received goods and products valued in excess of $50,000 to and from points located outside the State of Wisconsin I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Tool and Die Makers' Lodge No 78 of District No 10 of the International Association of Machinists and Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge The General Counsel issued his complaint in this proceeding on June 27, 1975, after a charge filed on May 15, 1975 Before being amended at the hearing, the complaint alleged that Re- spondent (the Union) refused to bargain with the Charging Party (Square D or the Company), in violation of Section 8(b)(3), by refusing to produce a document during a griev- ance procedure initiated by the Union, which was said to be signed by an unnamed company official and which, the Union asserted, would prove the validity of the claim it was making in the grievance proceeding The Union, it is alleged, insisted that it would produce the document only at the arbitration hearing following the third step of the grievance procedure It was at the third step that the Union's claim was first made and when the Company asked the Union to show it the document At the hearing, after testimony by one of the union offi- cials who had participated in the third step of the griev- ance, I granted the General Counsel's motion to amend the complaint, as follows (I) that the union official was also refusing to produce another document relevant to the grievance which he had signed and which was in his pos- session, and (2) that the Union had further violated Sec- tion 8(b)(3) by varying the number and nature of the docu- ments which it claimed would prove the validity of its grievance but which it refused to produce except at an ar- III THE UNFAIR LABOR PRACTICES The Facts The Union has represented a unit of toolroom, model shop and tool designers at the Company's Milwaukee plant for over 20 years Article III of their current bargaining agreement provides for a three-step grievance procedure, at the last step of which the matter in dispute is to be dis- cussed by management representatives and the union shop committee, together with a union business representative If a satisfactory solution is not reached at that stage, either party may request that the matter be referred to arbitra- tion On March 7, 1975, the Union's area steward filed griev- i Between the issuance of the complaint and the opening of the hearing the parties attempted to draft a stipulation of facts to be presented directly to the Board so as to obviate the need for a hearing and a decision by an Administrative Law Judge The parties were unable however to agree on such a stipulation At the hearing, the Company offered into evidence as its Exh I a draft of the stipulation containing language which the Union had agreed to in order to show that the Union had changed its position on what document it was refusing to show the Company prior to an arbitration hearing I received the exhibit since no party objected to its admissibility or relevance Mr Wiedemann counsel for the Company then requested that he be allowed to withdraw from the proceeding so that he might testify about the background of the proposed stipulation of facts and I permitted him to do so However on reading the record and examining more closely the draft of the proposed stipulation than I was able to at the hearing I am satisfied that I should have excluded his testimony as immaterial I shall therefore disregard Mr Wiedemann s testimony and I also consider him still to be the representative of the Company for all purposes in this pro- ceeding 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance 19 on behalf of the IAM employees The contract provision involved was said to be that relating to subcon- tracting, and the statement of facts reads as follows "Work which was customarily performed by employees of Lodge #78 bargaining unit is being performed on outside " The action sought to remedy the grievance was "Return to work, or work week in excess of 40 hours for entire group plus reimbursement of lost wages " Company supervisors rejected the grievance at the first two steps, and on April 30 the third-step meeting was convened The principal repre- sentatives present were Thinnes, the Company's personnel manager, and Heidenreich, an official of the Union's Dis- trict 10 According to Thrones, Heidenreich's position was that the Company was required to call back unit employees who had been laid off in a work force reduction Heiden- reich said that the Company's liability might run as high as $250,000, and that it was most likely that the problem posed in the grievance could only be settled by arbitra- tion 2 During the discussion of the grievance, Heidenreich pulled out a typewritten document from among his papers, and said that it would win his case for him at the arbitra- tion hearing He said it was signed by a company execu- tive, but when Thrones asked to see it or have it identified or be given a copy, Heidenreich refused Thrones said he needed to see it in order to proceed intelligently with the grievance, but Heidenreich refused to tell him any more about the document, and repeated that he would make it available only at the arbitration level No resolution of the grievance was reached since Thrones insisted on seeing the document in Heidenreich's possession The next day, May 1, a vice president of the Company, Vetta, called Heidenreich and asked to be shown the document but was refused On May 2, Wiedemann, the Company's attorney, made a written request of Heiden- reich for its production, stating that the Company consid- ered it necessary to have the opportunity to see and read it for intelligent consideration during the grievance proce- dure, as a meaningful extension of the bargaining process and not as an automatic conduit to arbitration Heiden- reich never responded in writing, but told Thinnes in a later phone conversation that he would not comply with Wiedemann's request Thrones again asked to be shown the document, and Heidenreich again refused In the meantime, Thrones and Wiedemann searched their files for whatever Heidenreich might have been referring to, but could find nothing which could be construed as the docu- ment Heidenreich said he was referring to These are the undisputed facts on which the General Counsel relies for the allegation in the original complaint that the Union has violated Section 8(b)(3) by refusing to disclose a document signed by a company official which was relevant to the grievance filed by the Union At the hearing, Heidenreich testified that he also had in his pos- session another relevant document which he had signed and sent to the Company He was asked by company coun- 2 The contract issues raised by grievance 19 are not material to the ques- tions presented in the unfair labor practice proceeding and were not clearly defined It is sufficient for our purposes that the grievance relates to tooling work on product lines manufactured at other company plants sel at the hearing if he would produce both documents, but he persisted in his refusal It was at this point that the General Counsel moved to amend the complaint to charge the Union with refusing to turn over the second document, and to add as an additional violation of Section 8(b)(3) the allegation that the Union had varied the number and na- ture of the documents relevant to its grievance which it claimed were in its possession Contentions, Discussion, and Conclusions The General Counsel argues that a union's obligation under Section 8(b)(3) parallels that of an employer under Section 8(a)(5), and that part of that obligation is to furnish relevant information to the other party The General Counsel points out that the Union conceded that the docu- ments in its possession were relevant to the resolution of its grievance, and he asserts that the Company would need to see them to assess the validity of the grievance and any defenses it might have to it, at the third step of the griev- ance procedure The fact that the information sought would be material at the arbitration stage, and that the dispute would most likely have to be referred to arbitration does not, in the General Counsel's view, excuse the Union from producing the information at an earlier stage, if re- quested to do so The Union relies on two propositions in asserting that it has no duty to disclose relevant information in its posses- sion at the grievance stage of a dispute over the interpreta- tion of a provision in the contract First, it contends that a union's duty to bargain under Section 8(b)(3) is not the same as that of an employer under Section 8(a)(5) An em- ployer, it is argued, must not only bargain in good faith during negotiations but must also comply with a union's request for information, so that the union may fulfill its statutory obligation to administer a labor agreement, but the only obligation a union has is to bargain in good faith during contract negotiations on mandatory bargaining items In effect, the Union contends that only employee representatives have the right and responsibility to admin- ister a labor agreement, and to obtain the information they need to carry out their statutory obligation of representing unit employees The argument is fallacious since it overlooks the fact that an employer who is party to a labor agreement also has rights which it may assert and defend under the agreement Both the employer and the employee representative have a mutual obligation to enforce, and adhere to, the contract, and to confer on the manner of its administration and ef- fectuation Section 8(d) of the Act, which defines the bar- gaining obligations imposed by Section 8(a)(5) and 8(b)(3), clearly so provides in the italicized language (d) to bargain collectively is the performance of the mutual obligation of the employer and the repre- sentative of the employees to confer in good faith with respect to wages, hours, and other terms and con- ditions of employment, or the negotiation of an agree- ment or any question arising thereunder [Empha- sis supplied Although the nature of the relationship between employ- TOOL & DIE MAKERS' LODGE 78, IAM 115 ers and unions makes it much more likely that it will be the union which will need to obtain information in the employer's possession in order to administer the contract on behalf of the employees it represents, there may infre- quently arise situations, such as here, where the union pos- sesses information which the employer needs in order to assert his rights and to defend himself intelligently against a grievance filed by the union The Union's second argument is that since the employer does not have the same statutory obligation as a union to administer a labor agreement, it has no right of discovery, that is, no way to obtain information in the Union's posses- sion The Union's basic premise is incorrect since, as I held above, a bargaining representative has an obligation to confer in good faith with an employer over questions aris- ing under a labor agreement It is well established that an employer's obligation to confer (and bargain) with the representative of his employ- ees concerning interpretation and administration of their labor agreement includes the duty to furnish, upon request, information which the union needs in the intelligent per- formance of its functions 3 Since that is so, it follows that a union has a reciprocal obligation, under Section 8(b)(3) and 8(d), to supply relevant information in its possession whenever it is pertinent to the employer's right to partici- pate in the administration of the contract Usually this would be at the grievance stage, since it is then that the issues involved in the dispute or disagreement of the parties first need to be fully explored The decisions of the Board and of the Supreme Court in the Acme Industrial case, cited in footnote 3, state the prin- ciples on which is based the requirement, unposed by Sec- tion 8(a)(5) and 8(d), that an employer disclose informa- tion relevant to a grievance filed by a bargaining representative In that case, the contract prohibited the em- ployer from subcontracting work which would normally be performed by unit employees, and also provided that, if plant equipment were moved to another company location, employees subject to layoff as a result of such removal could transfer to the new location When the union discov- ered that machinery was being removed from the plant, it inquired of the employer where it was being moved and why When the employer refused to answer, the union filed a grievance as to the removal, renewing its request as to the destina'ion of the machinery The employer claimed that as no employees had yet been affected by the removal of the machinery the information requested by the union was immaterial The Board found "that the information sought by the Union was necessary in order to enable the Union to evaluate intelligently the grievances filed and to de- termine whether such grievances were meritorious, and whether to press for arbitration" (150 NLRB at 1465) It therefore held that the employer had violated Section 8(a)(5) in refusing to supply the union with the requested information, at the grievance stage In enforcing the Board's decision in full, the Supreme Court said at 385 U S at 435-436 3 Acme Industrial Company, 150 NLRB 1463 (1965) enfd sub nom N L R B v Acme Industrial Co 385 U S 432 (1967), and The Timken Roller Bearing Company 138 NLRB 15 (1962) enfd 325 F 2d 746 (CA 6 1963) There can be no question of the general obligation of an employer to provide information that is needed by the bargaining representative for the proper perfor- mance of its duties Similarly, the duty to bargain un- questionably extends beyond the period of contract negotiations and applies to labor-management rela- tions during the term of an agreement The only real issue in this case, therefore, is whether the Board must await an arbitrator's determination of the relevancy of the requested information before it can enforce the union's statutory rights under § 8(a)(5) [Case citations omitted ] The Court then discussed and rejected the holding of the court of appeals in this case that the union's recourse was to proceed first to arbitration The Supreme Court then went on to say at 438 Far from intruding upon the preserve of the arbitra- tor, the Board's action was in aid of the arbitral pro- cess Arbitration can function properly only if the grievance procedures leading to it can sift out unmeri- torious claims For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened Yet, that is precisely what the respondent's restrictive view would require It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap Nothing in feder- al labor law requires such a result [Case citations omitted ] We hold that the Board's order in this case was con- sistent both with the express terms of the Labor Act and with the national labor policy favoring arbitration which our decisions have discerned as underlying that law Accordingly, we reverse the judgment and re- mand the case to the Court of Appeals with directions to enforce the Board's order Applying these principles to the instant case, I conclude that the two documents in the Union's possession, one signed by a company official and one by Heidenreich, were relevant to the controversy between the parties (as Heiden- reich himself admitted) and were needed by the Company to evaluate the Union's grievance and to determine what response it should make In view of my previous finding that a union has the same obligation as an employer to confer in good faith over questions arising under a bargain- ing agreement, I find that the Union violated Section 8(b)(3) here, by refusing to disclose to the Company before arbitration all documents in its possession bearing on its claim that its grievance 19 was justified under the current contract Two other matters require brief mention Some weeks after the Company filed its charge in this proceeding, the Union first requested information from the Company as to tooling orders which it claimed it needed in the prosecution of its grievance The data requested would require the Company to go through 40,000 cards manually and would 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take, according to the Company, 80 to 85 workdays to compile The Company refused to undertake so burden- some ajob The Union then filed a charge with the Region- al Office, alleging that the Company was in violation of Section 8(a)(5), by its refusal to furnish the information requested As of July 29, 1975, the date of the hearing in this case, the Regional Office still had the matter under investigation Even if the Regional Director should eventu- ally decide to issue a complaint based on the Union's charge, it would not excuse the Union's failure to satisfy its own obligation to turn over the two documents it claims will establish the validity of its grievance over subcontract- ing Finally, there is the amendment to the complaint added at the hearing, that the Union had further violated Section 8(b)(3) by varying the number and nature of the docu- ments it claimed to possess on the subject matter of griev- ance 19 At the third step of the grievance proceedings and subsequently, Heidenreich had referred only to a docu- ment signed by a company official, while at the hearing he said he also had another document, signed by him The General Counsel claims in his brief that the proposed stip- ulation of facts, in evidence as Charging Party's Exhibit 1, shows that, when it was being drafted, the Union referred to only one document, that signed by Heidenreich, and that Heidenreich thereby attempted to mislead the Compa- ny, and the Board to whom the stipulation was to be for- warded In fact, however, contrary to the General Counsel's assertion, the draft of the proposed stipulation does refer to two documents, one in paragraph 11, "signed by a responsible Co executive" and one in paragraph 12, "not signed by an executive but is signed by Heidenreich and addressed to an Employer representative " That para- graph 12 was intended as new matter, and not simply in lieu of paragraph 11, is indicated by the fact that all subse- quent paragraphs were renumbered to reflect the insertion of the new paragraph 12 at a late stage of the drafting of the proposed stipulation I find that there was no intent on the part of Union's counsel, who had participated in the drafting, to mislead the Board, but that he was only trying to unriddle what Heidenreich had told him on different occasions I find no violation of Section 8(b)(3), either in Heidenreich's selective revelations of what documents he had in his possession, or in the drafting of the proposed stipulation CONCLUSIONS OF LAW I The Company is engaged in commerce within the meaning of the Act 2 The Union is a labor organization within the meaning of the Act 3 By refusing to disclose to the Company before arbi- tration certain documents it claimed to have in its posses- sion which were relevant to the grievance it had filed, the Union has failed to bargain collectively with the Company, in violation of Section 8(b)(3) THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices affecting commerce, I shall rec- ommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act Specifically, I shall recommend that the Respondent make available to the Company at the third step of the grievance procedure all documents and other information which it intends to rely upon if its grievance is submitted to arbitration [Recommended Order omitted from publication ]