IronTiger Logistics, Inc.

324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IronTiger Logistics, Inc. and International Associa- tion of Machinists and Aerospace Workers, AFL–CIO. Case 16–CA–027543 March 25, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN On October 23, 2012, the Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 236. Thereafter, the Respondent filed a petition for re- view in the United States Court of Appeals for the D.C. Circuit, and the General Counsel filed a cross-application for enforcement. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision and dismissed as moot the General Counsel’s cross-application for en- forcement. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein. Accordingly, we affirm the judge’s rul- ings, findings, and conclusions and adopt the judge’s recommended Order to the extent and for the reasons stated in the Decision and Order reported at 359 NLRB 236, which is incorporated herein by reference.1 1 We shall substitute a new notice in accordance with Durham School Services, 360 NLRB 694 (2014). Member Johnson agrees with the finding that the Respondent violat- ed Sec. 8(a)(5) and (1) by failing to respond to the Union’s information request in a timely manner. A party cannot meet its statutory duty to bargain by simply refusing to respond to requests for presumptively relevant information, even if the party is not ultimately required to provide the information. By way of analogy, a party cannot ignore requests for privileged information; even though the party may have a defense to ultimately providing the information sought, there is a duty to communicate the asserted privilege to the requesting party. More broadly, a party simply cannot ignore a discovery request in civil litiga- tion, even though there might be valid reasons to ultimately resist the request. Thus, Member Johnson sees no reason why a different stand- ard is appropriate where presumptively relevant, but ultimately irrele- 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to respond to information re- quests made by International Association of Machinists and Aerospace Workers, AFL–CIO, in a timely manner. 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. IRONTIGER LOGISTICS, INC. The Board’s decision can be found at www.nlrb.gov/case/16-CA-027543 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. vant, information is sought. Although the duty to bargain in good faith, and the derivative duty to provide information, are qualitatively differ- ent than civil discovery obligations, they are like obligations in that they all impose some affirmative duty to act once a request has been made. However, in circumstances different from this case, the concept of what constitutes a reasonably quick response satisfying the duty to provide information should be tempered by recognizing the potential difficulty of determining that no information actually exists. In that regard, it generally takes longer to determine the absence of something than the presence of something. Here, however, this case does not involve a Respondent that simply took a long time to discover ultimate- ly that there was no information on the requested topic. 362 NLRB No. 45