Boise Cascade Corp.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boise Cascade Corp., Paper Group and United Pa- perworkers International Union, Local No. 900. Case 1-CA-22601 23 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 10 October 1985 Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Boise Cas- cade Corp., Paper Group, Rumford, Maine, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Kathleen F. McCarthy, Esq., for the General Counsel. John E. Krampf Esq. (Morgan, Lewis, and Bockius), of Philadelphia, Pennsylvania, for the Respondent. Mark M. Brooks, Esq., of Nashville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. The hearing in this case held on 13 June 1985 is based on an unfair labor practice charge filed by United Paperwork- ers International Union, Local No. 900 (Union), on 24 December 1984,1 and a complaint issued on 20 February 1985 on behalf of the General Counsel of the National Labor Relations Board (Board) by the Regional Director for Region 1, alleging that Boise Cascade Corp. Paper Group (Respondent) has engaged in unfair labor prac- I All dates hereinafter are 1984 unless otherwise indicated tices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act. Respondent, in its answer dated 1 March 1985, admitted various allegations of the complaint but denied the commission of any of the al- leged unfair labor practices. All parties were given full opportunity to participate and introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Briefs which have been carefully considered were filed on behalf of the General Counsel, the Charging Party, and Respondent. Respondent and the Charging Party timely filed reply briefs. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent, a corporation with an office and place of business located at Rumford, Maine, is engaged in the manufacture and distribution of paper products. During the calendar year ending 31 December, a representative period, Respondent, in the course and conduct of its business operations, purchased and received at its Rum- ford, Maine facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Maine. The parties admit, and I find, Re- spondent is, and has been at all times material, an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties admit, and I find, the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Central Issue Whether Respondent violated the Act by refusing to provide the Union with certain requested information which allegedly related to Respondent's implementation of a maintenance improvement program at its Rumford, Maine facility is the central Issue.2 For the reasons hereinafter discussed and with the ex- ceptions noted, I find for the General Counsel. B. Background and Operative Facts The operative facts pertaining to the underlying dis- pute in the instant case do not appear to be contradict- ed.3 2 Respondent's Rumford, Maine facility is the only facility involved in the instant case 3 The factfindings contained herein are based on a composite of docu- mentary and testimonial evidence introduced at trial Where I have deemed it would be helpful, I have identified the source of certain specif- ic facts 279 NLRB No. 74 BOISE CASCADE CORP. Respondent manufactures various types of paper, and employs approximately 1200 to 1400 hourly employees in addition to approximately 400 salaried employees. Re- spondent and the Union have been parties to successive collective-bargaining agreements since approximately 1975 when Respondent purchased the mill located in Rumford, Maine.4 It appears the Rumford facility has been unionized since the late 1930s. Currently, there are approximately 1200 employees in the collective-bargain- ing unit. 5 The underlying dispute in the instant case cen- ters around the maintenance department which utilizes approximately 360 to 400 unit employees. The most recent collective-bargaining agreement between the par- ties is, by its terms, effective from 1 July 1983 until at least 30 June 1986. Respondent commenced discussing multicraft mainte- nance concepts with the Union in 1979. It commenced the discussions for the stated reason of attempting to im- prove efficiency and productivity in the maintenance de- partment. Respondent again in 1982 discussed With the Union changes in the maintenance department. However, from 1982 until August 1984, Respondent did not discuss any maintenance changes or improvements with the Union In late 1983, Respondent management and supervisory personnel commenced to develop a proposal to imple- ment a maintenance improvement program . According to the uncontradicted testimony of Respondent's manag- er of maintenance implementation, Harvey McCullough, Respondent conducted interviews with its maintenance supervisory personnel on what they felt was necessary and/or needed to improve productivity and efficiency in the maintenance department. Among other things, these interviews provided the basis for a maintenance improve- ment program report which was prepared and forwarded from Respondent's management at the Rumford mill to its corporate management for consideration, review, and approval. The maintenance improvement feasibility study (or proposal and analysis) that was forwarded from the Rumford mill to corporate level management included: (1) a historical overview of past discussions and negotia- tions with the Union on maintenance improvement and a discussion of the negotiating strategy Respondent might use with the Union in presenting the program; (2) a copy of the proposed maintenance improvement program that was to be implemented which program contained a por- tion outlining which crafts in the maintenance depart- 4 Prior to Respondent owning the Rumford facility, it was owned and operated by the Oxford Paper Company, and prior to that time it was owned and operated by the Ethyl Corporation 5 The admittedly appropriate bargaining unit is as follows All production and maintenance employees, including spare labor pool, Stencilers, Checkers and Weighers, but excluding the following employees in the Electrical Department, Entrants, Learners, Appren- tices, Helpers, Oilers, 2nd Class Electricians, Motor Men ist Class, 1st Class Electricians, Service Men, Elevator Inspector and Mainte- nance, Equipment Service and Operator, 1st Class Motormen and Electronic Service Men and also excluding Office Janitors and Jam- tresses, employees engaged in sales, research, engineering , account- ing and stenographic workers, office clerical employees, professional employees, guards and supervisors as defined in the Act The Union was certified as the exclusive collective-bargaining representa- tive of the employees in the above-described unit on 19 July 1963 The unit was amended in Case 1 -UC-347 on 21 September 1981 423 ment would be eliminated and/or combined with others and what new duties would be assigned to each of the remaining crafts in the maintenance department; (3) a section on a management implementation team which in- cluded the team's makeup as well as how it would ac- complish the task of implementing the program from a supervisory point of view; (4) a section on cost data such as: (a) savings to Respondent if a change in productivity occurred as a result of the maintenance improvement program; (b) projected savings in overtime expenses as a result of the maintenance improvement program ; (c) pro- jected impact on the salary of supervisors; and (d) infor- mation on the cost per ton to produce paper; and (5) a legal opinion by Respondent's in-house counsel on the maintenance improvement program. McCullough's uncontradicted testimony reflects that corporate level management approved the maintenance improvement program in April. Except for that portion of the proposed plan that dealt with an analysis of the skills of the maintenance employees, the proposed plan was not thereafter referred to by management according to McCullough.6 Union International Representative Gary Cook testi- fied, without contradiction, that while attending a third- step grievance on an unrelated matter, Respondent's su- perintendent of labor relations for the Rumford mill, Al- exander C. Miller, asked him to provide Respondent with certain dates the Union could meet with Respond- ent on the subject of a maintenance improvement pro- gram. Cook asked for details about the proposed meeting but was told by Miller he was not at liberty to tell the Union any details of the proposed meeting, but he was sure it was something the Union would like. The parties met on 1 August at the Madison Motel in Rumford, Maine. Each side had various representatives present for the meeting. Manager of Labor Relations Fred E. Delaney served as chief spokesperson for Re- spondent, and Cook served as chief spokesperson for the Union.' Respondent announced at the first meeting that it was going to implement a maintenance improvement program effective 6 August. Respondent provided the Union with a description of the program that consisted of approxi- mately 14 pages (G.C. Exh. 3). The description that Re- spondent presented reflected that only two crafts, namely, painters and welders, would remain as they then existed, although six crafts, namely, welders, tinsmiths, hydraulics, roll grinders, equipment operators, and masons, would be eliminated and the work previously performed by the "eliminated crafts" would be trans- ferred to the six remaining crafts which were: mill- wrights, pipefitters, instruments, machinists, belt and oilers, and repairs and general. The description also re- 8 McCullough stated the proposed maintenance improvement program was not prepared for the use of or dissemination to anyone other than Respondent's management 7 According to the undisputed testimony of Delaney, there were nine meetings between the Union and Respondent on the maintenance im- provement program between 1 and 30 August It appears the parties met on 1, 3, 8-10, and 27-30 August The parties spent a total of approximate- ly 30 to 36 hours discussing the maintenance improvement program during their nine meetings 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flected that additional skills and practices would be added to the remaining crafts in order for Respondent to obtain more flexibility in the operation of the mainte- nance department. The description of the plan listed the new skills for each of the remaining crafts, and provided a seniority list by mill, department, and job for all affect- ed employees. Respondent also provided the Union with the rate of pay changes that would take effect on 6 August for the six remaining crafts in the maintenance department (G.C. Exh. 4).8 According to Cook, Re- spondent indicated at the first meeting that the changes were being made to promote efficiency and to bring about cost savings.9 During the meeting Respondent in- dicated it had implemented similar programs in its other mills, and that most of its Western mills had some form of multicraft maintenance. Respondent told the Union that in all its Western mills maintenance employees are required to weld, and that one of the changes in the maintenance department at the Rumford mill would be to require maintenance employees to perform welding. Delaney stated at the 1 August meeting that there was currently a wholesale trend in the paper industry toward broader application of maintenance skills which resulted in greater efficiency for those employers that utilized such an approach to maintenance. Delaney stated, for ex- ample, that in the paper industry countrywide tinsmith craft groups had disappeared into millwright craft groups. Delaney, in discussing the proposed maintenance improvement program with the Union, stated, "It is commonplace in our [paper] industry across the country to join [maintenance] skills." Cook testified the Union told Respondent at the 1 August meeting that what it was doing amounted to a unilateral change that violated the labor agreement be- tween the parties. The Union told Respondent it expect- ed it would file a grievance over the changes and, in an- ticipation of that happening, it wanted to be provided certain information such as any studies or surveys that Respondent considered in arriving at the conclusion it did that it needed the kind of maintenance improvement program it had developed and planned to implement. Cook testified one of the Union's chief stewards 10 asked Respondent if it had conducted a five-mill survey 11 related to its maintenance improvement pro- 8 The rate changes reflected that employees in each of the six remain- ing crafts would receive a wage increase of at least 26 cents per hour to as much as 77 cents per hour, depending on the craft they were in 9 Delaney acknowledged, on cross-examination, that he stated during the meetings with the Union that the purpose of the maintenance im- provement program was to promote efficiency Delaney also stated he could have said it was for cost savings because he was not sure one could disassociate efficiency from cost savings 10 Cook did not identify by name which chief steward made the in- quiry of Respondent 11 Art II, sec 1 (b), par 1 of the labor agreement reads as follows (b) No adjustment in wage rates will be requested or made during the term of the Labor Agreement except where there has been a sub- stantial change in job content or the size of the crew If a substantial change in job content or the size of a crew is contemplated, then prior to the Company's putting the change into effect, it will advise the Union of the proposed change and discuss the changes with the Union and discuss similar jobs in competitive mills, the information on similar jobs will be obtained, and will be given serious weight by the Company wherever possible, from the survey of five selected competitive mills After such discussion, should the Company decide gram. According to Cook, Respondent replied it could do a five-mill survey but it felt it did not have to because it could unilaterally make the changes outlined in its maintenance improvement program.12 Cook testified Re- spondent answered the Union's request for the informa- tion by stating, "If we got to that point then they would take a look at it." The parties held their second meeting on 3 August. According to Manager of Labor Relations Delaney, the Union asked a lot of questions about the maintenance im- provement program because it was a "fairly big change." Respondent provided the Union a package of materials which contained (a) revised rate changes, (b) job classifi- cation sheets, (c) a conversion chart setting forth the for- mula for changing company-assigned points for various crafts to cents per hour, and (d) a job analysis or evalua- tion plan that had been in existence at the Rumford mill since Respondent owned the mill (G.C. Exh. 5).13 Respondent utilized an overhead projector in explain- ing the above-described packet of materials to the Union. The Union asked Respondent for whatever it had uti- lized in coming up with specific cost savings related to the maintenance improvement program and asked specif- ically what the efficiency changes would be. Cook testi- fied, "No answers were really given to those questions, and in fact they kind of got put to the side as we tried to deal with implementation." either to go ahead with the change or to institute the change in a different form in order to incorporate the Union's recommendations wage adjustments resulting from the change will be discussed with the Union no later than 30 days after the change In the event of an agreement as to the rate, the adjustment shall be retroactive to the date of the job change [G C Exh 2 l 12 The Respondent, in its posttrial brief, asserts it had the unilateral right pursuant to art II, sec 1(b) and (c) of the labor agreement to make the changes it did in its maintenance improvement program Sec (c) states "In no event shall wage rates be subject to arbitration " Additionally, Respondent urges that art I , sec 4 of the labor agree- ment grants it the general authority to manage its operations Art I, sec 4 states Section 4 Functions of Management Except as herein otherwise provided the management of the work and the direction of the working forces, including the right to hire, promote, demote, suspend or discharge for proper cause, or transfer, and the right to relieve employees from duty because of lack of work or other legitimate reasons, is vested exclusively in the Compa- ny In keeping with the above, the Company shall adopt and publish reasonable mill rules which will not be in conflict with the terms of this Labor Agreement [G C Exh 2 ] Finally, Respondent cites, in support of its contention that the labor agreement authorized its actions, art 1, sec 5 which states in part Section 5 Cooperation (a) The Company and the Union agree that they will cooperate in every way to promote harmony and efficiency among all the Com- pany's employees, and to promote the general economic welfare of the Company and its bargaining unit employees, including the safety of such employees, economy of operation and protection of proper- ty (b) Recognizing that a continued increase in production, efficiency of operation and improvement in the quality and quantity of the products of the mill are essential to the successful and profitable op- eration of the Company, the Union, the employees and the Company agree to cooperate to the fullest extent in the attainment of these ob- jectives [G C Exh 2 ] 11 International Union Representative Cook testified the job classifica- tion sheets were new material, but that the description of skills had been available for some time BOISE CASCADE CORP 425 Respondent implemented its maintenance improvement program on 6 August. Respondent announced the changes to its employees in "The Daily Digest" for 7 August. Respondent's published announcement stated in part: MAINTENANCE IMPROVEMENT PLAN BEGINS AT BOISE CASCADE On Monday, August 6, Boise Cascade initiated an innovative Maintenance Improvement program de- signed to increase productivity and lower mainte- nance costs at its Rumford Mill. The program is aimed at combining crafts or skills in the mainte- nance area. Plans call for reducing the number of crafts from thirteen to the following six: mill- wrights, pipefitters, instruments, machinists, belt and oilers and repairs and general. The new organization follows the trend in many other paper mills in the country which have already reorganized their maintenance departments in a similar manner. Employees who were primarily welders, tin- smiths, hydraulics, roll genders, equipment opera- tors and masons will be assigned to one of the six major craft areas. No maintenance employee will lose his or her job as a result of this change in orga- nization. Pay increases for the changed crafts will be made according to the contracted job evaluation plan. Training in the additional skills required by main- tenance workers will begin almost immediately with some classes starting in August. Boise officials be- lieve the new organization will cut down costs and save time . For example, a millwright would not have to wait for a welder in order to complete a job as is the case now. He would be able to do the welding himself. This would also reduce downtime on the paper machines. [G.C. Exh. 6.] The parties stipulated that on or about 6 August the Union's maintenance committee posted the following notice at the plant: UNION POSITION STATEMENT MAINTENANCE EFFICIENCY DISCUSSIONS 1. The Union and the Company are not involved in negotiations talks. 2. Job changes and alleged Contract violations are being discussed. 3. The right to grieve any change the Company implements shall be timely until 20 days after these discussions cease. 14 14 Superintendent of Labor Relations Miller, it appears, acknowledged the Union stated it might well file a grievance on the maintenance im- provement program because he informed the Union in writing on 9 August that Respondent agreed that the time limitation for filing any grievances on the maintenance improvement program would not begin until the then-current discussions between the parties ceased (G C Exh 14) The Maintenance Union Committee (R. Exh. 13) The parties' next meeting on the maintenance improve- ment program took place on 8 August. There was not a great deal of testimony related specifically to what took place at the parties' meetings on 8, 9, and 10 August. However, Manager of Labor Relations Delaney testified that although he could not recall in precise terms what was discussed, there were a "variety of questions" on what Respondent meant by certain particular changes, "how it would work," and the kind of things that one would expect to come up. Delaney stated that happened throughout the discussions until they concluded their talks on the 30 August. International Union Representa- tive Cook testified that "A number of times during the discussions as it looked as though we were going into [the] grievance procedure . . . we requested information on the impact of the program [and] information on . . cost savings . . [and] . . . information on what led to the Company implementing the program as to efficien- cies." Cook testified that Respondent constantly stated the maintenance improvement program would bring about cost savings and result in a better and more effi- cient operation. Cook testified the Union did not feel it could take Respondent's assertions "at face value" and, as such, asked for "backup information" on the asser- tions. Cook testified the only response the Union got at that point from Respondent was that if it ever "came to the point" that the Union needed the information for "grievances or whatever" the Respondent would "look at it." Manager of Labor Relations Delaney prepared written responses to certain questions raised by the Union at the 8 August meeting. On 9 August Delaney provided the Union with Respondent's 11 written answers. Respond- ent's 11 written answers reflect the questions asked by the Union involved; work duties for certain first-class employees, whether Respondent would provide the nec- essary tools for the employees to perform their assigned tasks, what the promotional opportunities would be for maintenance employees, how seniority would apply with respect to certain promotions, whether zero overtime hours for equalization would be utilized for certain changed crafts, whether overtime hours would be kept separate for certain specific crafts, definitions for certain crafts, what would happen if an employee was curtailed from a craft, how night-shift crews would work, how the call-in procedure would work, and whether every maintenance employee would be required to operate a forklift (G.C.Exh. 7). All record evidence of what transpired at the 9 August meeting is found primarily in Delaney's written answers to certain questions raised by the Union on that date. Delaney gave Respondent's written answers to the Union at the parties' 10 August meeting. Delaney's an- swers to the Union's questions pertained to a definition of welding and basic hydraulics, a discussion of craft lines, an explanation of which crafts would replace rotat- ing elements on pumps in the field, notification that the job classification of "leadmen" would be abolished, a dis- cussion of upgrading second-class mechanics to first-class mechanics, and a statement that Respondent would pre- 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pare and provide to the Union by a date certain the five- mill survey called for in the labor agreement between the parties (G.C. Exh. 8). About 10 August Respondent provided the Union with a five-mill survey of maintenance operations at competitive mills (G.C. Exh. 10).15 Cook testified the five-mill survey called for in the labor agreement was utilized to see how the wage rates of Respondent com- pared to the wage rates of other companies. The parties' next series of meetings were held on or about 27-30 August. These meetings appear to have been taken up with the Union continuing to raise questions about the maintenance improvement program. It appears that at least some of the subjects discussed pertained to second-class mechanics becoming first-class mechanics, leadmen, equalizing pay for two specific crafts with that of other crafts, the inclusion of laborers and hydropower mechanic A's in the maintenance improvement program, seniority status for apprentices, and changes in overtime rules (G.C. Exh. 9 and R. Exh. 10). The parties held their final meeting on 30 August. Cook testified he told Respondent he felt Respondent's proposed maintenance improvement program would be "shot down" by the unit employees, that it was some- thing the employees would not want to work with. Cook told Respondent the Union would probably file unfair labor practice charges on the unilateral changes imple- mented by Respondent and it would also file a grievance under the labor agreement which would probably go to arbitration, and for those reasons the Union needed the studies on "flexibility, efficiency, and cost savings" that led Respondent to implement the maintenance improve- ment program at its Rumford mill. Cook testified Re- spondent replied, "They would take a look at it as we requested that information." 16 Cook testified Respondent on several occasions during the meetings mentioned there had been multicraft changes in other mills owned by Respondent. Cook recalled Respondent's DeRidder, Louisiana mill being mentioned in particular. Cook testi- fied the Union asked for information on the multicraft program there and for information on any other of Re- spondent's mills where a maintenance improvement pro- gram had been implemented that included multicraft changes. Cook testified Respondent indicated it did not feel that information was relevant to the situation at the Rumford mill but if the Union got to the point where it needed the information "perhaps they would give it to us.1117 At the 30 August meeting, Respondent presented the Union with a two-page document labeled "Summary of Discussions Re: Maintenance Improvement Program- Rumford Mill." In this document Respondent proposed to make certain specific changes in the maintenance im- provement program and indicated it would make those 16 The five-mill survey does not include any Respondent-owned or Respondented-operated mills i6 Cook stated there was no discussion in any of the meetings regard- ing any confidentiality problems with respect to any of the information the Union requested 17 Cook acknowledged on cross-examination that the Union had ob- tained through its International Union some information on the changes in the maintenance program at Respondent's DeRidder , Louisiana mill changes retroactive to 6 August if the Union accepted its maintenance improvement program. The document re- flected that acceptance of the program by the Union would "nullify or negate any grievance relative to the changes made by the maintenanceimprovement program except as to alleged violation of its application." (R. Exh. 12, p. 1, par. 1.) The Union considered and rejected Respondent's maintenance improvement program proposal.18 The Re- spondent thereafter withdrew its offer as outlined in the document given to the Union on 30 August. Respondent continued to carry out its maintenance improvement pro- gram as originally outlined and implemented on 6 August without incorporating any changes that it had discussed with the Union in the nine meetings it had with the Union because the Union rejected its proposal. The Union filed a grievance on 13 September (griev- ance 2353) in which it alleged Respondent by its actions related to the maintenance improvement program had violated the parties' labor agreement. The grievance in pertinent part reads as follows: The Company is in violation of the Labor Agree- ment by combining designated Maintenance Crafts, changing work practices and changing rates of pay without bargaining with the Union. The Articles violated are Article I, Article II, Article III, Sec- tion 5, Article IV, Article VII, Article XI, Article XIII, Article XVI, Schedule of Job Classificatons & Rates, past practice and any other Articles pertain- ing to this grievance. [G.C. Exh. 13.] The parties agreed to bypass the first and second steps of the grievance procedure. Union President Wood in a letter dated 5 October to Respondent's superintendent of labor relations, Miller, requested the Union be provided certain information "in order to prepare" for grievance 2353. In his letter Wood requested: All reports on Maintenance Improvement Program, minutes of meetings, where the so-called 'Mainte- nance Improvement Program was discussed.' All projected cost savings, efficiency calculations, as well as a breakdown comparing maintenance effi- ciency and costs at the Rumford mill with other Boise papermaking installations. [G.C. Exh. 16.] On 9 October Respondent in its third-step answer denied the Union's grievance and stated there had been no violation of the labor agreement in relation to the maintenance improvement program.19 In a letter dated 16 October, Superintendent of Labor Relations Miller responded to Union President Wood's request for information in the following manner: 18 It appears the vote by the unit employees that resulted in their re- jecting the maintenance improvement program probably took place prior to 13 September is The grievance was scheduled to have been heard by an arbitrator in August 1985 The record does not reflect nor does any part of the instant case turn on whether the grievance was actually arbitrated BOISE CASCADE CORP This is to advise you that your letter of October 5, 1984, requesting information on the maintenance im- provement program is being evaluated and an effort commenced on gathering of same. An answer to your request will be forthcoming. [G.C. Exh. 17.] On 17 September the Union filed an unfair labor prac- tice charge with the Board in Case 1-CA-22375 in which it alleged Respondent had violated the Act by on or about -5 August unilaterally changing the wages and working conditions of unit employees in the maintenance department by "combining crafts, changing pay rates, changing classifications, changing work practices, and changing seniority rights" without bargaining with the Union about the changes. The Regional Director for Region I of the Board in a letter dated 31 October, ad- vised the parties that the allegations contained in Case 1- CA-22375 were being "administratively deferred" be- cause "contractual grievance-arbitration machinery" was available to the parties and was being utilized by them for a resolution of the matters raised by that charge. In a letter dated 28 November, Superintendent of Labor Relations Miller responded further to the Union's 5 October request for information. Miller wrote in his 28 November letter: Much of the requested data is confidential and therefore not available for Union scrutiny. The min- utes of each meeting held between the Company and the Union concerning the Maintenance Im- provement Program were taken by a Local 900 rep- resentative and therefore you should have them. With respect to your request for projected cost sav- ings, efficiency calculations, as well as a comparison of Maintenance costs at Rumford with other Boise paper making installations, we feel that the many handouts and materials we presented to you during our discussions on the Maintenance Improvement Program (including the five mill survey data) should be sufficient to enable you to properly pre- pare for the arbitration at this time. If however we plan to submit anything in the ar- bitration you have not had the opportunity to study, we will give it to you in advance of the arbitration to enable you to study it, or we will agree to recess the hearing if you feel enough time is not available. [G.C. Exh. 19.] As is reflected elsewhere in this decision, the Union thereafter on 24 December filed the charge giving rise to the instant case. Respondent Associate General Counsel Stephen M. Kite-Powell in a letter to Union Counsel Mark M. Brooks dated 25 January 1985 proposed in part as fol- lows: In an effort to resolve the matter of the unfair labor practice charge , in Case No. 1-CA-22601, I am offering the enclosed information : (a) cost data relating to the hourly increase implemented as a part of the Maintenance Improvement Plan; (b) data related to the costs of tools and training associated with the Plan; (c) a calculation showing what the 427 Company hopes to achieve in the way of costs sav- ings by more efficient maintenance operations. We would also agree that the union could have access to the daily overtime sheets (Form 136) which was requested in a previous letter. The Company may well submit additional infor- mation at the arbitration hearing. If any of that in- formation covers matters that you have not had an opportunity to study prior to the hearing itself, we would agree to recess the hearing for whatever length of time you felt was appropriate to allow review. [R. Exh. 4.] The information described by Kite-Powell consisted of three single pages: the first of which was labeled "Gen- eral Mechanic Hourly Wage Change"; the second was labeled "Training and Tool Cost"; and the third was la- beled "Overtime Savings." It appears the Union was granted access to the requested daily overtime sheets (Form 136).20 Union Counsel Brooks conveyed to Respondent Asso- ciate General Counsel Kite-Powell that the information attached to his 25 January 1985 letter was inadequate to resolve the matter. Cook testified some of the problems he had with the information provided in Kite-Powell's 25 January 1985 letter were that he had no way of verifying the training and tool costs or the projected overtime sav- ings alluded to in the letter. C. Discussion, Analysis, and Conclusions 1. Complaint allegations It is specifically alleged at paragraph 10 of the com- plaint that the Union made the following requests for in- formation: (a) Since on or about August 3 and 10, 1984, the Union orally has requested Respondent to furnish the Union with all surveys used to formulate the Maintenance Improvement Program and all studies on job definitions. (b) Since on or about October 5, 1984, the Union, by letter, has requested Respondent to furnish the Union with the following information regarding the Maintenance Improvement Program: (i) All M.I.P. reports; (ii) All projected cost savings; (iii) All efficiency calculations; and (iv) Breakdown comparing maintenance, efficiency, and cost at the Rumford Mill with other Boise papermaking instal- lations. It is alleged at paragraph 11 of the complaint that the requested information is necessary and relevant to the Union's performance of its function as the collective-bar- gaining representative of the unit employees. 20 At the opening of the trial, I granted counsel for the General Coun- sel's request to delete that portion (par 10(c)) of the complaint that al- leged Respondent had unlawfully failed to provide the Union with the daily overtime sheets labeled Form 136. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is alleged at paragraphs 12 and 13 of the complaint that Respondent violated Section 8(a)(1) and (5) of the Act by, since on or about November and December, fail- ing and refusing to furnish the Union the information it requested. 2. Respondent's position Respondent contends the Union is seeking to rely on its alleged statutory right under Section 8(a)(5) of the Act to obtain a broad range of irrelevant, confidential, and proprietary information. Respondent asserts the Union is attempting to justify its overly broad request for information on its responsibilities in administering the labor agreement and in processing a grievance. Respond- ent argues that under this guise of discharging its statuto- ry responsibilities, the Union is attempting to obtain in- formation that it is simply not entitled to . Respondent as- serts the Union is not entitled to all the information it re- quested for a number of reasons. First, Respondent con- tends the General Counsel and Union have failed to meet their burden of establishing under an objective criteria the relevance of the requested information. Respondent further contends that even if the information is found to be relevant, a balancing of the parties' interests supports its position of nondisclosure of certain of the information. Respondent argues it has legitimate concerns about pro- viding confidential and proprietary information to the Union. Respondent contends the Union is seeking infor- mation related to its managerial decisionmaking process- es and collective-bargaining strategies, and that such in- formation is irrelevant to administering the labor agree- ment. Respondent states that if it provided such informa- tion it would have a chilling effect on the parties' ongo- ing bargaining relationship. Respondent contends the labor agreement clearly sets forth what information it is required to provide and further contends the Union clearly and unmistakably waived its statutory right to any additional information . In sum, Respondent argues there is no basis on which the Union can establish its en- titlement to the limited information that Respondent withheld from the Union. Respondent asserts it has pro- duced all available relevant data to the Union either in the form requested by it or in a form that is adequate to assist the Union in gathering the requested information. 3. General Counsel's position The General Counsel contends that an employer has a duty to provide a union with requested information that is relevant and necessary for the Union to carry out its statutory duties and responsibilities. The General Coun- sel contends that information which relates to wage rates or other matters involving employees in a bargaining unit is presumptively relevant. The General Counsel as- serts that all requests for information in the instant case related to Respondent's reorganization of its maintenance department. She contends the reorganization changed the job duties, wage rates, seniority status, and promotion rights of approximately 400 unit employees. The General Counsel argues these changes in wages and working con- ditions had a direct, immediate, and continuing impact on unit employees and that, as such, the Union was and is entitled to all information on any management initia- tives that brought about these changed working condi- tions. The General Counsel contends the information sought by the Union in the instant case is presumptively relevant. The General Counsel highlights the relevance of the requested information in various ways. She con- tends, for example, that Respondent's continued refer- ence to the fact that it restructured its maintenance de- partment in order to improve efficiency, reduce costs, and increase flexibility clearly established the relevance of the Union's request for all projected cost savings and efficiency calculations. The General Counsel urges that Respondent's continued reference to maintenance im- provement programs at its other mills placed such infor- mation in issue and established its relevance. She argues that such continued reference to the other mills strongly suggests that a great deal of the Rumford maintenance program was an outgrowth of programs at its other mills. The General Counsel asserts the Union has met its burden of proving that the information it requested re- garding unit employees was clearly relevant and that the Union also met its burden of proving that the requested nonunit information was, at the very least, potentially relevant. The General Counsel argues the Union needed all the information it requested in order to intelligently discuss the maintenance program at the August meetings, and it also needed the information to investigate and process to arbitration its grievance concerning the imple- mentation of the maintenance program. The General Counsel argues that claims made by Respondent that survey studies or comparisons of other mills were not commissioned and/or relied on in formulating the main- tenance improvement program at the Rumford mill should not defeat the Union's right to such relevant in- formation. She argues the testimony is suspect that other Respondent maintenance improvement plans at other mills of Respondent were not examined in formulating the Rumford plan. The General Counsel contends it is most unlikely that a company would undertake a major reorganization at one of its mills without giving consider- ation to its prior experience in like matters at its other mills. She argues this is especially true where an effort was made to visit non-Respondent mills in order to make observations regarding the other mills' maintenance pro- grams. The General Counsel contends Respondent had, but failed to meet, its burden of sustaining a defense of nondisclosure based on the confidentiality of the request- ed information. The General Counsel asserts that at no time did Respondent, or its designees, discuss with the Union Respondent's view that certain of the information it requested was confidential, nor did the Respondent discuss what ways, if any, its alleged confidentiality con- siderations could be accommodated The General Coun- sel contends the Union never, by contract or otherwise, waived its right to the requested relevant information. 4. Union's position The Union urges that Respondent is required to supply the requested information in order for it to perform its duties as the exclusive bargaining representative of cer- tain unit employees at Respondent's Rumford facility. BOISE CASCADE CORP The Union contends that most of the information it re- quested pertained to matters that directly impacted on the terms and conditions of employment of bargaining unit employees represented by the Union and, as such, the requested information was presumptively relevant. The Union argues it has established that the nonunit in- formation it requested was reasonably or potentially rele- vant to its function of representing the unit employees. The Union claims it needed the information it requested in order for it to evaluate the claims Respondent made during discussions on the maintenance improvement pro- gramand to permit it to effectively process its grievance on the subject matter and to police the labor agreement. The Union asserts it can hardly be doubted that the maintenance improvement program affected the terms and conditions of employment of unit employees inas- much as the program changed the work practices of every employee in the maintenance department because the maintenance improvement program required the em- ployees to perform duties that had previously been per- formed by other crafts. The Union also contends the maintenance improvement program changed the distribu- tion of overtime within the maintenance department, and changed the existing lines of promotion, thus further im- pacting on every employee in the maintenance depart- ment. The Union argues strongly that it never waived its statutory right to the relevant information in question. 5. Application of governing principles The governing principles in deciding whether an em- ployer is required to furnish a union with information are well established. However, a brief restatement of some of those principles is appropriate. The general rule is that an employer has a statutory obligation to supply request- ed relevant information which is reasonably necessary to the exclusive collective-bargaining representative's per- formance of its responsibilities. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co, 351 U.S. 149 (1956). These "responsibilities" include the ad- ministration of the contract and the processing and eval- uating of grievances. Clinchfield Coal Co., 275 NLRB 1384 (1985). Accordingly, an employer is obligated to provide information requested for the purpose of han- dling grievances. TRW Inc., 202 NLRB 729 (1973); Safeway Stores, 236 NLRB 1126 (1978); Clinchfield Coal Co., supra. Whether information is relevant or not is de- termined by the probability that the desired information would be of use to the union in carrying out its statutory duties and responsibilities. The standard for determining whether information is relevant is a liberal one much akin to that applied in discovery proceedings, and a party must disclose information that has any bearing on the subject matter of a particular case Leland Stanford Jr. University, 262 NLRB 136 at 139 (1982), and cases there cited. The burden of proving the relevance of informa- tion shifts according to the nature of the information sought. When the information sought covers terms and conditions of employment, such as wage rates, job de- scriptions, and other information pertaining to employees within the bargaining unit, the information is presump- tively relevant and no specific showing of relevance is normally required. Pfizer, Inc., 268 NLRB 916 at 918 429 (1984); Leland Stanford Jr. University, supra at 139. When the request is for information with respect to matters oc- curring outside the unit , the standard is narrower and the union must demonstrate somewhat more precisely that the information is relevant. Pfizer, Inc., supra; Ohio Power Co., 216 NLRB 987 (1975). Although the Union has the burden of showing the relevance of nonunit information, that burden is not exceptionally heavy . The information need not necessarily be dispositive of the issue between the parties . It need only have some bearing on it . Pfizer, Inc., supra at 918. An employer must furnish information that has probable or potential relevance to a union's duties because a broad discovery rule is crucial to full development of the role of collective -bargaining contem- plated by the Act. Conrock Co., 263 NLRB 1293 at 1294 (1982); E. I. duPont & Co., 276 NLRB 335 (1985 ); Detroit Newspaper Union Local 13 v. NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979). I consider the Union's oral request in early August21 and its written request in early October22 to constitute requests for essentially the same information with the written request being somewhat more detailed and spe- cific. The record establishes that from August until January 1985 Respondent provided the Union certain information which related to the overall subject matter covered by the Union's request for information . I shall hereinafter at various points in this decision make reference to the in- formation that was furnished to the Union by Respond- ent.2 3 All information sought by the Union in the present case was either presumptively relevant or the Union met its burden of establishing some relevance with respect to the information sought . All information requested by the Union (both orally and in writing) pertained to Respond- ent's restructuring of its maintenance department at its Rumford mill . The changes made by Respondent in its maintenance department resulted in the elimination of a number of job crafts and added various new duties to the remaining crafts. The changes made in the maintenance department had an immediate and direct impact on the wages, seniority, and promotion rights of the some 360 to 400 maintenance employees. Therefore, when the Union requested all surveys used to formulate the main- tenance improvement program and all maintenance im- provement program reports, it was requesting informa- tion that was presumptively relevant because the infor- mation it sought clearly related to terms and conditions of employment of employees within the bargaining unit. The Union's requests for all projected cost savings and efficiency calculations related to the maintenance im- provement program were also requests for relevant infor- mation. Respondent acknowledged that the changes it 21 The Union's oral request in early August was for all surveys used to formulate the maintenance improvement program 22 The Union's early October written request was for (1) all M I P re- ports, (2) all projected cost savings, (3) all efficiency calculations, and (4) a breakdown comparing maintenance efficiency, and costs at the Rum- ford mill with other of Respondent's papermaking installations 23 In addition to discussing what information was actually furnished to the Union , I shall also consider whether Respondent was justified in not disclosing certain information that it withheld from the Union 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made in the maintenance department at its Rumford mill were for the purpose of reducing costs and promoting ef- ficiency.24 The changes that were brought about in an effort to achieve Respondent's stated purpose of enhanc- ing efficiency and bringing about cost savings clearly im- pacted on every unit employee in the maintenance de- partment. Therefore, the relevance of the requested in- formation pertaining to cost savings and efficiency calcu- lations related to the maintenance improvement program has been established. The Union needed the information it requested not only to discuss with Respondent the changes in the maintenance department, but it also needed the information to evaluate and process the grievance it filed regarding those changes. The Union needed the information it requested in order to properly decide whether the grievance it filed could and/or should be pursued to arbitration. Additionally, the Union needed the information it requested in order to be in an informed position to adequately frame issues to be pre- sented to an arbitrator if it decided the matter should be arbitrated. The relevance of the requested information comparing the efficiency and costs of maintenance at the Rumford mill with that of other mills of the Respondent has been established.25 Respondent, during the August meetings with the Union, made various references to its programs of improved maintenance at its other mills. For example, Respondent stated as early as 1 August that it had imple- mented similar programs in its other mills, and that most of its Western mills already had some form of multicraft maintenance programs in existence. Respondent asserted at the 1 August meeting that maintenance employees at all its Western mills were required to weld, and requiring the maintenance employees at its Rumford mill to weld was one of the changes it was putting into effect and that change, among others, would bring about improved effi- ciency and cost savings. Accordingly, I am persuaded the Union established the probable and potential rel- evance of the requested information related to any com- parisons between the Rumford mill and other of Re- spondent's papermaking installations regarding mainte- nance efficiency and costs. It is undisputed that Respondent, at its Rumford mill location, prepared a maintenance improvement plan (report, survey, or feasibility study) which it forwarded to corporate management for approval. The overall Rumford mill report that was forwarded to corporate management admittedly included at least (1) a historical overview of past discussions and negotiations with the Union on the subject of maintenance improvement, and a discussion of the strategy Respondent might use in pre- senting its program to the Union; (2) a copy of the main- tenance improvement program that was to be implement- ed at the Rumford mill with a portion of it outlining which crafts in the maintenance department would be eliminated or combined with others and what new duties would be assigned to each of the remaining crafts in the 24 One of Respondent's spokespersons acknowledged at trial that he could not separate or disassociate cost savings from efficiency 25 Whether any such comparisons ever existed or were ever utilized will be addressed elsewhere in this decision maintenance department; (3) a section on a supervisory maintenance implementation team, which section includ- ed the makeup of the team as well as how the team would accomplish its task of implementing the program from a supervisor's point of view; (4) a section on cost data such as savings to Respondent if a change in pro- ductivity occurred as a result of the maintenance im- provement program, projected savings in overtime ex- penses, projected impact on the salary of supervisors, and information on the cost per ton for Respondent to produce paper; and (5) a self-described legal opinion on the maintenance improvement program by Respondent's in-house counsel. Some concerns were raised about what, if any, additional information may have been in the report that was forwarded to corporate management for authorization to institute the maintenance improvement program at the Rumford mill. I shall hereinafter consider the concerns that appear to exist regarding what the Rumford mill report may have contained. I reject Respondent's contention that when it gave the Union the reports, summaries, and other documents it did in August, it provided the Union with the same in- formation in substantially the same form that it provided corporate management in the feasibility study on the maintenance improvement program. Although Respond- ent did provide the Union with a 14-page document that reflected that two crafts would remain as they were, six would be eliminated, and six would be changed, and re- flected that additional skills and practices would be added to the remaining crafts, and the rates of pay for maintenance employees after the changes took effect, it did not produce, for the Union's consideration, the un- derlying report on which it based the need for those changes or what prompted it to bring about the proposal that resulted in the changes. The same can be said about the rate changes and job classification sheets that were provided to the Union, that is those sheets simply reflect- ed what would take place in implementing the mainte- nance improvement program, not what was utilized to formulate the program. I reject Respondent's contention that it provided this information by answering questions during the nine meetings that it held with the Union in August. The fact the Union asked questions and that Re- spondent reduced those questions to writing and then formulated written answers to the questions does not, in my opinion, equate providing the Union with the actual report or survey that was utilized to formulate the main- tenance improvement program. Respondent's spokesper- son described the questions that were asked as "a variety of questions . . . scattered on what we meant by a par- ticular change, how it would work, all the specific kinds of things you would expect to come up and that kind of went throughout till we finished up the discussions on the 30th." The written answers that Respondent provided to the Union dealt with such matters as: the work duties certain first-class employees would perform; whether Respond- ent would provide the necessary tools for the employees to perform their assigned tasks; what the promotion op- portunities would be for maintenance employees; how se- niority would apply toward certain promotions; how BOISE CASCADE CORP 431 overtime hours would be equalized; and, whether over- time hours would be separately maintained for certain crafts. Respondent also provided, in response to ques- tions by the Union, definitions for certain crafts and ex- planations of what would happen if employees were cur- tailed from the remaining crafts and how night crew shifts would work and what call-in procedures would be followed. All of the questions and answers appear to have dealt with how the maintenance improvement pro- gram would be implemented , but did not include infor- mation on what caused Respondent to formulate the maintenance improvement program it did. The Union's need for information about what caused Respondent to implement the program is readily appar- ent. Arbitrators typically evaluate this type of informa- tion in determining whether a decision by management to eliminate and consolidate job crafts violated the par- ties' labor agreement. The information is likewise rele- vant and necessary in order for the Union to properly evaluate the program and its impact on all unit employ- ees and to determine if the changes were brought about to promote efficiency and cost savings, or if they were brought about for some other undisclosed reason(s). The information that formed the basis for the changes would clearly be beneficial to the Union initially in determining whether to file a grievance and subsequently in determin- ing whether to pursue the grievance to an ultimate con- clusion in arbitration. Respondent acknowledged its written proposal to cor- porate management contained a section evaluating skills and tasks within the maintenance department. Respond- ent's argument that it, in essence, provided that report to the Union by answering the Union's questions is without merit. The document produced for corporate manage- ment was more comprehensive than the information given to the Union by way of answers to questions raised by the Union at the August meetings. That the report was more comprehensive is demonstrated by the fact that Respondent interviewed its supervisory personnel regarding maintenance improvement recommendations and took some 70 issues submitted by its supervisors and identified 40 distinct items which were then incorporated into the maintenance improvement report. Such informa- tion would clearly be relevant and producible to the Union. Accordingly, I find the Union is entitled to the sur- veys and reports utilized by Respondent to formulate its maintenance improvement program, specifically includ- ing a copy of the maintenance improvement program survey or report that was forwarded from the Rumford mill to corporate management when authorization was sought to implement the maintenance improvement pro- gram. I reject Respondent's contention that it provided all relevant and necessary information to the Union related to cost savings and efficiency calculations. Respondent did, on 5 January 1985, provide the Union cost data re- lated to general mechanic hourly wage rate changes, training and tool costs, and overtime savings. These three single sheets, however, did not provide full infor- mation on what factors, for example, were utilized in ar- riving at the projected overtime reductions set forth. Ad- ditionally, nothing was provided to the Union for it to check the accuracy of Respondent's computations and figures. It is clear that additional cost data was compiled by Respondent. Manager of Maintenance Implementation McCullough testified there was a lot of cost information in the report that was sent to corporate management. McCullough testified the report contained cost informa- tion related to productivity and overtime reductions. He likewise testified there was a section on the cost impact related to foreman's salary under the new program. McCullough also stated the report contained information on Respondent's cost to produce a ton of paper. I am persuaded that additional cost data exists that is relevant to the Union's administering the labor agreement, as well as pursuing its grievance that Respondent failed to produce. Therefore, I find Respondent is required to produce all such cost data information to the Union.26 The Union, in its 5 October request for information, specifically asked for "a breakdown comparing mainte- nance efficiency, and cost at the Rumford mill with other Boise papermaking installations." At the trial herein, Manager of Maintenance Implementation McCul- lough testified there was no comparative analysis be- tween the operation at Rumford and other of Respond- ent's mills contained in the report that was forwarded to corporate management. McCullough testified Respond- ent did not undertake any specific surveys or studies of a comparative nature with regard to maintenance pro- grams at its other locations. The General Counsel argues that McCullough's testimony in this regard is clearly sus- pect. The General Counsel's suspicions are supported by various responses of and positions taken by Respondent. For example, when Superintendent of Labor Relations Miller responded to the Union's 5 October request for in- formation in his letter dated 16 October, he simply stated that the Union's request was "being evaluated and an effort commenced on the gathering of the information." Respondent, at that point, made no reference to the non- existence of any cost or efficiency studies comparing the Rumford mill with other of Respondent's papermaking installations. Miller further responded to the Union's 5 October request on 28 November and in that response he stated: With respect to your request for projected cost sav- ings, efficiency calculations, as well as a comparison of maintenance costs at Rumford with other Boise papermaking installations, we feel that the many handouts and materials we presented to you during our discussions on the Maintenance Improvement Program (including the five-mill survey data) 26 I reject Respondent's contention that the cost-data information is confidential All the cost-data information dealt with matters that impact- ed on unit employees, particularly their wages, and Respondent has not advanced any valid overriding reason for nondisclosure of this informa- tion Respondent contends the cost to produce paper per ton is confiden- tial and it should not be required to produce that information However, Respondent's witness McCullough stated that particular cost information was not "anything specific" but just a reference to the cost per ton to produce paper Therefore, because there was nothing specific about the reference to cost per ton to produce paper, I shall direct that Respondent produce all cost-data information that it utilized in seeking approval for, or in implementing, its maintenance improvement program. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be sufficient to enable you to properly pre- pare for the arbitration at this time. Again, Respondent made no reference to the nonexis- tence of any comparison reports between the Rumford mill and other locations of Respondent. Respondent, in its 28 November letter, did, however, implicitly indicate that other information existed because Miller stated, "If however we plan to submit anything in the arbitration you have not had the opportunity to study, we will give it to you in advance of the arbitration to enable you to study it, or we will agree to recess the hearing if you feel enough time is not available." Associate General Counsel Kite-Powell, in his letter to the Union dated 25 January 1985, made no reference to the nonexistence of any cost or efficiency studies comparing the Rumford mill with other of Respondent's papermaking installa- tions, but simply stated again that Respondent might well submit additional information at the arbitration hearing, but, if it did, it would provide the Union an opportunity to consider the newly submitted materials or information. The General Counsel asserts, and it appears correctly so, that Respondent did not advance the position that the in- formation did not exist until 13 June 1985.27 I agree with the General Counsel that if no such information existed, Respondent had an obligation to tell the Union that it did not exist. That information may exist comparing maintenance efficiency and cost at the Rumford mill with other of Respondent's papermaking installations is, in my opinion, bolstered by the fact that McCullough visited other mills which had multicraft type mainte- nance programs, namely, three in the Northwest and two in the South, in conjunction with the implementation of the program at the Rumford mill. McCullough stated these other mills were not owned by Respondent. The General Counsel forcefully argues that it is unlikely and "rather foolish" that an employer would undertake a major reorganization at one of its mills without giving consideration to its prior experience at its other mills. The General Counsel asserts this is especially true when an effort was made to visit non-Respondent mills to make observations with respect to implementing such a program at the Rumford mill. Therefore, in agreement with the General Counsel, I find that even if a specific survey was not conducted for the particular program at the Rumford mill, that if Respondent had any type com- parison reports that it utilized, the Union is entitled to those reports. Simply stated, Respondent had an obliga- tion to assemble and furnish to the Union whatever, if any, information it utilized in comparing maintenance ef- ficiency and cost at its Rumford mill with other of its pa- permaking installations. I shall next consider Respondent's contention that it properly withheld portions of its management feasibility study that related to its negotiating strategy and to its su- pervisory maintenance improvement implementation team because such information was either confidential or privileged in nature. Respondent also contends that a portion of its report constituted a legal opinion and that it did not have to produce advice from its corporate legal staff. I shall first consider whether the information that Re- spondent withheld related to a historical overview of its negotiations and negotiating strategy with the Union constituted confidential information. It appears such in- formation would, in fact, be relevant, to the Union's dis- cussions with Respondent regarding the maintenance im- provement program, and it also appears it would poten- tially be relevant to the Union in processing the griev- ance it filed. However, in agreement with Respondent, I am persuaded it was not obligated to provide such infor- mation to the Union. A proper bargaining relationship between the parties mandates that Respondent be able to confidentially evaluate possible interpretations of the ex- isting labor agreement and that it be able to plan in con- fidence a strategy for altering or changing its mainte- nance improvement program. I recognize that complete disclosure might help an arbitrator to reach a more just result, but at the same time it might well have a tenden- cy to frustrate the overall purpose of collective bargain- ing between the parties. On this particular point, a bal- ancing of the parties' interests must be weighed in favor of Respondent being allowed to withhold from the Union its historical overview of negotiations with the Union and its future negotiating strategy. Accordingly, any portion of Respondent's maintenance improvement report that relates to a historical overview of negotia- tions or of Respondent's negotiating strategy is informa- tion that it need not supply to the Union. That portion of the feasibility study or report that re- lated to the composition of the supervisory maintenance implementation team was information that was relevant to the Union both for its discussions with Respondent and for evaluating the grievance it filed on the subject matter. I am persuaded no valid reason existed for with- holding from the Union that portion of the report that addressed the makeup of the supervisory implementation team. The makeup of the supervisory implementation team directly and dramatically impacted on the unit em- ployees. However, that portion of the report, if any, that alluded to how Respondent would carry out its supervi- sory functions constituted matters that particularly per- tained to Respondent and it had no obligation to produce that information. Accordingly, I am persuaded Respond- ent did not violate the Act when it withheld that portion of its feasibility study or maintenance improvement report that dealt with how its supervisory maintenance implementation team would carry out its functions. Respondent contends that a portion of its feasibility study regarding the maintenance improvement program was a legal opinion by corporate counsel for high level management's consideration. I am persuaded that any portion of the management feasibility study regarding the maintenance improvement program that qualifies as a legal opinion was and is pro- tected from disclosure by the attorney-client privilege as it applies to corporations.28 Those portions of the main- 2S Courts have generally recognized that the attorney-client privilege 24 As reflected elsewhere in this decision, 13 June 1985 was the date of applies to corporations See, e g , Naito v Hogan, 392 F 2d 686 (loth Cir the trial herein Continued BOISE CASCADE CORP. 433 tenance improvement program that were privileged from disclosure under the attorney -client privilege are strictly limited to those portions of the feasibility study or report that related directly to advice from counsel to the corpo- rate client. In this regard, the privilege extends to any portion or portions of the feasibility study or report that constituted the mental impressions, conclusions, opinions, or legal theories of corporate counsel . Those portions of the survey or report that Respondent was privileged to withhold must have been those that constituted legal opinion as distinguished from preexisting documents, writings, surveys, or feasibility studies. Finally, Respondent argues that the Union "clearly and unmistakably waived" its statutory right to receive any information beyond that required by the labor agree- ment. Respondent correctly asserts that the Union filed the underlying grievance herein pursuant to, among other provisions, article II of the labor agreement. Arti- cle II, section 1(b) states in part that before a substantial change can be made in the job content or size of a work crew, Respondent must "discuss the changes" with the Union and "discuss similar jobs" in competitive mills. The information on similar jobs in competitive mills is, according to the labor agreement , to be set forth in a survey of five selected competitive mills. Respondent correctly asserts it obtained and provided to the Union the required five-mill survey . Respondent urges that the Union waived its right to any additional information that might be relevant to the changes in the maintenance de- partment. Respondent argues the Union waived its right to the information in issue measured by all three ways in which a union can waive its statutory right to relevant information . The three ways in which a union may waive its statutory right to relevant information that Re- spondent alluded to and relies on are noted by the Board in United Technologies Corp ., 274 NLRB 504, 507 (1985). The Board, in noting the three ways that a union may waive its statutory right to relevant information , quoted from the Circuit Court's holding in Chesapeake & Poto- mac Telephone Co. Y. NLRB, 687 F.2d 633, 636 (2d Cir. 1982). As quoted by the Board, the circuit court stated: [N]ational labor policy disfavors waivers of statuto- ry rights by unions and thus a union's intention to waive a right must be clear before a claim of waiver can succeed . Waivers can occur in any of three ways : by express provision in the collective bargaining agreement , by the conduct of the parties (including past practices, bargaining history, and action or inaction), or by a combination of the two. The language of a collective bargaining agreement will effectuate a waiver only if it is "clear and un- mistakable" in waiving the statutory right. [Citation omitted.] Respondent's argument that the Union waive its statu- tory right to the information in question by one or a combination of the methods outlined above is without merit. In my opinion , there is absolutely nothing in the 1968) For a succinct summary of the attorney-client privilege as it ap- plies to corporations, see US. v Upjohn Co, 600 F 2d 1223 (6th Cir 1979) labor agreement between the parties that can be con- strued as specifically limiting Respondent 's obligation to supply requested relevant information . The provision (art. II, sec. 1(b)) that Respondent would rely on simply states that before changes in crew size or job content can be put into effect, Respondent must "advise" the Union of the proposed changes and "discuss" the changes with the Union. The provision also states Respondent will dis- cuss with the Union similar jobs in competitive mills. It states Respondent will undertake to prepare a five-mill survey of selected competitive mills, but it does not in any manner indicate that the Union is not entitled to any other information . In agreement with the General Coun- sel, I find that a reasonable reading of that provision of the labor agreement does not even imply that Respond- ent is excused from supplying other relevant information. I note that statutory rights cannot be waived by implica- tion, but rather must be waived by language that is clear and unmistakable . Metropolitan Edison Co. v. NLRB, 460 U.S. 693 ( 1983). There is nothing in that provision (art. II, sec . 1(b)) of the labor agreement that can in any way be read to constitute a conscious relinquishment by the Union of its right to any information beyond the five- mill survey. There is nothing in any other portion of the labor agreement read separately or in conjunction with art. II, sec. 1(b) that would indicate that the Union either intended or expressed a conscious relinquishment of the right to information that it would by statute be entitled to. Respondent's contention that the Union waived its statutory right to information based on the conduct of the parties and/or by the conduct of the parties taken in conjunction with the language of the labor agreement is also clearly without merit . There is, on this record , insuf- ficient evidence to establish a past practice that , the only information that Respondent ever provided related to job changes was that which was required by the labor agree- ment. Finally, Respondent urges that any ambiguity whether the language of the labor agreement or the par- ties' past practice constituted a clear and unmistakable waiver must be resolved by reference to both tests. After considering all evidence on the waiver issue, I am per- suaded there is nothing either by language in the labor agreement or by past practice of the parties or by a com- bination of those factors that would constitute a clear and unmistakable relinquishment by the Union of its stat- utory right to information . Thus, I find Respondent's contention that the Union waived its right to any of the information in issue is totally without merit. In summary, I find Respondent is required to provide to the Union the following information about its mainte- nance improvement program: (1) All surveys used to formulate the maintenance im- provement program and all studies of job definitions, as well as all maintenance improvement reports, less the fol- lowing portions of any of the surveys or reports that (a) constitute a historical overview of prior negotiations or that reflect Respondent's current negotiating strategy on the maintenance improvement program; (b) outline how Respondent's supervisors would carry out their assigned task of implementing the maintenance improvement pro- gram, and (c) constitute a legal opinion from corporate 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel to Respondent's high-level managers; (2) all pro- jected cost savings; (3) all efficiency calculations; and (4) to the extent that any such report or summary exists, any breakdown comparing maintenance efficiency and cost at the Rumford mill with other of Respondent's papermak- ing installations. Respondent's failure to provide all or any portion of the above-requested information (less the exceptions noted) constitutes a violation of Section 8(a)(1) and (5) of the Act and I so find. CONCLUSIONS OF LAW 1. Boise Cascade Corp., Paper Group is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Paperworkers International Union, Local No. 900 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining: All production and maintenance employees, includ- ing spare labor pool, Stencilers, Checkers and Weighers, but excluding the following employees in the Electrical Department, Entrants, Learners, Ap- prentices, Helpers, Oilers, 2nd Class Electricians, Motor Men 1st Class, 1st Class Electricians, Service Men, Elevator Inspector and Maintenance , Equip- ment Service and Operator, 1st Class Motormen and Electronic Service Men and also excluding Office Janitors and Janitresses, employees engaged in sales, research, engineering , accounting and sten- ographic workers, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act by, since on or about August, refusing to timely fur- nish the Union with all surveys used to formulate the maintenance improvement program and all studies on job definitions and by, since on or about 5 October, refusing to furnish the Union the following information regarding the maintenance improvement program : all maintenance improvement program reports , all projected cost savings, all efficiency calculations, and to the extent that any such report or survey exists, any breakdown comparing main- tenance efficiency and cost at the Rumford mill with other of Respondent's papermaking installations. 5. Respondent has not engaged in any unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act by withholding from the Union the following portions of any surveys or reports on its maintenance im- provement program that (a) constitute an historical over- view of prior negotiations or that reflect Respondent's current negotiating strategy on the maintenance improve- ment program; (b) outline how Respondent's supervisors would carry out their assigned task of implementing the- maintenance improvement program; and (c) constitute a legal opinion from corporate counsel to Respondent's high level managers. 6. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1) and (5) of the Act, I shall order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. I recommend that Respondent be ordered to turn over to the Union the information it requested in connection with discussions on and a grievance related to the main- tenance improvement program implemented at Respond- ent's Rumford, Maine facility. Although this recom- mended Order clearly includes the requirement that Re- spondent produce its management feasibility studies or reports on the maintenance improvement program, I spe- cifically note that nothing in this recommended Order shall be construed as ordering Respondent to produce the following portions of its feasibility studies or reports, namely, those portions of its surveys or reports that (1) constitute an historical overview of prior negotiations or that reflect Respondent's current negotiating strategy on the maintenance improvement program, (2) outline how Respondent's supervisors would carry out their assigned task of implementing the maintenance improvement pro- gram, and (3) constitute a legal opinion from corporate counsel to Respondent's high level managers. In this decision I have recommended that Respondent produce, to the extent any such report or survey exists, any breakdown comparing maintenance efficiency and cost at the Rumford mill with other of Respondent's pa- permaking installations. In remedying this portion of my findings, it is obvious that if no such report or survey ever existed, then it cannot be produced; however, there was some evidence that tended to suggest that such a report might well exist. If the parties are unpersuaded re- garding the existence of any such report or survey, the matter may be resolved at the compliance stage. It is rec- ommended that Respondent be ordered to post the notice to employees attached as "Appendix" for a period of 60 consecutive days in order that employees may be apprised of their rights under the Act and Respondent's obligation to remedy its unfair labor practices. On these findings of fact and conclusions of law and on the entire record I issue the following recommend- ed29 ORDER The Respondent, Boise Cascade Corp., Paper Group, Boise, Idaho, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Paperworkers International Union, Local 900 as the exclusive bargain- 29 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses BOISE CASCADE CORP ing representative of the employees in the following unit by refusing to furnish it with information that it requests which is relevant and reasonably necessary for adminis- tering the labor agreement and for processing a griev- ance: All production and maintenance employees , includ- ing spare labor pool, Stencilers, Checkers and Weighers, but excluding the following employees in the Electrical Department , Entrants, Learners, Ap- prentices , Helpers, Oilers, 2nd Class Electricians, Motor Men 1st Class, 1st Class Electricians, Service Men, Elevator Inspector and Maintenance , Equip- ment Service and Operator, 1st Class Motormen and Electronic Service Men and also excluding Office' Janitors and Janitresses, employees engaged in sales, research, engineering, accounting and stenographic workers, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish, in timely fashion, to the Union the follow- ing information: (1) All surveys used to formulate the maintenance im- provement program and all studies of job definitions, and all maintenance improvement program reports, less the following portions of any of the surveys or reports that (a) constitute a historical overview of prior negotiations or that reflect Respondent's current negotiating strategy on the maintenance improvement program, (b) outline how Respondent's supervisors would carry out their as- signed task of implementing the maintenance improve- ment program, and (c) constitute a legal opinion from corporate counsel to Respondent's high level managers. (2) All projected cost savings. (3) All efficiency calculations, and (4) To the extent that any such report or survey exists, any breakdown comparing maintenance efficiency and cost at Respondent's Rumford mill with other of Re- spondent's papermaking installations. (b) Post at its facility in Rumford, Maine, copies of the attached notice marked "Appendix."30 Copies of the notice, on forms provided by the Regional Director of Region 1, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that notices are not altered, defaced, or covered by any other materi- al. °° If 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 Nation- al 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 " 435 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to bargain with United Paper- workers International Union, Local 900, as the exclusive bargaining representative of the employees in the follow- ing bargaining unit by refusing to furnish it with infor- mation that it requests which is relevant and reasonably necessary for administering the labor agreement and for the processing of a grievance: All production and maintenance employees, includ- ing spare labor pool, Stencilers, Checkers and Weighers, but excluding the following employees in the Electrical Department, Entrants, Learners, Ap- prentices, Helpers, Oilers, 2nd Class Electricians, Motor Men 1st Class, 1st Class Electricians, Service Men, Elevator Inspector and Maintenance, Equip- ment Service and Operator, 1st Class Motormen and Electronic Service Men and also excluding Office Janitors and Janitresses, employees engaged in sales, research, engineering, accounting and stenographic workers, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the act. WE WILL furnish, in a timely fashion, to the Union all surveys used to formulate the maintenance improvement program; all studies of job definitions; all maintenance improvement program reports, less the following por- tions of the surveys or reports that (a) constitute a histor- ical overview of prior negotiations or that reflect Re- spondent's current negotiating strategy on the mainte- nance improvement program, (b) outline how Respond- ent's supervisors would carry out their assigned task of implementing the maintenance improvement program, and (c) constitute a legal opinion from corporate counsel to Respondent's high-level managers; all projected cost 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD savings; all efficiency calculations; and, to the extent that paring maintenance efficiency and cost at our Rumford any such report or survey exists, any breakdown com- mill with other of our papermaking installations. BOISE CASCADE CORP., PAPER GROUP