Strategic Resources, Inc.

STRATEGIC RESOURCES, INC. 451 364 NLRB No. 42 Strategic Resources, Inc. and International Associa- tion of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24. Cases 19–CA– 070217, 19–CA–070224, 19–CA–072173, 19–CA– 072184, 19–CA–077901, 19–CA–088406, 19–CA– 103576, 19–CA–111874 July 12, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On February 4, 2015, Administrative Law Judge John J. McCarrick issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, to 1 There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to provide and unreasonably delaying in providing information to the International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (Union), by failing to meet with the Union at reasonable times and places for bargaining, by refusing to bargain in good faith with the Union over a confidentiality agreement, protective order, or other appropriate procedure to address confidentiality concerns of the Respondent, by taking the position that it reached impasse with the Union in bargaining for a confidentiality agreement, and by withdraw- ing recognition from the Union as the exclusive collective-bargaining representative of bargaining unit employees on August 19, 2013. There are no exceptions to the judge’s dismissal of the remaining complaint allegations. Further, there are no exceptions to the judge’s finding that the Regional Director was justified in revoking a January 2013 settle- ment agreement between the parties. 2 For the reasons stated by the judge, we adopt his findings that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally changing the formula for calculating bargaining unit employees’ holiday pay. In particular, we agree with the judge that the Respondent established a practice of paying unit employees non-prorated holiday pay. Even assuming, however, that the Respondent’s distribution of 8 hours’ pay for the 3 paid holidays occurring between April and September in 2011 was insufficient to constitute an “established practice,” we would still find that the Respondent violated the Act by unilaterally deciding to prorate holiday pay as of October 2011. As the judge noted, by letter dated May 12, 2011, the Respondent recognized the Union as the ex- clusive collective-bargaining representative of unit employees and acknowledged that, as of that date, it had implemented its initial terms and conditions of employment for the unit. One of these terms materi- alized in the form of a recurring distribution of 8 hours’ holiday pay to unit employees for Memorial Day, Independence Day, and Labor Day in 2011. Thus, the Respondent’s subsequent unilateral change to that term, by which it implemented a prorated holiday-pay formula without giving the Union notice or an opportunity to bargain over the change, violated Sec. 8(a)(5) and (1). See Bronx Health Plan, 326 NLRB 810, amend the remedy, and to adopt the recommended Order as modified and set forth in full below.3 AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by unilaterally altering its formula for calculating bargaining unit employees’ holiday pay, we shall order the Respondent to make bargaining unit employees whole. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medi- cal Center, 356 NLRB 6 (2010). In addition, in accordance with our recent decision in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), we shall order the Respondent to compensate bargaining unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee. Although we have found that the Respondent has vio- lated Section 8(a)(5) and (1) by unlawfully refusing to furnish information requested by the Union in 2012 and 2013 concerning the terms and conditions of bargaining 813 (1998), enfd. 203 F.3d 51 (D.C. Cir. 1999); Banknote Corp. of America, 315 NLRB 1041, 1041 (1994), enfd. 84 F.3d 637 (1996), cert. denied 519 U.S. 1109 (1997). Member Miscimarra agrees that the Respondent violated Sec. 8(a)(5) and (1) when it changed one of its initial terms and conditions of employment without giving the Union notice and an opportunity to request bargaining. He does not reach or pass on his colleagues’ finding that paying non-prorated holiday pay had become an established practice at the time Respondent changed it. In its exceptions, the Respondent argues that it lawfully began pro- rating holiday pay in order to correct an error caused by employees who, it contends, incorrectly entered their time in dereliction of what the Respondent instructed them to do. The Respondent waived that argument by failing to raise it before the judge. See Yorkaire, Inc., 297 NLRB 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990). We would nev- ertheless reject the Respondent’s argument, as there is insufficient evidence that employees improperly or erroneously claimed 8 hours’ holiday pay against the Respondent’s clear policy and instruction. 3 We have amended the remedy and modified the judge’s recom- mended Order to more closely conform to the Board’s standard remedi- al language, to the violations found, and to the circumstances of this case, as explained herein. We shall substitute a new notice to conform to the Order as modified. We have corrected several inadvertent typographical errors made by the judge in his decision. These errors have not affected our disposition of this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452 unit employees’ employment, we must separately con- sider whether it is appropriate to order the Respondent to provide that information to the Union at this time. The Union requested that information to assist it in its then- ongoing contract negotiations with the Respondent. However, it appears from the record that while the Re- spondent continues to function as a corporate entity, its contract with the U.S. Department of Defense for trans- portation services at Joint Base Lewis McChord (JBLM) has expired, it no longer operates there, and it does not employ any bargaining unit employees.4 Thus, con- sistent with our decision in Boeing Co., 364 NLRB 158 (2016), we refer the issue of the Union’s need for the information to the compliance stage of these proceed- ings. Accordingly, we will order the Respondent to pro- duce the requested information, unless the Respondent establishes in the compliance proceeding, under the pro- cedure set forth in Boeing Co., that the Union has no need for the information. Further, when a respondent has committed violations of the Act, the Board typically orders it to post, for 60 days, a notice to employees in conspicuous places within its facility, including all places where notices to employ- ees are customarily posted. However, in this case, be- cause it appears that the Respondent neither maintains a presence at JBLM nor employs any bargaining unit em- ployees, physical posting of the notice is not a feasible remedial option, and the General Counsel has conceded as much. Accordingly, we shall decline to order the Re- spondent to physically post the notice. The Respondent and the General Counsel agree, how- ever, that it is appropriate for the notice to be mailed, and Board precedent “provides for the mailing of individual notices when posting will not adequately inform the em- ployees of the violations that have occurred and their rights under the Act.” Parkview Hospital, Inc., 343 NLRB 76, 76 fn. 3 (2004) (citing Indian Hills Care Cen- ter, 321 NLRB 144 (1996)). Accordingly, we shall order the Respondent to mail a copy of the attached notice marked “Appendix” to the Union and to the last known addresses of the bargaining unit employees employed by the Respondent at any time from the onset of the unfair labor practices until the date the notices are mailed. 4 The Respondent did not argue during the hearing before the admin- istrative law judge that the production of the information should not be ordered. Rather, it asserted in its Exceptions to the Administrative Law Judge’s Decision that the ALJ erred by ordering the production of the information, based on the General Counsel’s statement in its post- hearing brief to the ALJ that the Respondent no longer employed the employees. The Respondent has excepted to the judge’s Order re- quiring it to distribute the notice electronically in accord- ance with J. Picini Flooring, 356 NLRB 11 (2010). The Respondent contends that the judge’s Order is inappro- priate because mailing the notice alone will be sufficient and because the Respondent no longer employs bargain- ing unit employees. In J. Picini Flooring, supra, the Board announced that to effectively protect and enforce employees’ rights under the Act, the Board will order electronic distribution of the notice “if the Respondent customarily communicates with its employees by such means.” Thus, because the Board applies the standard remedy set forth in J. Picini Flooring without regard to the expected effectiveness of alternative forms of distri- bution, such as mail distribution, the Respondent’s con- tention that a mailed notice will be sufficient is of no moment. Even though no bargaining unit employees are currently employed by the Respondent, we find that it will best effectuate the policies of the Act to order the Respondent to distribute the notice electronically, if the Respondent customarily communicated with its former employees by electronic means.5 ORDER The National Labor Relations Board orders that the Respondent, Strategic Resources, Inc., McLean, Virgin- ia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (Union) as the exclusive collective-bargaining representative of em- ployees in the following unit: Included: All full-time and regular, part-time employ- ees employed by the employer out of the following Joint Base Lewis McChord, Washington operations, Warrior Transition Battalion (WTB), 1st Joint Mobili- zation Battalion (JMB), and Transportation Motor Pool (TMP) who are employed as dispatchers and drivers of a vehicle in the transportation of military personnel. Excluded: All confidential and managerial employees, guards and supervisors as defined in the Act. (b) Changing its formula for calculating bargaining unit employees’ holiday pay without first notifying the Union and giving it an opportunity to bargain. 5 In accordance with our discussion in J. Picini Flooring, questions as to whether a particular type of electronic distribution is appropriate may be resolved at the compliance stage. STRATEGIC RESOURCES, INC. 453 (c) Failing and refusing to provide and unreasonably delaying in providing information to the Union that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of bargaining unit employees. (d) Failing and refusing to meet with the Union at rea- sonable times and/or places for bargaining. (e) Failing and refusing to bargain in good faith with the Union for a confidentiality agreement, protective order, or other procedure to address Respondent’s al- leged confidentiality concerns. (f) Failing and refusing to bargain in good faith with the Union by taking the position that it had reached im- passe with the Union on January 15, 2013, over bargain- ing for a confidentiality agreement, protective order, or other procedure to address Respondent’s alleged confi- dentiality concerns. (g) Failing and refusing to bargain in good faith with the Union by withdrawing recognition of the Union as the exclusive collective-bargaining representative of bar- gaining unit employees on August 19, 2013. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole any employees for lost wages and other benefits as a result of its unlawful unilateral change to the formula for calculating bargaining unit employees’ holiday pay, in the manner set forth in the amended rem- edy section of this decision. (b) Furnish the Union with the information it request- ed on January 24, February 21, February 28, March 13, March 15, 2012; February 26, April 22, and May 2, 2013, unless the Respondent establishes in the compli- ance proceeding that the Union has no ongoing need for this information. (c) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar year for each employee. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, dupli- cate and mail, at the Respondent’s own expense, a copy of the attached notice marked “Appendix”6 to the Union and to all former bargaining unit employees employed by the Respondent at any time since September 5, 2011. The notice shall be mailed to the last known address of each of the employees after being signed by the Re- spondent’s authorized representative. In addition to mailing paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicated with its former em- ployees by such means. (f) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES MAILED 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 mail 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 bargain in good faith with International Association of Machinists and Aero- space Workers, AFL–CIO, District Lodge W-24 (Union) as the exclusive collective-bargaining representative of employees in the following unit: 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the Na- tional Labor Relations Board” shall read “Mailed Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454 Included: All full-time and regular, part-time employ- ees employed by the employer out of the following Joint Base Lewis McChord, Washington operations, Warrior Transition Battalion (WTB), 1st Joint Mobili- zation Battalion (JMB), and Transportation Motor Pool (TMP) who are employed as dispatchers and drivers of a vehicle in the transportation of military personnel. Excluded: All confidential and managerial employees, guards and supervisors as defined in the Act. WE WILL NOT change our formula for calculating bar- gaining unit employees’ holiday pay without first notify- ing the Union and giving it an opportunity to bargain. WE WILL NOT fail and refuse to provide or unreasona- bly delay in providing information to the Union that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of bargaining unit employees. WE WILL NOT fail and refuse to meet with or refuse or delay proposing dates to negotiate with the Union. WE WILL NOT fail and refuse to bargain in good faith with the Union regarding any confidentiality or non- disclosure agreements. WE WILL NOT unlawfully withdraw recognition from the Union and fail and refuse to bargain with the Union as the exclusive collective-bargaining representative of bargaining unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make whole all employees affected by our unlawful unilateral change to the formula for calculating holiday pay. WE WILL provide the Union with the information it re- quested on January 24, February 21, February 28, March 13, March 15, 2012; February 26, April 22, and May 2, 2013, unless the Respondent establishes in the compli- ance proceeding that the Union has no ongoing need for this information. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year for each employee. WE WILL mail a copy of this notice to the Union and all former bargaining unit employees who we employed at any time since September 5, 2011. STRATEGIC RESOURCES, INC. The Board’s decision can be found at http://www.nlrb.gov/case/19-CA-070217 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Mara-Louise Anzalone, Esq. and Rachel Cherem, Esq., for the General Counsel. Mark A Hutcheson, Esq. and Peter Finch, Esq. (Dwight Wright TremaineLLP), for the Respondent. Kevin Cummings, Grand Lodge Representative, for the Charg- ing Party IAMAW. DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Seattle, Washington, on March 25–27 and August 5 and 6, 2014, upon the Order consolidating cases, consolidated complaint, and notice of hearing and partially revoking settle- ment agreement, as amended (the complaint), issued on No- vember 27, 2013, by the Regional Director for Region 19. The complaint alleges that Strategic Resources, Inc. (Re- spondent) violated Section 8(a)(5) and (1) of the Act by making unilateral changes to its formula for calculating holiday pay for bargaining unit employees, by unilaterally changing paid wait- ing time, and by promulgating a new work rule requiring em- ployees to report their time daily into Respondent’s “Deltec” system. Respondent is alleged to have violated Section 8(a)(5) of the Act by failing to furnish or unreasonably delaying in furnishing the International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (the Union) with information necessary to its function as bargaining unit repre- sentative or to monitor terms of the settlement agreement pre- viously reached. Respondent is also alleged to have violated Section 8(a)(5) of the Act by failing to meet at reasonable times and places for bargaining, by failing to bargain with the Union for a confiden- tiality agreement, protective order, or other procedure to ad- dress Respondent’s confidentiality concerns, by taking the posi- tion that impasse had been reached in bargaining with the Un- ion on January 15, 2013, concerning a confidentiality agree- ment, and by withdrawing recognition from the Union as exclu- sive bargaining representative of its bargaining unit employees on August 19, 2013. STRATEGIC RESOURCES, INC. 455 The complaint also sets aside a settlement agreement reached between the parties on January 30, 2013, based upon the com- plaint1 issued by the Regional Director for Region 19 on No- vember 28, 2012, in Cases 19–CA–070217, 19–CA–070224, 19–CA–072173, 19–CA–072184, 19–CA–077901, and 19– CA–088406 for noncompliance and for the commission of further unfair labor practices. Respondent filed a timely answer to the complaint stating it had committed no wrongdoing. FINDINGS OF FACT Upon the entire record, including the briefs from counsel for the General Counsel and Respondent, I make the following findings of fact. I. JURISDICTION Respondent stipulated2 that it is a Virginia corporation locat- ed in McLean, Virginia, with an office and place of business on Joint Base Lewis McChord (JBLM) in the State of Washington where it has been engaged in the business of providing trans- portation support services to the U. S. Department of Defense. During the last 12 months Respondent has provided services to the U. S. Department of Defense valued in excess of $50,000. It further stipulated that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act.3 II. LABOR ORGANIZATION Respondent admitted in its answer and I find that Interna- tional Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (the Union), is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts From March 12, 2010, until April 2011, Logistics Solutions Group, Inc. (LSG), under contract with the U.S. Department of Defense, provided transportation services for Army troops at Joint Base Lewis McChord (JBLM) in the State of Washington. On March 12, 2010, the Board certified International Associa- tion of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (the Union) as the exclusive collective-bargaining representative of the LSG employees in the following unit: Included: All full-time and regular, part-time employees em- ployed by the employer out of the following Joint Base Lewis McChord, Washington operations, Warrior Transition Battal- ion (WTB), 1st Joint Mobilization Battalion (JMB), and Transportation Motor Pool (TMP) who are employed as dis- patchers and drivers of a vehicle in the transportation of mili- tary personnel. Excluded: All confidential and managerial employees, guards and supervisors as defined in the Act. 1 GC Exh. 1((y). 2 GC Exh. 57. 3 Id. Since about April 27, 2011, Respondent, under contract with the U.S. Department of Defense, replaced LSG and has provid- ed transportation services for Army troops at Joint Base Lewis McChord (JBLM) in the State of Washington. Respondent has continued LSG’s operation in unchanged form and hired a ma- jority of the individuals in the above-described bargaining unit who were employed by LSG.4 Respondent further stipulated5 that on May 12, 2011, it recognized the Union as the exclusive collective-bargaining representative of the above-described unit of employees. On May 12, 2011, Respondent notified the Un- ion that it had implemented initial terms and conditions of em- ployment and recognized its obligation to negotiate a new col- lective-bargaining agreement. 1. Respondent’s management and bargaining team Randy Cox (Cox) is the project manager for the CSBS Con- tract, which involves 11 total task areas, including the transport or movement branch function performed by bargaining unit employees. Steve White was Respondent’s movement branch chief. Before White, Koral Coon (Coon) served in that role. Anita Lawson (Lawson) is Respondent’s corporate director of human resources and training. Respondent has had a series of attorneys as its lead negotia- tors during bargaining with the Union. From approximately September to December 2011, Respondent was represented by Charles Thompson (Thompson) from December 2011 to about January 2013, Respondent retained Warren Martin (Martin). Since at least January 2013, Respondent has been represented in bargaining by its current counsel, Mark Hutcheson (Hutche- son). 2. The Union’s officers and representatives Kevin Cummings (Cummings) has been the Union’s grand lodge representative for over 7 years. In September 2011, Cummings took over negotiations with Respondent from James (Bud) Michel (Michel). Union Business Representative Wayne Thompson (Thompson) assisted Cummings. 3. Posthearing evidentiary rulings On March 25, 2014, Respondent offered into evidence as Respondent’s Exhibit 4 a slide from Respondent’s new hire and orientation Power Point. After voir dire examination, counsel for the General Counsel stated that she did not have an objec- tion to the exhibit, but requested an opportunity to review the entire document that had been called for production under the General Counsel’s subpoena but had not yet been provided. I admitted Respondent’s Exhibit 4 into the record subject to Re- spondent providing the entire document to the General Counsel, who could then offer the entire document into the record. On August 6, 2014, the last day of the hearing, Respondent had yet to comply with the General Counsel’s subpoena and provide the entire new hire and orientation Power Point. Prior to the close of the hearing, I noted that the General Counsel had not yet had an opportunity to review or offer into evidence the complete new hire and orientation Power Point document. 4 GC Exh. 6. 5 Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456 Accordingly, I allowed counsel for the General Counsel until August 29, 2014, to offer it as General Counsel’s Exhibit 79, subject to any objection by Respondent. Also on August 6, 2014, Respondent offered into evidence Respondent’s exhibits 18 through 22. These exhibits consist of over 300 pages of summary spread sheets. Respondent’s ex- hibit 18 purports to be a summary of its form 2401 dispatch sheets for the period April 27 through December 31, 2011, exhibit 19 claims to be a summary of nonsurge missons for 2011, exhibit 20 is a summary of 2401 forms for 2012, exhibit 21 is a summary of nonsurge missons for 2012, and exhibit 22 purports to be a summary of 2401 forms for 2013. At the hearing, counsel for the General Counsel objected to the introduction into the record of Respondent’s exhibits 18–22 on the ground that they did not comply with Federal Rule of Evidence 1006 because Respondent had not given enough time for the General Counsel to determine if the underlying docu- ments supported the purported summaries. The General Coun- sel also objected to the receipt of Respondent’s exhibits 19 and 21, as they constituted compliance-related information. At the hearing, Respondent contended that it had already provided the General Counsel with all of the underlying docu- ments relied on in creating Respondent’s exhibits 18 through 22, and that the exhibits were relevant. Since Respondent had only belatedly provided counsel for the General Counsel with four boxes of documents, allegedly containing documents to support Respondent’s exhibits 18 through 22, I reserved ruling on Respondent’s exhibits 18 through 22 until I issued my deci- sion in order to provide the General Counsel an opportunity to review the underlying documents and file written objections to these exhibits. I also gave Respondent an opportunity to re- spond in writing to the General Counsel’s objections. On August 28, 2014, the General Counsel filed its offer of General Counsel’s exhibit 79 and counsel for the General Counsel’s objections to Respondent’s exhibits 18, 19, 20, 21, and 22. On September 5, 2014, Respondent filed its reply. a. The Power Point document When Respondent finally provided the full new hire and ori- entation Power Point, it was replete with redactions that I had not authorized. However, since there is no objection from the General Counsel to the redactions and in the absence of any objection to its receipt into the record from Respondent, I will receive General Counsel’s Exhibit 79. b. Respondent’s summaries In its motion, counsel for the General Counsel argues that Respondent’s exhibits 18 through 22 should be rejected. As to exhibits 19 and 21, since backpay is not properly in issue at this time, the General Counsel urges rejection of these exhibits. As to exhibits 18, 20, and 22, the General Counsel takes the posi- tion that Respondent failed to provide dispatcher logs, time- cards, and drivers’ logs for the entire time period in question, making it impossible to verify the accuracy of the summaries. And that the summaries are not supported by documents but by assumptions made by the maker of the summary, Coon. Respondent argues that exhibits 18 through 22 are supported by documents, claiming it provided all of the supporting docu- ments to the General Counsel. It also contends that exhibits 19 and 21 are not compliance documents but show that there was no change in wait times for drivers in outbound THA missions in defense to complaint allegation 6(b). Federal Rule of Evidence 1006, provides: The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or pho- tographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reason- able time and place. And the court may order the proponent to produce them in court. Under Rule 1006, the summary is admissible only if the un- derlying documents would be admissible and made available to opposing counsel for examination and a proper foundation for the summary is established. U.S. v. Pelullo, 964 F.2d 193, 204 (3d Cir. 1992). In Monfort of Colorado, Inc., 298 NLRB 73, 82 fn. 37 (1990), the Board advised that the judge should carefully weigh the circumstances under which the summary was pre- pared and whether it reflects the author’s subjective view or interpretation of underlying information. Respondent’s movement branch chief, Koral Coon (Coon), created the summaries which comprise Respondent’s exhibits 18 through 22. Coon stated that she created Respondent’s ex- hibits 18–22 from the form 2401s,6 dispatcher logs,7 Deltek timesheets,8 timecards or punch cards,9 and drivers’ logs.10 According to Coon, Respondent’s Exhibit 18 not only re- flects information from the 2401 forms but includes infor- mation she created. Thus, column one heading “line number” does not reflect a number of a particular form 2401 but is a numbering system she created. The column heading “SURGE” does not come from any underlying document but is her own interpretation of other unspecified documents.11 The column heading “Does not count as Group THA because” it was also created by Coon.12 Coon did not explain how or why she reached this particular conclusion for each mission. It is not a heading on any of the underlying documents. Coon testified that Respondent’s exhibit 19 represents non- surge missions.13 While this summary has the same headings as Respondent’s exhibit 18, Coon added additional headings next to “per driver information” starting with “driver name,” information that apparently came from driver’s logs, punchcards, and Delteck time, but without specifying which underlying document is being summarized. In addition, Coon added headings for “hours gained and lost,” “per hour pay,” “health and welfare pay,” and “possible pay due.” Coon testi- 6 GC Exhs. 59–61. 7 GC Exhs. 62–63. 8 GC Exhs. 64–66. 9 R. Exh. 15. 10 R. Exh. 17. 11 Tr. 520–521, LL. 23–25 and 1–9. 12 Id. at p. 521, LL. 12–13. 13 Id. p. 523, LL. 18–24. STRATEGIC RESOURCES, INC. 457 fied that the “possible pay due” calculations are her own inter- preration of other records.14 None of the underlying documents contains a heading “Car- go/Passenger” column as set forth in Respondent’s Exhibits 18–22. While it is apparent that Coon gleaned this information from a variety of sources, it is nevertheless her conclusion not a summary of any underlying documents. Moreover, Respondent stipulated it did not use dispatcher logs in 2011 and could not locate dispatcher logs for 61 mis- sions in 2012 and 2013.15 Counsel for the General Counsel represents that many 2011 missions are classified as “surge” missions and almost all of the missions with missing dispatcher logs in 2012 and 2013 are classified as “surge” missions on Respondent’s summaries. Respondent’s Exhibits 20 and 22 are essentially the same as Respondent’s Exhibit 18 and Respondent’s Exhibit 21 is the same as Exhibit 19. c. Ruling on admissabilty of Respondent’s Exhibits 18–22 What Respondent has created in Respondent’s Exhibits 18– 22 are not summaries of documents as is contemplated in Fed- eral Rule of Evidence 1006 but rather a hybrid of both docu- ment summaries and Coon’s interpretation of what various other unspecified documents may represent. For the trier of fact these exhibits do not make the job easier but more difficult as I have to parse out of Respondent’s Exhibits 18–22 what is a true summary and what is Coon’s opinion. It is more reliable to review the underlying documents themselves, General Coun- sel’s Exhibits 3 and 58–66 as well as Respondent’s Exhibits 15–17, than to rely on these summaries. Following the Board’s admonition in Monfort of Colorado, Inc., 298 NLRB at 82 fn. 37, in weighing the circumstances under which the summaries were prepared, I find at least in part that they reflect the au- thor’s subjective view or interpretation of underlying infor- mation. Accordingly, I reject Respondent’s Exhibits 18–22 and will place them in the rejected exhibits file. 4. The alleged unfair labor practices Since the nature of this case does not lend itself to a chronol- ogy of the facts, I will discuss the facts and analysis in discrete sections as set forth in the complaint herein. B. Unilateral Changes Counsel for the General Counsel alleges that Respondent vi- olated Section 8(a)(5) of the Act by making certain unilateral changes to employees’ terms and conditions of employment without notice to or bargaining with the Union. 1. Holiday pay a. Facts Complaint paragraph 6(a) alleges that Respondent altered its formula for calculating holiday pay for bargaining unit employ- ees on or about September 5, 2011. 14 Id. p. 528, LL. 3–24. 15 GC Exh. 57, par. 15. Ausley testified that under LSG, drivers received prorated holiday pay. If a driver worked 40 hours the week before the holiday, they got 8 hours’ holiday pay. If the driver worked 20 hours the week before the holiday, they got 4 hours’ holiday pay. The parties stipulated that Respondent’s drivers were paid holiday pay for New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independ- ence Day, Labor Day, Columbus Day, Veterans Day, Thanks- giving Day, and Christmas Day.16 While Respondent’s employee orientation materials17 specify that employees would receive prorated holiday pay, Respond- ent’s project manager at JBLM, Cox, admitted that when Re- spondent began operations in April 2011, it began the practice of paying the unit employees 8 hours’ pay for each holiday regardless of how many hours they worked the previous week. Respondent’s payroll records18 reflect that this practice oc- curred over a 3-month period including Memorial Day, Inde- pendence Day, and Labor Day in 2011. However, at hearing, both Cox and Lawson claimed that paying employees 8 hours per holiday was an “error” and inconsistent with Respondent’s practices, but neither specified what type of error, how the error was discovered, why the error occurred, or whether they had informed the Union of this error Starting on October 10, 2011, Columbus Day, Respondent began prorating bargaining unit employees’ holiday pay as shown in Respondent’s payroll records.19 There is no evidence that the Union was given notice of this change or an opportunity to bargain over it. (Tr. 77–78.) b. The analysis General Counsel argues that Respondent’s change from nonproration of holiday pay to proration in October 2011, was done without notice to or bargaining with the Union and violat- ed Section 8(a)(5) and (1) of the Act. Respondent contends that the initial payment of full holiday pay was an administrative error and not a unilateral change citing Eagle Transport Corp., 338 NLRB 489 (2002), and Boeing Co., 212 NLRB 116 (1974). During the course of a collective-bargaining relationship an employer must refrain from making substantial and material unilateral changes concerning mandatory subjects of bargain- ing. Mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment. NLRB v. Katz, 369 U.S. 736 (1962). Changes to payment of wages, including holiday pay, are mandatory subjects of bargaining. Waxie Sani- tary Supply, 337 NLRB 303, 304 (2001); J. W. Rex Co., 308 NLRB 473, 497–498 (1992). In JPH Management, Inc., 337 NLRB 72, 73 (2001), the Board held that a mistaken wage increase granted on July 1 and rescinded on August 10 was a violation of Section 8(a)(5) of the Act as a unilateral change absent bargaining to impasse. Likewise in Atlantis Health Care Group (P.R.) Inc., 356 NLRB 140, 143 (2010), the administrative law judge found that the 16 GC Exhs. 57 and 57(a). 17 GC Exh. 79, p. 32. 18 GC Exh. 58. 19 GC Exhs. 64–66. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458 March 9 revocation of an erroneously granted February wage increase was an unlawful unilateral change and absent impasse or notice to and bargaining with the Union violated Section 8(a)(5) of the Act. Respondent’s reliance on Eagle Transport Corp., supra, and Boeing Co., supra, is misplaced. In each of those cases there was either a computer glitch resulting in a brief wage increase or a clerical error resulting in a simple misclassification of em- ployees who were never in the bargaining unit. Here, the alleged error lasted from April through September 2011, a period of 6 months. I find that having established a practice of paying bargaining unit employees nonprorated holi- day pay, Respondent was under an obligation to bargain with the Union before making a change to prorate holiday pay. By failing to do so, Respondent violated Section 8(a)(5) and (1) of the Act. 2. Change to paid waiting time for outbound THA missions a. Facts Complaint paragraph 6(b) alleges that on or about November 17, 2011, Respondent changed bargaining unit mission re- quirements, including reducing paid waiting time during THA missions. As part of Respondent’s duties under its contract with the Department of Defense, it transported outbound troops in buses to the airfield on JBLM. The area where the troops waited to board their outbound plane was known as the troop holding area or THA. Respondent’s bargaining unit employees drove the buses which carried the outbound troops from various loca- tions around JBLM to the THA. The drivers usually brought the troops to the THA about 2 hours before takeoff. Katherine Ausley (Ausley) worked as a lead driver and dispatcher in the bargaining unit first with LSG from 2006 to April 2011 then with Respondent from April 2011 to October 2013. Ausley was also a member of the Union and was on the Union’s bar- gaining team. Drivers were scheduled from day to day and received their driving schedule the day before they were sched- uled to drive. The 2401 form was the dispatch schedule for drivers, listing their assignments. As lead driver, Ausley com- municated with the dispatcher about what route to follow. Coon was Ausley’s supervisor. Cox supervised Coon. Ausley said that before June 2011, after dropping off the outbound soldiers at the THA, all buses waited 30 minutes at the THA after “wheels up.” The term “wheels up” referred to the time when the aircraft loaded with soldiers lifted off the runway at McChord Airfield. The drivers waited 30 minutes in the event the plane had to return to the airfield. Ausley testified that the exception to the 30-minute wait rule occurred when there was a “push” or “surge” of soldiers, i.e., when a large number of troops were being flown out of the THA at McChord requiring multiple aircraft. In a “push” the drivers dropped off the soldiers and immediately returned to JBLM for another load of troops. Ausley’s testimony that drivers waited at the THA on outbound missions for 30 minutes after wheels up until June 2011 was corroborated by bargaining unit driver Joel Davis. Ausley testified that in June 2011, the practice of waiting 30 minutes after “wheels up” changed. A dispatcher, either Aaron or Sheri, told Ausley that only the lead driver was to wait for 30 minutes after “wheels up.” About 2 weeks later Ausley was at the THA when all the buses were dropping troops and immedi- ately leaving for the transportation motor pool (TMP). A civil- ian department of defense employee, guiding the operations at the THA told Ausley that the buses were supposed to wait until 30 minutes after “wheels up.” Ausley testified without contra- diction that she called Coon and told her about the issue with the 30-minute wait period. Coon said, “Who do you work for? You work for SRI. You will do exactly what I tell you to do. You will send those buses back now.”20 (Tr. 43, LL. 18–20.) The dispatch forms 240121 for the period April 27 to June 20, 2011, reflect that there were 25 outbound THA missions that were not surges. The 2401 dispatch forms list the drivers as- signed to the THA missions. During the April 27–June 28, 2011 period Ausley is not listed as a driver at all. Joel Davis is listed as a driver on two of the 25 THA missions during this period of time. While it is clear from Respondent’s April through June 2011 payroll records22 that Ausley worked for Respondent, it is unclear from Ausley’s testimony if she worked as a driver or a dispatcher. Given that her name does not appear on the form 2401 dispatch records as a driver until at the earliest June 29, 2011,23 I will infer that during that period she worked for Respondent as a dispatcher. According to Coon, Respondent had no practice of requiring drivers to remain at the THA on outbound troop missions for 30 minutes after wheels up. Coon admitted that the Army might require drivers to remain at the THA after wheels up but that this was on a case-by-case basis. Respondent points to a 2401 form24 from LSG to show that in April 2011, LSG had no policy of having drivers wait at the THA for 30 minutes past wheels up for outbound THA mis- sions. The LSG 2401 shows the April 1, 2011 misssion of driver Root. The 2401 shows a wheels up time of 2:05 a.m. Root’s driver’s log for that mission show that he departed the THA at 11 p.m., precluding waiting til 30 minutes after wheels up. Similarly, the 2401 entry for driver Fox shows wheels up at 9:50 a.m. and he departs the THA at 7:40 a.m. Respondent’s August 2011 Movements Section standard op- erating procedures were written by Coon. The operating pro- cedures provide, “9. One person will be assigned to stay at THA, all other bus drivers will drop their pax of, and return to TMP.”25 Coon testified that this requirement was omitted from the LSG operating procedures which she also wrote. This poli- cy is reflected in the 2401 forms. After July 15, 2011, the 20 Tr. 43, LL. 18–20. 21 GC Exh. 59. There are no 2401 dispatch forms prior to April 27, 2011, in the record. 22 GC Exh. 64. 23 GC Exh. 59, pp. 176, 094, and 098 list a driver named Kathy. Ausley’s first name is Katherine. A driver named Ausley is not listed until p. 111 on July 14, 2011. 24 R. Exh. 14. 25 GC Exh. 55, p. 6. STRATEGIC RESOURCES, INC. 459 forms 240126 contain entries generally indicating only one driv- er out of several was to remain at the THA until wheels up. In a September 21, 2012 memo,27 Respondent announced a temporary change in waiting policy of allowing its drivers on outbound THA missions to wait at the THA until “wheels up.” Coon announced that this policy was to be in effect until com- pletion of construction at the McChord THA. This policy last- ed about 2 weeks. The only mention of all drivers staying at the THA for 30 minutes after wheels up is an entry in the December 21, 2012 driver’s dispatch form 2401 stating, “All drivers stay until ½ hour after wheels up.”28 After entering into a settlement agreement with the Board, in a January 2013 meeting, Coon told drivers that they would now be staying at the THA until 30 minutes after “wheels up” Respondent contends that Ausley was incompetent to testify regarding Respondent’s policies regarding how long to remain at the THA after wheels up. Respondent contends that only Coon is competent to give such testimony as she was the person responsible for conducting all troop movements. Coon also performed this function for LSG, Respondent’s predecessor. She wrote both the standard operating procedures noted above for Respondent and LSG. b. The analysis During the course of a collective-bargaining relationship an employer must refrain from making substantial and material unilateral changes concerning mandatory subjects of bargain- ing. Mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment. NLRB v. Katz, 369 U.S. 736 (1962). The Board has concluded that paid wait- ing times, are a mandatory subject of bargaining. Penn Tank Lines, Inc., 336 NLRB 1066, 1067 (2001). The starting point to establish a breach of Section 8(a)(5) of the Act for making a unilateral change to a mandatory subject of bargaining, requires the General Counsel to establish that Respondent has made a change to an extant term or condition of employment without notice to or bargaining with the Union. While the complaint alleges that on about November 17, 2011, Respondent reduced paid waiting time during THA mis- sions, in its brief the General Counsel contends that in June 2011, Respondent unilaterally rescinded its policy of paying all bargaining unit drivers for waiting 30 minutes following wheels up on outbound troop THA missions. General Counsel has attempted to show that when Respond- ent began operating at JBLM in April 2011, it established a practice of paying drivers for waiting 30 minutes after wheels up for outbound nonsurge THA missions. The evidence of this practice came in the form of testimony from bargaining unit drivers Ausley and Davis. Both Ausley and Davis testified that Respondent told them to wait for 30 minutes after wheels up at the THA when on nonsurge THA missions. 26 GC Exh. 59, pp. 113, 117–120, 122, 128–129, 023, 043, 304, 305, 324, 341, 285–286, 292, 057, 075; GC Exh. 60, pp. 057, 178–180. 27 GC Exh. 2. 28 GC Exh. 60, p. 412. However, contrary to Ausley’s testimony, the 2401 drivers’ dispatch forms for the period April to July 2011 are devoid of evidence that she drove any missions for Respondent at JBLM. While payroll records reflect she was employed by Respondent during this time, it is possible she worked during this period as a dispatcher, as she testified. As for Davis, from April to July 2011, he was assigned to only 2 of 25 outbound THA missions. Given Davis’ limited experience in driving only two THA missions from April to July 2011 and Ausley’s apparent absence of any such experi- ence, they were not in a position to know what Respondent’s policy was concerning waiting at the THA. Both Ausley and Davis testified that Respondent continued the LSG policy of having drivers wait 30 minutes after wheels up on outbound THA missions. Yet, the only objective evi- dence of the LSG policy reflects that in April 2011 LSG drivers did not wait 30 minutes after wheels up to leave the THA. Neither Ausley’s conversation with Respondent’s dispatcher in June 2011 that only the lead driver was to wait for 30 minutes after wheels up nor her conversation with a civilian department of defense employee that the buses were supposed to wait until 30 minutes after wheels up establish that Respond- ent had a policy in effect of allowing drivers to wait for 30 minutes after wheels up. Coon, after learning of the civilian employee’s conversation with Ausley, immediately told Ausley that she worked for SRI and that she would send those buses back now is consistent with Coon’s testimony that on occasion the Army sometimes told drivers to wait 30 minutes. Moreover, it is unlikely that these conversations happened in June 2011 as Ausley claimed. It is more likely that they oc- curred in late June or July 2011, as it does not appear that Aus- ley had an assignment to drive until late June or mid-July 2011. This is more consistent with Respondent’s creation of its Au- gust 2011 Movements Section standard operating procedures providing only one driver was to stay at the THA and is reflect- ed in the 2401 forms after July 15, 2011. For the reasons discussed above, I do not credit the testimo- ny of Ausley or Davis that prior to July 2011, Respondent had established a policy of having bargaining unit drivers wait for 30 minutes at the THA after wheels up in nonsurge THA mis- sions. Having found there is insufficient evidence that Respondent had established the practice of having all bargaining unit driv- ers wait for 30 minutes at the THA after wheels up in nonsurge THA missions, I find Respondent did not make a unilateral change in terms and conditions of employment. I will recom- mend the dismissal of complaint allegation 6(b). 3. Promulgating a new work rule requiring bargaining unit employees to report their time into the “Deltec” system a. The facts Complaint paragraph 6(c) alleges that in January 2014, Re- spondent promulgated a new work rule requiring bargaining unit employees to report their time into the “Deltec” system. Respondent requires bargaining unit employees to enter their hours worked into a timekeeping system called “Deltec.” If an employee fails to enter their time into the Deltec system, it is called a “floor failure.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460 At the time Respondent hired its bargaining unit employees, as part of its new employee training, it made a power point presentation.29 Included in the training materials was a section on recording time on timesheets. The training30 provided: Timesheets • Recording time worked on your timesheet at the end of each work day is mandatory. • Any overtime hours needed, must be pre-approved by your authorized. • Program Manager in writing, prior to such time being worked. • All employees are subject to floor checks at any time. • Employees are required to communicate with his/her Lead Staff Member,Supervisor or Program Manager to ensure proper communication of such requests to deviate from a regular schedule in advance. • It is also imperative to note the following: Employees are independently responsible for correct- ly charging their time. There are penalties for contributing to a false claim or false statement against the government. In addition, employees were required to take an online train- ing course31 on use of Respondent’s timekeeping system. Both drivers Ausley and Davis took this online course.32 Respondent’s employee handbook33 provides at page 2: 3.5 Maintaining Accurate Records Proper timesheet reporting is one of the most important re- quirements of federal government contracting - a requirement which SRI fully supports. Timesheets are used, among other reasons, to control the allocation of costs between fixed-price contracts and cost-reimbursement contracts, to record hours worked for contract invoicing purposes, and to allocate costs between direct and indirect cost centers. To comply fully with the timesheet requirement, employees record the actual num- ber of hours worked in a day. It is important that all employ- ees recognize the importance of recording actual number of hours worked. It is also imperative to note the following: Employees are independently responsible for charg- ing their time correctly. There are potential penalties for contributing to a false claim or false statement against the government. Respondent’s employee handbook also has a provision deal- ing with employee conduct and discipline.34 This provision provides in part: 4. Code of Business Ethics & Conduct 29 GC Exh. 79. 30 Id. at p. 28. 31 Id. at pp. 45–55. 32 R. Exh. 9. 33 GC Exh. 78. 34 Id. at p. 2. . . . . There is both a management and an individual obligation to fulfill the intent of this policy. Any clear infraction of applica- ble laws or prevailing business ethics will subject an employ- ee to disciplinary action which may include reprimand, proba- tion, suspension, reduction in salary, demotion, or dismissal- depending on the seriousness of the offense. Such offenses or violations of conduct would include, but not be limited to: [f]alsifying company records including application for employment. . . . . not following policies and procedures. During Respondent’s first few months of operations at JBLM, no bargaining unit employees were disciplined for fail- ing to enter their hours in a timely manner, nor is there evi- dence that Respondent tolerated bargaining unit employees’ failure to record their hours. According to Ausley, in Septem- ber 2011, Cox posted an email on the motor pool bulletin board, telling employees that if they did not report their hours, they would be subject to reprimand depending upon the nature of the excuse.35 b. The analysis The Board has long held that disciplinary policies and work rules are mandatory subjects of bargaining. Toledo Blade Co., 343 NLRB 385, 387 (2004). Moreover, if discipline was issued based on a unilaterally imposed rule, that discipline also vio- lates Section 8(a)(5). Consec Security, 328 NLRB 1201, 1201 (1999). Counsel for the General Counsel relies on El Paso Electric Co., 355 NLRB 428, 453 (2010), where the Board affirmed the administrative law judge who found that a more stringent en- forcement of absentee and tardy rules violated Section 8(a)(5) of the Act where there was no record of probation or discipline previously issued to an employee who was excessively absent or late. It was concluded that this amounted to a significant, material, and substantial change to employees’ working condi- tions. By failing to notify or bargain with the Union before implementing this change the employer was found to have vio- lated Section 8(a)(5) of the Act. Here, the General Counsel argues that Respondent violated Section 8(a)(5) of the Act by imposing a new disciplinary sys- tem for floor failures, which had not been previously subject to discipline, arguing that when Respondent initially began its operations at JBLM, bargaining unit employees were not sub- ject to discipline if they failed to input their hours into the Del- tec system at the end of the day, as required. The record fails to support this contention. Clearly from the inception of its operations at JBLM Respondent’s employee handbook and its training materials have provided that if em- ployees fail to follow policy and procedure, including record keeping, they may be subject to discipline. Unlike the situation in El Paso Electric, supra, here, there is no evidence that Re- spondent has had prior occasion to discipline its employees for 35 Tr. 67, LL. 16–23. STRATEGIC RESOURCES, INC. 461 failing to record their time. Likewise, there is no evidence that Respondent has been lax in enforcing its disciplinary procedure for failing to follow policy. It was not until September 2011 that Respondent discovered that employees were not recording their time in the Deltec time system in a timely manner and it took disciplinary action, requiring employees to write an excuse letter explaining their “floor failure” in failing to enter their time. I conclude that there is evidence that Respondent has always had an employee disciplinary procedure for failure to follow its policies and that all employees knew or should have known that they were obligated to enter their time on a daily basis into the Deltec system. Accordingly, I find no evidence that Respond- ent implemented a new work rule requiring employees to enter their time daily into its Deltec system. I will recommend that this allegation be dismissed. 4. Enforcement of the new work rule against Ausley a. The facts Complaint paragraph 6(f) alleges that on January 26, 2012, Respondent enforced the new work rule against Ausley. In about November 2011, Ausley did not make an entry into the Deltec system reflecting 0 hours worked, since she had no hours for that day. The following day Coon called Ausley at home and told her she had a floor failure and that she had to write a statement about what her excuse for the floor failure was. Coon then said she would let Ausley know what the re- percussions would be for her floor failure. Ausley wrote the statement, but she heard nothing further from Respondent. b. The analysis Having found that Respondent did not implement a new work rule or disciplinary policy in requiring employees to enter their time into the Deltec system on a daily basis but rather pursuant to extant policy had both a disciplinary rule and a policy requiring employees to enter their time into Deltec, re- quiring Ausley to write the letter explaining why she failed to enter her time into Deltec did not violate Section 8(a)(5) of the Act. I will recommend this allegation be dismissed. c. The Union’s information requests General Counsel alleges in complaint paragraphs 7(a) through (i) Respondent violated Section 8(a)(5) of the Act by refusing to furnish or by unreasonably delaying in furnishing the Union with information that it requsted between January 24, 2012, and May 2, 2013, that was necessary and relevant for the Union in performing its duties as exclusive collective- bargaining representative over bargaining unit employees’ terms and conditions of employment. 1. The facts Complaint paragraph 7(a) alleges that on January 24, 2012, the Union, in writing, requested Respondent to furnish infor- mation. On January 24, 2012, the Union made an information re- quest36 to Respondent for the purposes of engaging in collective bargaining. The request included: 1. Provide information regarding SRI procedures and policies for making work assignments. a. Provide names and titles of personnel authorized to make offers of assignments. b. Detail the procedure for contacting the employee, time limits for responding. c. Provide information on any situation(s) where an employee has stated unavailability for an assignment. d. Provide information on any action taken by the Company to discipline an employee in any manner— including but not limited to verbal counseling—bypass on subsequent work assignments, written warnings, etc. Pro- vide details of company policy/procedure related to as- signing work to personnel who have previously requested vacation, or other time off. 2. Provide details of situations where workers had their vaca- tions revoked after they had previously been approved, in- clude names, dates and workforce records (payroll and/or oth- erwise) that would show availability of other drivers that would have been able to provide coverage if called. b. Provide information as to the procedures for approv- ing vacations, include the names and titles of authorized personnel. c. Provide information as to the procedures for revok- ing previous approval of vacation. . . . i. Give details of attempts that SRI has made to find other available workers to cover the mission, prior to re- voking the vacation approval. 3. Detail any policies designed to evenly distribute the work- load amongst eligible employees 4. Provide a detailed explanation of the pre-trip maintenance and post-trip maintenance survey procedures for vehicles as- signed to drivers. a. Provide forms drivers are required to fill out. b. Provide details of policies or procedures that drivers are to follow if vehicle does not pass the survey due to safety or other issues. c. Provide names and titles of personnel the drivers are to contact to report the results of the pre/post evaluation of vehicle. d. Provide details and forms for procedures required by SRI for dryers to change vehicles for the mission. 5. Provide details of instances when all drivers were assigned to missions at the same time (we do not need sensitive details of particular mission). We do request the dates, number of drivers involved, duration of assignments, and work logs to ascertain the amount of work done. 36 GC Exh. 14. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462 6. Provide information on procedures for posting the schedule of assigmrtents, and when the procedure went into effect. 7. Provide details of all safety equipment that SRI requires of workers in the bargaining unit. a. Who is responsible for purchasing, distributing and caring forthe safety equipment. b. Who is responsible for determining the correctness ofthe safety equipment provided. c. What is the procedure for requesting the provided safety equipment. d. What is the procedure for requesting safety equip- ment that is not provided—such as making a suggestion for additional/different safety equipment. 8. Provide details of dress code that SRI requires of bargain- ing unit personnel. Who is responsible for purchasing, distrib- uting and caring for the required dress.[?] 9. Provide information on any rain or cold weather gear re- quired. 10. Provide explanation as to the relationship between SRI and SAIC personnel. 11. Provide detailed information on procedures for reporting safety concerns, other than related to the vehicle. a. Provide names and titles of contact personnel. b. Provide forms required. c. Provide details of the response procedures. d. Provide steps available to employee if the safety is- sue is not addressed to the satisfaction of the concerned employee. 12. Provide details of any training that SRI requires of em- ployees. a. Provide details of any training that SRI provides to employees 13. Provide minutes of all safety committee meetings since SRI became the contractor. a. Provide names and titles ofpersonnel assigned to the committee, and how long they have served on the commit- tee(s). b. Detail how the committee members were chosen. c. Who is the head of the committee? d. Provide any charter or operating guidelines/mission for the committee. e. Provide details of any training given to committee members. f. Are committee members paid for time spent per- forming their duties? Explain. g. What is the level of responsibility/authority of the committee as a whole. h. What is the level of responsibility and authority of the individual members serving on it, provide details for each individual. i. What is the duration of the members assignment to the safety committee. j. Provide details of any other committees, regular or other, that are currently in place, or have been in place since Jan 2011. 14. Provide details for how SRI personnel, other than those regularly assigned to the worksite, obtain access to the facili- ties. 15. Provide information on all instances of drug or alcohol abuse within the bargaining unit that SRI is aware of since be- coming the contractor. 16. Provide all materials and information shared at the New Hire Orientation. a. Has this information changed since the first orienta- tion that SRI conducted in January of 2011? b. Provide copies of any forms or releases that new hires are required to fill out during this orientation, or as a result of this orientation. c. Provide a current Employee handbook; and any pre- vious versions of the handbook that has applied since SRI first won the contract in January 2011. d. Provide any materials provided to employees at ori- entation or on first day of work. e. Provide a copy of all documentation employees re- ceive that outlines SRI policies and procedures. f. Provide a detailed outline of the [current] avenue for employee grievance, concern or suggestion for improve- ment. 17. Provide a list of all conditions and classifications that are subject to random drug testing. a. Provide method for choosing personnel who are picked for random testing. b. Provide names of personnel who have been directed to undergo drug/alcohol testing since SRI has been admin- istrator of the service contract. 18. Provide a list of all certifications and licenses that are re- quired of any or all bargaining unit personnel. a. Provide information as to who is responsible for the testing of represented personnel for work proficiency, in- clude their title and contact information. b. Provide details as to testing for proficiency, or for certification, that represented employees are required to take, provide copies of any testing materials. c. Provide a list of all employees, showing all licenses, permits, stamps, or endorsements they currently have. d. Provide a demographic breakdown of all employees in the bargaining unit by age, gender, and ethnic catego- ries. 19. Provide a list of all equipment that represented personnel are responsible for driving. a. Provide a matrix that lists the type of vehicle (make, model, type) and also provides the names of represented personnel authorized to operate them. STRATEGIC RESOURCES, INC. 463 b. Provide a list of duties—such—as maintenance, record keeping, cleaning, etc.—that represented employ- ees are required to perform, by vehicle make/model/type. c. Provide documentation provided to employees that details the list of duties they are required to perform for each mission—such as pre! post inspection, any mainte- nance, hook-up or tear-down, etc. 20. Provide information on the process, including a copy of any documentation required, for personnel to report an issue with an assigned vehicle. a. Who (name and title) is responsible for the vehicle assignments, and for determining any subsequent change of vehicle. 21. Provide information on the process for reporting any event or situation (accident, personnel issue, equipment malfunc- tion, mission irregularity, etc.) and gaining guidance or ap- proval as necessary. 22. Provide information to current sick leave policy. a. Detail the information required of a doctor’s excuse letter. b. Provide a list of all instances where an employee has called in sick since January 2011 c. Provide a list of all instances where SRI has required a note from the employee’s doctor. d. Provide a list of all instances where SRI has rejected the doctor’s note, o1” required that employee return to the doctor and obtain a different version of the note. 23. Provide a completed employee handbook, and any mate- rials provided to employees at orientation or on first day of work. Provide a copy of all documentation employees receive that outlines SRI policies and procedures. 24. Provide names and titles of all personnel assigned to JBLM who have authority to give work assignments to repre- sented personnel. a. Provide names and titles of all personnel assigned to JBLM who have the authority to discipline, represented personnel. b. Provide names and titles of all personnel assigned to JBLM who have the authority to authorize represented personnel to work, or to cancel previously authorized work assignments. 25. Provide detailed documentation for any and all benefits that may be eligible to any or all SRI employees assigned to JBLM. a. Provide summary plan benefits documentation for any 401K, pension, medical or other benefit. b. Provide name and contact information of the benefit providers. c. Provide name, title and contact information for on- site personnel responsible for administering the benefits— or providing information to the personnel assigned to JBLM. 26. Provide information on facilities available to personnel while on assigmnent, or during time between missions. a. Provide procedures for employees to take breaks, or use restrooms while on assignments. 27. Provide policies and directions given to employees on availability requirements they will be held to—such as, are they on twenty-four (24) hour call, three-hundred-sixty-five (365) days each year. a. Provide any documentation provided to employees outlining this responsibility. b. Provide information on any discipline, or threat of discipline, that has been relayed to employees for a viola- tion of this requirement. 28. Provide a list of all discipline administered, or threatened, to bargaining unit personnel since January 2011. On February 1, 2014,37 Respondent replied to the Union’s in- formation request without providing any information. Re- spondent’s response sought clarification of the Union’s request: Dear Mr. Cummings: I write to preliminarily respond to the lengthy infor- mation request transmitted by email on January 24, 2012. SRI has started work on compiling the information you re- quest. As we began that process, however, many questions arose with respect to the request. I write to request clarifi- cation on your request and to provide you with a prelimi- nary estimated response date. I write to request clarifica- tion on your request and to provide you with a preliminary estimated response date. First, on their face, your requests appear to seek information about all SRI employees and all SRI operations which would exceed the proper scope for these requests. I note that some requests, including numbers 15, 18, 19 and 28 are specifically limited to bargaining unit employees at IBLM. The other re- quests are not so limited. This suggests that the union is, in the other requests, seeking information about all SRI operators and all SRI employees. Are the union’s other requests intend- ed to seek information about all SRI operations and all SRI employees? Are those requests instead limited to bargaining unit employees at JBLM? Please clarify the scope of your re- quests at your earliest convenience. Second, independent of the above issue, several requests do not appear to involve bargaining unit employees at JBLM. For example, request 14 appears to seek information for non- bargaining unit employees. Much of the information request- ed in request 16 pertains to applicants and communications before an applicant becomes an SRI employee. Similarly, some orientation materials are communicated before the indi- vidual becomes an employee. Given that the union does not represent applicants, we are unclear as to the basis for a re- quest about applicants. In request 12, we are unclear whether the “training” the union is requesting is limited to the training 37 GC Exh. 16. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464 provided to bargaining unit employees or is broader. We are unclear how request 10 relates to any issue affecting bargain- ing unit employees. Please clarify how these requests pertain to bargaining unit employees. Several of the information requests are themselves internally unclear. Request 14 uses the terms “facilities.” By this term, do you mean to include SRI’s work locations on JBLM, the JBLM base, the locations to which bargaining unit employees drive or some combination of the above? Request 4 uses the term “survey.” By this term, do you mean to reference the pre- and post-trip inspections or something else? In request 5, we are unclear what you mean by “assigned to missions at the same—time.” Do you mean literally an assignment at the same moment in time, do you mean a situation where two bargaining unit employees were assigned to the same mission or something else? Request 7 references “safety equipment.” Did you intend to reference personal protective equipment or the broader scope of safety items at the workplace? In request 20, you reference “an issue with an assigned vehicle.” Previ- ous requests specifically address safety concerns, including request 11. Is request 20 duplicative of request 11 or are you requesting some other information? Please clarify these points. As I explained in the last bargaining session, I had vacation scheduled for January 27th and 30th and was away from the office during those times. Nevertheless, I forwarded your re- quest to other SRI personnel to obtain an estimate of the time required to respond to your request. SRI estimates that in ex- cess of 100 hours of dedicated staff time would be required to respond to your requests, even assuming that your requests are limited to bargaining unit employees at JBLM. Given these time estimates and other business commitments, we an- ticipate that an initial response will not be available until Feb- ruary 23rd or later. I note that we have negotiations scheduled for February 7 and 8. I am prepared to use the time allotted for negotiations to work on your information request if that is the union’s prefer- ence. Please let me know your preference in that regard. On February 2, 2012,38 the Union responded to Respondent’s request for clarification. The Union responses appear in bold: First, on their face, your requests appear to seek information about all SRI employees and all SRI operations which would exceed the proper scope for these requests. I note that some requests, including numbers 15, 18, 19 and 28 are specifically limited to bargaining unit employees at JBLM. The other re- quests are not so limited. This suggests that the union is, in the other requests, seeking information about all SRI operations and all SRI employees. Are the union’s other requests intend- ed to seek information about all SRI operations and all SRI employees? Are those requests instead limited to bargaining unit employees at JBLM? Please clarify the scope of your re- quests at your earliest convenience. 38 GC Exh. 17. The IAM is seeking information as worded in the request. The information directly pointed to bargaining unit per- sonnel is intentional, the wider information is intentional as well. The need for such information is to ascertain any retaliation against IAM represented employees due to their decision to elect us as their bargaining representa- tive. Also, we need to understand any unilateral changes to working conditions that have been made in violation of your duty to bargain over changes to conditions. In addi- tion, the capability and action by SRI to provide any bene- fit or other condition of employment may provide the IAM with information pertinent to a proposal or counter. If conditions are already being provided to employees at JBLM, it could help to speed the process and allow us to better identify areas of agreement. Second, independent of the above issue, several requests do not appear to involve bargaining unit employees at JBLM. For example, request 14 appears to seek information for non- bargaining unit employees. It appears that SRI is attempting to avoid answering the request for information. Item 14 is related to access. We have had several discussions with SRI regarding access to the working location of our members, and SRI has main- tained that they have no ability to help. Please provide the information as requested. Much of the information requested in request 16 pertains to applicants and communications before an applicant becomes an SRI employee. Similarly, some orientation materials are communicated before the individual becomes an employee. Given that the union does not represent applicants, we are un- clear as to the basis for a request about applicants. Item 16 is pertinent to our negotiations. The Company has hired many employees since being formally awarded the contract, and we need to know the information provided to them as they come in. This information allows us to un- derstand the working conditions that employees are ex- pected to operate under, and we need to keep track of any changes that SRI may be making in violation of their duty to bargain over such changes. In request 12, we are unclear whether the “training” the union is requesting is limited to the training provided to bargaining unit employees or is broader. Item 12 is for all training provided to SRI employees at JBLM. Again, this is to allow the IAM to understand any retaliation or denial of opportunity that impacts our members because of their decision to reach out to the IAM. It also allows us to know what capabilities that SRI has, so that we can determine if a proposal for inclusion might be proper. We are unclear how request 10 relates to any issue affecting bargaining unit employees. Please clarify how these requests pertain to bargaining unit employees. Item 10 is critical to our duty of representation of workers performing work as outlined by the NLRB. Represented STRATEGIC RESOURCES, INC. 465 employees were moved into SAIC after the NLRB certi- fied the election of the IAM, and recently SRI moved em- ployees out of SAIl: back into the bargaining unit. This re- lationship needs to be clarified, and we ask that you properly provide the information. Several of the information requests are themselves internally unclear. Request 14 uses the terms “facilities.” By this term, do you mean to include SRI’s work locations on JBLM, the JBLM base, the locations to which bargaining unit employees drive or some combination of the above? “Facilities” refers to the locations where our members are gathered. Examples would be the area where they are dispatched from, the “yard” where they pick up their ve- hicles, or any other place they regularly congregate. This does not refer to individual mission locations. The issue is access to JBLM, as you have been advised on numerous occasions. Request 4 uses the term “survey.” By this term, do you mean to reference the pre- and post-trip inspections or something else? Please read sections “a, b, c and d” of our info request. In request 5, we are unclear what you mean by “assigned to missions at the same time.” Do you mean literally an assign- ment at the same moment in time, do you mean a situation where two bargaining unit employees were assigned to the same mission or something else? We are requesting information on your assertion that the hiring of drivers, when current drivers are not working forty hours per week, was necessary because of times when all drivers are required at the same time. Request 7 references “safety equipment.” Did you intend to reference personal protective equipment or the broader scope of safety items at the workplace? The IAM is requesting information on “all safety equip- ment” —this would be easier if you just read the request. In request 20, you reference “an issue with an assigned vehi- cle.” Previous requests specifically address safety concerns, including request 11. Is request 20 duplicative of request 11 or are you requesting some other information? Please clarify these points. If SRI would actually read the info request, it would see that item 11 specifically states “procedures for reporting safety concerns, other than related to the vehicle”, and item 20 specifically pertaining to reporting an “issue with an assigned vehicle.” As I explained in the last bargaining session, I had vacation scheduled for January 27th and 30th and was away from the office during those times. Nevertheless, I forwarded your re- quest to other SRI personnel to obtain an estimate of the time required to respond to your request. SRI estimates that in ex- cess of 100 hours of dedicated stafftime would be required to respond to your requests, even assuming that your requests are limited to bargaining unit employees at JBLM. Given these time estimates and other business commitments, we an- ticipate that an initial response will not be available until Feb- ruary 23rd or later. The amount of time to provide this information may, or may not, be accurate. The IAM had repeatedly tried to schedule negotiations, to move the process forward. As SRI has been unwilling to meet regularly and hold discus- sion leading to an agreement the information request is our only avenue for obtaining the pertinent information we need. We believe since the information is contained in SRI files, the response should take no later than the end of next week if you try to cooperate. I note that we have negotiations scheduled for February 7 and 8. I am prepared to use the time alloted for negotiations to work on your information request if that is the union’s prefer- ence. Please let me know your preference in that regard. The information request was not sent in an attempt to ne- gotiate OR provide the information—we expect SRI to continue to meet its obligations to negotiate AND to pro- vide information that is necessary for the IAM to properly build proposals and respond to issues and proposals raised by the Company. I would expect that the “other SRI personnel” you already contacted can work on the in- formation as you meet and negotiate with us. On February 28, 2012, Martin, Respondent’s attorney, re- plied39 to the Union’s explanatory email of February 2, 2012. Respondent’s February 28 response was nonresponsive to and/or refused to provide information in response to the Un- ion’s January 24, 2012 request numbers 1(a)–(d), 2(c), 4(a), (c), and (d), 5, 6, 7(a), 9, 11(b)–(d), 12, 13(g) and (j), 14, 16(a)–(f), 17(a), 18(b)–(d), 19(a)–(c), 22(b) and (c), 23, 26(a)–(c), 28, and 29. Complaint allegation 7(b) alleges that on about February 21, 2012, the Union requested in writing that Respondent furnish the following information. In a February 21, 2012 letter40 the Union sought additional information from Respondent: Ms. Lawson, In order to properly prepare proposals, and respond to pro- posals from your negotiating committee, the IAM is request- ing the following information. We appreciate your coopera- tion with this request, and would like the reply by March 2, 2012. 1. Provide a list of all SRI policies, practices, require- ments, or duties that have been communicated to em- ployees represented by the IAM since April 20: In- clude any and all policies that were changed from predecessor contractor, as well as policies that were continued by SRI. 39 GC Exh. 18. 40 GC Exh. 23. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466 a. Provide copies of the communications provided to IAM represented employees. b. Provide dates that the SRI policies, practices, re- quirements and/or duties were communicated. c. Provide name and title of person who was responsi- ble for delivering the communication and what method was used. d. Provide dates when such policies, practices, re- quirements and/or duties were to commence. e. Provide copies of all communication whereby SRI informed the IAM of policies, practices, requirements and/or duties. f. Provide details of any and all discipline, counseling and/or warnings issued to IAM represented employees since April 2011. g. Provide a list of all policies, practices, requirements and/or duties that have been changed since April 2011 for any and all personnel employed by Sri at Joint-Base Lewis McChord. 2. Provide details of all communication between SRI and Joint-Base Lewis McChord, with regard to safety issue raised by the IAM in November 2011. a. Provide a detailed description of steps to remedy the safety concern raised. b. Provide name, title, and responsibility of SRI per- sonnel responsible for addressing the safety concern. On March 20, 2012, Respondent replied by email41 to the Union’s February 21, 2012 information request. The response covered only request item 1(f). Complaint allegation 7(c) alleges that on February 28, 2012, the Union requested in writing the information set forth below. On February 28, 2012, the Union made an information re- quest42 of Respondent asking for: [A]n updated list of employees in the bargaining unit, it ap- pears there have been several changes. Please provide the same information and format as last time with the addition of City and Email Address. In addition, we would like a break- down of each employees certification/license levels that are pertinent to assignments at SRI. We are also requesting a breakdown of missions that SRI has been asked to perform over the last six (6) months. This data is to include the mission duration (number of hours charged), level of driver certification/license required, and which driver was assigned the mission. We are trying to get a handle on scheduling so that we can get an idea on exactly what driver utilization is. In order to bar- gain intelligently on this we need the Company to provide Time Card/Assignment Data for the last six (6) months. Please provide Dispatch Logs with an annotation of expected vs. actual mission/assignment time logged by driver as well as 41 GC Exh. 25. 42 GC Exh. 26. time card data for the same period for each employee in the bargaining unit. SRI has recently begun using the company email system to communicate to workers we represent regarding issues related to negotiations. We are requesting the list of SRI email ad- dresses for employees in the bargaining unit, so that we may have the same opportunity, and it would remedy the issue of some employees not having home email. Complaint allegation 8(d) alleges that on March 13, 2012, the Union requested in writing the following information of Respondent. On March 13, 2012, the Union made an additional infor- mation request43 asking for: [T]he full Statement of Work that encompasses the descrip- tion of duties that SRI has contracted with the government, under, Service Contract # W9 I24D-I l-C-900 & Provide copies of all Deltek records, Payroll records, time cards, and any other records: or accounting documentation that shows time charged, or compensation: paid to any em- ployee under this Service Contract. On March 20, 2012, Respondent replied44 to the Union in- formation request of March 13 and refused to provide any of the information: We’ve received your request dated March 13th. In looking at the information you are requesting to include, “Deltec rec- ords, payroll records, time cards and other records or account- ing documentation . . .”, your request is overly broad and un- duly burdensome as it appears you are requesting a year’s worth of time and payroll records for all employees of SRI working on the JBLM contract. Please narrow your request appropriately and identify the reasons you need these records. Once you have done so, we will re-evaluate your request and respond appropriately. As alleged in complaint paragraph 7(e), on March 15, 2012, the Union renewed45 its January 24, 2012 information request. On March 21, 2012, Respondent provided the Union with the drivers licenses46 of bargaining unit employees, its dress47 and drug policies.48 Prior to January 30, 2013, Respondent provid- ed no other information to the Union. Complaint paragraph 7(f) alleges that on February 26, 2013, the Union made another written information request of Re- spondent. On February 26, 2013, the Union sent Respondent a letter49 requesting that Respondent rescind the unilateral changes ad- dressed by the settlement agreement. The Union also requested the following information: 43 GC Exh. 27. 44 GC Exh. 28. 45 GC Exh. 29. 46 GC Exh.20 47 GC Exh. 21. 48 GC Exh. 22. 49 GC Exh. 30. STRATEGIC RESOURCES, INC. 467 We are further requesting a complete explanation of a “floor failure.” We also are requesting complete payroll and mission records for each employee who was on a mission to the THA, and was impacted by SRIs decision to have them return prior to “wheels up.” The IAM is willing to accept documented and verifiable proof that employees have already been paid for the wages lost due to this decision—and documentation that veri- fies the payments were for the proper amount to each em- ployee. The IAM is requesting a detailed outline of all holiday hours paid to represented employees over the past eighteen months. We further request proof that the employees have been fully and properly compensated for the change in holiday pay cal- culation that changed their accrual from a standard 8 hours to a pro-rated amount. Provide details of how much was paid to each employee, and show details as to how that amount was calculated. . . . . Please provide and explanation and any information on: [A]ny changes that have impacted working conditions of rep- resented employees ‘n the past six months. SRI’s new practice of hiring temporary employees and advis- ing them that they will not be protected by the terms of the settlement agreement. o Provide all payroll records and mission assignments for the previous six months on all SRI drivers and dispatchers that have performed work requiring troop or equipment transport that has historically been done by represented drivers and dispatchers. o Provide explanation, details and records of any and all instances where drivers outside the bargaining unit have been used to supplement the available pool of represented drivers. The IAM is also requesting copies of all postings and communications with employees with regard to the settlement of the NLRB charges. Please include all documentation and proof of SRIs assertion that charges filed by the IAM were based upon insignificmat actions such as the relocation of a desk as has communicated to employees. The IAM further requests a complete list of all employees of SRI that are performing any work that the IAM is properly certified to represent. Provide names, contact information, classification of driver’s license held, and a demographic breakdown as to race, age, gender and the number ofhours that each has worked over the past six months. On March 8, 2013, Respondent’s third attorney, Mark Hutchinson, replied50 to the Union’s February 26, 2013 request for information. Other than explaining what constitutes a “floor failure” and stating there were no changes in employees terms and conditions of employment that had not been commu- 50 GC Exh. 31. nicated to the Union, no information was provided. With re- gard to payroll and other records for union-represented em- ployees, Respondent indicated that it was processing the re- quests and would respond soon. On March 15, 2013, Respondent provided further response51 to the Union’s February 26 information request. Hutchinson denied employees lost any wages, explained how holiday pay was calculated, and enclosed a roster of bargaining unit em- ployees without driver’s license classification, race, age gender, and the number of hours worked as had been requested. As the record failed to establish that on March 25, 2013, the Union verbally requested the information set forth in paragraph 7(g) of the complaint, counsel for the General Counsel with- drew that allegation. Complaint paragraph 7(h) alleges that on April 22, 2013, the Union made a written information request of Respondent for additional information. Again, on April 22, 2013, the Union made yet another re- quest52 of Respondent for the following information: It has come to our attention that SRI has informed represented workers of an opening for a new classification. As you know this is a mandatory subject of bargaining, and we are prepared to enter into discussions over the duties and rates of pay for the classification - if it is determined that it is needed. The classification that employees have been contacted about is called “Vehicle Cleaner, SCA classification number 11030”. The IAM is very interested in discussing it with you. In the interim, please provide the following information, so that we can properly discuss this issue: 1. A complete and detailed outline of duties for this classification as SRI proposes to administer it 2. A complete and detailed listing of all qualifications, licenses, training and/or experience required of appli- cants for the position, or that will be addressed upon the selection of the successful candidate(s) 3. Listing of any duties that are different from those re- quired of the driver’s who have historically per- formed this set of duties 4. Proposed classification wage and benefit structure 5. All criteria that SRI will use to determine the success- full candidate or candidates 6. All information that led to SRI’s decision that an ad- ditional Classification is warranted for the bargaining unit work Finally, as alleged in paragraph 7(i) of the complaint, on May 2, 2013, the Union renewed all of its requests for infor- mation.53 The record is devoid of any evidence suggesting that Respondent ever replied to the Union’s May 2 letter, let alone ever provided any of the information rerequested therein (Tr. 183). 51 GC Exh. 32. 52 GC Exh. 33. 53 GC Exh. 34. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468 To date Respondent has failed to provide the Union with the following information: From the Union’s January 24, 2012, request: SRI procedures and policies for making work assignments, names and titles of personnel authorized to make offers of as- signments, procedure for contracting the employee, time lim- its for responding, information on any situation(s) where an employee has stated unavailability for an assignment, infor- mation on any action taken by the Company to discipline an employee in any manner—including but not limited to verbal counseling, bypass on subsequent work assignments, written warnings, etc., company policy/procedure related to assigning work to personnel who have previously requested vacation, or other time off, information as to the procedures for approving vacations, include the names and titles of authorized person- nel, policies designed to evenly distribute the work load amongst eligible employees, pre-trip maintenance and post- trip maintenance survey procedures for vehicles assigned to drivers, forms drivers are required to fill out, names and titles of personnel the drivers are to contact to report the results of the pre/post evaluation of vehicle, instances when all drivers were assigned to missions at the same time, the dates, number of drivers involved, duration of assignments, and work logs to ascertain the amount of work done, procedures for posting the schedule of assignments, and when the procedure went into effect, who is responsible for purchasing, distributing, and caring for the safety equipment, information on any rain or cold weather gear provided, the relationship between SRI and SAIC personnel ,forms required and details of response pro- cedures for reporting safety concerns, other than related to the vehicle, training that SRI requires of employees, any training that SRI provides to employees, minutes of all safety commit- tee meetings since SRI became the contractor, names and ti- tles of personnel assigned to the committee, and how long they have served on the committee(s), any training given to committee members, the level of responsibility and authority of the individual members serving on it, any other commit- tees, regular or other, that are currently in place, or have been in place since January 2011, how SRI personnel, other than those regularly assigned to the worksite, obtain access to the facilities, materials and information shared at the New Hire Orientation, has this information changed since the first orien- tation that SRI conducted in January 2011, copies of any forms or releases that new hires are required to fill out during this orientation, or as a result of this orientation, a current em- ployee handbook, and any previous versions of the handbook that has applied since SRI first won the contract in January 2011, any materials provided to employees at orientation or on the first day of work, a copy of all documentation employ- ees receive that outlines SRI policies and procedures, a list of all conditions and classifications that are subject to random drug testing, list of all certifications and licenses that are re- quired of any or all bargaining Unit personnel, who is respon- sible for the testing of represented personnel for work profi- ciency, include their title andcontact information, details as to testing for proficiency, or for certification, that represented employees are required to take, provide copies of any testing materials, a list of all employees, showing all licenses, per- mits, stamps, or endorsements they currently have, a demo- graphic breakdown of all employees in the bargaining unit by age, gender, and ethnic categories, a list of all equipment that represented personnel are responsible for driving, a matrix that lists the type of vehicle (make, model, type) and also pro- vide the names of represented personnel authorized to operate them a list of duties—such as maintenance, record keeping, cleaning, etc. —that represented employees are required to perform, by vehicle make / model / type, documentation pro- vided to employees that details the list of duties they are re- quired to perform for each missions—such as pre /post in- spection, any maintenance, hook-up or tear-down, etc., infor- mation on the process for reporting any event or situation (personnel issue, equipment malfunction, mission irregularity, etc.) and gaining guidance or approval if necessary, infor- mation to the current sick leave policy, the information re- quired of a doctors excuse letter, a list of all instances where an employee has called in sick since January 2011, a list of all instances where SRI has required a note from the employee’s doctor, a complete employee handbook, and any materials provided to employees at orientation or on the first day of work, a copy of all documentation employees receive that out- lines SRI policies and procedures, documentation for any and all benefits that may be eligible to any or all SRI employees assigned to JBLM, summary plan benefits documentation for any 401K, pension, medical, or other benefit, name and con- tact information for the benefit providers, contact information for on-site personnel responsible for administering the bene- fits—or providing information to the personnel assigned to JBLM, information on facilities available to personnel while on assignment, or during time between missions, procedures for employees to take breaks or use restrooms while on as- signments, policies and directions given to employees on availability requirements they will be held to—such as, they are on twenty-four (24) hour call, three-hundred-six-five (365) days each year, any documentation provided to em- ployees outlining this responsibility, information on any dis- cipline, or threat of discipline, that has been relayed to em- ployees for a violation of this requirement, a list of all disci- pline administered, or threatened, to bargaining unit personnel since January 2011. From the Union’s January 24, 2012 request, as explained and/or clarified in its March 15, 2012, letter: Details of dress code that SRI requires of bargaining Unit per- sonnel, details of policies or procedures that drivers are to fol- low if vehicle does not pass the survey due to safety or other issues, details and forms for procedures required by SRI for drivers to change vehicles for the mission, details of all safety equipment that SRI requires of workers in the bargaining Unit, the procedure for requesting the provided safety equip- ment, how the Safety committee members were chosen, Who is the head of the Safety committee, any charter or operating guidelines/mission for the Safety committee, Are committee member paid for time spent performing their duties, the level of responsibility/authority of the committee as a whole, the duration of the members assignment to the safety committee, STRATEGIC RESOURCES, INC. 469 information on all instances of drug or alcohol abuse within the bargaining unit that SRI is aware of since become the con- tractor, a detailed outline of the current avenue for employee grievances, concerns, or suggestions for improvement, the method for choosing personnel who are picked to do random drug testing, names of personnel who have been direct to un- dergo drug/alcohol testing since SRI has been administrator of the service contract, the process, including a copy of any doc- umentation required, for personnel to report an issue with an assigned vehicle, (name and title) responsible for the vehicle assignments, and for determining any subsequent change of vehicle, the process for reporting any event or situation (acci- dent) and gaining guidance or approval if necessary, a list of all instances where SRI has rejected the doctor’s note, or re- quired that the employee return to the doctor and obtain a dif- ferent version of the note, names and titles of all personnel as- signed to JBLM who have authority to give work assignments to represented personnel, names and titles of all personnel as- signed to JBLM who have the authority to discipline repre- sented personnel, names and titles of all personnel assigned to JBLM who have the authority to authorize represented per- sonnel to work, or to cancel previously authorized work as- signments, name and title for on-site personnel responsible for administering the benefits—or providing information to the personnel assigned to JBLM. From the Union’s February 21, 2012, request: A list of all SRI policies, practices, requirements, or duties that have been communicated to employees represented by the IAM since April 2011, any and all policies that were changed from the predecessor contractor, as well as policies that were continued by SRI, copies of the communications provided to IAM represented employees, dates that the SRI policies, practices, requirements and/or duties were communi- cated, the name and title of the person who was responsible for delivering the communication and what method was used, dates when such policies, practices, requirements and/or du- ties were to commence, copies of all communication whereby SRI informed the IAM of policies, practices, requirements and/or duties, a list of all policies, practices, requirements and/or duties that have been changed since April 2011 for any and all personnel employed by SRI at JBLM, all communica- tion between SRI and JBLM, with regard to safety issues raised by the IAM in November 2011, a detailed description of steps to remedy the safety concern raised, the name, title, and responsibility of SRI personnel responsible for addressing the safety concern. From the Union’s February 28, 2012 request: A breakdown of each employee’s certification / license levels that are pertinent to assignments at SRI, a breakdown of mis- sions that SRI has been asked to perform over the last six months to include the mission duration (number of hours charged), level of driver certification/license required, and which driver was assigned the missions, time card / assign- ment data for the last six months, dispatch logs with an anno- tation of expected versus actual missions/assignment time logged by driver as well as time card data for the same period for each employee in the bargaining unit. From the Union’s March 13, 2012, request: Full Statement of Work that encompasses the description of duties that SRI has contracted with the government, under Service Contract #W9124D-11-C-900, copies of all Deltek records, payroll records, time cards, and any other records or accounting documentation that shows time charged or com- pensation paid to any employee under this Service Contract. From the Union’s February 26, 2013, request: Payroll and mission records for each employee who was on a mission to the THA, and was impacted by SRIs decision to have them return to “wheels up,”—and documentation that verifies the payments were for the proper amount to each em- ployee, outline of all holiday hours paid to represented em- ployees over the past eighteen months and proof that the em- ployees have been fully and properly compensated for the change in holiday pay calculation that changed their accrual from a standard 8 hours to a pro-rated amount, how much was paid to each employee, and details as to how that amount was calculated, a review of employee files to verify that all disci- pline related to “floor failures” has been properly expunged as required, payroll records and mission assignments for the pre- vious six months on all SRI drivers and dispatchers that have performed work requiring troop or equipment transport that has historically been done by represented drivers and dis- patchers, explanation, details, and records of any and all in- stances where drivers outside the bargaining unit have been used to supplement the available pool of represented drivers, list of all employees of SRI that are performing any work that the IAM is properly certified to represent, classification of driver’s license held, and a demographic breakdown as to race, age, gender, and the number of hours that each has worked over the past six months. From the Union’s April 22, 2013, request: A complete and detailed outline of duties for the classification of vehicle cleaner as SRI proposes to administer it, listing of all qualifications, licenses, training and/or experience required of applicants for the position of vehicle cleaner, or that will be addressed upon the selection of the successful candidate(s), any duties that are different from those required of drivers who have historically performed this set of duties, proposed classification wage and benefit structure, criteria that SRI will use to determine the successful candidate or candidate, infor- mation that led to SRI’s decision that an additional classifica- tion is warranted for bargaining unit work. 2. Analysis In Woodland Clinic, 331 NLRB 735, 736 (2000), the Board held that an employer has an obligation to furnish to a union, on request, information that is relevant and necessary to its role as the exclusive bargaining representative of unit employees. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); and NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). Further, an employer must respond to the information request in a timely manner. Leland Stanford Junior University, 307 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470 NLRB 75, 80 (1992). An unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all. Valley Inven- tory Service, 295 NLRB 1163, 1166 (1989). The Board has held that “An employer is obligated to provide a union with requested information if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsibilities.” Associated General Contractors of California, 242 NLRB 891, 893 (1979). In addition, the Board has stated that “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 standard of relevance is very broad, and no specific showing is normally required.” Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. per curiam 531 F.3d 1381 (6th Cir. 1976). Information requested dealing with the bargaining unit em- ployees is presumptively relevant. International Protective Services, 339 NLRB 701 (2003). Such relevant information includes an employer’s dress code policy (Albertson’s, Inc., 351 NLRB 254, 315 (2007)), and work schedules (Castle Hill Health Care Center, 355 NLRB 1156, 1181–1182 (2010)). Further, information requested in order to assess an employer’s position in bargaining is also presumptively relevant. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Relevant and necessary information must be furnished on re- quest, without unreasonable delay. It has been held that a delay in furnishing information of 7 weeks was unreasonable. Church Square Supermarket, 356 NLRB 1357, 1368 (2011); El Paso Electric Co., 355 NLRB 544 (2010); Bundy Corp., 292 NLRB 671 (1989); and Woodland Clinic, 331 NLRB 735, 737 (2000). General Counsel contends that all of the information the Un- ion sought was presumptively relevant and Respondent’s fail- ure to furnish and unreasonable delay in furnishing the infor- mation requested violated Section 8(a)(5) of the Act. I find the list of items requested by the Union, including but not limited to workplace policies, employee handbooks, work assignments, safety protocol, training, are information that goes to the core of working conditions and are presumptively relevant. To the extent that the Union’s request sought nonbargaining unit in- formation relating to proposals made by Respondent at the bargaining table, its relevance was adequately demonstrated. Church Square Supermarket, supra at 1368. Respondent takes the position that it did not provide the re- quested information due to its concerns about disclosure com- promising its confidentiality interests, citing Detroit Edison v. NLRB, 440 U.S. at 315, 318–320. Under its theory of the case, Respondent did not refuse to supply information it considered confidential, but that it bargained to impasse with the Union over a confidentiality agreement to protect its interests while providing the Union the information it needed. For the reasons stated below, I reject this argument. The only information that Respondent provided to the Union was on March 21, 2012, when it provided the drivers licenses of bargaining unit employees, its dress and drug policies. It took Respondent 8 weeks to provide this simple nonconfiden- tial information. This was an unreasonable delay. Church Square Supermarket, supra at 1368; El Paso Electric Co., su- pra, 355 NLRB 544; Bundy Corp., 292 NLRB 671 (1989); and Woodland Clinic, 331 NLRB at 737. I find that in refusing to furnish the information itemized above and in unreasonably failing to furnish information in a timely manner, Respondent has violated Section 8(a)(5) of the Act. D. Complaint Allegation 8(B)(I), as Amended at the Hearing, Alleges that from September 7, 2011, Through December 2011, Respondent Failed to Meet at Reasonable Times and Places for Bargaining 1. Facts On May 12, 2011,54 Respondent recognized the Union and requested dates for bargaining for June 2011. After Respond- ent recognized the Union in May 2011, the parties did not meet pending the Regional Director’s consideration of the Union’s charge that Respondent had refused to hire union bargaining committee members. On August 10, 2011,55 the Union indicated it was available to bargain September 7 and 8 and September 12 through 16, 2011. On August 15, Respondent acknowledged the Union’s proposed dates. On August 17,56 Respondent proposed meeting September 20 and 21 and September 27–29. On August 18,57 the Union agreed to meet on these dates. On August 21,58 Re- spondent claimed it could not meet on all of the dates in Sep- tember, only one set of dates. On August 25,59 the Union pro- posed meeting on September 28 and 29. On September 23, 2011, Attorney Thompson informed Union Representative Thompson that one of his law partners had experienced a death in the family and, therefore, the scheduled negotiations needed to be canceled.60 In this email, Attorney Thompson promised to “provide the union with additional dates shortly.” In reply, Union Representative Thompson emailed his understanding of the situation, but cautioned that the pass-through date was looming, and that the Union would not willingly reschedule in the future.61 Three weeks later, on October 14, 2011, Attorney Thompson had still not provided the additional dates he had promised, prompting the Union to renew its request for bar- gaining dates.62 There is no evidence that bargaining took place. On November 2, 2011, the Union sent Respondent’s counsel an email requesting bargaining for a collective-bargaining agreement63 and on November 7, 2011, sent the Union’s pro- posed contract.64 Respondent’s counsel acknowledged receipt of the proposed collective-bargaining agreement on November 54 Id. 55 GC Exh. 7. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. at p. 8. 61 Id. 62 Id. at p. 9. 63 GC Exh. 8. 64 Id. STRATEGIC RESOURCES, INC. 471 14, 2011.65 On November 15, 2011, the Union indicated that it had not received a response to its proposal. Again, on Novem- ber 17, 2011,66 the Union requested to confer with Respond- ent’s counsel. Despite promises to send a wage proposal noth- ing was forthcoming from Respondent as of November 18, 2011.67 Not until November 19, 2011, did counsel for Re- spondent provide a proposed bridge agreement68 for 1 year’s duration covering only wages and health and welfare benefits. On November 21, 2011,69 the Union again requested bargaining on several dates in early December. Following this conversa- tion, Cummings specifically offered to meet and bargain on December 5–7, 2011.70 When Respondent did not provide the wage proposal bridge agreement, as promised, Cummings emailed the following day, and Attorney Thompson said his client was “finalizing” its proposal.71 Two days later, on No- vember 19, 2011, Attorney Thompson sent Cummings Re- spondent’s proposed bridge agreement, which essentially stated that it was willing to pay the minimum wage currently dictated by the SCA.72 On November 21, 2011, Union Representative Thompson emailed73 Lawson that the Union was available to bargain on December 5 through 7, and 12 through 16, 2011. Cummings forwarded this email to Attorney Thompson, who replied that Lawson was on vacation until some unspecified time and that he would respond with dates.74 The following day, Cummings requested that Respondent meet in early December, 2011.75 A week later, on November 29, 2011, not having heard back, Cummings again requested that Respondent provide its availa- ble bargaining dates in early December.76 Finally, on Decem- ber 1, 2011, Thompson emailed Cummings offering December 14 and 15, 2011, as bargaining dates, which Cummings accept- ed.77 Shortly after the parties finally agreed on these dates, Respondent changed its legal counsel. 2. Analysis Section 8(d) of the Act provides in pertinent part: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times . . . . In J. H. Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949), the Board found that the duty to meet and confer: 65 GC Exh. 10. 66 GC Exh. 10 67 Id. 68 GC Exh. 10. 69 GC Exh. 10. 70 GC Exh.10, p. 5. 71 Id. 72 GC Exh. 11. 73 GC Exh. 12. 74 Id. 75 Id. at p. 6. 76 GC Exh. 13, p. 1. 77 Id. at p. 4. Encompasses the affirmative duty to make expeditious and prompt arrangements, within reason, for meeting and confer- ring. Agreement is stifled at its source if opportunity is not ac- corded for discussion or so delayed as to invite or prolong un- rest or suspicion. It is not unreasonable to expect of a party to collective bargaining that he display a degree of diligence and promptness in arranging for [bargaining] sessions when they are requested and in the elimination of obstacles thereto, comparable to his other business affairs of importance. The Board has held that delaying the scheduling of meetings reflects a parties’ intent to frustrate the bargaining process and to bargain in bad faith. Regency Service Carts, 345 NLRB 671, 672–673 (2005); Lower Bucks Cooling & Heating, 316 NLRB 16, 22 (1995). The Board has found that the failure to schedule bargaining sessions for from 6 weeks to almost 3 months does not satisfy an employer’s obligation to meet and bargain at reasonable times. Fruehauf Trailer Services, Inc., 335 NLRB 393, 393 (2001); Reed & Prince Mfg. Co., 96 NLRB 850, 858 (1951). An employer may not avail itself of the “busy negotiator” defense as an excuse for its failure to meet at reasonable times. Calex Corp., 322 NLRB 977, 978 (1997). Indeed, it is well settled that “an employer’s chosen negotiator is its agent for the purposes of collective bargaining, and that if the negotiator causes delays in the negotiating process, the employer must bear the consequences.” Id., citing O & F Machine Products Co., 239 NLRB 1013, 1018–1019 (1978); Barclay Caterers, 308 NLRB 1025, 1035–1037 (1992). General Counsel contends that Respondent violated Section 8(a)(5) of the Act through its delay and refusal to meet and bargain at reasonable times. In its brief Respondent takes no position concerning this allegation. The record is clear that Respondent failed to meet its obliga- tion to meet at reasonable times for bargaining with the Union. Despite repeated efforts to seek mutually agreeable dates, Re- spondent again and again found some excuse to delay and can- cel bargaining sessions from September 7, 2011, through De- cember 2011, a period of almost 4 months. This failure to meet at reasonable times demonstrates a failure to bargain in good faith in violation of Section 8(a)(5) of the Act. E. Complaint Paragraph 8(b)(iii) Alleges that Between September 2011 and May 2013, Respondent has Failed to Bar- gain with the Union for a Confidentiality Agreement, Protective Order or Other Appropriate Procedure to Address Respondent’s Confidentiality in Violation of Section 8(a)(5) of the Act 1. Facts In a February 28, 2012, email78 Respondent’s attorney, Mar- tin, for the first time raised the issue of an agreement between Respondent and the Union concerning information that Re- spondent considered confidential. At the next bargaining session after he received the above email, Cummings raised the issue of a nondisclosure agree- 78 GC Exh. 18. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472 ment. Cummings said he needed to review Respondent’s poli- cies to get bargaining moving. According to Cummings there was considerable discussion about what should be in a confi- dentiality agreement and Martin claimed that Respondent was concerned that the information the Union requested might be used by a competitor on bidding practices. Martin did not spec- ify what information the Union requested might be confidential. Cummings said the Union would be protective of information Respondent provided and would only be used for bargaining purposes. Cummings said the Union wanted to see what Re- spondent needed to have and would work from there. During bargaining on April 12, 2012,79 Cummings asked where the confidentiality agreement was. Martin said that an- other law firm was handling it. When Cummings offered to prepare the agreement, Martin said it was in the works. When asked the status of the agreement, Lawson said Marin had the information. In an email80 dated April 30, 2012, to Martin and Lawson, Cummings asked where the confidentiality agreement was. On May 1, 2012, Martin sent Cummings the confidentiality agree- ment/nondisclosure agreement (NDA). Among things, the agreement provided Respondent with carte blanche to deter- mine the definition of confidential material. The agreement provided for attorneys’ fees and liquidated damages of $5000 per breach of the terms of the agreement, regardless of actual responsibility for the breach. The NDA defined as confidential information, “labor cost data, employment policies and other non-public operational information which is or could be of benefit to an actual or potential competitor of Employer.” The NDA further gave Respondent the unlimited right to redact what it considered irrelevant to collective bargaining.81 After Cummings received the NDA from Martin, he sent it to the Union’s International counsel because he could not agree to the $5000 penalty provided therein. On May 15, 2012, Cum- mings sent Martin and Lawson a revised NDA, which eliminat- ed attorneys’ fees and liquidated damages.82 With no further response from Respondent about the NDA, on December 11, 2012, the Union sent Respondent a signed copy of the Union’s May 15, 2012 proposed NDA.83 On Janu- ary 2, 2013, Respondent’s attorney, Hutcheson, stated that the NDA was still a subject of bargaining.84 On January 12, 2013, Hutchinson sent the Union a revised NDA, including attorneys’ fees and liquidated damages.85 The liquidated damages provi- sion was reduced to $4000 per breach. On January 14, 2013, Cummings sent Respondent a counterproposal to its newest NDA.86 In this counter proposal, the Union agreed to injunc- tive relief. The Union agreed to damages assessed through the injunctive process. The Union agreed to receive only that in- formation they were entitled to under Board law, i.e., the in- 79 GC Exh. 43. 80 GC Exh. 46. 81 GC Exh. 45. 82 GC Exh. 47. 83 GC Exh. 48. 84 Id. 85 GC Exh. 50 86 R. Exh. 1. formation necessary to fulfill the duties of representation. In bargaining on January 15, 2013, Respondent rejected the Un- ion’s NDA counter proposal. There is no record evidence that the Union declared “impasse” on the NDA on January 15, 2013. While Lawson’s testimony was that the Union declared impasse on the NDA on January 15, 2013, I will draw an ad- verse inference that the Union did not take such a position since Respondent failed to produce Lawson’s bargaining notes for the January 15, 2013 bargaining session pursuant to the General Counsel’s subpoena. Cummings testified without contradiction that in early 2013, the Union had proposed that the Union would be satisfied to look at requested information at the bargaining table without actually taking possession of it. Hutcheson told Cummings that he thought that might work and told him that Respondent would get documents to the Union. No further documents were forthcoming until May 1, 2013, when Respondent provided its drug and dress code policies.87 Both policies were marked “confidential” and “proprietary.” These documents were fur- nished despite the lack of an NDA. 2. Analysis The party asserting a confidentiality defense in response to a refusal to furnish information allegation has the burden of proof and must demonstrate a “legitimate and substantial” confidenti- ality interest. Woodland Clinic, 331 NLRB 735, 737 (2000). In Woodland Clinic, the Board held that the employer failed in its burden when it failed to specify the nature of any concerns regarding the requested information. The respondent had not produced any evidence supporting its asserted claim of confi- dentiality. A naked claim of confidentiality is an insufficient defense to a request for relevant information where there was no evidence presented to support such a claim. Also, in Lasher Service Corp., 332 NLRB 834, 840 (2000) (GC Exh. 841), the Board found that the respondent had failed to demonstrate its confidentiality and propriety claims out- weigh the Union’s need for the information. The Board also found that if a union agrees to keep the information confidential and there is no evidence to conclude that the union would breach such a promise, respondent cannot carry its burden, concluding: The Supreme Court in NLRB v. Detroit Edison Co., 440 U.S. 301 (1979) found that, in certain situations, confidentiality claims may justify a refusal to provide relevant information, In making these determinations the trier of fact must balance the union’s need for the information sought against the legiti- mate and substantial confidentiality interests of the employer. However, it is also well settled that as a part of this balancing process, the party making a claim of confidentiality has the burden of proving that such interests are in fact present and of such significance as to outweigh the union’s need for the in- formation. Here the Union agreed to keep the information confidential. The Respondent introduced no evidence it sought an accommodation and there is no evidence the Union would not have accepted any such accommodation. Respond- 87 GC Exhs. 21 and 22. STRATEGIC RESOURCES, INC. 473 ent has provided the Union with some of the sought infor- mation in the parts department information request, thus un- dermining its claim of confidentiality of this information. There was no instance where the Union was shown to have broad cast confidential information provided by Respondent. There is no basis to conclude the Union would breach any promise to meet Respondent’s confidentiality concerns. In Rototype Division Pertec Computer Corp., 284 NLRB 810, 811 (1987), the Board found that the respondent failed to meet its obligation under Section 8(a)(5) to furnish alleged confidential information despite its belated offer to allow the union’s financial analyst to look at a cost study on its premises, without allowing him to take a copy for further analysis. Moreover, the Board held that respondent’s confidentiality claim established no defense. The respondent failed to show why it could not have supplied the information to the union’s financial analyst under the union’s proffered agreement that the information would be used only by the analyst and would not be disseminated. There was no evidence that the union was unreliable in maintaining confidentiality agreements. The Board noted: If the Respondent’s broad assertion of confidentiality were to prevail here, unions would rarely be held entitled to any in- formation that employers had reason to withhold from third parties. If the employer can establish a confidentiality interest, it has the duty to seek an accommodation through the bargaining process. National Steel Corp., 335 NLRB 747, 752 (2001). As part of this, the employer must bargain towards an accommoda- tion of both the union’s need for the information, as well as the employer’s legitimate and substantial confidentiality concerns. Exxon Co. USA, 321 NLRB 896, 899 (1996). Here, Respondent has failed in its burden of establishing that its confidentiality interests outweigh the need of the Union for the information requested to fulfill its duty as bargaining repre- sentative. In the instant case each item the Union requested was either presumptively relevant or it was demonstrated to be necessary and relevant to the Union’s function as bargaining representative. The evidence further reflects that Respondent has made no more than naked assertions to the Union that the necessary and relevant information it is withholding is of a confidential nature. Such bald assertions are insufficient to sustain its burden. Moreover, the record reflects that the Union has made repeated offers to use the information only for repre- sentational purposes. The Union went so far as to suggest that it would only view the requested information at the bargaining table. Respondent was unable to offer evidence that the Union was unreliable in keeping the requested information confiden- tial. Respondent’s argument that it was somehow privileged to withhold the requested information because the parties reached impasse on the subject of a confidentiality agreement is without merit. Contrary to Respondent’s assertion, there is no evidence that the parties reached impasse on the subject of a confidenti- ality agreement. Moreover, the Union gave Respondent ample options to insure its confidentiality interests would be consid- ered. The Union told Respondent it would use the information only for representational purposes and by only viewing the information at the bargaining table. Counsel for the General Counsel argues that Respondent made no effort to meet its obligation and, thus, violated the Act by failing to bargain in good faith with the Union over the NDA and by taking the position that the parties bargained to impasse over the NDA Respondent further violated Section 8(a)(5) of the Act. Respondent contends that the parties bargained to impasse over the NDA. It is Respondent’s position that the parties had reached agreement on all terms of an NDA but for liquidated damages. Since the Union would not agree to liquidated dam- ages, Respondent contends that the parties were at impasse by January 15, 2013, and Respondent did not fail to bargain in good faith. With respect to bargaining in good faith over an accommo- dation to address Respondent’s confidentiality interests, Re- spondent’s argument must be rejected since it would set the Board’s standard set forth in Lasher Service Corp., supra, on its head. Respondent would have the Board find that because the Union did not agree to its only proposal for an accommodation that it bargained in good faith. It argues further that this justi- fies a finding that the parties reached impasse on this subject. This argument conveniently ignores the fact that the Union made many offers to reach an accommodation including an offer of injunctive relief, a representation that it would use the information only for representing bargaining unit employees and that it would view the information only at bargaining meet- ings. Respondent not only rejected these offers of accommoda- tion, it failed to offer an iota of evidence that the Union was untrustworthy in maintaining the confidentiality of the infor- mation sought. Significantly, Respondent has failed to estab- lish that the information it withheld was confidential in nature. With respect to the first prong of the test, Respondent has failed to establish it has a legitimate confidentiality interest in refusing to turn over any information. In testimony, Lawson claimed that all of the requested information was confidential. This claim was not supported by any evidence but was a naked claim that all information sought by the Union was confidential because if divulged to a competitor it would put Respondent at a disadvantage. Such a sweeping assertion suggests the lack of good faith in its assertion. No evidence was proffered as to why any particular item of information the Union requested was of a confidential nature. Further, Respondent assumes that its proposal for an NDA that included liquidated damages for each breach of the agreement was the only legitimate bargain- ing proposal. To the contrary, it is Respondent who failed to bargain in good faith in refusing to accept the Union’s multiple offers of accommodation and instead steadfastly maintained, to impasse, that the only accommodation was its own NDA. Accordingly, I find that Respondent violated Section 8(a)(5) of the Act by refusing to bargain in good faith with the Union over an ac- commodation for a confidentiality agreement or other process. F. Complaint Paragraph 8(B)(iv) Alleges that on January 15, 2013, Respondent Failed and Refused to Bargain with the Union by Taking the Position that it Reached DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474 Impasse with the Union in Bargaining for a Confidentiality Agreement in Violation of Section 8(a)(5) of the Act As noted above, Respondent took the position that the parties reached impasse concerning the NDA. For the reasons set forth above, it is clear that no impasse was reached on this subject. Rather, Respondent seized upon the Union’s rejection of its only proposal for accommodation, despite the Union’s many offers, and declared impasse in violation of Section 8(a)(5). G. Complaint Paragraph 8(C) Alleges that on or About August 19, 2013, Respondent Withdrew Recognition of the Union as Exclusive Collective- Bargaining Representative of Bargaining Unit Employees in Violation of Section 8(a)(5) of the Act 1. Facts Between March 28 and April 3, 2013, 16 employees signed a document entitled “Petition to Remove Union as Representa- tive,”88 requesting that Respondent immediately withdraw recognition from the Union due to lack of majority status. On April 4, 2013, Respondent’s employee Sondra Stilwell gave Respondent’s project manager, Cox, a copy of the above peti- tion to decertify the Union. By letter, dated August 19, 2013,89 Respondent notified the Union that it was withdrawing recognition. The letter states in part: On behalf of SRI, please be advised that our client has re- ceived a petition signed by a clear majority of bargaining unit employees expressly requesting that SRI “immediately with- draw recognition from the union, as it does not enjoy the sup- port of a majority of employees in the bargaining unit.” Be- cause SRI now knows that your union lacks majority support, SRI hereby withdraws recognition of your union and will cease any further bargaining with respect to this bargaining unit. The parties stipulated that on August 19, 2013, there were 27 employees in the bargaining unit but the parties disputed whether employee Scott Olsen was employed in the bargaining unit on that date.90 In Respondent’s September 6, 2013 posi- tion statement to the Board91 it attached a list of 28 employees in the bargaining unit as of August 19, 2013. This position is confirmed in Respondent’s brief in which it concedes there were 28 employees in the bargaining unit when it withdrew recognition.92 I will treat both of Respondent’s statements as admissions against interest. Massillon Community Hospital, 282 NLRB 675, 675 fn. 5 (1987). I find that as of August 19, 2013, there were 28 bargaining unit employees. Thus, on Au- gust 19, 2013, only 14 of the 28 bargaining unit employees had signed the petition. 88 GC Exh. 54. 89 GC Exh. 35. 90 GC Exh. 57, items 7 and 8. 91 GC Exh. 76. 92 See R. posthearing br. at p. 36. 2. Analysis General Counsel contends that the decertification petition cannot support Respondent’s withdrawal of recognition be- cause the petition does not reflect a loss of majority support for the Union, because Respondent withdrew recognition while still under a bargaining obligation in the settlement agreement and before a reasonable period of time had passed and because Respondent’s illegal conduct tainted both the petition and Re- spondent’s subsequent withdrawal of recognition. Respondent argues that its withdrawal of recognition was lawful since it received a decertification petition from a majori- ty of bargaining unit employees. Respondent seems to contend that it illegally bargained with the Union for 3 months but that for unknown reasons it could no longer defend this position and withdrew recognition. In its brief Respondent concedes that only 14 of 28 bargaining unit employees on August 19, 2013, had signed the petition. In Levitz Furniture Co. of the Pacific, 333 NLRB 717, 725 (2001), the Board set forth a new test for determining when an employer may withdraw recognition from its employees’ col- lective-bargaining representative. The Board rejected the “good-faith doubt” standard and held that an employer may unilaterally withdraw recognition of an incumbent union “only on a showing that the union has, in fact, lost the support of a majority of the employees in the bargaining unit.” As the Board found in SFO Good-Nite Inn, LLC, 357 NLRB 79, 83 (2011), an employer needs “50-percent-plus-one to justify a unilateral withdrawal of recognition.” In Alpha Associates, 344 NLRB 782, 784–785 (2005), the Board held that, “an employer may withdraw recognition from the union only if it possesses evidence that the union has in fact lost majority support.” Further an employer may not withdraw recognition from a union while there are unremedied unfair labor practices tending to cause employees to become disaffected from the union. In LTD Ceramics, Inc., 341 NLRB 86, 88 (2004), the Board held that: Evidence in support of a withdrawal of recognition, “must be raised in a context free of unfair labor practices of the sort likely, under all the circumstances, to affect the union’s status, cause employee disaffection, or improperly affect the bargain- ing relationship itself.” Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996) (Lee Lumber II), affd. in part and remanded in part 117 F.3d 1454 (D.C. Cir. 1997), cit- ing Guerdon Industries, 218 NLRB 658, 659, 661 (1975). In Lee Lumber II, the Board held that in order to show that unfair labor practices taint a union’s loss of majority support, there must be proof of a causal relationship between the unfair labor practice and the ensuing events indicating a loss of sup- port. To determine whether a causal relationship has been es- tablished, the following factors must be considered: the length of time between the unfair labor practice and the withdrawal of recognition, the nature of the violation, including the possibility of a detrimental or lasting effect on employees, the tendency to cause employee disaffection, and the effect of the unlawful conduct on employees’ morale, organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). STRATEGIC RESOURCES, INC. 475 Here, I have found that Respondent committed a plethora of unfair labor practices leading up to its bargaining unit employ- ees signing the decertification petition. These unfair labor practices include unilaterally changing employees’ holiday pay in September 2011, refusing to furnish the Union with infor- mation necessary to engage in collective bargaining from Janu- ary 2012 to the present, refusing to bargain in good faith by refusing to meet at reasonable times from September through December 2011, refusing to bargain in good faith with the Un- ion over the terms of an accommodation for Respondent’s con- fidentiality interest from February 2012 to the present and uni- laterally declaring impasse on the subject of an accommodation to resolve Respondent’s concerns about confidential infor- mation on January 15, 2013. Applying the Master Slack criteria, there is ample evidence to suggest that Respondent’s unfair labor practices are of the sort likely, under all the circumstances, to affect the Union’s status, cause employee disaffection, or improperly affect the bargaining relationship itself. Respondent’s refusal to provide information beginning in January 24, 2012, and continuing to the present, precluded any meaningful bargaining and led to dissatisfaction among employees and the decertification peti- tion. Respondent’s failure to bargain in good faith by refusing to agree to bargaining sessions, refusing to engage in good-faith bargaining over an accommodation regarding confidentiality and declaring impasse in violation of Section 8(a)(5) of the Act also likely had a detrimental effect on employees. The Board in Fruehauf Trailer Services, 335 NLRB 393, 394–395 (2001), found that where an employer had refused to meet at reasonable times, such conduct fatally tainted a decertification petition, rendering withdrawal of recognition unlawful under Master Slack. Moreover, Respondent’s unilateral change in holiday pay is the sort of unfair labor practice the Board has found to be not a mere technical infraction but rather a most serious viola- tion that strikes at the heart of the Union’s legitimate role as representative of the employees. Under such circumstances, where a union is unlawfully deprived of the opportunity to represent the employees, it is altogether foreseeable that the employees will soon become disenchanted with that union, because it apparently can do nothing for them. Lexus of Con- cord, Inc., 330 NLRB 1409, 1416 (2000). The unfair labor practices continued unabated from September 2011 to the pre- sent time and were proximate in time to the signing of the de- certification petition. Thus, the General Counsel has estab- lished the causal relation between Respondent’s unfair labor practices both as to motivation and timing. Respondent never had evidence that a majority of its em- ployees rejected the union. At best the evidence reflects that only half of the bargaining unit employees employed by Re- spondent on August 19, 2013, had signed the decertification petition. Under extant Board law this is insufficient evidence to demonstrate a loss of majority support, i.e., 50 percent plus one. Moreover, Respondent’s own unfair labor practices tainted the petition rendering it incapable of supporting Respondent’s withdrawal of recognition. By withdrawing recognition of the Union on August 19, 2013, Respondent violated Section 8(a)(5) of the Act. H. Revocation of the Settlement Agreement 1. Facts On January 30, 2013, the Regional Director for Region 19 approved the Settlement Agreement and Notice to Employees set forth in the complaint.93 Pursuant to the settlement agree- ment Respondent agreed to remedy the unfair labor practices alleged in the complaint.94 As set forth in paragraph 11 of the complaint, it is alleged that Respondent has partially failed to comply with the terms of the settlement agreement. The settlement agreement provided that Respondent would comply with all of the terms and provisions of the notice to employees attached to the settlement agreement and that if Respondent failed to comply, the Regional Director would issue a complaint including the allegations covered by the “scope of the agreement.” The notice to employees95 provided in pertinent part: WE WILL, upon request by your Union, bargain with the Un- ion for a reasonable period of time until either an agreement has been reached on a collective bargaining agreement or a lawful impasse has occurred. WE WILL NOT refuse to meet with or propose dates to negoti- ate with the Union or delay in doing so. WE HAVE provided the Union with information it requested on November 11, 2011. WE HAVE also provided the Union with certain information it requested on January 24, 2012 and sub- sequent follow-up requests. WE WILL NOT refuse to provide the Union with information that is relevant and necessary to its role as your exclusive col- lective bargaining representative, or unreasonably delay in providing such information. To the extent any requested rele- vant information also contains confidential information, WE WILL bargain with the Union for a confidentiality agreement and then provide the Union with relevant, requested confiden- tial information pursuant to the parties’ confidentiality agree- ment. WE WILL, upon request by your Union, rescind our rules re- quiring you to: return from THA missions prior to “wheels up”; provide a written explanation of a “floor failure,” WE WILL pay you for the wages and other benefits lost be- cause of the changes to terms and conditions of employment that we made without first bargaining with the Union. WE WILL upon request by your Union, bargain with the Union for a reasonable period of time until either an agreement has been reached on a collective bargaining agreement or a lawful impasse has occurred. WE WILL meet with your Union twice a week every other week, for a total of at least twentyfour (24) hours bargaining time, beginning [within 14 days of the approval of the Settle- ment Agreement], at a location to be mutually agreed upon 93 GC Exhs. 1(BB), 36. 94 GC Exh. 1(y). 95 GC Exh. 36, pp. 4–5. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476 until we reach a collective bargaining agreement or a legal impasse. It is undisputed that Respondent received notice of the ap- proval of the settlement agreement on February 24, 2013, and Respondent was required to post the notice until at least April 24, 2013. On February 26, 2013, the Union requested that Re- spondent cease its unilateral changes and requested extensive information relating to the enforcement of the settlement.96 Complaint paragraph 11 alleges that since on or about Janu- ary 30, 2013, Respondent has failed to expunge from its records the discipline issued to Kathy Ausley described in paragraphs 6(c) and (f) of the complaint, has required employees to report time into Respondent’s Deltec system and has refused to pro- vide Region 19 with records to enable it to determine the make- whole remedy to employees for the unilateral changes de- scribed in paragraphs 6(a) and (b) of the complaint, i.e., chang- es to holiday pay and waiting time at the THA. Complaint paragraph 11(b) alleges that in light of Respondent’s conduct described in complaint paragraphs 6(a) and (e), 7(l), 8(b), and 11(a) Respondent violated the terms of the settlement agree- ment. The parties stipulated that on August 29, 2013, the compli- ance officer for Region 19 sent a letter to Respondent’s counsel requesting information regarding the calculation of backpay owed due to unilateral changes to THA mission waiting times and holiday pay.97 In his letter to Respondent dated August 29, 2013,98 regarding complaint paragraph 7(c) of the original complaint,99 the change in THA waiting times, the compliance officer requested “dispatch and payroll records showing all hours worked and the gross earnings” of unit employees.100 Regarding original complaint paragraph 7(a),101 holiday pay, the compliance officer asked for “payroll records” for employ- ees who received less than 8 hours for any paid holiday from April 2011 to the August 29, 2013, showing their “hourly rate(s) of pay and the number of hours for which each was paid for each Holiday.”102 The parties stipulated that on September 6, 2013, Respondent’s counsel replied in writing to the compli- ance officer.103 In his response, Respondent claimed that there was no backpay owed and provided no information. The par- ties further stipulated104 that not until counsel for the General Counsel served its subpoena No. B-715313 in preparation for the instant litigation did Respondent finally provide the holiday pay records, dispatcher 2401s, dispatcher logs, and payroll records necessary to determine backpay liability under the set- tlement. 96 GC Exh. 30. 97 GC Exh. par. 11. 98 GC Exh. 67. 99 GC Exh. 1(y). 100 GC Exh. 67. 101 GC Exh. 67 102 GC Exh. 67. 103 GC Exh. 57, par. 12; GC Exh. 68. 104 Id., pars. 10 and 14. 2. Analysis A settlement agreement may be set aside if there has been a failure to comply with the provisions of the settlement or if postsettlement unfair labor practices are committed. Twin City Concrete, Inc., 317 NLRB 1313, 1313 (1995). Whether a set- tlement agreement is to be revoked must be determined by the exercise of sound judgment based on all the circumstances of each case. Nations Rent, Inc., 339 NLRB 830, 831 (2003). Counsel for the General Counsel asserts that the Regional Director appropriately set aside certain portions of the settle- ment agreement approved on January 30, 2013, due to Re- spondent’s failure to comply with the settlement agreement’s terms and its egregious post-settlement unfair labor practices. Respondent contends that it was in compliance with the terms of the settlement agreement and it argues in its brief that it has committed no unfair labor practices. Respondent takes the position that with respect to information requested by the Union and by the General Counsel concerning THA missions and holiday pay, it could not prove a negative. In its letters to the Union and the compliance officer, Respondent claims it requested clarification that was never provided. Respondent also contends that it would have been burdensome to produce the requested documents, therefore it was in compliance with the “spirit if not the letter of the Settlement Agreement.”105 After signing the settlement agreement, Respondent failed to comply with its terms. In the settlement agreement, Respond- ent agreed to expunge from its records the discipline received by Ausley. Instead of doing this, Respondent informed the Union that there was no discipline and, as such, none could be expunged.106 While the notice requires Respondent to make whole employees for losses due to the unilateral changes, Re- spondent refused to provide the necessary information to the compliance officer for Region 19, just as it has refused to pro- vide the same information to the Union. Without this infor- mation, the compliance officer could not have determined Re- spondent’s make-whole responsibility pursuant to the settle- ment agreement. Respondent’s argument that it would have been burdensome to produce these records is belied by the fact that these records were ultimately, if untimely, produced pursu- ant to subpoena. Respondent’s post-settlement unfair labor practices also re- quire revocation of the settlement agreement. After signing the settlement agreement, Respondent continued its refusal to pro- vide the Union with relevant and necessary information in vio- lation of Section 8(a)(5) of the Act as found above. Further, after Respondent signed the settlement agreement on January 24, 2013, and promised to bargain in good faith or to impasse regarding an accommodation regarding its confidentiality is- sues, it in fact refused to bargain in good faith over the terms of a confidentiality agreement and took the position, found above to violate Section 8(a)(5) of the Act, that the parties reached impasse on the nondisclosure agreement as of January 15, 2013. Finally, Respondent’s decision to withdraw recognition of the Union, found above to have violated Section 8(a)(5) of 105 R. posthearing br. at p. 35. 106 GC Exh. 31. STRATEGIC RESOURCES, INC. 477 the Act, demonstrated its failure to comply with the settlement agreement. Based on the above, the Regional Director was more than justified in revoking the January 30, 2013 settlement agree- ment. CONCLUSIONS OF LAW 1. Respondent, Strategic Resources, Inc., is an employer en- gaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (the Union), is a labor organization within the meaning of Section 2(5) of the Act and is the exclusive collective-bargaining representative of Respondent’s employees in the following appropriate collec- tive-bargaining unit: Included: All full-time and regular, part-time employees em- ployed by the employer out of the following Joint Base Lewis McChord, Washington operations, Warrior Transition Battal- ion (WTB), 1st Joint Mobilization Battalion (JMB), and Transportation Motor Pool (TMP) who are employed as dis- patchers and drivers of a vehicle in the transportation of mili- tary personnel. Excluded: All confidential and managerial employees, guards and supervisors as defined in the Act. 3. By engaging in the following conduct, the Respondent committed unfair labor practices in violation of Section 8(a)(5) and (1) of the Act: (a) Unilaterally changing bargaining unit employees’ formu- la for calculating holiday pay. (b) Refusing to provide and unreasonably delaying in providing the Union with information relevant and necessary to its function as collective-bargaining representative of bargain- ing unit employees. (c) Refusing to meet with the Union at reasonable times and/or places for bargaining. (d) Refusing to bargain in good faith with the Union for a confidentiality agreement, protective order or other procedure to address Respondent’s alleged confidentiality concerns. (e) Refusing to bargain in good faith with the Union by tak- ing the position that it had reached impasse with the Union on January 15, 2013, over bargaining for a confidentiality agree- ment, protective order or other procedure to address Respond- ent’s alleged confidentiality concerns. (f) Refusing to bargain in good faith with the Union by withdrawing recognition of the Union as the exclusive collec- tive bargaining representative of bargaining unit employees on August 19, 2013. Other than the violations found above, I recommend that the remaining allegations of the complaint be dismissed. REMEDY In its posthearing brief counsel for the General Counsel rep- resents that it no longer seeks a remedy requiring Respondent to bargain with the Union regarding the bargaining unit em- ployees since Respondent no longer employs those employees. While not stated, it appears that Respondent is no longer the contractor with the Department of Defense for troop transporta- tion at JBLM. Counsel for the General Counsel requests that Respondent be required to mail the notice to employees to all bargaining unit employees employed during the period in which the unfair labor practices occurred. Counsel for the General Counsel further requests that the portion of the com- plaint requesting a bargaining order be withdrawn. Counsel for the General Counsel’s request to withdraw that the portion of the complaint requesting a bargaining order is granted. The Respondent shall be required to post a notice that as- sures its employees that it will respect their rights under the Act. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. J. Picini Flooring, 356 NLRB 11 (2010). The Board has held that discriminatees be reimbursed for any excess taxes owed as a result of a lump-sum backpay award and that Respondent be ordered to complete the appropriate paperwork as set forth in IRS Publication 975 to notify the Social Security Administration what periods to which the back- pay should be allocated as requested in the remedy section of the complaint herein. In Don Chavas, LLC d/b/a, Tortillas Don Chavas, 361 NLRB 101 (2014), the Board ordered that it will routinely re- quire the filing of a report with the Social Security Administra- tion allocating backpay awards to the appropriate calendar quarters. The Board also held that it will routinely require re- spondents to compensate employees for the adverse tax conse- quences of receiving one or more lump-sum backpay awards covering periods longer than 1 year. The Board concluded that it is the General Counsel’s burden to prove and quantify the extent of any adverse tax consequences resulting from the lump-sum backpay award and that such matters shall be re- solved in compliance proceedings. Pursuant to Don Chavas, LLC d/b/a, Tortillas Don Chavas, I will order that Respondent shall file a report with the Social Security Administration allocating any backpay awards to the appropriate calendar quarters. [Recommended Order omitted from publication.]