John Gore Theatrical Group, Inc.

372 NLRB No. 114 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. John Gore Theatrical Group, Inc. and Actors’ Equity Association.1 Case 02–CA–286802 July 31, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY On December 6, 2022, Administrative Law Judge Jef- frey P. Gardner issued the attached decision. The 1 We have amended the caption to reflect the correct name of the Un- ion. 2 The Respondent has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are incor- rect. 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. 3 For the reasons stated by the judge and for the separate and inde- pendent reasons set forth below, we affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to furnish relevant information requested by the Union. We agree with the judge that the Respondent failed to sustain its confidenti- ality defense for information that was subject to third-party confidential- ity agreements and nonpublic organizational information. To begin, we find no merit in the Respondent’s argument that it satis- fied its defense burden by offering a nondisclosure agreement as an ac- commodation for its confidentiality interests. It is well established that the party raising a confidentiality interest must initially establish that the interest is legitimate and substantial. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 370 NLRB No. 72, slip op. at 1 fn. 2 (2021); Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991). The Respondent failed to do so here. The Respondent asserts that it established a confidentiality interest based on third-party confidentiality agreements that it had entered. In the circumstances of this case, however, we find that the agreements do not establish a legitimate and substantial confidentiality interest. Here, the Union requested information to ascertain whether the Respondent was diverting production funds in violation of the operative collective- bargaining agreement. The restrictions in the confidentiality agreements prohibit the Respondent from disclosing information that it was privy to as a consequence of any investments. Whether or not the Respondent made those investments (the information requested by the Union) is not information that the Respondent was privy to as a consequence of its investments and, accordingly, is not covered by the terms of the confi- dentiality agreements. In any event, the mere existence of a confidentiality agreement, of course, does not suffice to establish a legitimate confidentiality interest for purposes of Sec. 8(a)(5) of the Act. See Crozer-Chester Medical Center v. NLRB, 976 F.3d 276 (3d Cir. 2020), enfg. in relevant part Del- aware County Memorial Hospital, 366 NLRB No. 28, slip op. at 1 fn. 2, 9 (2018). In Crozer-Chester Medical Center v. NLRB, the Third Circuit observed that: Any two parties can agree to keep certain matters secret, but that does not mean that those matters are inherently sensitive . . . . [The respond- ent employer] does not provide, nor can we locate, any authority per- mitting an employer to withhold relevant information from a union Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent 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 exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions,3 and to based solely on a contractual interest. And that makes sense because allowing employers to withhold relevant information on such a basis would allow private parties to undermine the NLRA’s statutory scheme. We therefore agree . . . that [the respondent employer’s] con- tractual interest here did not trump its statutory duty to furnish relevant information to the Union. 976 F.3d at 294. Additionally, we find no merit in the Respondent’s argument, raised for the first time on exception, that the information subject to third-party confidentiality agreements was inherently sensitive investment infor- mation. This argument is untimely. TDY Industries, LLC d/b/a ATI Spe- cialty Alloys & Components, Millersburg Operations, 369 NLRB No. 128, slip op. at 2 (2020) (“[A] respondent normally must raise any con- fidentiality claim in its initial response to the information request.”). Moreover, even if it had been timely raised, the case the Respondent re- lies upon, Good Life Beverage Co., 312 NLRB 1060 (1993), is factually distinguishable. In Good Life Beverage Co., the union requested an audit due to the dire financial crisis the employer was in, specifically request- ing data regarding certain expenses, salaries, cost of goods sold, and fi- nancial statements for the year. Id. at 1060–1061. The Board found that there was “no question” that the employer had legitimate and substantial confidentiality interests in the sensitive financial information. Id. at 1061. Here, by contrast, the Union did not seek an audit, but rather has requested that the Respondent identify in which theatrical productions the Respondent and its subsidiaries have an equity, financial, or manage- rial interest, and the nature of that interest. There is no overlap in the substance of the requests, and the Respondent gives no further explana- tion as to how they are comparable. Furthermore, the Respondent’s statement that the information is “sensitive investment information” is insufficient because it is a blanket statement that relies entirely on the Respondent’s conclusory use of the descriptor “sensitive.” See Pennsyl- vania Power, 301 NLRB at 1105 (blanket statements are insufficient to establish a confidentiality interest). Thus, unlike in Good Life Beverage Co., the Respondent did not establish a legitimate and substantial confi- dentiality interest in the information covered by third-party confidential- ity agreements. We also agree with the judge’s finding that the Respondent failed to establish a confidentiality defense regarding the nonpublic organiza- tional information in any case because its claim that the Union tended to publicize private information was not substantiated. As the judge found, the Respondent’s witness in support of this claim was “uncertain of spe- cifics and unable to explain” why the Respondent was justified in failing and refusing to furnish the information. The Respondent argues on ex- ception that the judge improperly excluded additional evidence showing that the Union tended to publicize private information. Specifically, the judge excluded an email that asserted the Union had leaked to the press a private settlement between the Union and another employer because it 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD adopt the recommended Order as modified and set forth in full below.4 ORDER The National Labor Relations Board orders that the Re- spondent, John Gore Theatrical Group, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Actors’ Equity Association (the Union) by failing and refusing to furnish it with requested information that is relevant and neces- sary to the Union’s performance of its functions as the col- lective-bargaining representative of the Respondent’s unit 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) To the extent it has not already done so, furnish to the Union in a timely manner the information requested by the Union in paragraphs 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42 and 45 of its July 7, 2021 information request. (b) Post at its New York, New York facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Re- gion 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or postdated the events at issue in this case by several months. The Board reviews a judge’s exclusion of evidence for abuse of discretion. We have carefully examined the record and find no basis for reversing the judge’s exclusion of the evidence. Finally, the Respondent’s exceptions note an inadvertent error in the judge’s decision. The judge stated that the Respondent has “not turned over any of [the] documents” that are responsive to the requests for non- public organizational information. In fact, the Respondent provided one document that was partially responsive to some of the information re- quests. We accordingly correct the judge’s decision and order the Re- spondent to furnish the requested information to the extent it has not al- ready done so. This inadvertent error does not otherwise affect the dis- position of this case. In adopting the judge’s conclusion that the Respondent failed to sus- tain its confidentiality defenses, Member Prouty would not rely on the judge’s finding that the Respondent effectively held the non-public or- ganizational information hostage to pressure the Union to sign a confi- dentiality agreement covering additional matters subject to the already- existing third-party confidentiality agreements. 4 We shall modify the judge’s recommended Order to conform to his unfair labor practice findings, to the Board’s standard remedial language, and in accordance with our decision in Paragon Systems, Inc., 371 other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since October 13, 2021. (c) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. July 31, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD NLRB No. 104 (2022). We shall substitute a new notice to conform to the Order as modified. 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial 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 judgment of a United States court of appeals, the words in the notice reading “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.” JOHN GORE THEATRICAL GROUP, INC. 3 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT refuse to bargain collectively and in good faith with the Actors’ Equity Association (the Union) 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 rep- resentative 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, to the extent we have not already done so, furnish to the Union in a timely manner the information requested by the Union in paragraphs 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42 and 45 of its July 7, 2021 infor- mation request. JOHN GORE THEATRICAL GROUP, INC. The Board’s decision can be found at www.nlrb.gov/case/02-CA-286802 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. 1 The complaint was subsequently amended at trial to stipulate to Re- spondent’s description of its business operations as “presentation of and investment in” rather than “production of” theatrical plays and musicals. 2 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “GC Exh.” for the General Counsel’s exhibits and “R. Exh.” Tanya Khan, Esq., for the General Counsel. Mark Theodore, Esq. and Ariel Brotman, Esq., for the Respond- ent. Eyad Asad, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JEFFREY P. GARDNER, Administrative Law Judge. The charge was filed on November 26, 2021, and the complaint was issued on June 16, 2022. The complaint alleges Respondent violated Sections 8(a)(5) and (1) by failing and/or refusing to provide in- formation requested by the Charging Party Union.1 On August 30, 2022, pursuant to the Board’s decision in Wil- liam Beaumont Hospital, 370 NLRB No. 9 (2020), I conducted a trial via Zoom Government during which all parties were af- forded the opportunity to present their evidence. At trial, the parties stipulated to certain jurisdictional facts, and submitted a series of Joint Exhibits (Jt. Exhs. 1 through 13).2 After the trial, the parties filed timely briefs, which I have read and considered. Upon consideration of the briefs, and the entire record, including the testimony of witnesses and my observation of their de- meanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent admits, and I find, that it is a domestic corporation with headquarters located in New York, New York, and facilities located throughout the United States, including a facility located at 1619 Broadway, New York, New York. Respondent further admits, and I find, that it has been engaged in the business of presentation of, and investment in, theatrical plays and musicals, that in conducting its business operations it annually derives gross revenue in excess of $500,000 and purchases and receives goods and services valued in excess of $5000 from points outside the state of New York. Therefore, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In addition, Respondent admits, and I further find, that the Union, Actors’ Equity Association is a labor organization within the meaning of Section 2(5) of the Act. for Respondent’s Exhibits. Specific citations to the transcript and exhib- its are included only where appropriate to aid review and are not neces- sarily exclusive or exhaustive. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES Background Pursuant to a Short Engagement Touring Agreement (SET Agreement) between Actors’ Equity Association (the Union) and the Broadway League, a multiemployer member organization of theater producers of which Respondent is a member, Respondent has recognized the Union as the exclusive bargaining representa- tive of all the Actors (Principals, Chorus, Stage Managers and Assistant Stage Managers) employed by them, for the purpose of collective bargaining and the administration of matters within the scope of the SET Agreement, the most recent of which has been in effect since April 29, 2019, and ran through November 1, 2020. (Jt. Exh. 1).3 Based on public filings that came to the Union’s attention, a question arose as to whether Respondent was diverting produc- tions covered by the SET Agreement to an entity called Net- works Presentations and/or its affiliates, prompting the Union to investigate a potential grievance. That investigation led to the Union making a series of information requests on the subject of Respondent’s business relationships that are at issue herein. The Union’s Information Requests On July 7, 2021, the Union sent a letter4 by email requesting that Respondent furnish the Union with a series of information. That letter was addressed to Bernard Plum,5 an attorney with Mr. Theodore’s firm which represented the Broadway League. The information requested by the Union included the following: 1. For the period January 1, 2018 through the present, identify each theatrical production in which JGO has or had an equity interest and describe that equity interest. For purpose of this let- ter, “theatrical production” is defined as any live musical and/or dramatic production…. 6. For the period January 1, 2018 through the present, identify each theatrical production in which any other JGO affiliate and/or subsidiary has or had an equity interest and describe that equity interest. 9. For the period January 1, 2018 through the present, identify each theatrical production in which JGO has or had a financial interest (by virtue, without limitation, of debt, revenue sharing, enhancement money arrangement, etc.) other than an equity in- terest and describe that financial interest. 14. For the period January 1, 2018 through the present, identify each theatrical production in which any other JGO affiliate and/or subsidiaryhas or had a financial interest (by virtue, with- out limitation, of debt, revenue sharing, enhancement money arrangement, etc.) other than an equity interest and describe that financial interest. 17. Identify all employees, officers, shareholders, directors, partners, or members of any of JGO, John Gore Family Hold- ings, John Gore Family Holdings, Inc., Key Brand Family 3 Although Respondent denied in its Answer that it employs any ac- tors, it stipulates that it is bound by the SET Agreement, and by Board law with regard to the Union’s requests for information herein. 4 The email was sent on July 7, 2021, though the letter attached to it was dated July 6, 2021. Holdings, Key Brand Family Holdings, Inc., and any JGO af- filiate and/or subsidiary who are also employees, officers, shareholders, directors, partners, or members of Networks and/or Networks Presentationns, LLC, a Texas Limited Liabil- ity Company. For each such officer, shareholder, director, part- ner, and member, state their position at each such entity, and, if the individual had any equity interest in the entity, state the per- centage of such interest. 18. Identify all individuals identified in response to request number 17 who are or were at any time in the period from Jan- uary 1, 2018 to the present officers, shareholders, directors, partners, or members of Networks. For each such officer, shareholder, director, partner, and member, state (a) the indi- vidual’s position at Networks; (b) the individual’s ownership interest in the Networks and any of JGO, John Gore Family Holdings, John Gore Family Holdings, Inc., Key Brand Family Holdings, Key Brand Family Holdings, Inc., and any JGO af- filiate and/or subsidiary; and (c) the periods of time in which they had those ownership interests. 19. Identify each partnership and/or corporation affiliated with each of the following: JGO, John Gore Family Holdings, John Gore Family Holdings, Inc., Key Brand Family Holdings, Key Brand Family Holdings, Inc. and describe each affiliation. 21. For the period January 1, 2018 to the present, identify by production all theatrical productions in which any of the fol- lowing - JGO, John Gore Family Holdings, John Gore Family Holdings, Inc., Key Brand Family Holdings, Key Brand Fam- ily Holdings, Inc., and any JGO affiliate and/or subsidiary – had an equity, financial or managerial interest which subse- quently were produced by Networks and/or Networks Presen- tations, LLC, a Texas Limited Liability Company and, for each such play or musical, describe the equity, financial or manage- rial interest. 25. Was any shareholder or member of JGO a shareholder or member of Networks between January 1, 2018 and the present? If so, please identify such shareholders or members, identify their ownership interest in JGO and Networks, and state the pe- riods in which they had those ownership interests. 31. Please describe the relationship between Key Brand Fam- ily Holdings and The John Gore Organization. Please describe the relationship between Key Brand Family Holdings, the en- tity listed in the Texas filing, and Key Brand Family Holdings, Inc., the entity listed in the Georgia filing. Please describe the relationship between Key Brand Family Holdings, Inc. and the John Gore Organization. 33. Please describe the relationship between John Gore Family Holdings, Inc. and the John Gore Organization. 5 All of the Union’s requests and correspondence relevant to this mat- ter were made through counsel, specifically Hanan Kolko, Esq. All of Respondent’s correspondence and production were likewise made through counsel, specifically Mark Theodore, Esq. JOHN GORE THEATRICAL GROUP, INC. 5 35. Please identify all shareholders, owners and/or members of JGO between January 1, 2018 and the present and state the percentage of their ownership. 36. Please identify all shareholders, owners, and/or members of John Gore Family Holdings, Inc. between January 1, 2018 and the present and state the percentage of their ownership. 37. Please identify all shareholders, owners, and/or members of John Gore Family Holdings between January 1, 2018 and the present and state the percentage of their ownership. 38. Please identify all shareholders, owners, and/or members of Key Brand Family Holdings, Inc. between January 1, 2018 and the present and state the percentage of their ownership. 39. Please identify all shareholders, owners, and/or members of Key Brand Family Holdings between January 1, 2018 and the present and state the percentage of their ownership. 42. Please identify all corporate parents, affiliates, and subsid- iaries of the following: JGO, Key Brand Family Holdings, Key Brand Family Holdings, Inc., John Gore Family Holdings, and John Gore Family Holdings, Inc. 45. Was any officer, director, member or managing member of JGO, Key Brand Family Holdings, Key Brand Family Hold- ings, Inc., John Gore Family Holdings, or John Gore Family Holdings, Inc. also an officer, director, member or managing member of Networks or Networks Presentations, LLC between January 1, 2018 and the present? If so, please identify the of- ficer/director/member/managing member and his/her role in each company between January 1, 2018 and the present. (Jt. Exh. 2).6 The information request specifically stated that the Union was “willing to discuss the terms of an appropriate confidentiality agreement” and set a deadline of July 31, 2021, for receipt of the requested information. (Jt. Exh. 2). On or about July 30, 2021, Respondent replied by email to the Union’s information request, acknowledged receipt, and indi- cated that it would be in touch the following week. (Jt. Exh. 3). When Respondent did not get in touch by August 24, 2021, the Union sent a follow-up email, noting that no additional response had been forthcoming, and “as a courtesy” extending the due date to September 3, 2021. (Jt. Exh. 4). On August 26, 2021, Respondent sent an email apologizing for its delay, and advising that it would not be able to meet the new September 3, 2021 requested deadline. Respondent did state, however, that it would begin work on it and would send a response as soon as possible, hopefully no later than the middle of September 2021. (Jt. Exh. 5). The Union wrote back on Au- gust 30, 2021, to indicate that it would extend the deadline again, “on a non-precedential basis,” to September 17, 2021. (Jt. Exh. 6). Respondent wrote to the Union on September 17, 2021, to re- port that it was finalizing its response, and would get it to the Union by the end of day Monday, September 20, 2021. (Jt. Exh. 6 The complaint lists only the numbered paragraphs that appear here: 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42 and 45 are requests which Respondent is alleged to have unlawfully failed to respond. The omitted 7). On September 23, Respondent wrote to advise that it was compiling responses to the information request, but asserted for the first time that: “It appears a good deal of the information requested is confi- dential, in that it is considered proprietary. Most of it is non- public, of course. John Gore as a regular practice requests re- cipients of such information to sign a non-disclosure agree- ment, which is attached. The agreement will not interfere with your client’s ability to use the information to bring claims pur- suant to the relevant collective bargaining agreement.” (Jt. Exh. 8). Respondent requested that the Union execute and return the agreement, and Respondent would be ready to provide the re- sponses to the Union’s information request. The Union acknowledged receipt of Respondent’s email the same day and indicated it would review. However, on October 4, 2021, the Union wrote to Respondent indicating that it did not understand why any of the requested information should be sub- ject to a non-disclosure agreement (NDA). The Union requested that Respondent explain its rationale for seeking confidential treatment for each category of information responsive to its re- quest. (Jt. Exh. 10). Thereafter, the parties exchanged emails over the following days as to when Respondent should be expected to provide the rationales and/or responsive documents, and on October 13, 2021, the Union advised Respondent that if it did not provide the Union by the end of the day with any responsive documents that were non-confidential and an explanation for why it considered other documents confidential, it would file an unfair labor prac- tice charge. (Jt. Exh. 11). Respondent provided its response that day, identifying various of the Union’s requests as not being relevant or indicating that it was not in possession of responsive documents. For purposes of the information requests at issue in this case, Respondent stated that those information requests sought confidential information, and would be provided once a confidentiality agreement was reached by the parties. With regard to request nos. 1, 6, 9, 14 and 21, Respondent advised that the information being sought was its equity interests in productions and was confidential because “the equity arrange- ments are covered by confidentiality agreements with other enti- ties. For the remainder of the Union’s requests.” (Jt. Exh. 12). With regard to request nos.17–19, 25, 31, 33, 35–39, 42 and 45, Respondent maintained the information was confidential be- cause it “is not within the public domain and is held confidential” by Respondent. (Jt. Exh. 12). It is undisputed that Respondent did not provide any docu- ments responsive to any of the Union’s July 7, 2021 information requests that are included in the complaint. The complaint al- leges Respondent’s unlawful failure to respond as of October 13, 2021, the date of Respondent’s written response seeking confi- dentiality protections. paragraphs between 1 and 49 that appeared in the Union’s July 7, 2021 information request are not at issue in this matter. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. CREDIBILITY DETERMINATIONS Union Attorney Hanan Kolko testified at the hearing about his communications with Respondent’s counsel. I found his testi- mony to be consistent with documentary evidence in the parties’ Joint Exhibits and found his demeanor to be forthright and hon- est. He was extremely well-prepared with knowledge of the in- formation requests that were made and had a clear recollection of the substance of conversations he had with Mr. Theodore on the subject over the course of two-plus months beginning in No- vember 2021. Mr. Theodore did not testify at the hearing. Respondent’s General Counsel, Sheila Lavu, testified at the hearing about Respondent’s position regarding confidentiality. I also found her testimony to be honest, though hesitating at times. Her knowledge was not as comprehensive as that of Mr. Kolko, and she struggled at times to recall specifics. In particular, when testifying as to a YouTube video which Respondent offered as justification for withholding information, she seemed uncertain of specifics, and unable to explain why that video justified with- holding the information sought here. Analysis 1. All of the information sought by the Union is relevant. The Supreme Court has long held that an employer must pro- vide a union, on request, with relevant information that is neces- sary for the proper performance of its duties as the exclusive bar- gaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956). Indeed, the Supreme Court has held that an em- ployer’s duty to bargain collectively extends beyond periodic contract negotiations and includes its obligation to furnish infor- mation that allows a union to decide whether to process a griev- ance under an existing contract. NLRB v. Acme Industrial Co., 385 U.S. 432, 436 (1967).7 “A labor organization’s right to information exists not only for the purpose of negotiating a collective-bargaining agreement, but also for the proper administration of an existing contract, including the bargaining required to resolve employee griev- ances.” Southern California Gas Co., 344 NLRB 231, 235 (2005) (citing Hobelmann Port Services, 317 NLRB 279 (1995); Westinghouse Electric Corp., 239 NLRB 106, 107 (1978). Accordingly, the Board has long held that Section 8(a)(5) of the Act obligates an employer to furnish requested information which is potentially relevant to the processing of grievances. “An actual grievance need not be pending, nor must the re- quested information clearly dispose of the grievance.” United Technologies Corp., 274 NLRB 504 (1985). However, if there does exist a pending grievance, “an employer’s duty to furnish information relevant to the processing of a grievance does not terminate when the grievance is taken to arbitration.” Lansing Automakers Federal Credit Union, 355 NLRB 1345, 1353 (2010). Information requests regarding bargaining unit employees’ terms and conditions of employment are “presumptively 7 This is often referred to as “policing the contract.” See, e.g., United Graphics, Inc., 281 NLRB 463, 465 (1986). relevant” and must be provided. Whitesell Corp., 352 NLRB 1196, 1197 (2008), adopted by a three-member Board, 355 NLRB 649 (2010), enfd. 638 F.3d 883 (8th Cir. 2011). There is no burden on the part of the Union to prove the relevance of or explain the need for this type of presumptively relevant infor- mation. By contrast, where the requested information is not directly related to the bargaining unit, the information is not presump- tively relevant, and the requesting party does have the burden of establishing the relevance of the requested material. Disneyland Park, 350 NLRB 1256, 1257 (2007); Earthgrains Co., 349 NLRB 389 (2007). Even in those situations where a showing of relevance is required, whether because the presumption has been rebutted or because the information requested concerns non-unit matters, the standard for establishing relevancy is the liberal, “discovery-type standard.” Alcan Rolled Products, 358 NLRB 37, 40 (2012). Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006). While none of the information sought by the Union in this case would appear to fall under the presumptively relevant category, it is undisputed that all of the requests at issue seek relevant in- formation.8 The parties are in agreement that apart from the is- sue as to whether there is a need for specific confidentiality ar- rangements for any of the requested information, the Union is otherwise entitled to the information it sought. 2. Respondent failed and refused to furnish the Union with relevant information The General Counsel alleges, and I find, that Respondent vio- lated Section 8(a)(5) and (1) of the Act when, since October 13, 2021, Respondent failed or refused to provide the Union with relevant information, which it requested and is entitled to as the exclusive collective-bargaining representative of the unit. Respondent’s argument to the contrary relies solely on its po- sition that the information the Union sought was confidential, re- quiring the Union to engage in “accommodative bargaining.” The obligation to engage in accommodative bargaining arises in circumstances where a union requests otherwise relevant infor- mation for which an employer has “legitimate and substantial” confidentiality interests.” Pennsylvania Power & Light Co., 301 NLRB 1104 (1991). “The party asserting confidentiality has the burden of proof. Legitimate and substantial confidentiality and privacy claims will be upheld, but blanket claims of confidenti- ality will not.” Id. at 1105. And, significantly, “[t]he appropriate accommodation necessarily depends on the particular circum- stances of each case.” Id. Here, Respondent’s position regarding confidentiality can be broken down into two categories of requests. For the first cate- gory, request nos. 17–19, 25, 31, 33, 35–39, 42 and 45, Respond- ent nominally asserted during the parties’ communications that it “considers this information confidential” because the infor- mation “was not in the public domain.” Nevertheless, at all times, including at trial and in its posttrial brief, Respondent has maintained that it would turn over this information if the confi- dentiality concerns involving the second category of requests were resolved. 8 As to certain of the Union’s original requests, Respondent took the position that those requests did not seek relevant information. However, none of those requests are at issue here. JOHN GORE THEATRICAL GROUP, INC. 7 The second category of requests, found in request nos. 1, 6, 9, 14 and 21, seek information that Respondent asserts is covered by third-party confidentiality agreements it has with other enti- ties. Respondent maintains that information is therefore not per- mitted, let alone required, to be turned over without having a separate confidentiality agreement with the Union. It is this sec- ond category of request that is at the heart of the parties’ dispute. With regard to this second category of requests, other than the fact that it has a third-party confidentiality agreement concerning them, Respondent has not articulated specifically why the Union is not entitled to them. But a third-party confidentiality agree- ment alone is insufficient to create a legitimate and substantial confidentiality interest. Delaware County Mem. Hosp., 366 NLRB No. 28 (2018), enf’d. in relevant part, Crozer-Chester Med. Ctr. v. NLRB, 976 F.3d 276 (3rd Cir. 2020). Respondent also has not provided the Union with a copy of the third-party agreements themselves. Given these circumstances, I find that Respondent has not met its burden of proof in establishing that any of the requested in- formation comes with the “legitimate and substantial” confiden- tiality interests required to withhold it from the Union pending accommodative bargaining. Indeed, Respondent has effectively held hostage information in the first category in order to pressure the Union to sign a confidentiality agreement Respondent pro- posed and which the Union had no reasonable opportunity to bar- gain over. Accordingly, I find Respondent’s failure to provide the Union with any of the requested information violates Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent, John Gore Theatrical Group, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Actors’ Equity Association, is a labor organi- zation within the meaning of Section 2(5) of the Act and repre- sents a bargaining unit comprised of workers employed by the Respondent. 3. Since on or about October 13, 2021, Respondent has com- mitted unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union by failing and refusing to furnish it with certain infor- mation it requested on July 7, 2021, that is relevant and necessary to the Union’s performance of its functions as the collective-bar- gaining representative of Respondent’s unit employees. 4. The Respondent’s above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in conduct in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist from engaging in such conduct and take 9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. certain affirmative action designed to effectuate the policies of the Act. In particular, I shall recommend that, to the extent it has not already done so, Respondent shall timely furnish the following information to the Union: all of the information in the Union’s July 7, 2021 information request nos. 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42 and 45. I shall also recommend that Respondent be required to notify its employees that the Union is entitled to request and receive information related to its role as collective-bargaining repre- sentative, and Respondent will not withhold from the Union in- formation which the Union is lawfully entitled to request and re- ceive. Therefore, Respondent will be ordered to post and communi- cate by electronic post to employees the attached Appendix and Notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9 ORDER Respondent, John Gore Theatrical Group, Inc., its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union, Actors’ Equity Association, by failing and refusing to and/or unreasona- bly delaying in providing the Union information requested that is necessary and relevant to its role as the exclusive representa- tive of the Respondent’s unit employees at its 1619 Broadway, New York, New York facility. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the purposes and policies of the Act. (a) Furnish to the Union, in a timely manner, all of the infor- mation requested in the Union’s July 7, 2021 correspondence paragraph nos. 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42 and 45. (b) Within 14 days after service by the Region, post at its 1619 Broadway, New York, New York location copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms pro- vided by the Regional Director for Region 2 after being signed by Respondent’s authorized representative, shall be posted by Respondent, and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees are customarily posted. In addition to the physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other elec- tronic means, if Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that during the pen- dency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent 10 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 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.” 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Re- spondent at any time since October 13, 2021. (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 Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated 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 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 refuse to bargain collectively and in good faith with the Union, Actors’ Equity Association, by failing and refus- ing to furnish it with requested information in a timely manner that is relevant and necessary to the Union’s performance of its duties as the collective-bargaining representative of our unit em- ployees at our 1619 Broadway facility. WE WILL NOT in any like or related manner fail and refuse to bargain collectively and in good faith with the Union as the ex- clusive collective-bargaining representative of our employees in the Unit. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. WE WILL furnish to the Union in a timely manner the infor- mation it requested in its July 7, 2021 information requests nos. 1, 6, 9, 14, 17–19, 21, 25, 31, 33, 35–39, 42, and 45. JOHN GORE THEATRICAL GROUP, INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-286802 or by using the QR code be- low. 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.