Bendix Corp.

DI)F('ISIONS OF: NATIIONAL ABOR RELATIONS BOARD Automation & Measurement Division The Bendix Corporation and International Union of Electrical, Radio and Machine Workers, AFI.-CIO-CI,C and its IAocal 759. Case 9 CA 8762 May 8. 1979 DECISION AND ORDER BY CGAIRMAN FANNING AND MEMBERS JENKINS, MuRPIIY, AND TRUESI)AI.E On May 20, 1975, Administrative Law Judge Hen- ry L. Jalette issued the attached Decision in this pro- ceeding. Thereafter, Respondent and the Charging Party filed exceptions, supporting briefs, and answer- ing briefs.' The Board has considered the record and the at- tached Decision in light of' the exceptions, briefs, and amicur curiae brief', and has decided to affirm the rul- ings, findings. and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that Re- spondent did not violate Section 8(a)(5) of the Act by refusing to furnish the Union with a copy of the agreements between Respondent and the insurance carriers providing health, life, and sickness and acci- dent insurance benefits to unit employees under the terms of the collective-bargaining agreement. We dis- agree. The Board has long held that group insurance is encompassed within the concept of "wages" 2 and it is equally well settled that: ... "wage and related information pertaining to employees in the bargaining unit should, upon request, he made available to the bargaining agent without regard to its immediate relation- ship to the negotiation or administration of the collective-bargaining agreement." As such infor- mation concerns the core of the employer-em- ployee relationship. it is presumptively relevant and "a union is not required to show the precise relevance of it, unless effective employer rebuttal comes forth .... " In the instant case, no effective employer testimony was offered to rebut the presumption of relevancy of On December 22. 1975, the Board granted Firestone lire and Rubber ('ompan's request to file an armnius uriae brief in the abosve-captioned case and in White Farm Equipment (otnpantr .4 Suhvidian ,o Whilte Motor (Corpo- ration. Case 9 (CA 8835. and The East Dayton Tool and Die Co., Case 9 ('A 8887. On January 12. 1976. Firestone filed an amicur brief. On January 12, 1976, Firestione moved for oral argument and requested participation in oral argument its aniu. rcuriae in the three above-mentioned cases. The motion is denied with respect to the case at hand inasmuch as the record. the exceptions aid the briefs adequately present the issues and the psitions ot the parties. 2Stoi,e- Wiodard. In. 123 NLRB 287. 288 (1959). (;'iles (omlmunioation. Inc . 172 NL RB 1909 (19681 the requested information. Therefore, we conclude that the Union is entitled to a copy of the master insurance agreements to enable it to police and ad- minister the existing contract and that Respondent's refusal to furnish this information was violative of Section 8(a)(5). 4 2. The complaint was amended at the hearing to allege that Respondent unlawfully refused to provide the Union with the results of a survey, conducted by Respondent during July and August 1974, concerning whether or not race and/or sex discrimination existed at its Dayton, Ohio, plant. The Administrative Law Judge recommended dismissal of this allegation of the complaint on the ground that Respondent took no action in reliance upon the survey. Although we agree with the Administrative aw Judge's recommenda- tion, we find it unnecessary to pass on his underlying rationale because there is insufficient evidence in the record to establish the existence of such a survey. The Administrative Law Judge recognized that "[the] record evidence with regard to the survey is sparse" and noted that "[wjhat the investigation con- sisted of does not appear in the record." Nevertheless, the Administrative Law Judge found that such a sur- vey was made, relying, not on record evidence, but on his contention that "Respondent has not contested the use of the word survey and implicitly acknowl- edges the existence of a work product which one can call a survey." We find merit in Respondent's excep- tion to this finding. he Union's international repre- sentative, Wiley Stamper, testified that he was told by Respondent that someone was going to make a com- plete inspection of the plant and was going to take a look at some of the problems raised by the Union. Stamper testified that he requested the outcome of the tour and investigation. The record does not indicate whether the investigation was in fact undertaken, who conducted it, its nature, or whether the results have been recorded. Under these circumstances, we find that the evidence is insufficient to establish the existence of the "survey" and we shall dismiss the complaint insofar as it alleges an unlawful refusal to furnish the Union with a copy. 3. The Administrative Law Judge further recom- mended that Respondent be ordered to furnish the Union with a copy of its affirmative action plan, with deletions of certain financial data. Respondent ex- cepted to this portion of the recommended Order. We find merit to this exception. As a government contrac- tor, Respondent is required, under Executive Order 1 1246 and the rules of the Office of Federal Contract Compliance, to develop and file affirmative action 4 he East Diton 7 I and Die Co. 239 NLRB 141 (1978): see Film Editing Equipment ('orp d/hla HJllvvId Filmn Compan,). 213 NI.RB 584. 591 592 (1974) 242 NLRB No. 8 62 THE BENDIX (CORPORATION programs which set forth, inter alia, the employer's goals and timetable to correct deficiencies in the utili- zation of minority groups and women. In Westing- house Electric Corporation,5 the Board found that the information contained in such affirmative action plans, i.e., projections, goals, and timetables, is not reasonably necessary to enable a union to administer its contract intelligently and effectively and, thus, is not presumptively relevant. The Union herein has not demonstrated the relevance of the requested informa- tion. We will not, therefore, require Respondent to produce the affirmative action plan. While the plan may contain statistical information regarding race and sex of employees to which the Union, upon re- quest, would be entitled, as discussed below, we will not attempt to sift through Respondent's affirmative action plans to discern the data to which the Union is entitled. In this respect, the Union failed to indicate with appropriate specificity the relevant information sought. 4. The Administrative Law Judge recommended that Respondent be ordered to supply the following information requested by the Union: (a) The total number of individuals who sought employment with Respondent in the certified unit. in- cluding their race and sex. (b) The number actually hired, including their race and sex and the department and classification in which they were placed. (c) Job posting data, including the names of em- ployees who bid on jobs, their race and sex, and the name, race, and sex of the employees awarded the unit jobs. (d) Copies of requisition forms used to requisition employees for unit positions. We agree with the recommendation of the Admin- istrative Law Judge for the reasons stated in his Deci- sion and for the reasons set forth below. With respect to the information requested concern- ing unit employees, it is now settled law that such information must be provided to the collective-bar- gaining agent. The Union has a duty of fair represen- tation requiring it to represent fairly the interests of all unit employees, including those who are women or who belong to minority groups. Inasmuch as the Union has a right to protect unit employees from dis- criminatory treatment by Respondent, it has the need for information related to race and sex in order to carry out this function. 6 Furthermore, the antidiscri- mination clause in the collective-bargaining agree- 5239 NLRB 106 (1978) 6 Westinghouse Electric Corporation, supra at 108-109. Member Jenkins considers that the Union has, in addition to and because of its duty of fair representation, an obligation to endeavor to prevent the establishment of discriminatory practices, and thus has also the correlative right to informa- tion relating to such discrimination. ment7 entitles the Union to this information to enable the Union to implement contractual policy and moni- tor the terms of the agreement.R Thus, we find that the above information relating to bargaining unit em- ployees is presumptively relevant and must be sup- plied by Respondent. Certain information requested by the Union relates solely to job applicants. Job applicants are employ ees within the meaning of Section 2(3) of the Act. Fur- thermore the Board stated in lTlnner Motor l.iert, Ltd., that "an employer's hiring policies and practices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and con- ditions of employment. "9 Thus, we find that the appli- cant data sought by the Union is presumptively rel- evant because the data is integral to the Union's fulfillment of its functions as statutory bargaining representative of unit employees. °0 Accordingly, on the basis of the foregoing. we agree with the Administrative Law Judge that the above-listed information is necessary and relevant to the Union's pertfrmance of its bargaining obligation and we will order Respondent to produce the current requested data and materials." ORDER Pursuant to Section 10(c) of the National Lahor Relations Act, as amended, the National Labor Rela- lions Board hereby orders that the Respondent, Au- tomation & Measurement ivision The Bendix Cor- poration, Dayton. Ohio, its officers, agents. successors, and assigns. shall: I. Cease and desist from: Art VII. 23!. provides, "Neither the Company nor the Union shall dis- criminate against any employee because of race. religion. color, sex. age or national origin." W 1estinghou.se Electric (orporation, supra at 108. 148 NLRB 1402. 1404 1964), enforcement denied on other grounds 419 F.2d 216 (9th Cir. 1969). ' See The East Dayton Tool and Die Co.. supra at 142. 149. " Our dissenting colleague repeats the contentions she made in her dissent in Westinghouse Electric Corporation and The East Davron Ttaxl and Die (o. supra. Her characterizations and inferences herein are no more persuasive now than they were in the earlier cases. Furthermore. her reliance on the recent Supreme Court decision in Derrioit Edison Co. v, L. R 440 l .S 301 (1979}. Is totally misplaced. There, the Court refused to enforce a Board Order requiring the employer to furnish to the union aptitude tests and answer sheets. as well as scores of individual examinees. without first obtain- tng their consent. With respect to the tests, the Court found that secrecy was necessary to preserve the valihdty of the tests As to the individual scores, the Court noted that a promise of confidentiahlity as made to the examrelles,. and took judicial notice of the sensitivity of any human being to disclosure of information that may hbe taken to bear on his uor her basic cimpetence he Court therefore concluded that "[Uinder these circumstances, any possible impairment of the function of the Uinion in processing the grlevances of employees is more than justified by conditioning the disclosure of the test scores upon consent of the ery employees whose grievance is being pro- cessed." We fail to see how the considerations of secrecy and confidentiality apply to the information we are rdering the Emploer to furnish to the Union herein: i.e.. information respecting its master insurance agreements. job postings and requisition forms, and the race and sex of applicants for employ menl DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain with International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC and its Local 759, as the exclusive bargain- ing representative of the employees in the unit de- scribed below, by refusing upon request to furnish information respecting its master insurance agree- ments, job postings and requisition forms, and the race and sex of applicants for employment. The unit is: All production and maintenance employees employed by the Employer at its Dayton, Ohio plant, including plant clerical employees, truck drivers, expediters and schedulers, but excluding all office clerical employees, technical employees with diverse interests, co-op students, field ser- vice employees, the secretary and stenographer in the service department, managerial employees and all professional employees guards and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, furnish the above-named Union with a copy of its master insurance agreements, cur- rent job-posting data and requisition forms, and cur- rent data respecting the race and sex of applicants for employment as requested in the Union's letter of July 25, 1974. (b) Post at its Dayton, Ohio, facility copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. MEMBER MURPHY, concurring in part and dissenting in part: 12 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." This case presents the Board with an excellent op- portunity to reverse its erroneous decisions in Wes- tinghouse Electric Corporation,3 and The East Dayton Tool and Die Co. 14 In those cases the Board-turning itself into a mini-EEOC-sanctioned a union's use of the National Labor Relations Act and the National Labor Relations Board's processes to obtain informa- tion relating to issues properly cognizable under title VII of the Civil Rights Act of 1964.'5 Instead of avail- ing itself of this opportunity to make good law, the Board majority here again extends union liability un- der title VII, heedless of the consequences under ei- ther that statute or the National Labor Relations Act. This case-like Westinghouse and East Dayton- arose in the context of the International Union's adoptions in 1972 of a program to eliminate race and sex discrimination in bargaining units represented by it and/or its locals, a goal with which I agree. But in furtherance of this laudable internal union goal, the International Union by letter of June 22, 1973, re- quested certain information from Respondent Com- pany, which request Respondent denied by letter of July 12, 1973. After more than a year had elapsed, on July 25, 1974, the International Union wrote to the Company asking for, inter alia, the following informa- tion: 1. Copies of master plans for health and life insur- ance and sickness and accident benefits for unit em- ployees. 6 2. A breakdown by race and sex of all applicants for employment during 1973 and 1974 to date of the letter, and, as to those applicants hired, a breakdown by race and sex of the classification and department into which they were placed. 3. A copy of Respondent's affirmative action plans. 4. A sample copy of job requisition forms used to requisition employees for unit jobs and five such forms completed within a recent period prior to the letter. 5. A listing of all 1974 job postings, the names of all persons who bid for jobs posted, broken down by race and sex, and a designation indicating which per- son was awarded the job. On September 19, 1974, the Company refused to supply the information. Subsequently, on or about September 30, 1974, the International Union re- quested the Company supply it with the results of a survey allegedly conducted in July and August 1974 '3 239 NLRB 106 (1978). ' 239 NLRB 141 (1978). " 42 U.S.C. § 2000e. ,' The letter requested "[t]he complete agreement setting forth the terms under which unit employees [sic] benefits are secured. ..' I assumL, as the majonty apparently does, that the Union sought only those portions of the plans which pertain to unit employees. 64 THE BENDIX CORPORATION concerning the existence of race and/or sex discrimi- nation at Respondent's Dayton, Ohio, facility, the only plant here at issue. Respondent also refused this request. During the relevant times the Company had a col- lective-bargaining agreement with the International and its Local 759 (herein the Union) containing a nondiscrimination clause providing that "[n]either the Company nor the Union shall discriminate against any employees because of race, religion, color, sex, age or national origin." There is no evidence that, during the relevant times, any grievance was filed al- leging a violation of the nondiscrimination clause, or that the Union filed any charges against the Com- pany with either the Equal Employment Opportunity Commission or the Ohio Civil Rights Commission, or that the Union even suspected that the Company was engaging in conduct which violated title VII. My colleagues in the majority here order the Com- pany to supply the Union with virtually all of the information requested-except the affirmative action plans (AAP's) and alleged survey-on grounds that such information is "presumptively" relevant. Except with respect to the insurance plans insofar as they pertain to benefit coverage for unit employees,'7 I cannot agree with the majority that any of the infor- mation requested is properly obtainable in this pro- ceeding. In fact, I vigorously assert the contrary. The information sought in item 2, above, i.e., the race and sex of applicants for employment and of those applicants actually hired, is similar to that re- quested by the union in The East Dayton Tool and Die Co., supra. As in East Dayton, the majority in this case orders the Company to provide the requested information. By this action the majority expands li- ability for employer discrimination under title VII and imposes on unions the duty to represent appli- cants for employment despite the fact that the Union has no say whatsoever-and is entitled to none-with regard to Respondent's hiring decisions." (See East Dayton.) i I agree with the majority's conclusion that "group insurance is encom- passed within the concept of 'wages,'" information as to which is in turn presumptively relevant; that Respondent has not rebutted the presumption: and that therefore Respondent's refusal to furnish the insurance information violated Sec. 8(aX5) of the Act. In support of this conclusion the majority cites, inter alia, The East Days on Tool and Die Co., upra, in which I dissented from the majority's determination that the union was entitled to similar information. As stated in fn. 16 of the decision, however. my dissent on that issue was based solely on the fact that the request for the information was not made by the local union, which was the exclusive representative of the unit employees, but by an agent of the international union, to which the employer had no obligation to furnish the information. In the instant case the request was made by the recognized collective-bargaining representative and I therefore find that the Union was entitled to the insurance informa- tion. '8 Of course, where a union is in part responsible for an employer's dis- crinminatory scheme or pattern of conduct, employees adversely affected by such discrimination have a course of action against the union as well as against the employer. See Laffev v. Northwest Airlines, Inc, 13 FEP Cases 1068 (D.C Cir. 1976), cert. denied 434 U.S. 1086 (1978t. Indeed, the facts here present an even more persua- sive case for the conclusion that the Company has no obligation to provide the applicant information, for in East Dayton the union and the employer were parties to a collective-bargaining agreement containing a nondiscrimination clause which specifically applied, inter alia, to hiring. Although, as I stated in the dis- sent in that case, I do not consider the mere existence of such a clause involving a nonmandatory subject of bargaining to justify a finding that a union is entitled to information about applicants for employment, the majority relied on the hiring provision in finding that information as to applicants was necessary and rel- evant to the union's performance of its bargaining function. Indeed, having found that the union had demonstrated the relevance of this information, the majority in East Dayton specifically found it "unnec- essary to determine whether such information is pre- sumptively relevant." (Emphasis supplied.)' 9 In the instant case, however, the nondiscrimination clause in the collective-bargaining agreement between the Company and the Union is silent as to its applica- bility to hiring and, thus, much of the underpinning for the majority decision in East Dayton-as weak as it was-is conspicuous by its absence here. Notwith- standing this fact, the majority, citing Tanner Motor Livery, Ltd. (as it did in East Dayton), for the propo- sition that "an employer's hiring policies and prac- tices are of vital concern to employees inasmuch as such policies and practices inherently affect terms and conditions of employment,"2 0 finds the information "presumptively relevant because the data is integral to the Union's fulfillment of its functions as statutory bargaining representative of unit employees." Thus, once again the majority merely makes the bald asser- tion that the requested information is "presumptively relevant because it is presumptively relevant," and thereby in one sentence tries to annihilate volumes of established precedent concerning an employer's duty to furnish information. To summarize the basic ground rules in this area, the standard for determin- ing whether requested information is "presumptively relevant" has been succinctly articulated by the United States Court of Appeals for the Third Circuit: [W]age and related information pertaining to em- ployees in the bargaining unit is presumptively relevant ... as such data concerns the core of the empoyer-employee relationship ... as to other requested data, however . . . a union must, by reference to the circumstances of the case, as an 5' East Dayton, supra, fn. 6. 20 148 NLRB 1402, 1404 (1964), enforcement denied on other grounds 419 F.2d 216 (9th Cir. 1969). 65 I) ('ISI()NS OF NATIONAI. IAB()R RIlATI()NS BOARDI initial matter demonstrate more precisel the rel- evance of the data it desires.21 Clearly, the inf'ornlation as to applicants requested by the Union here does not fall within the category of "wage and related intormation" and does not concern the core of' the employer-employee relationship. The majority thus errs in concluding that it is presump- tively relevant. Equally clearly, the Union has also failed to demonstrate the relevance of' that informa- tion because there is in fact no relevancy to estab- lish! Accordingly, fbr all the reasons discussed in full in my dissenting opinion in lEa'l Dalvon, supra, and the additional reasons set forth above, I find that the Union is not entitled to any of' the information it seeks concerning applicants for employment. Additionally, to the extent the Union requested in- formation as to unit employees (item 2, supra), i.e., the race and sex of employees hired into various de- partments and classifications, as I did in iWesting- house. supra, that the information was not sought for any purpose of collective bargaining and I therefore would not require Respondent to supply such intor- mation. Although in the instant case, unlike P'.esling- house, it does not appear that the Union had filed suit against the Company and was seeking information as "part of its litigation strategy," it is abundantly clear here, as it was in Westinghouse and Ea.vt Davton, that the Union wanted the data in furtherance of its own purposes and not for collective bargaining.22 In item 3, as noted above, the Union requested the Company's affirmative action plans. The issue of whether a collective-hargaining representative is enti- tled to copies of an employer's AAP's was discussed at length in Westinghouse Electric Corporation. supra, in both the majority and dissenting opinions. As I stated in my dissent in that case: The whole purpose of AAPs is to enable employ- ers to monitor their own fair employment pro- gram and to provide equality of employment op- portunity without regard to artificial barriers.... * * * * * If employers must ... hand over under Section 8(a)(5) their race and sex statistics and certain information contained in their AAP ... and run the risk of a union lawsuit, I think experienced 21 Curltss /right ( 'orporation, Wright A4 ronauliitl Divi ,on S N L R Pr. 347 F.2d 61, 69 (1965). 2 The conclusion that collective bargaining and protectumn f' employee nghts were a long way from being the Union's primary concern in requesting the information is amply supported by internatilnal representative Wilt Stamper's testimony that he w ould i.ithdra the unfair lahuor practice charge if Respondent swould furnish the [nion lith ia "hold harmless" agreement Such a comment is hard]: consistent with a burning desire on the part olt Ithe Union to unearth and eliminate any polssible emplo)ment discrimination Respondent. counsel will make sure that employers will be less than candid in preparing the data in the fu- ture. I adhere to this position and, consequently agree with the majority's conclusion- but not their ratio- nale therefor that the Company here is not obli- gated to supply the Union with copies of' its affirma- tive action plans. With regard to item 4, as noted by the Administra- tive Law Judge, it is not clear whether job requisition forms are used in hiring new employees and/or in connection with job postings of unit positions. To the extent the forms are used as part of the hiring process, I finu that inasmuch as the Union is not entitled to information about hiring clearly a management pre- rogative it is also not entitled to copies of docu- ments utilized by management in the hiring process. Further, inasmuch as it is not established on this rec- ord that the requisition forms had any connection with rights of unit employees under the collective- bargaining agreement, it is obvious that the Union has not demonstrated the relevancy of the requested information. 23 Accordingly, my colleagues err in re- quiring Respondent to supply the Union with any job requisition forms. With respect to item 5, in which the information requested was about job postings and about employ- ees who bid for jobs and those who were awarded posted jobs, the Union might be entitled to such in- formation if it were requested for a purpose related to collective bargaining. However, there is no indication here that the information was requested for such a purpose. As discussed above, there is no evidence that the Union filed charges or grievances relating to al- leged discrimination by the Company here, but there is abundant evidence that the Union sought the infor- mation at issue tfor its own purposes. In these circum- stances, it is clear that the Union is seeking the Board's assistance in a mere fishing expedition. I therefore would not require Respondent to supply the job posting information. Finally, with regard to the survey allegedly under- taken by the Company to determine whether race or sex discrimination existed at its Dayton plant, I agree with the majority that the General Counsel has failed to establish that such a survey was conducted. How- ever. even if the existence of such a survey were shown, I would not require the Company to provide the results thereof to the Union. For, as I emphasized 21 As I emphalilsed in my dissent n East Dnavi,n. pra, quoting the United Sla tes ('lurt )I1 Appeals for the Ninth ('ircut. "''the showing iof relevancel by the union must be more than a mere concoction ol'some general theor . " .Sin Diegoe Ne paper Guild,. .oc(L No t5 / the .Ncwspaper Guild. AFFL (/0 ((' I( 'niun Tribune Publishing ( / v N R B, 548 F.2d 863. 868 11977). affg I nn -rihiune Publishing (,* 220 N lRH 1226 (1975) 1 did not partlcipale in the Board decision in I rinn 7rihlun 66 IE BENtI)IX ('ORP()RAIlON in feI.stingh/ulvse "Ithe spirit and motive behind Title V11 itself was to encourage voluntar, colmpliance.' Obviously, ordering Respondent to produce the re- sults of a survey conducted on Respondent's on ini- tiative results which could conceivably be used against Respondent in some future proceedings is far from conducive to the goal of voluntary compli- ance with this country's equal employment opportu- nity laws and programs. Furthermore, as with most of the other data requested by the Union in this pro- ceeding, it is clear that the information is not re- quested for purposes of collective bargaining. Finally, ev-n if the data had been requested for collective-bargaining purposes, the United States Su- preme Court has recently held that a union's interest in "arguably relevant" information does not always predominate over all other interests. In Derroit Edivon Cornpal' v. N.L. RB., 440 U.S. 301 (1979). the ('ourt concluded that a union is not necessarily entitled to all information it requests?2 a position which I em- phasized in lf,'stinghouse and East Daton, lsu/ra, and reiterate here. Although Detroit Eison involved types of information other than those involved in this case. the general principle is relevant here. Obviously, the fact that my colleagues of the majority do not accept my dissent does not make it less valid. In summary. I agree with the majority that Re- spondent is obligated to furnish the nion with the information requested regarding insurance coverage of unit employees, and violated Section 8(a)(5) and ( I) of the Act by failing to do so. However, for all the reasons stated above. I would not find the Union en- titled to any of the other information sought in this proceeding. and to the extent the majority orders Re- spondent to provide such information, I dissent. The illoing observatlions ol the Supreme (Court are pertinent A unton's ha re assertion halt it needs ntlormation to process a griev- ance dves not autormaticalls oblige the employer tI suIppls all he ntor- mation n the manner requested 144(1 U.S at 314.1 rhe Board's positiin appealrs to rest oIn the propositllon that unilon Interests n arguabl) relealnt intormation must .IalwaS predoiinate over all other interests, h cver legitima.te ut such ani absolute rule has never been etahlished. and xe decline to adopl such .I rule here [440 U.S. at 318.1 APPENI)IX Noii(t To EtI ONYilis POSIID BY ORDI)ER O() 1111 NAIONAI. L.ABO()R RELATIONS BOARI An Agency of the United States Government Wi; WII.I. N refuse to bargain with Interna- tional Union of Electrical, Radio and Machine Workers. AFIt CIO CI.C and its Local 759, as the exclusive hbargaining representative of the emplo,ees in the unit described below. b refus- ing to furnish information, upon request. respect- ing our master insurance agreements, job post- ings and requisition fbrms. and the race and sex of applicants liOr emplo,, ment. Tlhe unit is: All production and maintenance employees employed at our Dayton, Ohio plant. includ- ing plant clerical employees, truck drivers, ex- pediters and schedulers, but excluding all o: fice clerical employees, technical emplobees with diverse interests, co-op students, field ser- vice employees, the secretary and stenogra- pher in the service department. managerial emploNes and all profssional employees. guards and supervisors as defined in the Act. Wi xliil is ol in an3 like or related manner interfere with. restrain, or coerce our employees in the exercise of rights guaranteed them h Sec- tion 7 of the Actl. \\i: \ 11.,. upon request. f'urnish the abo e- named Union with a cop ol'f our m;aster insur- alce agreements, current job posting data atnd requisition forms, and current data respecting the race and sex of applicants for employ mient as requested in the .:lnion's letter of July 25. 1974. At i()M\tiiiN & IIASI RI:MI:NI I)i\ ISI()N\ I ii BN)IX ()R'RP()RA I I()N DI)E('I SI()N IIiR ' 1.. .1 \1 I I I . Adllnlt istratixe .Iac Jutd ge: -1his case presents the qtlestiin i t hargaMinig rcprcsent li \e's ritht to inftormation f1roImn tllt pio\er re]ating to matters ot mi- nority groups anid S ollle as thex nii affect [the tlnion's dut's of tair represenrtation Ihe proceedItcltg xas niti;aed h a charge tiled b International tInion otf lectrical. Radio and Malchine Workers..\l . ('10 ((' and its Local 7591 on September 6. 1974, pursuant to which complaint issued on I)ecemher 12. 1974. On Jnuar' 20. 1975, the hearintg was held in ()akwood. ()hio. U pon the entire record. ncldingclui' obsera;ltion of the witnesses. and atter due consitderation of the bhrets iled hs the (jeneral Counsel and Auiomaition & Mellsurermcent [)i- vision he Bendix ('orporation, herein called Respondent I make the tollowing: INIl)IN(is () :t 1. 1111 Al 1I (1-i) RI SXl I() IBAR(Ai\ A. t-fi( tlr Serlin Respondent is engaged in the mantinitacture of precision mcasuring g equipment at a plant in Da!ton. Ohio. eniplo, - ing aboutl 45) unit emIpilt cs ; nd 400 nolnunlit emnplosees.2 he ilnternahll j ll ll ,1 1 I .1 7i9. re reerred 't o lleciltl I .a t I l rllo Jt rli di ion is not in isue t he ill l li e .ileg the rls .er 1drilIll . ind I find Illt Respondent meets thle ioair'1 $5*iilIi dreCt Lil tss .ial Md s1olli si.indAlrds ,r the i.ssertiol oI' jutrldlitll 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since November 21, 1969, the Union has been the certified representative in a unit of all production and maintenance employees of Respondent at the plant, and since that date the Union and Respondent have been parties to two collec- tive-bargaining agreements, the most recent agreement being effective from March 2, 1973, through March 1, 1976. On July 25, 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: I. The master plans containing the agreements between Respondent and the insurance carriers who provide medi- cal insurance coverage, sickness and accident (S & A) insur- ance coverage and life insurance coverage for unit employ- ees. 2. The total number of individuals who sought employ- ment with Respondent in the certified unit, including their sex and race, and the number actually hired, including their race and sex and the department and classification in which they were placed from January 1, 1973, to the date of the issuance of complaint. 3. Respondent's affirmative action plan to eliminate race and sex discrimination in its employment practices at the Dayton, Ohio, plant, and the requisition form used to requi- sition employees for unit positions. 4. The job postings for 1974, the names of the employees who bid on each unit job posted, including their race and sex, and the name, race, and sex of the employee awarded the unit job. 5. Results of a survey conducted by Respondent during July and August 1974, concerning whether or not race and/ or sex discrimination existed at its Dayton facility.) In requesting the foregoing information, the Union ad- verted to a program it maintains to eliminate race and sex discrimination in plants represented by it and gave as its reason for the request "in order to do a thorough and cor- rect analysis in reference to possible race and sex discrimi- nation at Bendix .. ." and "in furtherance of its efforts and duty to represent all unit employees in an impartial nondis- criminatory manner." In replying to the Union's request, Respondent, in a let- ter dated September 19, commended the Union's adoption of a program to eliminate race and sex discrimination within its own organization (which was not what the Union referred to in its request) but added "we do not believe [the Union] has an obligation to monitor or supervise similar programs adopted by the Bendix Corporation. Although we are willing to cooperate with the Union in assuring compli- ance with the provisions of Title VII of the Civil Rights Act of 1964 by both organizations, we are unwilling to furnish information or data under any claim by the union that it has a right or obligation to review the nondiscrimination programs adopted by the company." The letter did not address itself to the specific requests of the Union, but a letter of the same date to the Board agent investigating the instant charge gave reasons why Respon- dent was refusing to furnish specific items. These reasons will be adverted to below. 3 This information was requested on or about September 30, 1974. B. Analysis and Conclusions The ultimate issue in this case is whether or not the infor- mation which the Union requested is relevant and neces- sary for the Union in order to perform its obligations under the Act as the exclusive representative of Respondent's em- ployees. As a threshold matter, it is settled law that the union owes a duty of fair representation to all unit employ- ees. As the Supreme Court recently noted in Emporium Capwell Co. v. Western Addition Comnmunit, Organization, 420 U.S. 50, 64 (1975), "we have held. by the very nature of the exclusive bargaining representative's status as repre- sentative of all unit employees, Congress implicitly imposed upon it a duty fairly and in good faith to represent the interests of minorities within the unit. Vaca v. Sipes, supra; Wallace Corporation v. N.L.R.B., 323 U.S. 248 (1944); cf. Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944)." A union which violates its duty of affording fair representation to all unit employees is guilty of an unfair labor practice. Independent Metal Workers Union, Local No. 1, 147 NLRB 1573 (1964); Locals 1367 and 1368, Interna- tional Longshoremen's Association, etc., 148 NLRB 897 (1966), enfd. 368 F.2d 1010 (5th Cir. 1966), cert. denied 389 U.S. 837 (1967). To fulfill that duty and remedy its unfair labor practices, a union may be ordered by the Board to propose specific contractual provisions to the employer to prohibit racial discrimination. Local Union No. 12, United Rubber, Cork, Linoleum, etc., 150 NLRB 312 (1964), enfd. 368 F.2d 12 (5th Cir. 1966), cert. denied 389 U.S. 837 (1967). Respondent does not question these principles. Its posi- tion is that the information requested is not relevant and necessary to the Union for the purpose of fulfilling its duty of fair representation.4 It is settled law that the duty to bargain extends beyond the period of contract negotiations and applies to labor management relations during the term of an agreement. N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421 (1967). It is also settled law that an employer has the obli- gation to furnish a union, upon request, with information, which will allow it to decide whether to process pending 4 Respondent also asserts as a defense that the evidence supports a finding that the International Union sought the information not for the purpose of representing the interests of unit employees, but for the purpose of insulating itself from financial liability for any unfair employment practices under title VII of the Civil Rights Act of 1964. This contention is predicated on the assertions that the International Union's program against race or sex dis- cnmination had its genesis in an adverse EEOC determination; that the local unions were uncooperative in furnishing data and, thus, forced the Interna- tional Union to request data from the employers, and, when they refused, unfair labor practice charges were filed: and upon the testimony of interna- tional representative Wiley Stamper that he would withdraw the instant charge if Respondent furnished the Union with a hold harmless agreement. While Stamper's offer to withdraw the charge in return for a hold harmless agreement suggests a greater concern on the part of the Union about possible financial liability for violating title VII of the Civil Rights Act of 1964 than concern over affording fair representation to all unit employees, I am not persuaded that his offer warrants the finding urged by Respondent. The record does not support the assertion that the International's program was adopted because of an adverse EEOC determination, rather than a genuine concern for the protection of the rights of minority groups and women. In any event, a concern about possible financial liability is not inconsistent with a purpose of fulfilling the duty of fair representation. Accordingly, I find no merit to Respondent's defense. 68 THE BENDIX CORPORATION grievances. .'.L.R.B v. Acme Industrial Co.. 385 U.S. 432 (1967). Again, I do not understand Respondent to be dis- puting these settled principles. Its contention is that the Union did not request the information in question either for the purpose of negotiating a new contract or to administer an existing contract. I find no merit to this contention. True, the Union did not express a need for the requested information in terms of administering the existing contract or negotiating a new one. However, the contract does contain a no-discrimina- tion clause5 to the enforcement of which the requested in- formation could be relevant and necessary and the Union did state as its purpose "in furtherance of its efforts and duty to represent all unit employees in an impartial nondis- criminatory manner," a purpose which subsumes both the administration of the existing contract and preparation for a contract in the future. On the matter of relevance for the administration of the existing contract, Respondent's position essentially is that in order to be relevant under that principle it must appear that the requested information relates to a grievance or a claimed breach of contract. But the principle is broader than that. A somewhat similar contention was rejected in J. 1. Case Company v. N.L.R.B., 253 F.2d 149, 153 (7th Cir. 1958), wherein the court stated: These contentions stem from a basic disagreement between petitioner and the Board as to the proper con- ception of the Union's role as representative of the em- ployees and of the very nature of the collective bar- gaining process. The contention that the Union's right to data is limited to pending wage negotiations over- looks the fact that collective bargaining is a continuing process which, "[a]mong things, * * * involves day to day adjustments in the contract and other working rules, resolution of new problems not covered by exist- ing agreements, and the protection of employee rights already secured by contract." In General Electric Co. v. N.L.R.B., 466 F.2d 1177 (6th Cir. 1972), in the Seattle case, the parties were neither engaged in negotiations, nor processing grievances, at the time the Union requested wage survey information, yet the court upheld the Board's finding that the survey was relevant and necessary to the union's proper performance of its statutory responsibility. In short, while the absence of pending grievances may be a factor in determining the relevancy and necessity of re- quested information, it is not a dispositive factor. Rele- vancy and necessity may be predicated on other factors. With these principles in mind, I turn to the specific infor- mation here requested. I. The survey The record evidence with regard to the survey is sparse. All that appears is that on July 30, 1974, at a meeting to discuss the Union's requests for information, Respondent indicated that it intended to conduct "a complete inspec- tion of the plant and was going to take a look at some of the Art. VII (23) provides "Neither the Company nor the Union shall dis- criminate against any employees because of race, religion, color, sex, age or national origin." problems [the Union] had brought up...." On September 30, the Union requested the outcome of this investigation and Respondent refused its request. What the investigation consisted of does not appear in the record. The Union has referred to it as a survey and the complaint alleges a refusal to furnish the Union with a copy of the survey. Respondent has not contested the use of the word survey and implicitly acknowledges the existence of a work product which one can call a survey. In contending that the survey is relevant and necessary to the Union for the proper performance of its duties as bar- gaining representative, the General Counsel has cited sev- eral cases which recite general principles. not disputed herein, and resolve factual situations different from the situ- ation here presented. He has not, however. indicated how or why the survey is relevant and necessary for the Union to perform its statutory function as bargaining representa- tive. It was not relevant to a grievance as none was pending.' Nor was its relevance shown by other circumstances as in LTniversal Atlas Cement of United States Steel Corporation, 178 NLRB 444 (1969), and The Fafnir Bearing Company, v. N.L.R.B., 362 F.2d 716 (2d Cir. 1966), cited by the General Counsel. In Universal Atlas Cement, a grievance had been resolved and the circumstances gave the union reason to believe that other employees might be entitled to relief in Fafnir Bearing, there was a price rate dispute to which the union's timestudy request specifically related. In this case. the Union has made no claim of discrimination, or breach of contract. to which the survey can be said to relate. The General Counsel asserts "such a survey must, of ne- cessity, have dealt with the wages, hours and working con- ditions of Respondent's employees, as well as Respondent's hiring policies . . ." and the Union was entitled to the survey "to see whether Respondent's employment policies were discriminatory...." I do not agree that this is sufficient basis to require Respondent to furnish the survey to the Union. In General Electric Company, 192 NLRB 68, 69 (1971), wherein the Board held that the company was re- quired to furnish the union with the results of an area wage survey, the Board stated "we do not hold that any informa- tion which could have relevance to determining a party's decision with respect to any matter under negotiation or to be negotiated must upon request be revealed to the other party. Our decision is bottomed on our conclusion that there was inherent reliance by the Company upon the wage surveys .... " There was no such showing here. There was no overt act, no management decision, flowing from the survey which the Union could point to as the basis for its request. Accordingly, I shall recommend dismissal of this allegation of the complaint. 2. Requisition forms and job postings The Union's specific request for information under this heading was for "a sample copy of the job requisition forms 6 Union representative Wiley Stamper testified that in his meeting with representatives of Respondent on July 30 he referred to the case of one Catherine Dietrich as a problem case and he implied that Respondent re- ceived the information as source material for its survey Be that as it may no gnevance was filed at any time with regard to Dietrich and in requesting the survey the Union did not advert to any problem involving Dietnch. 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used to requisition employees for unit positions and five recently completed forms for any bargaining unit employ- ees" and "a listing of all job postings for 1974 identitfying for each job posting the person(s) who bid for that job and their race and sex. Please also indicate by some appropriate designation, such as an asterisk, the person or employee awarded the job." Respondent's reasons for refusing to submit the infbrma- tion, as stated in its letter to the investigator for the Re- gional Office, were that "requisition forms constitute a part of the selection and hiring processes carried on by the em- ployer as one of' the specific rights reserved to it by the provisions of the collective-bargaining agreement and as such cannot reasonably be considered as information neces- sary to the union for purposes of meaningful collective bar- gaining ... " and "the employer and the union have negoti- ated a bidding system to be utilized in the filling of vacancies within the bargaining unit. The Union has had throughout the period of time requested, and still has at the present time, full knowledge as to the jobs posted and the identity of' the persons bidding for such jobs. If at any time the union feels this negotiating procedure has been violated, contractual remedies are available and have been utilized by the union on previous occasions. There is no contractual requirement for the employer to compile or arrange this available data into any periodic reports for submission to the union." In its brief, Respondent has not addressed itself specifi- cally to the items here under discussion, but at the hearing testimony was adduced from representatives of Respondent to the effect that the information requesting job postings was voluminous and it would be cumbersome and time con- suming for Respondent to accumulate the data fbr submis- sion to the Union. As was true in the case of the survey discussed above, the information here in question was not requested because of any pending or past grievances. The reason for the request was spelled out by the Union's attorney who testified that the Union has found that some employers requisition em- ployees for various jobs according to sex. Attorney Janetzke gave an example where a supervisor with heavy work in his department wants all males in his department. The requisi- tion forms used by Respondent do not carry a male or fe- male designation. but to discover whether or not supervi- sors were inserting sex designations along with their requisition the Union requested five recently completed forms. In the matter of' job posting, the record indicates that when vacancies occur in departments the vacancies will be posted on bulletin boards and employees interested in being considered for the vacancy can bid by filling out a bidding form. Under the contract. Respondent has the sole discre- tion in deciding to which employee bidding for the vacancy it will award the vacant job. According to Janetzke. in his discussions with the local union, the local union had indi- cated to him that there might exist a problem in the move- ment of females in the plant into certain jobs and in females not moving up in the job plant structure. The information requested by the Union would permit the Union to deter- mine whether or not there was any sex discrimination in the operation of the bidding procedure. In my judgment. the job posting information requested by the Union was relevant and necessary to its performance of its obligations as the collective-bargaining representative of Respondent's employees. As previously noted, the con- tract between the Union and Respondent contains a no- discrimination clause. The information requested by the Union with regard to job postings was relevant and neces- sary for the Union to determine whether or not Respondent was complying with that provision. At first blush, it may appear that such a conclusion is inconsistent with the con- clusion above respecting the survey. In my judgment, there is no inconsistency. The data requested is different. Insofar as the survey was concerned, as I stated above, there was no showing that the survey was utilized by Respondent in any way either in its dealings with the Union or in its manage- ment of the plant. Insofar as the job postings are concerned, however, they are the very means by which unit employees are selected for various job. In view of Respondent's con- tractual obligation not to discriminate against employees on any basis prohibited by law the Union was entitled to the requested information in order to determine whether or not Respondent was complying with its contractual obligation. Apart from considerations of discrimination, an addi- tional reason for concluding that the information requesting job postings was relevant and necessary to the Union's per- formance of its obligations as collective-bargaining repre- sentative of employees is the fact that the bidding proce- dure vested discretion in selecting applicants for vacancies solely in Respondent. With access to the job posting data the Union could determine how this descretion was being exercised and whether it was necessary or desirable to pro- pose limitations on that discretion in future negotiations. As noted earlier. Respondent adverted at the hearing to the voluminous nature of the job posting data and implied that it would be unduly burdensome to compile it. The record does not support such a holding. Respondent al- ready compiles a arietl of data concerning its operations and there is no showing that production of the job posting data would require any substantial additional effort. It is noteworthy that Respondent did not base its refusal on such a ground. "I it had. some arrangement could possibly have been made to lessen such 'burden.' " J. I. Case Co. v. N.L.R.B. .supra at 156. At the hearing. Respondent adverted to information sup- plied to the Union every month setting forth the name. classification, and labor grade of all unit employees and it implied that this information was sufficient for the Union's purpose. It clearly is not sufficient. As to the requisition forms, the record is not entirely clear what they consist of or what use is made of them other than as part of the selection and hiring process. In particu- lar, it is not clear whether requisition frms relate to job vacancies and the job postings just discussed above. or whether they relate to new hires. If they are part of the process by which job postings are made, they are relevant and necessary for the Union's performance of its obliga- tions as bargaining agent under the rationale above. If, however, they are only part of the process of hiring new employees, additional rationale is required. This additional rationale will be found below in the discussion of the Union's right to information concerning Respondent's poli- cies. 70 THE BENDIX CORPORATION 3. The master insurance agreements In its July 25 request, the Union requested a copy of the agreements between Respondent and the insurance carriers relative to health and life insurance and sickness and acci- dent benefits provided to employees under the terms of the collective-bargaining agreement. Article XXXVI of the collective-bargaining agreement provides for pension and insurance benefits as follows: (143) The Parties have provided for a Pension Plan and an Insurance Program by Supplemental Agree- ments signed by the Parties simultaneously with the execution of this Agreement. (Which Supplemental Agreements are set forth in Exhibits A and B, respec- tively, and made a part of this Agreement as if set out in full herein, subject to all the provisions of this Agreement.)' (149) No matter respecting the provisions of the Pension Plan or the Insurance Program shall be subject to the grievance procedure as established in this Agree- ment. The insurance benefits which Respondent is contractu- ally obligated to the Union to provide is contracted for by Respondent with Travellers Insurance Company. The bene- fits provided to employees are set forth in a group insurance plan handbook available to the Union and all employees. The handbook sets forth the benefits to which employees are entitled. According to Janetzke, the Union requested a copy of the master insurance agreements to examine them in detail to see whether they contained provisions which discriminated against employees on the basis of race or sex. Although Janetzke spoke in terms of possible race or sex discrimina- tion, it seems that possible sex discrimination was the pro- posed object of search. It appears that in certain respects insurance plans may discriminate against women in certain particulars such as disability benefits. For example Equal Opportunity Com- mission guidelines require employers to treat disability due to pregnancy the way they do other temporary disabilities for all job-related purposes. In 'etzel v. Liberty Mutual Ins. Co., 9 FEP Cases 227, the U.S. Court of Appeals for the Third Circuit upheld this view. If the respondent main- tains an insurance program with provisions discriminatory in this particular, and the union has failed to protest and to seek modification of the insurance program, it may be held liable itself by the EEOC. More importantly, for our pur- poses, under the principles discussed earlier regarding the union's duty of fair representation, it is evident that the union's duty of fair representation under the NLRA re- quires it to seek to eliminate any vestages of discrimination against unit employees because of race or sex. The only real question is whether master insurance plans are necessary to that purpose I am not persuaded that they are on the facts of this case. 7 The supplemental insurance agreement is not in fact set forth as an ex- hibit, nor is it in evidence. It appears from the testimony o James Schaefer. Respondent's director of industrial relations, that a supplemental agreement was discussed by the parties and after revision was put into effect without being executed by the Union. but without objection from it. The insurance benefits for all employees are set forth in the group insurance plan handbook. That handbook defines and describes the benefits to which employees are entitled, including disability benefits, hospital and surgical benefits, pregnancy benefits, and the like. According to Janetzke these benefits are described only in general terms in the handbook, and only by a study of the master insurance policy can the Union determine whether or not there are discriminatory provisions. I do not agree. In my judgment, general though they may be, the descriptions of the benefits in the handbook are sufficient for the Union to determine whether discrimination exists. At least the handbook is suf- ficient to justify rejection of a broad request such as was made here. The type of discrimination which the Union seeks to ferret out is somewhat specific (it has, at least, been identified by EEOC) and it appears to me that a determina- tion of the existence or nonexistence of such discrimination can be made by a study of the handbook. If, after study of the handbook, the Union believes the information therein is insufficient it can particularize its demand for further infor- mation and necessity may then become apparent. On this record, a finding that the master insurance plans are rel- evant and necessary to the Union for the fulfillment of its duty of fair representation is unwarranted. 4. The affirmative action plan Under Executive Order 11246 and rules of the Office of Federal Contract Compliance, contractors engaged in the performance of government contracts are required to de- velop and file affirmative action programs setting forth spe- cific procedures to establish equal employment opportuni- ties for minorities and women. Respondent is a government contractor and it has developed and filed an affirmative action program. Respondent has refused to furnish the Union with a copy of its affirmative action plan for the reason that the Union had no right to review nondiscrimi- nation programs adopted by it and, for the further reason, that a copy of the program was a matter of public record. The fact that the affirmative action program is a matter of public record is no defense to Respondent's refusal to furnish a copy to the Union if it is relevant and necessary. As bargaining representative the Union has the right to look to Respondent as the source of information relating to wages, hours, or other conditions of employment of its em- ployees and may not be required to go to other sources It is noted in this connection that while Title 41. Ch. 60, part 60-40, of the U.S. Code of Federal Regulations provides for public disclosure of affirmative action plans. upon request, the plans may be inspected and copied only "if it is deter- mined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies ... " (Sec. 60-40.2) Accordingly. I reject Respondent's defense that its plan s a matter of public record. As a matter of fact, in light of the provisions for public disclosure, Respondent's refusal to furnish a copy to the Union is incomprehensible. Cf. V. LRB v. Norrhxestern Publishing Compwai. 343 F 2d 521. 525 (7th Cir. 1965): V L R B. v The Item Compani. 220 F.2d 956. 959 (5h Cr 1955). cert. denied 350 US. 905. 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It seems unnecessary to spell out the relevance of an affir- mative action program to the Union's performance of' its obligations as a statutory bargaining representative. Such a program is required to set forth, inter alia, an employer's goals and timetables to correct deficiencies in the utilization of minority groups and women. By its very nature, an affir- mative action plan looks not only to the need for changes in, for example, transfer, promotion, assignment, or classifi- cation policies as they may affect minorities and women, but also it sets forth the method to be used to correct defi- ciencies. But where there is a bargaining representative any meth- ods adopted by an employer respecting transfer of employ- ees, promotions, assignment, classifications, and the like are subject to the requirements of Section 8(d) and 8(a)(5) of the Act. The employer may not ignore the provisions of the contract, nor may he act unilaterally. Even where there is a management-rights clause, the union has a right to know what he contemplates doing in order to evaluate whether the particular proposed action falls within its provisions. The validity of these observations is buttressed by Section 60-2.21 (6) of the rules issued by OFCC which call for dissemination of an employer's plan in several ways, includ- ing meeting with union officials to inform them of policy and request their cooperation. A specific example of the problems created by nondisclosure can also be noted in Co- polymer Rubber, 64 LA 310, wherein a grievance over a breach of seniority provisions of a collective-bargaining agreement was dismissed and the employer excused from its contractual duty to adhere to departmental seniority by vir- tue of its affirmative action plan. In short, it is evident, and I find, that an affirmative action program is relevant and necessary to a union in the performance of its duties as statutory bargaining representative and Respondent's re- fusal to furnish a copy to the Union was violative of Section 8(a)(l) and (5) of the Act. At the hearing, Respondent took the position that por- tions of its affirmative action plan contained confidential material. The confidential material was described as "data relating to future plans" and financial data such as the sala- ries of members of management. The General Counsel as- serts that this is not ground for refusing to furnish the Union with a copy of the plan because it was not the ground for refusal given to the Union and because confi- dentiality has been held by the Board as no defense. I do not agree. If the information were in fact confidential and not relevant. Respondent could not, in my judgment, be estopped from asserting such a defense at the hearing as was done here. In the cases cited by the General Counsel the information sought was relevant and for this reason confidentiality was no defense. In the instant case, the mat- ters described as confidential (e.g., management salaries) are not relevant to the Union's performance of its obliga- tions as statutory bargaining representative. Accordingly, I shall recommend that Respondent be ordered to furnish a copy of its affirmative action plan to the Union with leave to delete therefrom financial data not related to unit em- ployees or to Respondent's plans for correcting deficiencies in its utilization of minority groups or women in unit posi- tions. 5. Information respecting the sex and race of applicants for employment As noted, the Union requested that Respondent furnish it with the total number of individuals who sought employ- ment in the certified unit, indicating their race and sex, the number actually hired according to race and sex, and the department and classification for which hired, for the pe- riod 1973 and 1974. The predicate asserted for the Union's right to this infor- mation is the same as the predicate for the other informa- tion discussed earlier: namely, that the Union owes a duty of fair representation to all employees, and this information is relevant and necessary for the Union to fulfill that duty. The statement that a union owes a duty of fair representa- tion to all employees is only accurate if we add "in the bargaining unit." Applicants for employment, albeit held to be employees within the meaning of Section 2(3) of the Act, are not in the bargaining unit until hired, and, where the union plays no part in the hiring process, the union has no duty of representation to applicants for employment until they are in fact hired. For example, in the no-discrimina- tion provision in the contract herein, Respondent and the Union have agreed not to discriminate against employees by reason of race or sex. Certainly, it is not contended that an applicant for employment could invoke this provision and request the Union to process a grievance on her behalf by reason of Respondent's refusal to hire her. How then is the data about applicants for employment here requested relevant to the Union's performance of its duty of fair rep- resentation? The principal thrust of the General Counsel's argument that information here in question is relevant and necessary is that title VII of the Civil Rights Act of 1964 and decisions of the EEOC and the courts impose responsibility for race or sex discrimination in hiring not only on employers, but also on unions in contractual relation with them who may be found in violation of title VII in case of discrimination in hiring. This is simply not the law. A union may not be held liable for an employer's discriminatory hiring practices where hiring is solely in the control of the employer. Mead- ows v. Ford Motor Co., 6 FEP cases 795 (W.D.Ky. 1973). But, assuming, arguendo, that it could, it is not the function of the Board to enforce title VII. Emporium Capwell Co., 420 U.S. 50; Benkins Moving & Storage Co. of Florida, Inc., 211 NLRB 138, 143-144(1974). Despite the foregoing disagreement with the General Counsel's arguments, I conclude the fact the information here in issue related to applicants for employment is no bar to requiring its production. The Board has expressly held that "an employer's hiring policies and practices are of vital concern to employees inasmuch as such policies and prac- tices inherently affect terms and conditions of employ- ment." Tanner Motor Livery, Ltd., 148 NLRB 1402, 1404 (1964), enforcement denied on other grounds 349 F.2d 1 (9th Cir. 1965), and 419 F.2d 216 (9th Cir. 1969). From this, it can readily be seen that while the Union may owe no duty of representation to applicants for employment it is nevertheless entitled to information respecting an employ- er's hiring practices in order to fulfill its duty of fir repre- sentation to unit employees. Accordingly, I find that by 72 THE BENDIX CORPORATION refusing to furnish the information requested by the Union respecting its hiring practices Respondent violated Section 8(a)(5) and (1) of the Act. [I. 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, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. III. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(aX)l) 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 I. Automation & Measurement Division The Bendix Corporation Is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 759 are, each of them, labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its Dayton, Ohio plant, including plant clerical employees, truckdrivers, expediters and schedulers, but excluding all office clerical employees, technical em- ployees with diverse interests, co-op students, field service employees, the secretary and stenographer in the service department, managerial employees and all professional em- ployees, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 759 are, and at all times herein have been, the exclusive representative 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 copies of its affirmative action program, the information regarding job postings in 1974 and requisition forms, and the information requested with regard to the race and sex of applicants for employment during the years 1973 and 1974, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. Respondent's refusal to furnish the Union with a copy of its survey and the master insurance agreements requested by it was not violative of Section 8(a)(5) and (I ) of the Act. [Recommended Order omitted from publication.] 73