Island Creek Coal Co.

480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Island Creek Coal Company and United Mine Workers of America, District 31 Laurel Run Mining Company and United Mine Workers of America, District 31. Cases 6-CA- 19812, 6-CA-19814, and 6-CA-20021 January 18, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On March 1, 1988, Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respond- ents filed an answering brief. The Charging Party also filed a motion to reopen the record for admis- sion of new evidence, and the Respondents filed a brief in opposition to the Charging Party's motion and a motion to strike references in the Charging Party's brief to evidence not in the record. The Charging Party thereafter filed a motion for leave to file a memorandum of law in support of its motion to reopen and an accompanying memoran- dum of law, and the Respondents filed a brief op- posing the Charging Party's motion for leave to file its memorandum of law and a response to the Charging Party's memorandum.' 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, and conclusions only to the extent consistent with this Decision and Order.2 The amended complaint alleges that the Re- spondents, Island Creek Coal Company and Laurel Run Mining Company, violated Section 8(a)(5) of 1 As we explain fully below, we find that the Respondents unlawfully failed to provide certain information to the Union . That finding is based exclusively on evidence introduced at the hearing , and not on any evi- dence addressed in the Union's motion to reopen the record . According- ly, we need not reach the issues raised in the Union 's motion , the Re- spondents' opposition, and the other related papers. 2 The General Counsel has excepted to the judge's failure to credit the unrebutted testimony of Union Official Jerry Miller, the only witness to testify about the dealings between the Union and the Respondents and the author of the requests for information that are at issue in this case. Having carefully reviewed the transcript and the documentary evidence, we entertain serious doubts (discussed below) concerning the validity of the judge's credibility findings. We find, however, that we are able to decide this case on the basis of the documentary evidence and of Miller's testimony insofar as it (1) was, at least inferentially , credited by the judge, (2) is corroborated by the documents and other testimony, or (3) appears to be against his or the Union's interest. Accordingly, we do not pass on the merits of the General Counsel's exception. The General Counsel also urges us to draw an adverse inference from the Respondents' failure to call witnesses within their control who could have either corroborated or rebutted Miller's testimony . Because of our disposal of the case , we need not reach this issue. the Act by failing and refusing to furnish the Charging Party, United Mine Workers of America, District 31, information that it requested about De- cember 4, 1986, and February 16, 1987. Contrary to the judge, we find that certain of the Respond- ents' actions were unlawful. Both Respondents are corporations engaged in the mining and nonretail sale of coal and related products. Each has been, at all relevant times, a party to a collective-bargaining agreement with the Union as the representative of certain of its em- ployees. It is undisputed that the bargaining units are appropriate for purposes of collective bargain- ing, and that the Union is the exclusive representa- tive of employees in those units. At the beginning of 1986, Respondent Laurel Run was a wholly owned subsidiary of Virginia Electric and Power Company (VEPCO), which took and used the coal mined by Laurel Run at its mine in West Virginia. Effective September 15, 1986, however, VEPCO sold the stock of Laurel Run to Occidental Petroleum Corporation, which also owns the stock of the corporation that owns Island Creek. The sale was effected in the form of a merger of Laurel Run with Canaan Mining Com- pany, a corporation created by Occidental for the purpose of acquiring Laurel Run, and which subse- quently ceased to exist, leaving Laurel Run as the survivor. Even before the effective date of the merger, Island Creek became involved in the man- agement of the Laurel Run operations, and it re- mained involved in those operations at the time of the hearing. During the period of negotiations over the pur- chase and sale of Laurel Run, a nonunion compa- ny, Buffalo Mining Company, was engaged in a project for VEPCO that involved digging an "ash pit" to store fly ash generated as a byproduct of VEPCO's utility operations.3 Although the record does not indicate clearly whether the ashpit was being dug on land that was being mined by Laurel Run, it appears that the ashpit operation was at least near or adjacent to the Laurel Run Mine. To facilitate the acquisition of Laurel Run by Occiden- tal, Island Creek agreed to take over responsibility for the ashpit operation from VEPCO, with Buffa- lo Mining continuing to perform the actual work because of its greater experience. In the process of constructing the ash pit, Buffalo Mining dug up coal that it sold to Island Creek, which, in turn, sold it to VEPCO. During the same period of time, employment at Laurel Run was reduced considerably, from ap- 3 Buffalo Mining Company is not owned by any of the other compa- nies involved in this case. 292 NLRB No. 49 ISLAND CREEK COAL CO proximately 300 to less than 100 Some 100 em ployees were laid off in July 1986, and a compara ble number were laid off around the end of the year It was against this background that the Union, beginning in the spring of 1986, began to ask for certain information from the Respondents Thus, on June 54 Jerry Miller, the Union's vice president, wrote to John Ely, manager of Laurel Run, stating that he had been informed that Laurel Runs oper- ations had been sold to Island Creek and asking for notification and documentation of the event pursu- ant to the collective-bargaining agreement 5 Ac cording to Miller, Ely called him on June 9 and said that the deal between Laurel Run and Island Creek was not yet final, but that Island Creek was "calling all the shots" at Laurel Run By letter dated July 28, Eugene Claypole, presi dent of the Union, made a request to Don Bassett, Island Creek's industrial and employee relations manager for its Potomac Division, that was similar to Miller's request of June 9 The record does not reflect that Island Creek made any response to Claypole's letter 6 Thereafter, on August 12, Michael Holland, gen eral counsel for the United Mine Workers, in- formed Island Creek and Laurel Run that it had come to the UMW's attention that Island Creek "had" the Laurel Run facility but that the Union had not been notified pursuant to the collective bargaining contract Holland demanded assurances that the seller's obligations had been passed on as set forth in the contract Three days later, the Re- spondents informed Holland that the final transfer of the Laurel Run operations had not been com pleted, but that it was the parties' intention to comply with article I of the contract and that the Union would be duly notified on the conclusion of the sale As noted above, the purchase and sale of Laurel Run became final on September 15 By letter dated September 17, VEPCO and Laurel Run informed 4 Until further notice all dates are in 1986 5 Art I of the National Bituminous Coal Wage Agreement of 1984 to which the Union and Laurel Run were signatories provided in relevant part that In consideration of the Union s execution of this Agreement each Employer promises that its operations covered by this Agreement shall not be sold conveyed or otherwise transferred or assigned to any successor without first securing the agreement of the successor to assume the employers obligations under this Agreement Immedi ately upon the conclusion of such sale conveyance assignment or transfer of its operations the Employer shall notify the Union of the transaction Such notification shall be accompanied by docu mentation that the successor obligation has been satisfied e Neither Island Creek s failure to respond on that occasion nor any of its responses to the Union s requests before December 4 is alleged to con stitute a violation 481 John Banovic, UMW secretary treasurer, as fol lows Dear Mr Banovic Pursuant to Article I of the 1984 Wage Agreement, the United Mine Workers of America is hereby notified that on September 15, 1986, Virginia Electric and Power (VEPCO) entered into an agreement with Oc cidental Petroleum Corporation with respect to the Laurel Run Mining Company The Laurel Run Mining Company has merged with Canaan Mining Company, a sub sidiary of Occidental Laurel Run Mining Company is the survivor to the merger Island Creek Coal Company will manage the Laurel Run Mining Company for the benefit of all parties The undersigned parties have reviewed the obligations of the seller and purchaser under Article I of the 1984 Wage Agreement In ad dition, Laurel Run Mining Company, as the survivor, recognizes its obligations under Arti cle I and fully intends to comply with those obligations However, by letter apparently received on October 3, the Union was informed by C P Hardesty, op erations accounting manager for Island Creek, that Laurel Run had been acquired by Island Creek, not by Occidental In any event, Holland informed VEPCO in a letter dated October 22 that the September 17 noti fication by VEPCO and Laurel Run failed to satis fy the requirements of the collective bargaining agreement in that it did not include the requisite documentation Holland reiterated his demand for documentation, which, he said, `should, inter alia, include copies of 1) the title page of the Sales Agreement, 2) the pertinent provisions of the Sales Agreement wherein the Seller's obligations under the 1984 National Bituminous Coal Wage Agree- ment are transferred to the Buyer, and 3) the signa- ture page " By letter dated November 10, T L Baucom, vice president of VEPCO, responded to Holland, in relevant part, as follows Dear Mr Holland William W Berry has asked me to respond to your letter of October 22, 1986 regarding the September 15, 1986 transaction involving Laurel Run Mining Company In that transac tion Occidental Petroleum Corporation, through its wholly owned subsidiary Canaan Mining Co (Newco), acquired the stock of Laurel Run Mining Company from Virginia 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Electric and Power Company and merged Laurel Run with Canaan Mining. Laurel Run is the surviving corporation. Laurel Run has been and continues to be a signatory to the NBCWA. Virginia Electric and Power Com- pany has never been a signatory to that Agree- ment and has no obligations under it. As you requested, the following documents are enclosed: (1) the portion of the merger agreement identifying the parties involved; (2) the portion of Section 3.3(a) of that agreement in which Occidental recognizes Laurel Run's obligations under the 1984 National Bitumi- nous Coal Wage Agreement (NBCWA); and (3) the signature page. This transaction was not a sale or transfer of operations as contemplated under Article I of the NBCWA, so notice to the UMWA was not required. Nevertheless, Laurel Run promptly notified the Union of the transaction. In any event, as the enclosed documents clear- ly confirm, Occidental recognized the obliga- tions of Laurel Run under the NBCWA and that those obligations of Laurel Run, as the surviving corporation, continue after the merger. If you have questions about this matter, we suggest you direct inquiries to Laurel Run Mining Company. Section 3.3(a) of the merger agreement, referred to by Baucom, provided that: 3.3 Employment Matters. (a) General. (i) Except as otherwise specifically provided in this Section 3.3, the Company [Occidental], Newco and the Surviving Corporation shall assume and be responsible for all costs (includ- ing contributions), claims, related claims, and obligations, known and unknown, fixed, con- tingent, past or future, and expenses (including attorney fees) related to all Laurel Run em- ployees and retirees, excluding salaried non- union retirees, regardless of whether any of the foregoing results from events occurring on or prior to the Closing Date, including, with- out limitation, wages, fringe benefits, work- men's compensation, obligations of Laurel Run or the Group under the United Mine Workers of America National Bituminous Coal Wage Agreement of 1984, and black lung claims and benefits. The record reflects no response by Holland. In perhaps justifiable confusion over the true identity of the ownership of Laurel Run, on De- cember 4 Miller wrote the first two letters contain- ing the requests for information that are at issue here. To Island Creek's Bassett he wrote: Dear Don: In order for District 31, UMWA, to intelli- gently and effectively represent the bargaining unit employees of Laurel Run Mining Compa- ny for whom we are the recognized exclusive bargaining agent, it is necessary that you pro- vide us with certain information regarding the role of Island Creek Coal Company at Laurel Run Mining Company. Therefore, I am requesting that you provide the following information: 1. A copy of all preliminary, temporary, or interim contracts, agreements, memoranda, or letters of intent which gave Island Creek Coal Company authority to manage Laurel Run Mining Company prior to September 15, 1986; 2. A copy of the final contract(s), agreement(s), or whatever such document(s) may be called that sets forth the terms and conditions through which Island Creek will manage the Laurel Run Mining Company. Additionally, will Island Creek recall to em- ployment at Island Creek operations, such as the North Branch Mine or Birch-2A, employ- ees who have paneled for employment at such Island Creek operations upon layoff at Laurel Run Mining Company.7 Your prompt response to this information request will be appreciated. And to Donald Schlick, president of Laurel Run, he addressed a similar but more extensive request: Dear Mr. Schlick: In order for the United Mine Workers of America, District 31, to intelligently and effec- tively represent the bargaining unit employees of Laurel Run Mining Company for whom we are the recognized exclusive bargaining agent, it is necessary that you provide us with infor- mation regarding the recent transactions among Laurel Run Mining Company, Virginia Electric and Power Company, Occidental Pe- troleum Corporation, Island Creek Coal Com- pany, and Canaan Mining Company. Accordingly, I am requesting that you pro- vide a copy of the following: 1. "Agreement and Plan of Reorganization And Merger" dated September 15, 1986, among Occidental Petroleum Corporation, r "Paneling" refers to the practice of allowing employees who are laid off at a mine covered by the collective-bargaining agreement to apply to transfer to other mines controlled by the same employer. ISLAND CREEK COAL CO 483 Canaan Mining Company, and Virginia Elec- tric and Power Company, 2 The "Plan of Merger" attached to the document identified in 1 above as Exhibit A, 3 The contract(s) or agreement(s), or what- ever such documents may be called, that set forth the terms and conditions through which Island Creek Coal Company will manage the Laurel Run Mining Company, 4 All preliminary, temporary, or interim contracts agreements, memoranda, or letters of intent dated prior to September 15, 1986, which gave Island Creek Coal Company au- thority to manage Laurel Run Mining Compa- ny prior to September 15, 1986 In addition, will Laurel Run Mining Compa- ny recall to employment those employees who have been laid off by Island Creek's operations by Island Creek and have paneled for employ- ment with Laurel Run Mining? Your prompt response to this information request will be appreciated We note that neither request explained why the Union desired the information it sought We also observe that the UMW already had been furnished a copy of part of the merger agreement-the portion dealing with the assump- tion of Laurel Run's contractual obligations-re- quested in Miller's letter to Schlick By letter dated January 13, 1987,8 Bassett re- sponded to Miller's December 4, 1986 letters Dear Jerry We have reviewed your request for informa- tion made in your December 4, 1986 letters We do not have a written management agree ment as requested in Item 3 of your letter to Don Schlick We consider the other docu- ments you have requested to be proprietary in formation, and not subject to disclosure Jerry, we have allowed our laid-off employ ees at Laurel Run to panel to other Island Creek operations Under the circumstances, we intend to honor those panel rights as long as Island Creek manages Laurel Run Converse ly, of course, Island Creek employees at other operations can panel to the Laurel Run Mine as long as Island Creek manages that mine Given the fact that you are requesting infor- mation relating to a period prior to September 15, 1986, and there is no grievance pending, I do not see any relevance to the information you have asked for We have honored our 1984 Wage Agreement the entire time we have managed the mine 8 Unless otherwise noted all dates henceforth are in 1987 If you have a specific question as to whether we are complying with our Agreement, feel free to call me and let's discuss it Miller did not claim to have called Bassett to dis cuss specific questions concerning the Respondents' compliance with their collective-bargaining agree ments Instead, he filed the charges in Cases 6-CA- 19812 and 6-CA-19814 on behalf of the Union on February 9 9 A week later, on February 16, Miller addressed a second request for information to Bassett Dear Don As the legally recognized exclusive bargain- ing agent of the bargaining unit employees em- ployed by Laurel Run Mining Company, I am requesting that you provide us with certain in- formation that is both relevant and necessary in order that District 31 can intelligently and effectively represent the aforementioned em- ployees Accordingly, please forward the following information 1 A listing of the daily production of Laurel Run Mining Company for the calendar year of 1986 and for the month of January, 1987, 2 Copies of all contracts, agreements, requi sitions, purchase orders, or memoranda which specify the total amount of coal that Laurel Run Mining Company was/is to provide to Virginia Electric Power Company for the years of 1986 and 1987, a Also to be included is documentation de- tailing in what amounts Laurel Run is to deliv er this coal and the frequency of delivery, 3 A copy of the annual budget report sub- mitted on behalf of Laurel Run Mining Com pany Your prompt attention to this information request will be appreciated We again observe that, as before, Miller did not ex- plain specifically why the Union was seeking the requested information On April 3 a meeting took place at UMW head- quarters in Washington, D C Representing the Union were Miller, Rick Yanero, subdistrict execu tive board member for the Union, and Judy Scott, 8 The Respondents deny that a copy of the charge in Case 6-CA- 19812 was served on Island Creek on February 10 1987 as alleged in the complaint The return receipt attached to the copy of the charge re ceived in evidence shows that the charge was delivered on February 13 1987 to an address that appears as the return address on one of Bassett s letters to Miller and to which Miller sent several letters to Bassett (all of which were received) We find that service on Island Creek was effected on February 13 1987 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD associate general counsel for the UMW Island Creek was represented by Robert Reineke, the Company's general counsel, and Michael Garrison, another attorney Reineke and Garrison explained to the union representatives how Laurel Run had come to be acquired by Occidental , and supplied details of the interrelationships between and among Island Creek, Laurel Run, Occidental , VEPCO, and Buffalo Mining Company Miller testified that he then requested copies of documents, including those requested in his De- cember 4, 1986 letter to Laurel Run According to Miller, Garrison said that he did not have all that information with him, and that he was not going to give the Union copies of the documents anyway However, the Island Creek attorneys did produce copies of certain documents for review by Miller, Yanero, and Scott, including a copy of the Agree- ment and Plan of Reorganization and Merger under which Laurel Run had been acquired Miller testified that he reviewed the document from ap- proximately noon until 3 pm, with time out for discussion, after which the Island Creek representa- tives left to catch a plane While he was reviewing the merger document, Miller took some 20 pages of notes on its provisions , some in considerable detail 10 Miller did not claim that after he re viewed the merger documents he ever told the Re spondents that the review was not sufficient for the Union's purposes, that he needed time for further review, or that the Union still needed copies of the documents Neither, however, did he tell the Re spondents that his review had satisfied the Union's request for information On April 27 Miller filed the charge in Case 6-CA-20021 on behalf of the Union On May 5 Miller sent a letter to Bassett attempt ing to clarify his February 16 request for informa- tion Re Information Request-Dated February 16, 1987 Dear Don Although Messrs Reineke and Garrison ap parently understand my reasons for requesting the above referenced information inasmuch as they had with them at our April 3rd meeting, the "Buffalo Ash Pit Agreements " and partici- pated in the discussion of the change in pro duction at Laurel Run and the "Buffalo" deal, I, nevertheless, wish to inform you that I have requested this information in order for District 31 to decide whether , or not, Laurel Run 10 Millers notes were introduced into evidence by the Respondents We rely on Miller s testimony when it is corroborated by the notes or by other documentary evidence and/or Island Creek have/has violated the terms of the National Bituminous Coal Wage Agreement The information requested in item 3 of the February 16th request was based upon the deposition of one of Island Creek's agents which indicated that an annual projection is provided, not only for Island Creek mines but also for contract mines, by Division Managers to upper management officials Thus this infor- mation should show the anticipated 1987 pro- duction for both Laurel Run and Buffalo Mining Please contact me at your discretion if you have any questions regarding this matter Bassett responded by letter dated May 18 Dear Jerry We have reviewed your letter of February 16, 1987, wherein you requested various docu ments and information Pursuant to your re- quest, I will be forwarding the daily produc tion of the Laurel Run Mine for calendar year 1986 and January of 1987 as soon as I collect the information The Company considers the information re- quested in items 2 and 3 of your February 16, 1987, letter extremely confidential and unrelat- ed to the terms and conditions of employment of your members Your letter of May 5, 1987, indicates that you believe the Company may have violated the collective bargaining agree- ment and states that the information requested in item 3 is based upon the deposition of a Company employee Further you state that the budget would show anticipated production for both Laurel Run and Buffalo Mining We do not understand how the information you are seeking is relevant to your duties and responsibilities Your letter of May 5, 1987, for example, fails to specify what provision of the Wage Agreement you are concerned with or why anticipated production is relevant or nec- essary Nor do we have any indication as to what specific information, from the numerous documents requested , you are actually seeking If you can tell us what specific information you are seeking and describe the relevance of the information, including the specific contract provisions that you feel are applicable, I be lieve we can resolve our problems by furnish mg you with the information you need, possi bly with confidentiality requirements Until we are provided with that information, we consider your request for information in items 2 and 3 overly broad and irrelevant And ISLAND CREEK COAL CO as a result, we are unwilling to release infor matron relating to specific customers and the Company budgetary process I look forward to hearing from you with the hope that we can resolve this matter In a letter dated May 27, Miller provided further clarification of the Union's request, and gave his as- surance that the Respondents' confidential informa tion would not be disclosed to other coal compa- nies or to the news media Re Information Request-Dated February 16, 1987 Dear Don We have received your letter of May 5 [sic], 1987, and, although we believed that you, or at least Messrs Reineke and Garrison, knew the areas of the collective bargaining agree- ment that were applicable in this dispute, we will try to answer your inquiry We believe that the contracting out of the production of coal at Laurel Run constitutes a violation(s) of the NBCWA in such areas as Article I, Article IA, Sections (a), (f), (g)(1), and (h), Article XVII, and, Article XX As to your concern for specificity of the in formation requested, suffice it to say that the information requested in the February 16th re quest is clearly identified Finally, in an attempt to allay your fear that we will divulge the requested information, please be advised that we have already given assurances to Messrs Reineke and Garrison that we will not release this information to any other coal company and will not distribute the information to the news media for publication or transmission We may, however, submit the information to an arbitrator in the event that a grievance should progress to arbitration Please provide the information requested by letter of February 16th in order that we can proceed with the resolution of our problems On June 2 Miller attended a second meeting, this time at Island Creek's offices at Elkins, West Vir- ginia Also present were Claypole, the Union's president, Garrison, the attorney for Island Creek, and Bill Phillips, Island Creek's director of industri- al relations Miller and Claypole were allowed to review several documents, including a mining permit obtained by Buffalo Mining Company, a lease agreement (and an amendment to that agree- ment) between Island Creek and Buffalo Mining, a contract between VEPCO and Island Creek, and a 485 subcontract between Island Creek and Buffalo Mining 11 On June 12 Bassett sent Miller a letter in which he enclosed the production data for Laurel Run for 1986 and January 1987, which the Union had re- quested on February 16 On June 30 Phillips sent Miller a letter in re- sponse to Miller's letter of May 27 Dear Jerry, I have reviewed your letter of May 27, 1987, to Don Bassett, in light of our brief dis cussion at Elkins on June 2 with respect to clarification of the issue and pertinent wage agreement sections you believe have been vio- lated While we now better understand the issue and which sections of the Wage Agreement you believe have been violated, we continue to believe the information you are requesting, other than the production data Don has pro vided, is not relevant Therefore, I request an explanation as to why the subject documents and/or information are relevant to resolving the matter As we have told you, the documents you have requested are proprietary and confiden- tial If you will identify the information you are seeking to obtain from the documents and explain its relevance, we will attempt to pro vide such information, while, at the same time, protecting document confidentiality, particu- larly on document contents for which you have no need Please contact me at your earliest conven fence so that we can resolve this matter We note that neither Phillips nor Bassett, in the Tat- ter's May 18 letter, proposed any specific confiden- tiality requirements for the release of the requested documents, nor did Phillips indicate that the Union's promise not to disclose the requested docu ments was unacceptable to the Respondents 12 The Union did not respond to Phillips' letter On August 10 Phillips sent Miller a second letter, in which he stated that, in order to assuage the Union's doubts concerning the successorship situation at Laurel Run, he would assure the Union that "it has always been Island Creek's intention to 11 Although those documents may have been relevant to the Unions concerns they were not requested by the Union and the Respondents do not contend that they were responsive to the Union s requests 12 Both Phillips and Bassett are admitted to be agents of Island Creek but not of Laurel Run However in view of Island Creek s admitted role in the management of Laurel Run we find that Phillips and Bassett s re sponses to Millers letters can properly be attributed to Laurel Run as they evidently were intended to be 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD assume all successorship obligations . . . for which Laurel Run had previously been responsible," and he enclosed a copy of a letter from Attorney Gar- rison to Judy Scott that confirmed that position: Dear Ms. Scott: You have brought to my attention certain Union concerns regarding the extent and nature of the successorship obligations of Island Creek Corporation with respect to the Laurel Run operation. This letter is to confirm that Island Creek Corporation is the successor to Laurel Run Mining Company at its oper- ation in Grant County, West Virginia, pursu- ant to Article I of the 1984 NBCWA. As such, it has assumed all obligations of the 1984 NBCWA for which Laurel Run Mining Com- pany . had been previously responsible. Thus, Island Creek Corporation's relationship to the Laurel Run operation is now identical to its relationship to its other operations covered by the 1987 EESP. Phillips further stated that certain information re- quested by the Union-documents setting forth the terms under which Island Creek would manage Laurel Run and documents specifying the amounts of coal Laurel Run was to provide to VEPCO for 1986 and 1987-did not exist, and that Bassett would provide an affidavit to that effect.13 Phillips also offered-subject to the Union's signing a con- fidentiality agreement (discussed below)-to pro- vide the Union with copies of the merger agree- ment and the plan of merger, the interim manage- ment agreement that gave Island Creek authority to manage Laurel Run prior to September 15, 1986, and "relevant parts" of the letter of intent between VEPCO and Island Creek. Concerning the Union's request for a copy of Laurel Run's budget report, Phillips wrote: As I am sure you understand, our annual budget is very confidential. Given the fierce competition in the coal industry, particularly in this economy, the release of this information could have serious impact on our competitive position and sales. In order to resolve this matter, however, we will provide a chart indi- cating both the original and the revised Janu- ary forecast of "Anticipated Production for 1987 for Laurel Run Mining Company," which was developed directly from our 1987 Annual Operating Plans. This information will be provided to you on the condition that it be 13 Bassett 's affidavit was introduced into evidence. It corroborates Phillips' assertions. maintained in the strictest confidence in ac- cordance with the confidentiality agreement. The confidentiality agreement that Phillips pro- posed read as follows: I, , hereby understand that Island Creek Corporation considers documents relat- ed to the acquisition of Laurel Run Mining Company, including but not limited to the Agreement and Plan of Reorganization and Merger and the Plan of Merger, and all data taken from the Company's Annual Operating Plan for 1987, proprietary and confidential in- formation. Therefore, in consideration of Island Creek Corporation supplying information to me and allowing me access to the documents relating to the acquisition so that I may review them, I hereby agree that I will maintain the confiden- tiality of the information, and I will not dis- close the information to anyone other than representatives or counsel of the UMWA who need to know to ensure that Island Creek Cor- poration has complied with the Wage Agree- ment. Any Union official allowed access to said information, shall first be required to read and sign a copy of this Confidentiality Agree- ment. This information will not be disclosed to anyone else, including employees of Island Creek Corporation. It is understood and agreed that the infor- mation above may be utilized as the Union de- termines necessary in a grievance or arbitra- tion proceeding involving Island Creek. In such event, both the Union and Island Creek will attempt to protect the confidentiality of the information. Miller did not respond directly to Phillips' August 10 letter. However, in discussions with the Respondents' counsel during the week before the hearing, Miller raised numerous objections to Phil- lips' offer. First, he objected to the absence of a notice-posting provision, apparently in the belief that such a provision would require the Respond- ents to furnish the Union with information even absent a request by the Union. He also complained that Phillips' and Garrison's assurances did not put to rest the question of successorship, inasmuch as they appeared to conflict with the representations made in the merger agreement. Miller further ob- jected to the Respondents' position that they should be entitled to decide for the Union what the relevant parts of the requested documents were, and to withhold the rest. ISLAND CREEK COAL CO Miller also objected to three features of the pro- posed confidentiality agreement First, he took issue with the requirement that the information ob tamed could not be disclosed to employees of Island Creek Second, he objected that the informa tion could be used only to determine whether Island Creek-not Laurel Run-had complied with the collective bargaining agreement Finally, he ob- jected to his being unable to disclose evidence of unlawful conduct to the Federal Government if such was uncovered Based on the course of dealings detailed above between the Union and the Respondents , we must decide whether the Respondents ' failure to provide some of the information requested by the Union on December 4, 1986, or February 16, 1987, constitut- ed a refusal to bargain in good faith The judge found that it did not He found, instead, that the Union had requested the information in order to harass the Respondents , that much of the informa tion requested was irrelevant to the Union's legiti mate purposes, and that the rest of the information had been provided Accordingly, he dismissed the complaint The Act requires an employer to furnish infor- mation requested by a union that is the bargaining representative of its employees if there is a proba bility that the information is relevant and necessary to the union in carrying out its statutory duties and responsibilities as the employees' bargaining repre sentative NLRB v Acme Industrial Co, 385 US 432, 437 ( 1967), Doubarn Sheet Metal, 243 NLRB 821, 823 (1979) Those duties and responsibilities in- clude the filing and processing of grievances Acme Industrial, supra, Doubarn, supra Although infor matron that is not relevant to the union 's purposes need not be furnished , the standard for assessing relevance is a liberal, discovery type standard Acme Industrial, supra, NLRB v Associated General Contractors of California, 633 F 2d 766, 770 (9th Cir 1980), cert denied 452 US 915 ( 1981), Ohio Power Co, 216 NLRB 987 , 991 (1975), enfd 531 F 2d 1381 (6th Cir 1976), W-L Molding Co, 272 NLRB 1239, 1240 (1984) The Board in Ohio Power formulated the following test for evaluating the rel- evance of broad categories of requested informa- tion Where the information sought covers the terms and conditions of employment within the bargaining unit, thus involving the core of the employer-employee relationship, the stand and of relevance is very broad , and no specific showing is normally required, but where the request is for information with respect to mat ters occurring outside the unit , the standard is somewhat narrower (as where the precipitat- 487 mg issue or conduct is the subcontracting of work performable by employees within the ap propriate unit) and relevance is required to be somewhat more precise The obligation is not unlimited Thus where the information is plainly irrelevant to any dispute there is no duty to provide it 216 NLRB at 991 Where the information sought pertains to the filing or processing of grievances, the Board in Ohio Power went on to say It is not required that there be grievances or that the information be such as would clearly dispose of them The union is entitled to the information in order to determine whether it should exercise its representative function in the pending matter, that is, whether the infor matron will warrant further processing of the grievance or bargaining about the disputed matter Id See also Doubarn Sheet Metal, supra at 823 Fi- nally, in assessing the relevance of the information, the Board does not pass on the merits of the union's claim that the employer breached the col- lective-bargaining contract or committed an unfair labor practice, thus, the union need not demon strate that the contract has been violated in order to obtain the desired information W L Molding Co, supra at 1240 As the Board observed in Dou- barn, "Indeed, if the Union had sufficient informa- tion to prove contractual violations, it would not need to request information from Respondent[s] " 243 NLRB at 824 The judge, unfortunately, did not consider those settled principles , and found instead that A very important fact, one virtually determi- native of this entire case, must be emphasized at this point Throughout the entire period of these events, from the summer of 1986 to the day of the hearing a year later, not a single grievance was filed by the Union against any of the many companies mentioned in Miller's ex- tended testimony Nor was any suit brought of any kind This means that the Union's contract with both the named Respondents-Laurel Run and Island Creek-has been honored in every re- spect Stated more precisely in terms of Board law it means that where the employees ' condi- tions of employment were involved-the sole concern of any union protected by this stat ute-the Union had no reason to complain at all This reality takes on a special significance in this case because during the summer of 1986 the employee complement at Laurel Run was reduced by over 200 employees I do not 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD know why such a reduction in force took place. . . . but the fact remains that the Union never complained-either to the predecessor or to the successor, about their . . . honoring all the terms of the collective-bargaining agreement in effect. This is what no filing of any grievances or suits means. . . . Had . . . the Respondents . . . violated a single clause in that contract, surely the Union would have done something about it. It did not! [Emphasis added.] Thus, the judge not only misstated settled Board law (by concluding, erroneously , that the absence of a filed grievance was "virtually determinative of this entire case," see Ohio Power, supra), but also erroneously reasoned that , because the Union filed no suit or grievance , the Respondents had not vio- lated the contract , even though the Union made clear that it was seeking the information in order to determine whether a contract violation had oc- curred . Further, he failed to consider vital, unre- butted documentary evidence . He stated, incorrect- ly, that in support of his demands for information Miller relied on only one contract provision-the portion of article I dealing with successorship and notification of the Union in the event of a transfer of covered operations. In fact, in his letter of May 27, Miller specifically cited several other portions of the NBCWA-including those concerning the scope of covered work ; application of the agree- ment to covered employers' coal operations (in- cluding properties acquired after the effective date of the contract); contracting out of the transporta- tion of coal; leasing, subleasing, and licensing of coal lands and facilities; seniority as applied in times of reductions of the work force or layoffs, in- cluding "panel rights"; and employer contributions to employee health and retirement plans- provi- sions that the Union thought might have been vio- lated by the contracting out of production of coal at Laurel Run. Worse, the judge belittled the Union's concern that unit work might have been subcontracted to Buffalo Mining Company (a non- union firm) as "extraneous elements . . . that in the end proved to have nothing to do with this com- plaint." He based this erroneous conclusion, appar- ently, on the Union's failure to file a grievance: "If there is one contract violation United Mine Work- ers would not stand for, it is the hiring, by a union- ized mining company , of nonunion miners to do that work." He concluded his analysis by observing that "there is no reliable evidence on which it can be found either of the Respondents took work away from their employees that was covered by the District 31 contract to give it to a nonunion employer or employees." That observation, even if true, is irrelevant to this case . The union was seek- ing information that it thought would assist it in determining whether such subcontracting had taken place in violation of the contract; it was not required to demonstrate such a violation as a pre- requisite to obtaining the information. See W-L Molding Co., supra at 1240; Doubarn Sheet Metal, supra at 824. On the basis of the foregoing errors of fact, law, and logic, the judge concluded that Miller lied at the hearing, and that, for reasons the judge stated that he did not understand, Miller's real intention was simply to harass the Respondent[s]. Thus, the judge found that: If there is one thing about which Miller was certain as soon as he learned that Island Creek had taken over the Laurel Run mine, it is that as a successor it was bound to honor the con- tract with District 31 . . . he knew, at all times, that the new takeover company was fulfilling the contract in every jot and tittle. It was exactly the same contract that used to bind the prede- cessor. And he was always assured that Island Creek had no intention of violating that con- tract, as in fact it did not. Miller was lying at the hearing. [Emphasis added.] The judge bolstered his findings by citing Miller's testimony that one reason he rejected the Respond- ents' proposed confidentiality agreement was that, in the event the requested documents contained in- formation indicating that Island Creek had violated Federal tax or antitrust laws, the agreement would prevent him from turning that information over to the appropriate agencies . The judge misconstrued Miller's statement as an admission that one reason he wanted the information to begin with was to be able to charge Occidental with tax evasion. He also disparaged as "practically incredible" Miller's testi- mony that he had shown his notes regarding the documents he had been provided to counsel for the General Counsel and to the Union's general coun- sel, and that those attorneys had not indicated the existence of any tax or antitrust problems. Appar- ently the judge thought that that testimony estab- lished that Miller knew full well that no such viola- tions had been committed, and that his rejection of the confidentiality agreement on that ground was further evidence of a lack of good-faith dealing on his part. That inference, however, is a non sequitur. In the first place, Miller did not testify that he asked the attorneys if they saw evidence of any tax or antitrust violations. Accordingly, it should come as no surprise that the attorneys, who would. have been interested in discovering whether the contract had been violated, would not have commented on the peripheral issues. Second, and more important, ISLAND CREEK COAL CO 489 Miller had not been furnished with copies of all the information he had sought, obviously, neither he nor the attorneys could have known whether tax or antitrust problems would be found in documents they had never seen The judge also relied on Miller's testimony that, although he had requested a copy of Laurel Run's budget report, the only information he sought from that report pertained to anticipated coal produc tion, not to the Respondents' finances The judge found significance in Miller's concession that he had not told the Respondents' agents during settle ment negotiations that the Union would accept a copy of the budget report with the financial figures deleted, and he characterized Miller's testimony as "double talk " Once again, however, the judge overlooked the fact that, in his May 5 letter, Miller explicitly stated that the budget report "should show the anticipated 1987 production for both Laurel Run and Buffalo Mining," and thereby put the Respondents on notice concerning the real sub- stance of the information request Were we to agree with the judge that the Union's only real reason for making its information requests was to harass the Respondents, we would undoubtedly affirm his dismissal of the complaint, for if the only reason for such a request is harass ment, an employer is not required to comply with the request Hawkins Construction Co, 285 NLRB 1313 (1987), enf denied on other grounds 857 F 2d 1224 (8th Cir 1988) (request must be made in good faith, good faith requirement is met if at least one reason for the demand can be justified) 14 Howev- er, we reject the judge's harassment finding as lacking support in the record As we have noted, the judge erred as a matter of law in finding that the absence of a grievance was "virtually determi- native of this entire case," and he inexplicably con cluded that the fact that the Union had filed no grievance or suit meant not only that the contract had not been violated but that the Union knew it had not been violated From that point, his ultimate conclusion-that the Union's requests for informa- tion had been made in bad faith-was practically a certainty Of course, no such conclusion can fairly be drawn, because it does not follow from the fact that no suit or grievance was filed that the Union knew the contract had not been breached 15 Nor 14 Bad faith is an affirmative defense that must be pled and proved by the Respondents Hawkins Construction supra fn 20 The Respondents here did not raise the issue of bad faith in their answer to the complaint Whether their failure to do so precludes us from finding bad faith is an issue we need not decide because the record does not support that find mg ,5 On cross examination Miller was asked whether after it became in volved in managing Laurel Run Island Creek processed grievances and complied with [their] obligations under [their] collective bargaining agreement Miller responded eventually We interpret Miller s answer can the judge's conclusion be supported by his practice of ignoring critical portions of the docu- mentary record and of misconstruing Miller's testi- mony In sum, we find, contrary to the judge, that the Union did not make its requests for information to harass the Respondents 16 Having found that the Union's requests for infor mation were not made in bad faith, we must deter- mine whether the responses to those requests by Island Creek and Laurel Run amounted to a breach of the Respondents' duty to bargain We first consider whether the information re- quested was relevant, under a liberal discovery- type standard, to the Union's performance of its duties as the employees' collective-bargaining rep resentative We find that it was Thus, in its De- cember 4, 1986 requests, the Union sought to obtain documents that it hoped would shed light on the actual identity of the employees' employer following the purchase and of sale of Laurel Run, and the extent to which the Respondents had com- plied with their contractual duties to secure the "successor's" 17 agreement to comply with the terms of the contract It can hardly be contended that a union is not entitled to know the identity of the employer of the employees it represents, and certainly the Union was entitled to know who the "successor" was and whether it had complied with any obligations arising from the contract Similarly, having been informed that Island Creek was man- aging Laurel Run, the Union had an interest in knowing the terms of the management relationship, so that it could determine, among other things, as a concession only that the Respondents at some point began to process grievances not that they were in every respect in compliance with their contract with the Union The phrasing of the question by the Respond ents counsel is too general for us to conclude that Miller s reply meant specifically that there had been no subcontracting of Laurel Run work in violation of the contract which was the focus of the Union s concerns when it made its requests for information Accordingly Miller s state ment does not undermine our finding that the Union did not know whether the contract had been violated 15 We are mindful that in a similar case the Eighth Circuit denied en forcement of the Board s decision in which the Board overturned a judge s finding based partly on credibility that the union s only motive in requesting information was to retaliate against the employer for filing a lawsuit against the union NLRB Y Hawkins Construction Co 857 F 2d 1224 (8th Cir 1988) Hawkins however is distinguishable from this case because there the fudge found that the union had knowledge of the em ployer s suit when it made its information request 2 days later Here by contrast there was no such action on the part of the Respondents that might have triggered a campaign of harassment by the Union and the fudge conceded that he had no idea why the Union would have wanted to embark on such a campaign Moreover in Hawkins the Board simply drew different inferences from those of the judge based on the relevant evidence The Board did not part company with the fudge as we do here over his errors of law his failure to fully consider the record and his drawing of unfounded inferences from that record Accordingly al though we respectfully disagree with the court s decision in Hawkins that decision does not conflict with our decision in this case it We express no view concerning whether any of the companies in volved in that transaction is a successor within the meaning of Board law 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether Island Creek was a joint employer with Laurel Run. Accordingly, we find that copies of the "Agreement and Plan of Reorganization and Merger" and attached "Plan of Merger," and of the interim and final agreements concerning Island Creek's management of Laurel Run, requested on December 4, were relevant to the performance of the Union's statutory duties. We also find relevance in the documents request- ed in the Union's February 16 letter. Each of those documents, including the Laurel Run budget report, contained (or was thought to contain) infor- mation concerning past and prospective coal pro- duction at Laurel Run. That information could have helped the Union to assess whether the Re- spondents had breached the contract by subcon- tracting out unit work, and thus could have assist- ed it in deciding whether to file a grievance. 18 However, although we find relevance in each of the documents sought by the Union, we do not find that the relevance of any of those documents would have been obvious to the Respondents under the circumstances in which the initial re- quests were made . Although the adequacy of the requests to apprise the Respondents of the rel- evance of the information must be judged, not from the communications alone, but in the light of the entire pattern of facts available to them, Ohio Power, supra at 990-991 fn. 9; Westwood Import Co., 251 NLRB 1213, 1227 (1980), enfd. 681 F.2d 664 (9th Cir. 1982), we find that the Respondents were not given notice of the relevance of the informa- tion sought until May. None of the requests were, on the surface, concerned with terms and condi- tions of employees in the unit. A showing of rel- evance therefore was required. Ohio Power, supra at 991. (Indeed , a request for information about sub- contracting in violation of the contract-evidently the Union's chief concern here-was cited in Ohio Power as an example of a request requiring a more precise demonstration of relevance. Id.) Nor did the Union explain in either the December 4 or the February 16 letters why it was seeking the docu- ments in question . 19 Nothing in any of those letters adverted to the possibility that the Respondents had violated the contract by subcontracting unit work. Plainly, there is nothing in its request for the 18 Without question, information concerning subcontracting of unit work is relevant to a union's performance of its representational func- tions. See, e.g., Acme Industrial, supra; W-L Molding, supra; Doubarn Sheet Metal, supra; Island Creek Coal Co., 289 NLRB 851 (1988). 19 The Union's only explanation in each letter was that it needed the information "to intelligently and effectively represent the bargaining unit employees" of Laurel Run. That sort of generalized , conclusionary expla- nation is insufficient to trigger an obligation to supply information that is on its face not presumptively relevant . Super Valu Stores, 279 NLRB 22, 25 (1986), citing Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1099 (1st Cir. 1981). Laurel Run budget report to indicate that what the Union really was seeking was anticipated produc- tion information. Although the relevance of the Union's unexplained request for a copy of the merger documents might have been apparent in an- other context, here it must be remembered that the UMW already had demanded and received portions of those documents that it had indicated must be supplied pursuant to article I of the contract. One of those portions dealt with the issue of assumption of Laurel Run's contractual obligations by Occi- dental and Laurel Run following the merger. Con- cerning the Union's request for copies of the inter- im management agreements governing the relation- ship between Island Creek and Laurel Run prior to September 15, 1986, we find that, given the lack of explanation, as well as the relative remoteness in time of the requested information, the Union had not demonstrated the relevance of those docu- ments.20 Finally, we note that, although Bassett suggested in his letter of January 13 that Miller call him if there was a specific question regarding the Respondents' compliance with the contract, Miller did not do so. In summary, because the Union failed initially to apprise the Respondents of the relevance of the information sought in its Decem- ber 4 and February 16 requests, and because the entire pattern of facts surrounding those requests were not such as to make the relevance of that in- formation plain to the Respondents, we find that the Respondents were not required to supply the information requested until the Union clarified its requests in May.21 The situation changed dramatically with Miller's letters of May 5 and 27, at least concerning the February 16 request. On May 5, Miller wrote to Bassett and explained that the request involved the "Buffalo Ash Pit Agreements" and the change in production at Laurel Run, and that the Union needed the information in order to decide whether the Respondents had violated the collective-bar- gaining agreement . He further stated that the budget report for Laurel Run should show the an- ticipated 1987 production for both Laurel Run and 20 The collective-bargaining agreement provided that a grievance must be filed within 10 working days from the time the employee reasonably should have known about it. In view of that fact , and because no griev- ance was pending that related to the period before September 15, it is understandable that the Respondents should have failed to apprehend the relevance of the interim agreement to the Union 's performance of its duties as of December 4. 21 In fact, the complaint alleges that the Respondents' failure to pro- vide the documents requested in Miller's February 16 letter was unlawful only since May 27. The remaining information sought either was provided or, according to the unrebutted contentions of the Respondents, did not exist . According- ly, we find that the Respondents satisfied their duty to bargain with re- spect to the requests for those items. ISLAND CREEK COAL CO 491 Buffalo Mining Even so, Miller did not indicate specifically that the Union was concerned that the Respondents had subcontracted Laurel Run work in violation of the agreement, nor did he state which provisions of the agreement he thought had been breached However, in his letter of May 27 Miller identified several specific provisions of the contract that the Union believed had been violated by the contracting out of coal production at Laurel Run " Moreover, in response to Bassett's allusion to the need for "confidentiality requirements," Miller assured the Respondents that the Union would not release the information to any other coal company or to the news media for "publication or transmission " Thus, by May 27, the Union had informed the Respondents that it believed they had violated specified provisions of the contract by subcontract ing coal production at Laurel Run, that it wanted a copy of the budget report for Laurel Run, which contained production forecasts for both Laurel Run and Buffalo Mining that would clearly pertain to any question of improper subcontracting, and that it would not divulge confidential information either to their competitors or to the news media We find that, no later than May 27, the Respondents were on notice that the production forecasts contained in the budget report were relevant to the Union's per formance of its functions as the employees' bar- gaining representative At that point, then, it became the Respondents' duty to provide those portions of the requested budget report relating to production, subject to reasonable safeguards for confidential information 22 The Respondents, however, failed to take action in the face of the Union's clarifications As late as June 30, Phillips wrote to Miller stating that, al- though they better understood "the issue," and had been told which provisions of the contract the Union believed had been violated, the Respondents still could not discern the relevance of the request Phillips also requested that Miller identify the in- formation the Union was seeking from the docu 22 The Union still did not explain why it needed the information re quested in its December 4 1986 letter Moreover on April 3 Miller and the other union representatives were allowed to peruse the merger docu ments at length and to make extensive notes on their contents The record does not indicate that Miller ever indicated to the Respondents (before the heating) that his April 3 review of those documents was in sufficient or that he either needed to obtain copies thereof or additional time to review them Miller testified that the Union needed copies of the documents because in the event the information contained in them was needed at arbitration the Union would be prejudiced if it could not intro duce the documents themselves However there is no indication that Miller made that concern known to the Respondents before the heating Accordingly to the extent that the Union s request was for copies of the merger documents rather than simply for an opportunity to review them we find that it never made the relevance of its request known to the Re spondents and therefore that the Respondents had no duty to provide copies ments, even though Miller had clearly indicated that he was asking for the production forecasts from the budget report This response does not sat isfy an employers obligation under Section 8(a)(5) It should have been clear to the Respondents by May 27, if not before, exactly what information the Union sought to obtain in its request for the budget report and the relevance of that information If the Respondents were concerned that the request in its original form was overly broad, they could have offered a reasonable proposal to provide the pro- duction information the Union was seeking,23 in stead of continuing to express a lack of understand Ing of the Union's request 24 Moreover, the Union had offered reasonable assurances that it would re- spect the confidentiality of the Respondents' docu ments, and the Respondents gave no indication until much later that those assurances were in any way unsatisfactory If the Respondents thought the Union's assurances would not have protected their confidential information sufficiently, they should have made their concern known to the Union 25 However, the Respondents took neither of those reasonable actions Instead, for more than 2 months after the Union had clarified its request, the Re spondents continued in their failure to comply with that request Under all the circumstances, then, we find that the Respondents26 violated Section 8(a)(5) by failing, after May 27, to furnish the Union with the production forecasts contained in the budget report for Laurel Run 27 2 3 As in fact they later did See discussion infra 24 Even if a union s request for information is overly broad the em ployer may not refuse to provide the portions of the information that are relevant to the union s performance of its bargaining functions Westwood Import Co supra at 1227 Super Valu Stores supra at 26 25 As again they subsequently did See discussion infra 26 Par 15(b) of the complaint alleges only that Laurel Run failed to provide the information requested by the Union on February 16 Howev er par 16 alleges that the Respondents violated the Act by their actions described in par 15 (which also included the failure to supply the infor mation sought by the Union in December) Moreover the February re quest was directed to Bassett of Island Creek which through Phillips and Bassett was the party that was actively involved in dealing with the Union after May 27 Counsel for the General Counsel moved at the end of the heating to conform the pleadings to the proof On the basis of all the foregoing we find that Island Creek as well as Laurel Run violated the Act 21 We find Bohemia Inc 272 NLRB 1128 (1984) to be distinguishable from this case In Bohemia Inc the Board found that the union had failed to demonstrate the relevance of its request for information con cerning production sales payroll hours and output projections at two facilities which the union was seeking out of concern over a possible transfer of unit work The Board noted that the union had no objective basis for believing that such a transfer had occurred and that its request was based solely on the suspicions of employees that work had been transferred to another facility because of a wage cut there The Board also remarked on the absence of a pending grievance to the union s fail ure to cite the contract provisions that it thought had been violated and its failure to show that it had raised the subject matter of the request in contract negotiations In this case by contrast we find that there was ob jective evidence of subcontracting of unit work About the same time Island Creek became involved in the management of the Laurel Run op Continued 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We further find that the Respondents did not cure the violation by offering on August 10 to fur- nish a chart containing projected production fig- ures derived from the budget report, subject to the Union's acceptance of the confidentiality agree- ment. First, the offer was incomplete: it consisted of production figures only for Laurel Run, not, as Miller had also requested, for Buffalo Mining. Second, on this record, the Employer has failed to carry its burden of demonstrating that the prof- fered production date (as opposed to the entire re- quested budget report, which also contained finan- cial information) was actually confidential.211 Both Phillips, in his August 10 letter, and the Respond- ents' only witness, Attorney Marshall Peace, stated only in a general, conclusionary way that the budget information was confidential ; neither men- tioned specifically that the production forecasts were confidential, or tried to explain how the re- lease of those projections could harm the Respond- ents. On cross-examination of Miller , counsel for the Respondents sought to establish the sensitivity only of the cost information contained in the budget report, not of the production forecasts. Thus, having failed to substantiate its contention that the production information offered on August 10 was confidential, the Respondents were not enti- tled to insist on Miller's acceptance of the confi- dentiality agreement as a condition precedent to re- leasing that information.29 THE REMEDY Having found that the Respondents violated Sec- tion 8(a)(5) by failing after May 27 to provide the Union with the portions of the budget report for Laurel Run30 containing the production forecasts for Laurel Run and Buffalo Mining Company, we shall order it to do so now. If the Union continues to profess concern over the process by which in- formation is included or deleted, the parties shall bargain over a mutually acceptable method of doing so.31 eration, a nonunion company began extracting coal from a pit it was dig- ging on or adjacent to the Laurel Run facility and selling the coal to Island Creek for resale to VEPCO, Laurel Run's parent corporation until September 15, 1986. During that period of time, the employee comple- ment at Laurel Run was reduced by about two-thirds. Moreover, the Union here identified specifically the contract provisions it believed had been violated. 28 See, e.g., Washington Gas Light Co., 273 NLRB 116 (1984). 29 We therefore are not required to decide whether the Respondents lawfully could have insisted on the Union's pledge of confidentiality in return for providing the entire budget report. so In his letter of August 10, Phillips referred to "our 1987 Annual Op- erating Plans." If that is the accurate title of the "budget report" request- ed by the Union, that is what shall be provided. 2' See, e.g., Kelly-Springfield Tire Co., 266 NLRB 587, 588 ( 1983), and cases cited therein . We recognize that, if the parties are unable to reach an accommodation of their respective interests through bargaining, they may be before us again ; in that event, if the issue of whether they have ORDER The National Labor Relations Board orders that the Respondents, Island Creek Coal Company, Lexington, Kentucky, and Laurel Run Mining Company, Elkins, West Virginia, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with United Mine Workers of America, District 31 by failing and refusing to furnish the Union with a copy of the portions of the annual budget report submitted on behalf of Laurel Run Mining Company contain- ing the production forecasts for Laurel Run and Buffalo Mining Company, or other information rel- evant and necessary to the Union's duty to admin- ister the collective-bargaining agreements between itself and the Respondents. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish to the Union, on request, a copy of the portions of the annual budget report submitted on behalf of Laurel Run Mining Company, con- taining the production forecasts for Laurel Run and Buffalo Mining Company. (b) Post at Laurel Run's Grant County, West Virginia facility copies of the attached notice marked "Appendix."32 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondents' authorized representatives, shall be posted by the Respondents immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. bargained in good faith is presented, we shall make our determination based on the totality of the circumstances. Id. 12 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." ISLAND CREEK COAL CO 493 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 ordered us to post and abide by this notice WE WILL NOT refuse to bargain collectively with United Mine Workers of America, District 31 by refusing to furnish the Union with portions of the annual budget report submitted on behalf of Laurel Run Mining Company, containing the production forecasts for Laurel Run and Buffalo Mining Com- pany WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL, on request, furnish the Union a copy of the portions of the annual budget report submit- ted on behalf of Laurel Run Mining Company, containing the production forecasts for Laurel Run and Buffalo Mining Company, in order to assist the Union in protecting the rights of employees cov ered by the Union's collective-bargaining agree- ment with us ISLAND CREEK COAL COMPANY LAUREL RUN MINING COMPANY Sandra Beck Levine Esq for the General Counsel J Steve Warren Esq (Jackson Lewis Schnitzler & Krup man), of Greenville, South Carolina and Paul B Lin demann Esq for the Respondent Jerry D Miller Vice President and Barbara Fleischauer Esq, of Fairmont West Virginia for the Charging Party DECISION STATEMENT OF THE CASE THOMAS A Ricci, Adminstrative Law Judge A hear ing in this proceeding was held on 27 August 1987, at Fairmont, West Virginia, on complaint of the General Counsel against Island Creek Coal Company and against Laurel Run Mining Company (Respondents) The com plaint issued on 17 July 1987 based on charges filed on 9 February and 27 April 1987 by United Mine Workers of America District 31 (the Union or the Charging Party) The only issue presented is whether the Respondent Companies violated Section 8(a)(5) of the Act by refus ing to furnish requested information to the Charging Party Briefs were filed by the General Counsel and the Respondent after the close of the hearing On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS Island Creek Coal Company and Laurel Run Mining Company are engaged in the mining and nonretail sale of coal and related products in the State of West Virginia During the 12 month period preceding February 1987, Island Creek sold and shipped in excess of $50 000 of its products to points outside the State During the same period, Laurel Run Mining Company sold products valued in excess of $50 000 to Virginia Electric Power Company, a West Virginia enterprise engaged in inter state commerce I find that Island Creek and Laurel Run are employers within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that United Mine Workers of America District 31 is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The principal witness at this hearing was Jerry Miller, vice president of United Mine Workers District 31 He spoke in support of the complaint for 136 pages of testi mony recorded He spoke in ambiguous language mixed his supposed statements of fact with arguments, reversed his direct testimony a number of times and in general was not an understandable or reliable witness Were I to attempt to use his language here, the reader would have difficulty understanding what this case is about Prob lems of this kind are always resolved by resorting to the basic principles of the Act in plain language in examining the complaint itself in the light of those fundamental con cepts The pertinent facts are plain and undisputed between the General Counsel and the Respondent Company or Companies For many years at least as far back as 1970 Laurel Run Mining Company has operated a coal mine in West Virginia Its employees have been since that time represented by United Mine Workers District 31 under regular precise bargaining contracts Laurel Run was for years owned by Virginia Electric Power Company which took and used the coal mine by Laurel Run In 1986 VEPCO sold the Laurel Run Company and its mining property to a company called Occidental Pe troleum Occidental is a worldwide organization with all kinds of business, many of them in separate corporate names, in subcompanies all controlled by the parent or ganization One of its many companies is called Island Creek Coal Company which for some time has owned and operated two mines in the general West Virginia area in which the Laurel Run Mine is also located these two mines are called Dobbin and North Branch Island Creek too has since 1969 been under regular contract with United Mine Workers District 31 the Union repre renting its employees at these two places After several months of talking experimentation, and negotiations, the deal between VEPCO and Occidental 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD finalized on 15 September 1986. In order to operate the former Laurel Run Mine, Occidental placed that proper- ty in the name of one of its subsidiaries, called Canaan Mining . For operational purposes the functioning of the Laurel Mine was placed in the hands of the Island Creek Company. From September 19136 to the day of the hear- ing in August 1987 management of the mine consisted of former lower managers who had worked for Laurel Run Mining Company and upper management employees of the Island Creek Company. Island Creek considered the Laurel Mine employees as covered by its own contract with District 31. In fact, it was agreed by all parties at the hearing that Island Creek gave those employees what is called "panel rights," i.e., the right to go from one of its mines to its other mines if work is short at one place. This was pure application of the District 31 contract to all Island Creek operations, including the new one. That is how matters stood at the time of the hearing-the present employer, whatever its name, as being bound by the United Mine Workers contract. A very important fact, one virtually determinative of this entire case, must be emphasized at this point. Throughout the entire period of these events, from the summer of 1986 to the day of the hearing a year later, not a single grievance was filed by the Union against any of the many companies mentioned in Miller's extended testimony. Nor was any suit brought of any kind. This means that the Union's contract with the named Re- spondents-Laurel Run and Island Creek-has been hon- ored in every respect. Stated more precisely in terms of Board law, it means that where the employees' condi- tions of employment were involved-the sole concern of any union protected by this statute-the Union had no reason to complain at all. This reality takes on a special significance in this case because during the summer of 1986 the employee com- plement at Laurel Run was reduced by over 200 employ- ees. Where its mine used about 300 employees before all this happened there were only about 87 at the time of the hearing. I do not know why such a reduction in force took place. There is unexplained testimony about "work stoppages," "unauthoriz:ed strikes," in violation of the no-strike clause in the District 31 contract having taken place. There is talk in the record about "nervous working conditions," "damage: suits," etc. I know noth- ing about all that, but the fact remains that the Union never complained-either to the predecessor or to the successor, about their treatment of the employees, about their honoring all the terms of the collective-bargaining agreement in effect. This is what no filing of any griev- ances or suits means. The union contract, placed in evi- dence, covers 218 pages printed. Had the Employer- either Laurel Run or Island Creek, the Respondents named in this complaint-violated a single clause in that contract, surely the Union would have done something about it. It did not! In justification of its demand for information from the Respondents, Miller relied on only one clause in the Union's contract, which provides as follows: In consideration of the Union's execution of this agreement, each employer promises that its oper- ations covered by this agreement shall not be sold, conveyed, or otherwise transferred or assigned to any successor without first securing the agreement of the successor to assume the employer's obliga- tions under this agreement. Immediately upon the the conclusion of such sale, conveyance, assignment or transfer of its operations, the employer shall notify the Union of the transaction. Such notifica- tion shall be by certified mail to the secretary treas- urer of the International Union and shall be accom- panied by documentation that the successor obliga- tion has been satisfied. If there is one thing about which Miller was certain as soon as he learned that Island Creek had taken over the Laurel Run Mine, it is that as as successor it was bound to honor the contract with District 31. He is the vice president of District 31; he had in his hands Island Creek's contract with District 31; he knew, at all times, that the new takeover company was fulfilling the con- tract in every jot and tittle. It was exactly the same con- tract that was used to bind the predecessor. And he was always assured that Island Creek had no intention of vio- lating the contract, as in fact it did not. Miller was lying at the hearing. It is enough to comment that at one point in his testimony he plainly said a reason he wanted infor- mation about the doings of Occidental, a company in no way involved with the operation of this mine, was so he could go to the Internal Revenue Service and charge it with illegal income tax evasion. What does a parent com- pany's income tax payment have to do with the condi- tions of employment of the employees that a union repre- sents? To ask the question is to answer it. A final comment about the law before disposing of this case. Every union established as a representative of a unit of employees has a right to obtain from the employ- er all information relating to the conditions of employ- ment of those employees. This means the relationship be- tween the worker and the owner of the business-how much he is paid, what his job retention rights are, what his profit-sharing or pension rights benefits may be, his safety in the workplace, etc. Whatever the various condi- tions may be, they are always directed to the immediate relationship between employer and employee. Anything that does not touch on that relationship is beyond the Union's right to inquire into. This fundamental scheme of the statute is so old as to require no citation. We come to the demands for information on the Re- spondents. The most important documents that the Union said it had a right to have its hands on is what it called the "Agreement or Plan of Reorganization and Merger, dated September 15, 1986, among Occidental Petroleum Corporation, Canaan Mining Company and Virginia Electric Power Company." This was the ar- rangement whereby Occidental bought the Laurel Run Mining Company from VEPCO. The Union asked for these documents on 4 December 1986. By that time the Union knew that Island Creek was operating the mine on behalf of the purchaser; it knew that Island Creek was bound by a contract with District 31, as had been Laurel Run Mining Company, and therefore knew absolutely that the seller had not at all violated its contract with ISLAND CREEK COAL CO that Union Why did it want those documents? What did they have to do with the conditions of employment '- if I may again stress that critical phrase-of the employ ees the Union represented? At first the Respondent refused to produce those doc uments, saying they contained confidential data that they wanted to keep private After general talks and meetings, the Respondent agreed to show them to the Union, and did so The union representatives looked them over, made copious notes of what they contained, and then again insisted on making full copies of them all In the end, to quiet the dispute the Respondents even agreed to that suggestion but only on condition that the union sign a Confidentiality Agreement, i e, a written promise not to divulge any information there contained to anyone except possibly an arbitrator in case of any grievances which later might be filed With the Union refusing to bind itself to that promise, the complaint in this case re sulted In light of all the related facts of this case, I do not think the arrangement made between VEPCO and Occi dental was any concern of the Union Asked, at the hear ing why he wanted those documents in full in their original, Miller testified as follows Q What else can you tell me with regard to the confidentiality agreement Mr Miller? A I told you that the fact that we couldn t dis close the information to anyone would prevent us, in the event that these documents indicated that Island Creek can-had broken the law, the Internal Revenue Code or the Antitrust Laws We couldn t even turn those documents over the Federal Gov ernment if we determined that it happened Q Okay Isn t it a fact, Mr Miller that you used the IRS and the Antitrust Division of the Justice Department as simply examples of other people that you would like to be able to make those documents tog A I think I said, for example, if we discovered that these documents were in violation of Internal Revenue Code or the Antitrust Laws we couldn t disclose those to those agencies Q Okay And did I during that conversation, indicate that it was the Company s position that your obligation was to enforce the contract rather than to delve into other matters outside the collec tive bargaining agreement? A You told me that This statute does not authorize the employees collec tive bargaining agent to act as enforcer of other govern mental laws against the employer i I The following testimony by Miller on this part of the complaint is practically incredible Q Have you discussed your notes regarding the documentation that you ve been provided and allowed to look at with an attorney? A Yes sir Q And who was the attorney? A I ve discussed those notes with Ms Levine of the National Labor Relations Board and with Ms Fleischauer who is General Counsel for District 31 495 On 16 February 1987, the Union asked for a copy of the Annual Budget Report submitted on behalf of Laurel Run Mining Company The Respondents' posi tions was that what it proposed to spend in the future, how it intended to program its expenditures and produc tion, and other costs, is not a proper subject for the bar gaining agent of its employees to probe into Budget means money, not just how much coal the mining com pany hopes to produce in the future The Respondents refused to reveal the future budget plans, and the com plaint calls this refusal an unfair labor practice At the hearing Miller testified on direct examination that that budget report ' was necessary to protect the rights of the union members Later, on cross examina tion, the witness reversed himself Now he explained that all he wanted to be told was how much coal the Re spondent intended to mine, that he did not mean to ask for financial information Ask did he tell that to manag ing agents when they together discussed the demands, he said no " It will not do for the principal witness in sup port of a complaint to doubletalk that way All Miller proved was that his real intention during those events was to harass the Respondent for reasons that I do not understand It is a fact that for some reason disaster hit this mine When over 200 employees lose their jobs within a few months, one can understand their Union s attempt to do something to help them regain employ ment But however laudable that purpose may be it cannot escape Board law as to the rights of unions Again it all goes back to the beginning The Respond ents-whether it be the companies named in the com plaint or the big, overhead, parent organization that con trol them-did nothing wrong They honored the Union s contract in every respect at all times Never was a single grievance filed Finally Miller injected extraneous elements at the hearing that in the end proved to have nothing to do with this complaint A number of times he talked about a company called Buffalo Mining and, in one way or an other, indicated it was joined to Laurel Run, or Island Creek the Respondents here His implication was clear that the unionized employers used the nonunion compa ny to mine their coal thereby outrageously violating their contracts with District 31 Of course, as already stated no grievance was filed If there is one contract violation United Mine Workers would not stand for it is the hiring, by a unionized mining company of nonunion miners to do that work At the hearing Miller said Buffalo Mining was actual ly performing work at the Laurel Run Mining Co Q Are they still there do you know? A Yes sir " Again in his direct testimony, he said he understood Buffalo was mining on the Laurel run property, what they called the Ash Pit site On cross examination Miller said that at a conference with management before the hearing, he was shown a map which revealed that Buffalo Mining worked on Q Has any attorney indicated to you that there was any problem with the Internal Revenue Service or with the Antitrust Division of the Justice Department for example? A They have not 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD property adjacent to that of Laurel Run I believe we were told that Buffalo Mining s operations started at an area that began right where Laurel Run quit I believe that s what we were told This was a complete reversal of his earlier statement Then came the usual doubletalk by Miller Q Yes, sir And it was not the old works or the previous operations that Laurel Run had mined, isn t that correct? A Well now, that depends on how you couch that I believe I told you that we were told that Laurel Run mined up to a particular point and stopped for whatever reason At the point they stopped is the point that Buffalo began Now I don t know whether Laurel run was supposed to have mined there or not I have no way of knowing that On this record it is not possible to say with any accu racy just what work where or when Buffalo Mining Company does or for that matter , to whom it sells its nonunion product All I can say is that there is no reh able evidence on which it can be found that either of the Respondents took work away from their employees that was covered by the District 31 contract to give it to a nonunion employer or employees Miller s testimony as to Buffalo Mining does not help support this complaint at all Beyond the foregoing all that the Union requested of the Respondents was given to it [Recommended Order for dismissal omitted from pub lication ]