MV Transportation, Inc.

372 NLRB No. 11 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. MV Transportation, Inc. and Communication Work- ers of America, Local 7800. Case 19–CA–279935 November 29, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND WILCOX On May 24, 2022, Administrative Law Judge Gerald M. Etchingham issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief to the Re- spondent’s exceptions. 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 conclusions3 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In adopting the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by refusing to provide the union with financial infor- mation from the Respondent’s contract with Microsoft, we rely on the judge’s analysis that the Respondent made the Microsoft contract fi- nancial information relevant in bargaining, and find it unnecessary to pass on the judge’s alternative rationale that the information must be produced because the Respondent claimed an “inability to pay.” We further find it unnecessary to pass on the judge’s findings, ex- cepted to by the Respondent, that the Respondent “is so dependent on its continuing relationship with Microsoft that it follows Microsoft’s requests exactly without question” and “Microsoft’s control over Re- spondent is undisputed and includes exercising power over Union em- ployees’ wage terms and conditions” as those findings would not affect our resolution of the case. In the absence of exceptions, we adopt the judge’s finding that the Respondent failed to bargain a reasonable accommodation for provid- ing 33 pages of Microsoft contract financial information because the accommodations the Respondent offered were “incomplete and unrea- sonable.” We note, however, that the judge’s finding in this regard is consistent with Board precedent requiring production of document copies that are lengthy or complex. See, e.g., Union Switch & Signal, 316 NLRB 1025, 1032 (1995) (rejecting employer’s defense that union could review 12-page air quality study instead of receiving copies); Laidlaw Waste Systems, 307 NLRB 1211, 1214 (1992) (rejecting em- ployer’s offers to read aloud certain requested information and/or allow union to review it, as insufficient to meet its obligation to provide the information); American Telephone & Telegraph. Co., 250 NLRB 47, 47–48, 52–53 (1980) (rejecting employer’s offer to have a union hand- copy material, rather than provide photocopies of more than 90 pages of relevant personnel records), enfd. 644 F.2d 923 (1st Cir. 1981). Cf. Roadway Express, Inc., 275 NLRB 1107, 1107 (1985) (not requiring an employer to photocopy a 1-page document that union agents could quickly read) and Abercrombie & Fitch Co., 206 NLRB 464, 466-467 (1973) (not requiring an employer to photocopy a half-page confession and three pages of cash register records). Moreover, the Union’s re- quired entrance into a nondisclosure agreement to obtain the infor- mation here makes this case further distinguishable from prior cases that did not order production of document copies. In addition, we adopt the judge’s recommended remedy that the Re- spondent is required to provide the financial information requested by the Union once the Union has executed the offered confidentiality agreement. The requested information at issue here is limited to Exhib- it C of Microsoft’s contract with the Respondent, and the Respondent has not excepted to the judge’s finding that it violated the Act by not “accepting the Union’s suggestion to enter into a nondisclosure agree- ment or protective order and provide the Union with the 33 pages of Microsoft contract financials.” In the absence of exceptions to this finding or the judge’s recommended remedy, unlike our dissenting colleague, we find no basis to further limit the information the Re- spondent is required to produce. Contrary to his colleagues, Member Ring does not believe that Board precedent supports the judge’s finding that the Respondent failed to offer the Union a reasonable accommodation, and if the issue had been preserved, he would find that the Respondent did offer a reasona- ble accommodation, which the Union unreasonably refused. The Re- spondent told the Union that there was no money for raises in its con- tract with Microsoft. This statement made some of the information in the 33-page financials document—Exh. C to Microsoft’s contract with the Respondent—relevant to the Union’s representative duties, but not all of it. It made relevant only the portion of Exh. C that showed how much money Microsoft was providing for wage increases. The Union admitted as much and only sought the portion of Exh. C that relates to wage increases. Exh. C also includes amounts Microsoft was providing the Respondent for a variety of other purposes, including fuel costs, maintenance costs, and management fees. Union officials testified that the Union was not seeking any of that information. Rather, it was just looking for how much of a wage increase was built into the Microsoft contract. The Respondent offered to share with representatives of the Union the relevant section of Exh. C in person and later via a Zoom call, which is how the parties had conducted portions of their negotia- tions. According to the judge, the Union rejected the latter offer on the basis that it “wanted more than a quick glimpse on a computer screen.” But there is no evidence that the Respondent placed any time limit on the Union’s viewing of the relevant section and no reason this approach would not have met the Union’s needs. Under Board precedent, a reasonable accommodation was offered and unreasonably refused be- cause the relevant section of Exh. C could be read and understood quickly. See Roadway Express, Inc., 275 NLRB 1107, 1107 (1985) (finding that employer did not violate Sec. 8(a)(5) by declining to give the union a photocopy of requested information, where the information “could be easily read and understood in a matter of minutes” and the employer allowed the union to view it); Abercrombie & Fitch Co., 206 NLRB 464, 466–467 (1973) (same). Because the Respondent did not relevantly except, Member Ring agrees that it must be ordered to furnish relevant information requested by the Union on July 2, 2021, upon the Union’s execution of its offered confidentiality agreement. Consistent with the foregoing, however, he would limit that information to the portion of Exhibit C that shows how much money Microsoft was providing the Respondent for wage in- creases for unit employees. Accordingly, from his colleagues’ decision to require the Respondent to furnish Exhibit C in its entirety, Member Ring dissents. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and to adopt the recommended Order as modified and set forth in full below.4 AMENDED CONCLUSIONS OF LAW Insert the following as paragraph 5 and renumber the subsequent paragraph: “The Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain a reasonable accommoda- tion of the Union’s request for Microsoft contract finan- cial information.” ORDER The National Labor Relations Board orders that the Respondent, MV Transportation, Inc., Redmond, Wash- ington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Commu- nication Workers of America, Local 7800 by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s employees. (b) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon execution by the Union of its offered confi- dentiality agreement, furnish to the Union in a timely manner the information requested by the Union on July 2, 2021, concerning the Microsoft contract financial in- formation. (b) Post at its Redmond, Washington facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. The Respondent shall take reasonable steps 3 We have amended the judge’s Conclusions of Law to correct the inadvertent omission of the Respondent’s failure to bargain a reasona- ble accommodation. 4 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with Para- gon Systems, 371 NLRB No. 104 (2022). We shall also substitute a new notice to conform to the Board’s Order as modified and to the Board’s standard remedial language. to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since July 2, 2021.5 (c) 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. Dated, Washington, D.C. November 29, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ John F. Ring, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 5 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MV TRANSPORTATION INC. 3 The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with the Communication Workers of America, Local 7800 by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining representative of our 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, upon execution by the Union of its offered confidentiality agreement, furnish to the Union in a time- ly manner the information requested by the Union on July 2, 2021. MVTRANSPORTATION, INC. The Board’s decision can be found at www.nlrb.gov/case/19-CA-279935 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Carolyn McConnell, Esq., for the General Counsel. Kerry S. Martin, Esq. (Fisher & Phillips, LLP), for the Re- spondent. DECISION STATEMENT OF THE CASE GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried using the Zoom for Government video platform on January 25, 2022. Communication Workers of America Local 7800 (the Union or Charging Party) filed the charge on July 14, 2021, and the General Counsel issued the complaint on October 15, 2021. MV Transportation, Inc. (the Respondent or Employer), filed a timely answer denying all material allega- tions. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amend- ed (the Act), when it failed and refused to timely furnish the Union, since July 2, 2021,1 with the Respondent’s client’s Mi- crosoft financials information requested and/or has failed and refused to bargain with the Union over the confidentiality of the requested information regarding the Microsoft financials re- garding its contract with Respondent. For the reasons detailed below, I find the General Counsel has met the burden to prove this allegation by a preponderance of the evidence. On the entire record,2 including my observation of the de- meanor of the witnesses, and after considering the General Counsel’s and Respondent’s closing briefs,3 I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, operates as a transportation services company throughout the United States, including out of a facility in Redmond, Washington (its facility), where it annually derives gross revenues in excess of $500,000, and purchases and receives goods at its facility location valued in excess of $50,000 directly from points outside the State of Washington. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organ- ization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent and the Union have had an ongoing collective- bargaining relationship, the most recent embodied by collec- tive-bargaining agreement from July 1, 2018, through Novem- ber 30, 2020, which has been extended month-to-month since then (CBA). (Tr. 83; Jt. Exhs. 1 and 2.) The parties have main- tained a collective-bargaining relationship since at least 2011. (Tr. 19.) Unit members are comprised of approximately 400 members and are mostly drivers—connector drivers and shuttle drivers, some dispatchers, ambassadors, operation and payroll clerks, and utility workers including employees who clean buses. (Tr. 1 All dates are in 2021 unless otherwise noted. 2 The transcripts and exhibits in this case generally are accurate. However, I hereby make the following corrections to the trial tran- scripts: page (p.) 63, line (l.) 23 & 24: “Joint Exhibit 8” should be “Joint Exhibit 7;” 3 Abbreviations used in this decision are as follows: Transcript cita- tions are denoted by “Tr.” with the appropriate page number; citations to the General Counsel exhibits are denoted by “GC”; “Jt. Exh.” for a joint exhibit; “R Br. for Respondent’s closing brief; and “GC Br.” for General Counsel’s closing brief. Although I have included several citations to the record to highlight particular testimony or exhibits, my findings and conclusions are based not solely on the evidence specifi- cally cited, but rather on my review and consideration of the entire record. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 19, 83.) Specifically, the unit is identified as a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and part-time drivers, dispatchers, utility work- ers, payroll clerks, operations clerks, and ambassadors at MV Transportation, Inc. Division 105, but excluding all other me- chanics, maintenance employees, guards, supervisors and road supervisors as defined under the National Labor Rela- tions Act. This driving service provided by Respondent and the Union is a result of Respondent’s contract with Microsoft Corporation (Microsoft) to provide connector and shuttle bus, and dispatch- er service for Microsoft and its employees at Microsoft’s cam- pus in Redmond, Washington. Connector drivers pick up Microsoft employees at various park and rides around the Microsoft campus in the morning and in the evening while shuttle drivers drive employees around Microsoft’s campus all day long. (Tr. 19.) Jeanne Stewart (Stewart) has worked as a union staffer rep- resentative at the International Union since November 2015, and participates in contract bargaining with local branches of the International Union, conducts training, works on grievanc- es, attends arbitrations, and generally helps out the local Union. (Tr. 58.) Arthur Clemens, Jr. (Clemens) is the Union’s president and he reports to Stewart and Clemens also works in resolving grievances of union members, he negotiates the ongoing CBA relationship between Respondent and the Union, he attends bargaining sessions with other union representatives, such as Stewart, and Respondent’s representatives to discuss current and future CBAs, and he also participates in conflict resolution. (Stip. Fact # 11; Tr. 18, 20.) Clemens opines that Stewart works with him to attend bar- gaining sessions and that Stewart frequently interacts directly with Respondent’s human relations department and manage- ment representatives (HR) and that Stewart maintains bargain- ing notes from the CBA bargaining sessions she attends with Clemens. (Tr. 20.) In 2020 and 2021, the Union’s bargaining team was com- prised of Clemens and Stewart and Wendy Rendelman (Ren- delman), a shuttle driver and current area representative for the Union, and Diane Tarantino (Tarantino), a connector driver and area vice president. (Tr. 28.) Also, in 2020 and 2021, in the course of CBA negotiations, the topic of Microsoft has come up several times. (Tr. 20.) Clemens recalled that on one occasion, Respondent came to Clemens and the Union on behalf of Microsoft and Respondent indicated that Microsoft had asked that one or more driver em- ployees be removed and terminated from work at the Microsoft campus for things done there and this driver employee was dismissed from employment. (Tr. 20, 23–24.) On another occasion, Clemens recalled that Respondent brought to CBA negotiations the fact that Microsoft wanted to provide a temporary boost of hourly wages for union employ- ees and this request was granted. (Tr. 20–21.) Clemens also recalled that prior to the CBA starting on July 1, 2018, Respondent communicated to Clemens and the Union that due to an increased cost of living and because Respondent wanted to retain its drivers for the Microsoft contract, Mi- crosoft wanted Respondent to give union employees a $2- hourly wage increase. (Tr. 21–22.) Clemens also provided that he was working with Mike Haner (Haner), Respondent’s former director of operations when this $2-hourly wage increase was worked out. (Tr. 21.) Haner was replaced by Mark Moujabber (Moujabber) in CBA negotiations after July 2018. Id. In contract negotiations and collective bargaining between the Union and Respondent after July 1, 2018, Clemens has worked with Respondent’s representatives, Patrick Domholdt (Domholdt), Respondent’s director of labor relations since 2016, and two managers who either supervise Domholdt or hold positions senior to him at Respondent—Kimberly Borden (Borden) and Moujabber, Kristee Crowder (Crowder) and oc- casionally Wes Smith (Smith), Martin Grungefield (Grunge- field), and Tim Fournier (Fournier). (Tr. 22, 28, 83; Jt. Exh. 4.) Domholdt has been employed by Respondent since July 2016 as its director of labor relations through the date of hear- ing. (Tr. 77.) Domholdt’s work at Respondent covers various geographic territories such as Nevada, Colorado, Northern Cali- fornia, Central Valley California, Alaska, Oregon and Wash- ington. (Tr. 77–78.) Domholdt opines that he is responsible for representing the Respondent in all facets of labor relations including contract negotiations for approximately 30 regions with about 40 differ- ent CBAs. (Tr. 78.) Like Clemens and Stewart for the Union, Domholdt attends bargaining sessions for Respondent, handles grievances and arbitrations and testifies at unfair labor practice hearings on behalf of the Respondent. Id. Domholdt is familiar with Respondent’s Division 105 called its Redmond Division which involves contracting with Mi- crosoft and its different types of drivers’ routes, fixed commut- er routes and different on-demand shuttle services. (Tr. 78–79.) In sum, Domholdt explains that Respondent provides Microsoft with shuttle servicing, dispatchers, customer service reps to provide transportation to different Microsoft employees to their Redmond campus in Washington. (Tr. 79.) Domholdt refers to Respondent’s contract agreement with Microsoft as a master service agreement or as a revenue agree- ment with Microsoft as the client (the Microsoft contract). (Tr. 79; Jt. Exh 10.) Domholdt further describes the Microsoft con- tract as 20–25 pages mostly with boilerplate language of a typi- cal master services agreement with approximately eight exhibit appendixes that involve specific terms of service, client vehicle inventories, different route structures and service areas, and financial pricing information that get incorporated into the mas- ter agreement. (Tr. 79–80; Jt. Exh. 10.) Domholdt further explains that the Microsoft contract con- tains an exhibit specifically dealing with Microsoft financials which he identifies as Exhibit C to the Microsoft contract, ap- proximately 33 pages consisting of spreadsheets and charts and covers labor costs, other variable costs, fixed costs, manage- ment/administrative fees and Respondent’s charge to Microsoft for providing its services. (Stip. Fact # 16; Tr. 81–83, 98–99.) Domholdt opines that generally contained in this Exhibit C MV TRANSPORTATION INC. 5 Microsoft financials exhibit are four areas including: (1) varia- ble operating costs which include labor, and can also include maintenance and repair costs which may or may not include fuel costs and supplies associated with these maintenance costs that Respondent provides; (2) fixed costs like a fixed route or a fixed monthly fees for some technology subscriptions or fixed licenses or subscription costs such as video cameras on buses; (3) management fees which include any kind of administrative costs; and (4) Respondent’s profit margin or its revenue from Microsoft less pricing rate costs to a client for providing their transportation services. (Tr. 81–83.) Domholdt says Microsoft and other clients pay for a variety of these costs and also Re- spondent may pick up and pay for the same depending on the client. Id. Domholdt also described a nondisclosure agreement that Re- spondent has entered into with Microsoft that describes the use and disclosure of confidential information from Microsoft like the financials at issue here and requires that Respondent enter into a similar nondisclosure agreement with any of its Subcon- tractors who may have a need to know to engage any of the same confidential information in the course of their business relationship with Respondent contemplated in the Microsoft contract. (Tr. 80-81; Jt. Exh. 11 at 1.) In addition, the non- disclosure statement requires Respondent to protect the confi- dential information the same as it would if it belonged to Re- spondent. (Jt. Exh. 11.) B. The Respondent and the Union Held 5 or 6 Bargaining Ses- sions in 2020 and 2021 During the Pandemic Clemens also described how in early 2020, the Covid-19 pandemic caused everyone to stay home from work which took away the need for Respondent’s union drivers since there were no Microsoft employees to drive or shuttle around. (Tr. 22– 23.) Despite the changed work conditions caused by the pandem- ic, Respondent told Clemens that Microsoft graciously elected to continue to pay its vendors, including Respondent and all of its union employee drivers, dispatchers and bus washers, etc. the entire time with no break in time until Microsoft returned to working one week at Microsoft campus and 3 weeks at home per month in 2022. (Tr. 22–23.) Beginning in June 2020, the Respondent and the Union met approximately 5 or 6 times to bargain over a new CBA or ex- tension. (Tr. 24–25.) The last bargaining session occurring in July 2021. Id. C. The Union’s October 30, 2020 Request for Information to Employer Re: The Microsoft Contract On October 30, 2020, Stewart sent Domholdt and copied Clemens, and union members Rendelman and Tarantino, the Union’s initial request for information for the purpose of ad- ministering and policing the Union’s current CBA with Re- spondent that included 17 categories of information that the Union sought in connection with all employees in the bargain- ing unit. (Oct. 30 RFI). (Tr. 25–26; Jt. Exh. 3.) Category 3 of the October 30 RFI specifically asked that Respondent provide the Union with the Microsoft contract: “The current contract between Microsoft and [Respondent] MV Transportation.” Id. Stewart requested that the information be provided to her by November 4, 2020. ((Tr. 50; Jt. Exh. 3.) On November 5, 2020, Domholdt emailed Stewart and Clemens and copied Crowder of Respondent, a partial response to the October 30 RFI which provided the Union with most of the requested information and with respect to the Category 3 request, Respondent responded that: “Response forthcoming.” (Tr. 26–27, 42, 83–84; Jt. Exh. 4 at 2.) Later that same afternoon, Domholdt writes to Stewart and Clemens and copies Crowder, Moujabber, and Aaron Edwards (Edwards), the following as to the Union’s Category 3 request for the entire Microsoft contract in its October 30 RFI: In response to the Union’s request for the current contract be- tween Microsoft and MV Transportation, the Employer be- lieves that such information is confidential information and MV is precluded from sharing such contract without violating the terms of an NDA. The parties’ contract has a confidenti- ality provision which precludes MV from disclosing infor- mation contained within the current contract as it is confiden- tial information and subject to a nondisclosure agreement. To the extent that the Union is looking for specific information in the current contract between Microsoft and MV Transporta- tion please let me know what specific information the Union is looking for so that we can attempt to reach an accommoda- tion. If the Union can provide us with the information that they are seeking than [siq.] we can determine if this infor- mation is contained within the current contract. If such infor- mation is contained within the current contract we can work with the Client to determine whether this information could be provided without MV Transportation violating the confi- dentiality provisions contained within the current contract and/or the Employer’s nondisclosure agreement. (Tr. 42, 84–85; Jt. Exh. 4 at 1.) The Union did not pursue obtaining the entire Microsoft con- tract at that time in November 2020 and the Union did not pro- vide Respondent with any specific email response to Dom- holdt’s November 5, 2020 email. (Tr. 27–28, 42–43, 85–86.) Respondent did not provide the Microsoft contract to the Un- ion in response to the October 30 RFI. (Tr. 27.) D. The Union and Respondent Continued to Conduct Bargain- ing Sessions in June 2021 to the Point of Discussion of Eco- nomic Issues At some point in CBA negotiations in 2021, Clemens opines that the Union moved on to economic issues and wanted to see the Microsoft contract’s financial information so that the Union could adjust its own wage raise request from Respondent for its drivers accordingly based on the amount of wage raise that Respondent was receiving from Microsoft. (Tr. 27–28.) Dom- holdt did not recall meeting with the Union for any bargaining sessions between November 2020 and June 15, 2021, primarily because Microsoft had a closed campus due to the pandemic and both sides were just waiting for the pandemic to end. (Tr. 86.) At a June 16 bargaining session, the parties met at the union hall for 4–5 hours. (Stip. Fact #1; Tr. 29.) Clemens recalled DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 that there were specific discussions about wages for drivers and other Union employees. (Tr. 28-29, 59.) For the Respondent at the June 16 bargaining session were Domholdt, Crowder, Borden, Edwards, and Moujabber, each a supervisor and agent within the meaning of Section 2(11) and (13) of the Act. (Stip. Fact Nos. 2 and 3.) In attendance at the same bargaining session for the Union were Clemens, Stewart, Jake Williams (Williams) and Rendelman. (Stip. Fact # 4.) At this meeting, the Union presented its opening proposal— Economic Proposal #15, Article 21, Wages comprised of a $2000 signing bonus for each Union employee and a $10- increase in hourly wage rates as of July 1, 2021, with an addi- tional $5-increase in hourly pay each year for the next 2 years on July 1, 2022, and July 1, 2023. (Stip. Fact# 5; Tr. 29–30, 44–45, 67, 87–88; Jt. Exh. 5.) Domholdt opines that this $20-per-hour proposed raise over 3 years was effectively more than $20 per hour due to the driv- ers and staff having their wage scales adjusted 2 times a year— once on the CBA anniversary and again on a driver’s hire date anniversary. (Tr. 88.) Domholdt responded to this union proposal for Respondent calling it “ridiculous” or “absurd” and that there was no money for raises or that Respondent had no money for any union em- ployee raises. (Tr. 30–31, 45, 88.) Domholdt reasoned that the Union was proposing a 50-percent wage raise in year one and 25 percent raises in the next 2 years and since Microsoft’s cam- pus was closed for the pandemic yet Microsoft was paying the union employees to not drive and to stay home, such a wage raise proposal was quite unreasonable under the circumstances. (Tr. 88–89.) Clemens further recalls that Domholdt specifically told him that “there was no money built into the Microsoft contract for raises” in June or July 2021. (Tr. 45.) Stewart recorded this same conversation in her June 16 bar- gaining notes which provide that Clemens brought up “raises” or employee wage increases to Domholdt at the June 16, 2021 bargaining session and Domholdt “SAID THERE ARE NO RAISES IN THE MICROSOFT FINANCIALS.” (Tr. 59–62; GC Exh. 2 at 2.) (Emphasis in original.) Clemens opined that the Union understood Domholdt’s “Re- spondent had no money” comment to mean that their client, Microsoft, had not provided Respondent with any money for raises in the current Microsoft contract, so, as a result, the Un- ion was also not going to receive any wage raises. (Tr. 31.) Clemens confidently recalled that Domholdt specifically told him that “there’s no money built in for [wage] raises” in the current Microsoft contract. (Tr. 31, 45.) Domholdt attempts to downplay or diminish his comment that there is no money for union raises flowing from the Mi- crosoft contract by explaining at hearing that the Microsoft contract was not providing enough new revenue to support a $10-per-hour raise in response to the Union’s wage raise pro- posal on June 16, 2021. (Tr. 89-90.) Domholdt next attempts to argue that Respondent’s ability to pay the Union wage raises has little or no connection to the Microsoft contract which is a non-factor when he states that whatever revenue that Microsoft provides Respondent is really irrelevant for bargaining purposes such that if Microsoft gives Respondent a 3-percent increase in revenue, Respondent is not bound to give the Union a 3-percent wage raise because Re- spondent could give the Union more or less than 3 percent. (Tr. 89–92, 94–95.) Domholdt says that, instead, the decision about any wage increase to the Union comes from Respondent’s cor- porate department in Dallas and is dictated by a budget worked out by Domholdt with his leadership team and not by the Mi- crosoft contract. Id. I reject this explanation from Domholdt that the Microsoft financials are irrelevant to the parties’ bargaining here because Respondent took the position that wage raises for an extended CBA with the Union were dependent and flowed from revenue increases contained in the Microsoft financials. Domholdt spe- cifically told the Union that Respondent would not offer any wage raises for the extended CBA because there are no raises in the Microsoft contract financials. Moreover, past relations be- tween Respondent and Microsoft show that Respondent is so dependent on its continuing relationship with Microsoft that it follows Microsoft’s requests exactly without question and it is not unreasonable for the Union to believe that Respondent can afford to flow part or all of its wage raises contained in the Microsoft financials to the Union. Once again, Respondent has honored Microsoft’s requests whether it be to remove an em- ployee or provide increased wage rates to Union employees. (Tr. 20-24.) Next, they talked about a counter-proposal but the conversa- tion went no further at this June 16 bargaining session. (Tr. 31.) On June 21, the parties met again via Zoom for another bar- gaining session and this meeting lasted approximately 1–2 hours. (Stip. Fact # 6; Tr. 31–32.) At this meeting, Respondent passed on a wage proposal to Clemens via email. (Stip. Fact # 7.) Domholdt presented for Respondent a proposal to the Union of a purported 2 percent wage increase across the board for all union employees. (Tr. 32–33, 46; Jt. Exh. 6 at 11.) Clemens next explains that the Union took Respondent’s lat- est wage proposal to be inconsistent or in conflict from what Respondent had earlier represented about wage increases be- tween Respondent and the Union and Respondent and Mi- crosoft in the current Microsoft contract financials. (Tr. 32–33.) First, Respondent said there was no money built into the Mi- crosoft contract financials to provide raises to Respondent or the Union—no pay increases but, soon thereafter, Respondent is saying they can afford to offer a 2-percent pay increase. (Tr. 33, 45–46; Jt. Exh. 6 at 11.) When the Union actually examined the specifics of Re- spondent’s purported “2 percent pay increase” proposal, it dis- covered that the wage raises were actually less than 2 percent, more like 1.5-percent wage raises, when it ran the math in the proposal.4 (Stip. Fact # 8; Tr. 33, 46, 91; Jt. Exh. 6 at 4–5, 11.) Thus, Respondent was once again being untrue in its bargaining 4 For example, the Respondent’s proposed raise at ratification for a 2-year CDL Vehicle driver was to go from a current rate of $26.52 to $26.92, an hourly increase of $0.40 or 1.51 percent and the proposed wage increase for a 6-year dispatch or payroll clerk would increase from a current hourly rate of $22.10 to $22.43, an hourly increase of $0.33 or 1.49 percent. (Jt. Exh. 6 at 4–5. See also Stip. Fact # 8.) MV TRANSPORTATION INC. 7 negotiations with the Union where its purported 2 percent wage raise proposal turned out to be only a 1.5 percent wage in- crease. Given Respondent’s fast and loose bargaining positions in 2021, I find that the Microsoft contract financials labor in- formation is relevant and necessary for the Union’s bargaining purposes. E. The Union’s More Specific July 2 Request for Information to Employer Re: The Microsoft Contract’s Financials By late June 2021, the Union had received mixed messages from Respondent’s changed proposals as to the range of wage increase options available for the parties to bargain for a new CBA and the Union decided that it needed to obtain the Mi- crosoft contract financial information to see what wage increas- es Microsoft was providing Respondent in the current Mi- crosoft contract to best be able to negotiate wage increases with Respondent for the current CBA negotiations. (Tr. 33, 47–48, 50, 62–63.) Moreover, the Microsoft contract financials infor- mation became necessary to receive for bargaining purposes immediately after the two June bargaining sessions when Re- spondent came back and told the Union that they was no money for raises in 2021 along with its other two wage raise offers. (Tr. 54, 62–63.) On July 2, Stewart prepared another request for information to Domholdt and Respondent (the July 2 RFI), this time due to its receiving mixed messages from Respondent as to its ability to afford wage increases as dictated by its Microsoft contract, a more specific request for information was prepared that, while similar to the October 30 RFI, was more limited to the Mi- crosoft contract financials than requesting the entire Microsoft contract, and with its July 2 RFI, the Union asked for: . . . a copy of Microsofts [siq.] Financials regarding their con- tract with [Respondent] MV Transportation. At the last bar- gaining meeting it was stated that Microsoft didn’t include any raises for the contract so we would like proof regarding this. (Tr. 33, 47–48, 62-63; Jt. Exh. 7.) Clemens and Stewart opine that the Union’s July 2 RFI did not specifically seek Respondent’s fuel costs, maintenance costs, or management fees as part of the Microsoft contract financials information that the Union was requesting be pro- duced from Respondent, the Union was just looking for how much of a wage raise was built into the Microsoft contract fi- nancials between Microsoft and Respondent. (Tr. 40–41, 50, 62– 63, 65, 91; Jt. Exh. 7.) Stewart also admitted that the Union was seeking infor- mation in the Microsoft financials related to the amount of raises that might have been built into the Microsoft contract. Stewart further admits that the Union never specifically notified Respondent about this specific request other than asking for the Microsoft financials. (Tr. 66.) As of the July 2 RFI, the parties had already scheduled an- other bargaining session for July 14, 2021. (Tr. 33.) On July 13, Stewart emails Domholdt regarding the July 2 RFI and Microsoft Financials and Stewart tells Domholdt that the Union needs the Microsoft contract financial information for bargaining purposes and asks Domholdt whether he will be providing this information ahead of the July 14 bargaining ses- sion as the Union “believes we are entitled to the information because it was discussed at the bargaining table that Microsoft did not have raises for employees in the contract between MV and Microsoft.” (Tr. 46–47, 65, 91; Jt. Exh. 8 at 5.) Later at 11:30 a.m. on July 13, Domholdt responds to Stew- ard and the Union saying to all: I believe the Union made the same request a few months ago and the Company denied the request for the revenue agree- ment (including Microsoft Financials) as being confidential and propriety information. Without waiving such objection, we can confirm that the revenue contract between MV and Microsoft provides for a 3 percent increase for drivers' wages and 2.5 percent increase for hourly employees’ wages on July 1st. Let me know if this is a satisfactory response that will al- low for the parties to continue bargaining this week or if the Union requests that negotiations be postponed based on this response. l have a flight scheduled for 4:00 PM and want to assess whether we are still having negotiations. (Tr. 34, 46–48, 65, 93; Jt. Exh. 8 at 4.) Clemens convincingly opined that on July 13, he did not be- lieve Domholdt when he communicated these new wage in- crease offers to the Union that the Microsoft contract purport- edly provides the limited specific wage raise of 3 percent for drivers and 2.5 percent for hourly employees on July 1, 2021. (Tr. 51.) Instead, Clemens and the Union wants to view the Microsoft contract financials which the Union believed contain the financial information requested in the July 2 RFI including the exact wage rate increases for these union employees. Id. Similarly, Stewart opines that the Union does not always au- tomatically believe or trust that financial offers from Domholdt or Respondent are necessarily backed up by the truth such as Domholdt’s July 13 statements about wage increases provided by Microsoft to Respondent because the Union always would like proof or evidence of the truth which is why the Union was seeking the Microsoft financials from Respondent. (Tr. 72–73.) Clemens responds to Domholdt at 11:53 a.m. that same day saying that: “We would like to get a copy of the [Microsoft contract] financials for last contract with Microsoft and the current one. We are entitled to this according to the NLRA. Will you provide it?” (Jt. Exh. 8 at 4.) At 12:29 p.m. on July 13, Domholdt responds to Clemens saying: MV will not be providing the contracts between Microsoft and MV Transportation as the contracts are confidential and proprietary information. MV and Microsoft have agreed to strict non-disclosure agreements which do not allow for the dissemination of the information that the Union is requesting. The Company does not believe that the Union is entitled to this information under the National Labor Relations Act due to the confidential/proprietary nature of this information. How would the Union like to proceed based on the above re- sponse and my previous email? DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 (Tr. 48; Jt. Exh. 8 at 3.) At 12:35 p.m. on July 13, Clemens responds: “Patrick [Domholdt], to be clear we are not requesting the full contract just the financials.”5 (Tr. 34–35, 47–48; Jt. Exh. 8 at 3.) At 1:34 p.m. on July 13, Domholdt asks Clemens whether the Union is still planning on meeting tomorrow and Thursday and, if so, whether the meetings will be onsite or on Teams? (Jt. Exh. 8 at 2–3.) At 2:16 p.m. on July 13, Domholdt again emails Clemens and other union representatives proposing that the July 14 and 15 bargaining sessions go forward via Teams video rather than in person onsite “unless the Union is looking at postponing the entire negotiation session.” (Jt. Exh. 8 at 2.) At 3:39 p.m., on July 13, Clemens responds to Domholdt writing: “Patrick, It just doesn’t seem like we get the same level of negotiations done when we are on Zoom/Teams.” (Jt. Exh. 8 at 2.) At 4:38 p.m., on July 13, Domholdt responds saying: Based on the Union’s stance that negotiations would be post- poned if Microsoft financials would not be provided com- bined with our inability to provide that information, I rear- ranged my travel arrangements and cancelled my afternoon flight to Seattle. I think we can still get things accomplished via Teams if the Union is interested in meeting the next two days. Please let me know if you would like to meet via Teams and I can send out the appointment. (Jt. Exh. 8 at 1.) At 5:21 p.m., July 13, Clemens responds to Domholdt’s pro- posal saying “we have received conflicting answers on the fi- nancials. We need some more information before we can meet. Based on that we would like to cancel these two days and re- schedule.” (Tr. 32–35, 48–49; Jt. Exh. 8 at 1.) On July 14, the Union filed its charge in this case against the Respondent for not timely and fully responding to the Union’s July 2 RFI. (Tr. 35.) Domholdt was not believable when I observed him stiffly denying that he ever told Clemens and Stewart at the June 16 bargaining session that there was no money in the Microsoft financials for wage raises to flow-through to the union employ- ees despite Clemens’ and Stewarts’ conflicting testimonies and Stewarts bargaining notes from the June 16 bargaining session. Stewart testified and a convincing manner when she said that with her experience bargaining with Domholdt and Respondent in the past, she opines that the Union does not always automati- cally believe or trust that financial offers from Domholdt or Respondent are necessarily backed up by the truth such as Domholdt’s July 13 statements about wage increases provided by Microsoft to Respondent because the Union always would like proof or evidence of the truth which is why the Union was seeking the Microsoft financials from Respondent. (Tr. 72–73.) 5 Clemens admits that he never told Domholdt that the specific in- formation being sought by the Union with its July 2 RFI “was related only to wage rate increases from Microsoft” provided in the Microsoft contract. Tr. 49-50. In addition, Domholdt never denied offering the Union 2- per- cent pay raise across all categories of union employees which, in reality turned out to be a lesser 1.5-percent wage raise offer. On or after July 14, Respondent’s representatives asked Clemens if they could get back to the bargaining table and re- sume negotiations for a new CBA and Clemens responded tell- ing them that the Union needs the information requested in the July 2 RFI—the Microsoft contract financials before the Union can return to the bargaining table. (Tr. 35–36.) As of January 24, 2022, Respondent has not produced any documents to the Union that are responsive to the July 2 RFI. (Stip. Fact # 17, Jt. Exh. 12; Tr. 63.) The document responsive to the Union’s July 2, 2021 RFI consists of approximately 33 pages consisting of spreadsheets and charts (Stip. Fact #16, Jt. Exh. 12) and is otherwise known as unredacted Exhibit C to the Microsoft contract. (Jt. Exhs. 9 and 10.) At no time after receiving the July 2 RFI did Respondent ev- er ask Clemens or the Union to clarify what specifically the Union was seeking with its July 2 RFI or inform the Union that he did not know what specific information the Union sought. (Tr. 69-70, 100-101; Jt. Exh. 8.) Clemens explained that the Union was seeking information for increased moneys contained in the Microsoft contact provided to Respondent by Microsoft from the previous contract between the two of them as a total and as wage increases the Union might like to use in bargaining with Respondent or such information in the Microsoft finan- cials related to raise increases built into the Microsoft contract. (Tr. 102–103.) In December 2021, Respondent replied to Clemens that “this could take a long time and go through appeals and be drawn out.” (Tr. 36.) There have been no more bargaining sessions since the last one on June 21, 2021, because the Union needs the Microsoft contract financial information and without proof of what is really available for raises, the Union is not in a position to bar- gain. (Stip. Fact #13; Tr. 36–39.) Specifically, the Union wants to see: increases in pay for MV [Respondent] from Microsoft. As far as hourly, what they’ll pay hourly for a truck roll. What they pay in total as a contract compensation. Finances, so that we [the Union] can compare with the previous contract how much operations increase MV [Respondent] got as a whole. (Tr. 39.) As of the day of hearing in late January 2022, Clemens still believes that Domholdt is not being truthful given his mixed positions communicated to the Union in June and July 2021, which vacillate from “Respondent had no money” for wage increases to a 2-percent wage increase offer that turned out to be less than 2 percent, to the 3-percent and 2.5-percent offers emailed on July 13, 2021. (Tr. 51.) Clemens further explains that the Union needs to see the Microsoft contract financials so that it can make an educated response to Respondent’s mixed wage proposals and Clemens notes that Microsoft has been very generous in the past so Clemens does not want to make a wage proposal to Respondent without seeing the Microsoft MV TRANSPORTATION INC. 9 contract financials information. Id. In or about December 2021, when another COVID-19 surge was present, Clemens and Stewart recalled that since the Union filed its charge in this case, the Respondent has offered the Union to come into its offices and view the Microsoft contract financials there and asked Respondent any questions that the Union might have about the information. (Tr. 36, 51–52, 66, 96–98.) The Union rejected this accommodation from the Re- spondent because the Union did not want to be in a fishbowl in the midst of the ongoing Covid-19 pandemic and also because its bargaining team member Rendelman was unavailable and out-of-town at a specialized assignment for Respondent that Respondent kept extending. (Tr. 52–53, 55-56, 66, 96–98; Jt. Exh. 12.) Clemens and Stewart also noted that the Respondent also of- fered the Union to view the Microsoft contract financials via Zoom video conference but the Union also rejected this ac- commodation offer because the Union wanted more than a quick glimpse on a computer screen to actually review wage increase percentages in the Microsoft contract. (Tr. 53, 66–67, 96–98.) Clemens did not recall whether Respondent placed any time limitations for the Union’s review of the Microsoft con- tract financials using Zoom video technology. (Tr. 54–55.) The parties have, after the filing of the charge in this matter on July 14, engaged in bargaining over how to protect the con- fidentiality of the information requested by the Union on July 2, 2021. (Stip. Fact #14, Jt. Exh. 12.) Clemens recalled having several communications with Domholdt or someone else at Respondent where Respondent has proposed that the Union sign a confidentiality agreement to protect the information from disclosure and Clemens told them that the Union would be happy to sign such an agreement to accommodate and alleviate their confidentiality concerns. (Stip. Fact # 14, Jt. Exh. 12; Tr. 53, 56.) The Union has not previously breached a confidentiality agreement with Respondent, nor otherwise provided grounds to indicate it will violate a confidentiality agreement with Re- spondent. (Stip. Fact # 15, Jt. Exh. 12.) III. DECISION AND ANALYSIS F. Respondent’s Refusal to Produce the Microsoft Financials Subject to a Non-Disclosure Agreement In Response to the Union’s July 2 RFI Was Insufficient and Unlawful In This Case 1. The Microsoft contract financials information is relevant and necessary to the Union Pursuant to Section 8(a)(5) of the Act, each party to a bar- gaining relationship is required to bargain in good faith. Part of that obligation is that both sides are required to furnish relevant information upon request. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). The employer’s duty to provide relevant in- formation exists because without the information, the union is unable to perform its statutory duties as the employees’ bar- gaining agent. Like a flat refusal to bargain, “[t]he refusal of an employer to provide a bargaining agent with information rele- vant to the Union's task of representing its constituency is a per se violation of the Act” without regard to the employer’s sub- jective good or bad faith. Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979). In determin- ing possible relevance, the Board does not pass upon the merits, and the labor organization is not required to demonstrate that the information is accurate, not hearsay, or even ultimately reliable. Postal Service, 337 NLRB 820, 822 (2002). Because the duty to furnish information is meant to further the union’s ability to represent the bargaining unit, information pertaining to unit employees’ terms and conditions of employ- ment, such as their wages and hours of work, is presumptively relevant to the union, and the burden is on the employer to re- but the relevance of the information requested. Bacardi Corp., 296 NLRB 1220, 1223 (1989). See also Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). Here, I find that the contract between Respondent and Mi- crosoft which contains the requested Microsoft contract finan- cials, is not presumptively relevant because it does not directly relate to unit employees’ terms and conditions of employment. G4S Secure Solutions, 369 NLRB No. 7, slip op. at 1 (2018). (See also Jt. Exhs. 9—11.) To determine relevance, the Board uses a “liberal, discovery- type standard” that requires only that the requested information have “some bearing upon” the issue between the parties and be “of probable use to the labor organization in carrying out its statutory responsibilities.” Public Service Co. of New Mexico, 360 NLRB 573, 574 (2014); Postal Service, 332 NLRB at 636. As the Supreme Court explained, “[i]f such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accu- racy.” Truitt, 351 U.S. at 152–153. As stated above, the requested financial information is not presumptively relevant. To establish the Union’s entitlement to the information, the General Counsel must show the Union’s July 2 RFI was in response to an assertion the Respondent was unable to pay the Union’s demands, or that it was otherwise relevant. NLRB v. Truitt Mfg. Co., supra; AMF Trucking & Warehousing, 342 NLRB 1125, 1126 (2004), National Extru- sion & Mfg. Co., 357 NLRB 127, 128 (2011). As explained below, I find that the Respondent stated it was unable to meet the Union’s financial conditions or demands, and in this case the General Counsel has otherwise established relevancy of the Microsoft contract financials. Notably, once the burden of showing the relevance of non- unit information is satisfied, the duty to provide the information is the same as it is with presumptively relevant unit infor- mation. Depending on the circumstances and reasons for the union’s interest, information that is not presumptively relevant may have “an even more fundamental relevance than that con- sidered presumptively relevant.” Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir.), cert. denied 396 U.S. 928 (1969). “[A]n employer's duty to bargain includes a general duty to provide information needed by the bargaining representative to assess claims made by the employer relevant to contract negotiations.” Caldwell Mfg. Co., 346 NLRB 1159, 1159–1160 (2006). Whether an employer’s refusal to provide requested financial documents violates the duty to bargain in good faith “turns upon the particular facts of a case.” Id.; see also NLRB v. Truitt DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Mfg. Co., 351 U.S. 149, 152–153 (1956). Turning to the Un- ion’s request for information regarding financial payments received from the Microsoft contract for wages, I find that the Respondent violated Section 8(a)(5) by failing to provide this information to the Union. The Respondent argues that it has no obligation to provide this financial information because a pre- sumption of relevancy does not apply “to financial data about its contract with Microsoft that does not pertain to unit employ- ees’ wages and benefits—if any.” (R Br. at 8–9.) The Respondent is correct that “generally, an employer is not obligated to open its financial records to a union unless the employer has claimed an inability to pay.” Kitsap Tenant Sup- port Services, Inc., 366 NLRB No. 98, slip op. at 7 (2018) (cit- ing Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006)); Stella D’oro Biscuit Co., Inc., 355 NLRB 769, 770-773 (2010). The Board in Kitsap Tenant Services found that financial payments that the employer received from the State of Washington “would have aided the [u]nion in determining whether the [re- spondent] had any room for potential movement on wage rates—a crucially important bargaining subject—based on cur- rent appropriations.” Kitsap Tenant Services, supra. (Footnote omitted.) Similarly, in this case, the Respondent originally asserted an inability to pay when Domholdt told the Union at the June 16 bargaining session that because there were no raises or wage increases provided to Respondent in the Microsoft contract financials, there could be no wage increases to the Union dur- ing the life of the contract under negotiation as part of the bar- gaining process. More significantly, by July 2021, the Union had reduced the scope of the financial information it was seek- ing from Respondent from the entire Microsoft contract to the more specific Microsoft financials and the Union did not seek general access to the Respondent’s complete financial records or the entire Microsoft contract. It only asked for the Microsoft financials which Domholdt and Respondent were well aware involved the 33-page Exhibit C attached to the Microsoft con- tract. The Respondent disputes the relevance of the requested Mi- crosoft contract financial information here and cites to G4S Secure Solutions, 369 NLRB No. 7, slip op. at 1–2 (2018), in support of its position. (R Br. at 8–10.) The factual back- ground in G4S Secure Solutions, is distinguishable because in that case the Board found that a contract between an employ- er’s predecessor and third party Bechtel was irrelevant because the supporting evidence failed to establish the contract’s rele- vance and there needs to be a reasonable belief supported by objective evidence for requesting the information which must go beyond mere suspicion. Id. Specifically, in G4S Secure Solutions, the Board found that an email and a memorandum from this agency’s Advice department were too speculative and “merely surmised that the contract might include provisions that affect unit employees’ terms and conditions of employ- ment” and this evidence “did not set forth facts supporting a reasonable belief that the contract actually included such provi- sions.” Id. In this case, Respondent is not a successor to a predecessor with a contractual relationship with Microsoft. Instead, Re- spondent has a direct and ongoing contractual relationship with Microsoft so the relationships here are less tenuous to analyze relevance for bargaining purposes. More significantly, Re- spondent through Domholdt confirms that the Microsoft con- tract financials requested by the Union actually can affect unit employees’ terms and conditions of employment—their wages when on July 13, Domholdt admits to the Union that: we can confirm that the revenue contract between MV [Re- spondent] and Microsoft [the Microsoft contract financials] provides for a 3 percent increase for drivers' wages and 2.5 percent increase for hourly employees’ wages on July 1st. Let me know if this is a satisfactory response that will allow for the parties to continue bargaining this week or if the Union requests that negotiations be postponed based on this re- sponse…. (Tr. 34, 46–48, 65, 93; Jt. Exh. 8 at 4.) Thus, I find that Respondent relies on the requested Mi- crosoft contract financials to generate its own contract wage proposals to the Union and that the information requested in the July 2 RFI is relevant and necessary to the Union for bargaining purposes. Moreover, Microsoft’s control over Respondent is undisputed and includes exercising power over Union employ- ees’ wage terms and conditions. Also, given the justified lack of trust from a history of unre- liable statements from Domholdt to the Union along with Re- spondent’s fluctuating offers at bargaining in the summer of 2021, it is objectively reasonable that the Union would insist on viewing Microsoft’s contract financials which Respondent admits contain relevant information that affect unit employees’ wages to use in further bargaining and to determine an appro- priate range of wage raises that Respondent can afford in view of what the Microsoft contract financials provide. I further find that Respondent’s ability to offer wage raise movement was completely dependent on revenue that Respondent was expect- ing to receive from Microsoft as contained in the Microsoft financials. As a result, I further find that the Microsoft finan- cials are relevant and necessary in this case and will aid the Union in determining whether the Respondent has any room for potential movement on wage rate raises based on Microsoft’s current appropriations to Respondent. 2. While confidential in substance, Respondent has not provid- ed a reasonable accommodation to the Union so it can review the Microsoft contract financials In American Baptist Homes of the West, the Board held that when an employer asserts a confidentiality interest in protecting witness statements from disclosure, the appropriate standard is the Detroit Edison v. NLRB balancing test, 362 NLRB 1135, 1139–1140 (2015). Under that standard, the Board balances a union’s need for requested relevant information against an em- ployer's established legitimate and substantial confidentiality interests. Id. However, establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations. Id. at 1137. Rather, an employer must “determine whether in any give[n] investigation witnesses need protection, evidence is in MV TRANSPORTATION INC. 11 danger of being destroyed, testimony is in danger of being fab- ricated, [or] there is a need to prevent a cover up.” Id. (quoting Hyundai America Shipping Agency, 357 NLRB 860, 873–874 (2011), enfd. in relevant part 805 F.3d 309 (D.C. Cir. 2015)). Assuming that an employer establishes a legitimate and sub- stantial confidentiality interest that outweighs a requesting un- ion’s need for the information, the employer cannot simply refuse to provide the information, but must seek an accommo- dation that would allow the requester to obtain the information it needs while protecting the party’s interest in confidentiality. Id. (citing Borgess Medical Center, 342 NLRB 1105, 1106 (2004)). The employer is only obligated to offer an accommo- dation. Id. at 1137 fn. 7. Offering to provide information on an alternative timeline may be seen as an offer of an accommoda- tion. FCA US, LLC, 371 NLRB No. 32, slip op. at 5 (2021). If the union is dissatisfied with the offer, it is then required to respond and explain why the proffered accommodation is insuf- ficient.” Id. at 1137 fn. 7 (citation omitted). Here, I find that the Respondent has established disclosure of the Microsoft contract financial information would have an impact on its ongoing relationship with Microsoft Corporation and I find that the Respondent has established a confidentiality concern of a legitimate and substantial nature. See Detroit Edi- son Co. v. NLRB, 440 U.S. 301 (1979). Thus, in acknowledging the Respondent’s legitimate interest in seeking to preserve the confidentiality of the Microsoft con- tract financials, I further find that Respondent’s interest does not outweigh the Union’s statutory right to relevant information such that the Respondent may not withhold the Microsoft con- tract financial information entirely. While the Respondent timely raised its confidentiality de- fense to quickly turning over the Microsoft contract financials, Respondent offered no reasonable accommodation on its own, however, such as making the requested information subject to a protective order or confidentiality agreement. Instead, Re- spondent completely refused to furnish the requested Microsoft contract financials. See General Dynamics Corp. 268 NLRB 1432, 1433 (1984)(Board found employer’s confidentiality claims to be legitimate but held employer’s flat refusal to pro- vide requested documents violated the Act.) A party claiming confidentiality must tell the union of its claim and bargain to seek accommodation of its interests. See Minnesota Mining & Mfg. Co., 261 NLRB 27 (1982). In that event, however, the employer must offer and bargain in good faith over a reasonable accommodation, such as redacting the information and/or restricting its use. The burden is on the em- ployer not the union to propose a precise option to providing the information unedited. See A-1 Door & Building Solutions, 356 NLRB 499, 500–501 (2011); and Borgess Medical Center, 342 NLRB 1105, 1106 (2004). See also U.S. Testing Co. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998), and cases cited there. I find that while the Respondent has legitimate confidentiali- ty concerns surrounding the production of the Microsoft con- tract financials, the Union has met these concerns by offering to sign a confidentiality or non-disclosure agreement and there is no evidence that the Union could not be expected to honor such an agreement. See Stella D’oro Biscuit Co., supra at 773; see also Island Creek Coal, Co. 289 NLRB 851, 851 fn. 1 (1988); Stip. Fact Nos. 14 and 15. In response to the Union’s reasona- ble offer to sign a confidentiality agreement to obtain the Mi- crosoft contract financials, a 33-page exhibit, the Respondent simply rejected it with no reasonable explanation. The only offered accommodation alternatives from the Re- spondent were incomplete and unreasonable. These accommo- dation offers came after the charge in this case was filed and while the Union communicated its open willingness to sign a nondisclosure agreement or protective order to protect the con- fidential information. The Respondent’s actions toward ac- commodation fell far short of acceptable under the unique cir- cumstances caused by the ongoing COVID-19 pandemic. More importantly, the Respondent rejected the Union’s reasonable offer to enter into a nondisclosure agreement or protective order without any legitimate reason for doing so as stated above, the Union has no history and there was no evidence presented showing that the Union would breach such an agreement or protective order. For these reasons, I find that the Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the complaint by failing to provide an adequate accommodation or simply accepting the Union’s suggestion to enter into a nondisclosure agreement or protective order and provide the Union with the 33 pages of Microsoft contract financials. CONCLUSIONS OF LAW 1. The Respondent, MV Transportation, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party, Communication Workers of America Local 7800, affiliated with the Communications Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all material times the Union has been the designated exclusive collective-bargaining representative of the following bargaining units of the Respondent’s employees: All full-time and part-time drivers, dispatchers, utility work- ers, payroll clerks, operations clerks, and ambassadors at MV Transportation, Inc. Division 105, but excluding all other me- chanics, maintenance employees, guards, supervisors and road supervisors as defined under the National Labor Rela- tions Act. 4. The Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the complaint by failing since July 2, 2021, to provide in a timely manner, relevant and necessary information to use in the bargaining process comprised of the Microsoft contract financials, a 33-page document. 5. The unfair labor practices committed by the Respondent affect commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent engaged in certain unfair labor practices and has violated Section 8(a)(5) and (1) of the Act, I shall order it to cease and desist, to recognize and bargain DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 on request with the Union and, to take certain affirmative action designed to effectuate the policies of the Act. Upon execution by the Union of its offered confidentiality agreement, the Respondent shall immediately provide the Un- ion with the information that it has to date failed and refused to provide that was requested by the Union in its July 2 RFI to the Respondent, as described in this decision. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER Respondent, MV Transportation, Inc., at Redmond, Wash- ington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Refusing to bargain collectively with Communication Workers of America, Local 7800 (Union), as the exclusive representative for purposes of collective bargaining for em- ployees in the following unit: All full-time and part-time drivers, dispatchers, utility work- ers, payroll clerks, operations clerks, and ambassadors at MV Transportation, Inc. Division 105, but excluding all other me- chanics, maintenance employees, guards, supervisors and road supervisors as defined under the National Labor Rela- tions Act. (b) Refusing to timely provide the Union with information that is relevant and necessary to its role as Respondent’s exclu- sive collective-bargaining representative, including financial information for bargaining; and (c) In any like or related manner interfering with, coercing, or restraining employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Upon execution by the Union of its offered confidentiali- ty agreement, immediately provide the Union with copies of the information it requested on July 2, 2021, concerning the Mi- crosoft contract financial information. (b) Within 14 days after service by the Region, post at its Redmond facilities copies of the attached notice marked Ap- pendix,7 on forms provided by the Regional Director for Re- gion 19 after being signed by the Respondent's authorized rep- 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. 7 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus Disease 2019 (COVID–19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribu- tion of the notice if Respondent customarily communicates with its employees by electronic means. resentative, for 60 consecutive days in conspicuous places all places where notices to employees are customarily posted, in- cluding 18690 NE 73rd St, Redmond WA 98052, the facility located at ROC-18690 NE 73rd Street, Redmond, WA 98052, and the facility located at PIT-4042 148th Ave NE, Redmond WA 98052.8 In addition to physical posting of notices, Re- spondent shall email copies of the notices to all employees employed by the Employer at its Redmond facility and distrib- ute the notices electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means; and (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. Dated, Washington, D.C. May 24, 2022 APPENDIX NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. Communication Workers of America, Local 7800 (Union), is the exclusive collective bargaining representative of our em- ployees in the following unit (Unit): All full-time and part-time drivers, dispatchers, utility work- ers, payroll clerks, operations clerks, and ambassadors at MV Transportation, Inc. Division 105, but excluding all other me- chanics, maintenance employees, guards, supervisors and road supervisors as defined under the National Labor Rela- tions Act. WE WILL NOT refuse to provide the Union with information that is relevant and necessary to its role as your bargaining representative, including financial information pertaining to our 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MV TRANSPORTATION INC. 13 contract with Microsoft. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL, upon execution by the Union of its offered confi- dentiality agreement, immediately provide the Union with cop- ies of the information it requested on July 2, 2021, concerning the financial information in our agreements with Microsoft Corporation. MVTRANSPORTATION, INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/19-CA-279935 or by using the QR code below. Alternatively, you can obtain a copy of the deci- sion from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.