Commonwealth Electric Company of the Midwest

373 NLRB No. 50 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. Commonwealth Electric Company of the Midwest and International Brotherhood of Electrical Workers, Local 265, AFL–CIO and Internation- al Brotherhood of Electrical Workers, Local 22, AFL–CIO. Case 14–CA–295606 May 3, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On September 15, 2023, Administrative Law Judge Christine E. Dibble issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief, and the Re- spondent filed a reply brief. In addition, the Charging Party filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party 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, and conclusions,1 1 For the reasons stated by the judge and those set forth below, we affirm her conclusion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to furnish relevant information re- quested by the Union. We agree with the judge that the requested information regarding the individual overscale wages of the unit em- ployees is presumptively relevant. Indeed, it is well-settled that infor- mation regarding unit employees’ wages, including overscale wages, is presumptively relevant and necessary for a Union to perform its statuto- ry collective-bargaining duties. See King Broadcasting Co., 324 NLRB 332, 337 (1997); Retlaw Broadcasting Co., 324 NLRB 138, 141–142 (1997), enfd. 172 F.3d 660 (9th Cir. 1999) (citing cases). We also agree with the judge that the Respondent failed to sustain its confidentiality defense. In addition to the reasons stated by the judge, we find that the Respondent’s confidentiality defense was untimely raised, having been raised two months after the initial information request was made. See TDY Industries, LLC d/b/a ATI Specialty Alloys & Components, Millersburg Operations, 369 NLRB No. 128, slip op. at 2 (2020) (“[A] respondent normally must raise any confidentiality claim in its initial response to the information request.”). Further, as the Respondent failed to establish a legitimate and substantial confiden- tiality defense, the Respondent’s reliance on its offer to bargain over accommodations is unavailing, and we clarify that the Union was under no obligation to engage in accommodative bargaining. See, e.g., John Gore Theatrical Group, Inc., 372 NLRB No. 114, slip op. at 1 fn. 3 (2023); 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). Finally, in affirming the judge’s finding that the Union was entitled to copies of the requested information, we do not rely on her citation to United Aircraft Corp., 192 NLRB 382 (1971). and to adopt the recommended Order as modified and set forth in full below.2 2 We shall modify the judge’s recommended Order to conform to her unfair labor practice findings, to the Board’s standard remedial language, and in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substitute a new notice to conform to the Order as modified. On exception, the Charging Party requests that the notice be posted at all active job sites given that the Respondent is in the construction industry, citing Abramson, LLC, 345 NLRB 171, 171 fn. 3 (2005) (explaining that ordering notice posting at all active jobsites is a “par- ticularly appropriate” remedy where unit employees work on individual construction jobsites). We find merit in this request. The nature of the Respondent’s 8(a)(5) and (1) violation affected the Union’s ability to perform its duties as the collective-bargaining representative for all unit employees, and thus it is appropriate that all unit employees across all jobsites be notified of the violation and remedy. See Jon P. Westrum d/b/a Westrum Electric and JWE LLC, 365 NLRB No. 151, slip op. at 2 (2017) (ordering notice posting at all active job sites to remedy a con- struction industry employer’s Sec. 8(a)(5) and (1) violations), enfd. 753 Fed.Appx. 421 (8th Cir. 2019), cert. denied 140 S. Ct. 2771 (2020); Otay River Constructors, 351 NLRB 1105, 1109 (2007) (same). The Charging Party also excepted to the judge’s failure to state in the notice that the Respondent is ordered to furnish the relevant information. We have corrected the judge’s inadvertent error. Additionally, we grant the Charging Party’s unopposed request that the notice be posted in English and Spanish. We decline, however, the Charging Party’s request to require the Respondent’s managers and supervisors to undergo training regarding employees’ rights under the Act. In joining his colleagues in denying the requested supervisory- training remedy and granting the requests for notice posting in English, Spanish, and at all jobsites, Member Prouty would adopt or consider additional remedies. First, he would be open to considering, in a future appropriate case, whether it would better effectuate the policies of the Act to order that employees receive training from a Board agent, during working time, regarding their rights under the Act. Second, he would adopt notice posting at all jobsites as a standard remedy in construction industry cases. Because employees in the construction industry typical- ly report to their assigned jobsite, notice posting at that location best serves the purpose of insuring that employees are informed of their rights under the Act. Third, he would adopt notice reading and notice distribution as a standard remedy for unfair labor practices. See CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151, slip op. at 9–15 (2022) (Member Prouty, concurring) (“[h]aving the notice to employees read aloud to them in a group meeting, with a copy in hand to follow along if they choose, is a superior means of disseminat- ing and amplifying the Board's message to maximize the extent to which employees hear and comprehend it”). Fourth, Member Prouty recognizes that notice reading and notice distribution may be impracti- cal in construction industry cases due to the short duration of typical construction industry projects. For this reason, he would be open to considering, in a future appropriate case, whether it would effectuate the policies of the Act to order notice mailing as a standard remedy in construction industry cases. Finally, Member Prouty notes that it is imperative that all employees be able to read the notice and, in instanc- es where the Board orders the notice posted in a second language in addition to English, there is some enhanced possibility that there are employees in the workforce who only read additional languages. Ac- cordingly, where the Board orders a respondent to post a notice in more than one language, he would adopt as a standard remedy that the re- spondent be required to post notices in any other language deemed appropriate by the Regional Director. See UPS Supply Chain Solu- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ORDER The National Labor Relations Board orders that the Respondent, Commonwealth Electric Company of the Midwest, Columbus and Kearney, Nebraska, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Interna- tional Brotherhood of Electrical Workers, Locals 22 and 265, AFL–CIO (the Union) 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 Respond- ent’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 on March 10, 2022. (b) Post at its Columbus and Kearney, Nebraska fa- cilities, and at all of its active job sites, copies of the at- tached notice marked “Appendix”3 in both English and Spanish. Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices tions, Inc., 364 NLRB 25, 25 fn. 3 (2016) (where the “record sug- gest[ed] that a significant number of . . . employees sp[oke] Spanish,” the Board ordered the respondent to post notices “in English, Spanish, and such other languages as the Regional Director determines are nec- essary to fully communicate with employees”.). 3 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 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.” shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable 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 Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 10, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. May 3, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. COMMONWEALTH ELECTRIC CO. OF THE MIDWEST 3 WE WILL NOT refuse to bargain collectively with the International Brotherhood of Electrical Workers, Locals 22 and 265, AFL–CIO (the Union) by failing and refus- ing to furnish it with requested information that is rele- vant and necessary to the Union’s performance 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, to the extent we have not already done so, furnish to the Union in a timely manner the information requested by the Union on March 10, 2022. COMMONWEALTH ELECTRIC COMPANY OF THE MIDWEST The Board’s decision can be found at http://www.nlrb.gov/case/14-CA-295606 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National La- bor Relations Board, 1015 Half Street, S.E., Washington D.C. 20570 or by calling (202) 273-1940. Patrick Myers, Esq., for the General Counsel. Jerry Pigsley, Esq., for the Respondent. Chris Grant, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried, by agreement of the parties, using Zoom video tech- nology on March 6, 2023.1 The International Brotherhood of Electrical Workers, Local 265, AFL–CIO (Union/Local 265)2 filed the charge in case no. 14–CA–295606 on May 11, 2022. (GC Exhs. 1A to 1K.)3 The General Counsel issued the com- plaint and notice of hearing on September 26. Commonwealth 1 All dates are in 2022, unless otherwise indicated. 2 References in this decision to the national/international arm of the International Brotherhood of Electrical Workers is referred to as IBEW. 3 Abbreviations used in this decision are as follows: “Tr.” for tran- script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Re- spondent’s exhibit; “CP Exh.” for Union’s exhibit; “ALJ Exh.” for administrative law judge’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for General Counsel’s brief; “R. Br.” for Respondent’s brief; and “CP Br.” for Union’s brief. My findings and conclusions are based on my review and consideration of the entire record. Electric Company of the Midwest (Respondent) filed a timely answer denying all material allegations. The complaint alleges that since “about March 10, and reit- erated on March 18, April 13, and May 7, the Respondent has failed and refused to furnish the Union with the information it requested as set forth in paragraph 6A of the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following, FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with facilities in Columbus and Kearney, Nebraska, is an electrical contractor in the con- struction industry engaged in commercial and industrial con- struction. During the 12-month period ending August 31, the Respondent, in conducting its business operations, purchased, and received goods valued in excess of $50,000 directly from points outside the State of Nebraska. The Respondent admits, and I find, that at all material times it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. (GC Exhs. 1G, 1H.) At all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Partial Organizational Structures for Union and Respondent The Respondent is an electrical contractor for both commer- cial and industrial construction. Michael Price (Price) is the president and chief executive officer (CEO) of Commonwealth Holding, Inc., which was created a few months prior to the hearing. Commonwealth Holding, Inc. owns the Respondent. Price had worked about 30 years for the Respondent prior to receiving his current position. Jake Gable (Gable) has been employed with the Respondent for about 15 years. He is cur- rently the vice president with his office in Columbus, Nebraska. In his role, Gable oversees the Division of Greater Nebraska and the managers. He is also involved in collective-bargaining agreement (CBA) negotiations, oversees the “estimations,” daily service operations, and the financials of greater Nebraska division. The following constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees performing work within the jurisdiction of the Union or IBEW Local 22 who are employed by members of The Omaha & Lincoln Division, Nebraska Chapter of the Na- tional Electrical Contractors Association (NECA) and of the employers who have authorized NECA to bargain on their behalf, including the Respondent, but excluding all employees classified by the Respondent as office clerical employees, confidential employees, guards and supervisors as defined in the Act. (GC Exh. 1A.) Christopher Callihan (Callihan) is currently employed with the international office of the IBEW as the in- ternational representative assigned to the Construction and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Maintenance Department. Until about a year ago, he was the business manager for the Union for about 5 years. In his role as the business manager, Callihan represented the membership in contract negotiations and grievances, ensured that the Respond- ent remained in compliance with the CBA, and oversaw the local union operations. Barry Mayfield (Mayfield) is the busi- ness manager for Local 22. B. Collective-Bargaining Agreement As part of a 2014 letter of assent, the Respondent is signato- ry to the Greater Nebraska Agreement (GNA)4 with the Union, IBEW Locals 22 and 231 in the Omaha and Lincoln Division, Nebraska Chapter of the National Electrical Contractors Asso- ciation (NECA). The Respondent has about sixty workers who are represented by the Union and IBEW Locals 22 and 231. An employee is represented by the Union, IBEW Locals 22, or 231 depending on the geographic jurisdiction where he/she/they reside and, or works. (Tr. 18; CP Exhs. 3, 4.) IBEW Local 22 covers the Omaha district, IBEW Local 231 covers Sioux City, and the Union oversees Lincoln (NE).5 (Tr. 54–55.) Under the terms of the GNA, union members are allowed to work in any of the jurisdictions that the three IBEW locals represent. The most recent GNA negotiated by the parties was effective from March 1, 2020 to February 28, 2023. (GC Exhs. 2, 3.) Howev- er, about late January 2023, the parties agreed to a current suc- cessor CBA. (Tr. 24.) Section 3.05 of the CBA sets out the minimum hourly wage rates for a journeyman wireman, but the employer is allowed to and does pay above that minimum wage.6 Also, the CBA does not require a maximum hourly rate. In other words, there is no cap on the amount the Respondent is allowed to pay bargaining unit employees, and the CBA provides for an annual hourly rate increase. However, the straight time wage rate and benefits vary based on the jurisdiction. (Tr. 59.) Section 6.01 of the CBA governs benefit payments. Under the CBA, the employer has to contribute to different benefits funds, including a pension fund, National Electrical Benefit Fund (NEBF), vacation fund, and health and welfare fund. (GC Exh. 2.) The CBA stipulates the amount that is required to be paid by the employer into each fund. Id. The parties agreed to set up a trust with trustees that are tasked with ensuring the employers are accurately paying unit employees. Consequently, several times a year the trustees hire third-party auditors to ensure that the employers are accu- rately paying the employees. (Tr. 104–105.) C. Union’s Requests for Information Pursuant to Section 3.05 of the CBA, on March 1, unit em- ployees got an eighty cents ($0.80) wage increase. The CBA designated that from the $0.80 increase, fifty cents ($0.50) would be allocated to the Health Reimbursement Account (HRA) account and remaining thirty cents ($0.30) would be placed into any fringe benefit fund and/or wages chosen by the 4 In this decision, GNA and CBA are used interchangeably to refer to the collective-bargaining agreement. 5 All references to the Union hereinafter are considered to include IBEW Locals 22, 231, and 265. 6 Wage rates above the minimum wage are referred to by the parties as overscale wages. membership. During the third in January, Callihan met with union members to discuss allocation of the $0.30 wage in- crease. The membership decided to distribute ten cents ($0.10) to their HRA fund with the remaining twenty cents ($0.20) going into their pension fund. However, on March 1, the con- tractors decided to modify the employees chosen allocations to have $0.10 go into the retirement fund and $.010 towards wag- es. The Union objected to the change and IBEW Local 22 filed a grievance on behalf of itself and Locals 231 and 265, charg- ing that the change constituted a violation of the CBA. On March 10, Callihan and Mayfield sent a letter to Gable requesting in part: [I]nformation regarding current wage and benefits for all em- ployees at Commonwealth Electric that are working under the Greater Nebraska Inside Collective Bargaining Agreement IBEW Local 265 and the CW/CE Addendum to it. This in- formation to include but not limited to the hourly amount paid to each employee covered under the GN Collective Bargain- ing Agreement. Please provide Wage, Benefits, and any other compensation received by employees covered under these agreements. (GC Exh. 7) In the letter, the Union informed the Respondent that it needed the information for the performance of its duties as the exclusive collective-bargaining representative of the employees. A March 14, email7 from Callihan to Gable clari- fied the March 10 request noting: Here is the email requesting the payroll report from Com- monwealth Electric for all employees covered and working under the Greater Nebraska Inside Collective Bargaining Agreement to include their paid hourly straight time check rate. This will include all classifications covered under the GN Inside Collective Bargaining Agreement as well as the CW/CE Addendum to the agreement. (GC Exhs. 6, 8.) On March 15, Gable notified Callihan that “We will get working on this.” (GC Exh. 8.) Later the same day, Gable responded to Callihan via email: In response to your request for information, we pay the agreed upon scale (or greater) as described in Article III of the Great- er Nebraska Collective Bargaining Agreement. If you want to know what each employee is paid specifically, we will make our payroll ledger available for your inspection, at our busi- ness office, at a mutually acceptable day and time during reg- ular business hours. Let me know what works for you. (GC Exh. 6.) The Union was dissatisfied with the Respond- ent’s offer to make the payroll ledger available because the Union was “duly owed copies of those payroll sheets and wage information and benefits information to, again, confirm compli- ance with the Agreement and its collective bargaining require- ments” and “also to be able to reaffirm accuracy to the report with the individual employees as well.” (Tr. 39.) Pursuant to an email to Respondent dated March 18, Callihan sent a follow- up to his request for information asking the Respondent imme- 7 Callihan attached the Union’s March 10 request for information to his March 14 email clarifying the request. COMMONWEALTH ELECTRIC CO. OF THE MIDWEST 5 diately “file with the Union a copy of the Employer’s report.” Callihan also reiterated the Union’s original demand for wage information. However, in an attempt to expedite the process, the Union limited its “demands that Commonwealth Electric provide it the hourly wage rate paid to and the hours of each member of the bargaining unit in its employ in the prior thirty days working under the Greater Nebraska Inside Collective Bargaining Agreement and [its] CW/CE Addendum with their job classification.” (GC Exh. 10.) In the letter, Callihan again explained that the Union needed the information to (1) enable it to properly represent its members; (2) investigate and assess the grievance it filed over the wage allocation issue; (3) enable it to monitor compliance with the CBA. Last, Callihan informed the Respondent that it could send the information to the Union via email or courier, or he could retrieve the payroll ledger from the office and make copies off-site or on-site. (GC Exh. 10.) There is also evidence that the Respondent keeps the payroll ledger in the form of an Excel-like spreadsheet which can be emailed to the Union. (Tr. 85–86.) On March 24, the parties settled the grievance concerning the wage allocation. However, the Union insisted that the in- formation it requested was still needed because the Union did not know “how the employers actually handled the allocation; did the[y] follow the Local’s original version or did they do the NECA and the contractor’s version.” (Tr. 40–41.) On March 28, Gable emailed to the Union the Respondent’s reply to its March 18, email and included copies of the January Zenith report. A Zenith report is a third-party benefits report that lists, among other items, the names of unit employees, hours worked, and gross wages. (GC Exh. 9; Tr. 41–42, 60–63, 108.) The Respondent sends the Zenith report to the Union on a monthly basis so the Union can verify that benefits are being paid on their member’s behalf. On March 28, Callihan replied via email that the Zenith report was not responsive to the infor- mation request because it did not include the hourly rate of pay for each employee. He also noted that an employee on the “Corporate side” had in the past given him the information and, if Gable did not object, he could reach out to that employee again to get the information. (GC Exh. 9.) During the hearing, Callihan gave a more detailed explanation as to why the infor- mation on the Zenith was not responsive to the information request. Callihan gave undisputed testimony that the Zenith report showed the gross wages, which includes a mix of time and a half, double time, shift differentials, per diems, straight time hourly rates, and incentive pay. Consequently, the Union could not determine each employee’s straight time wage rate using the information from the Zenith report. Gable admitted the report would not allow the Union to discern each employ- ee’s straight time overscale wage rate, overtime rate, or any other premium paid. (Tr. 81–82.) By email dated April 13, the Union, through Callihan, sent the Respondent a third request for information and repeated the Union’s original information request. In the email Callihan wrote: For each unit employee, I would like the hourly wage rate for each employee for their hours of work in the month (if an em- ployee is compensated at different hourly rates for different hours, please provide the different rates for the applicable set of hours.) The reports you have provided are insufficient because the hours and wages reported may include overtime hours paid at different rates or not just straight-time rates and/or different wage rates. (GC Exh. 12.) The Union asked that the Respondent to include the information for March 2022 and each month going forward until negotiations for a new agreement are completed. Again, successful negotiations for a successor agreement were com- pleted about late January 2023. In the email, the Union also reiterated the reasons for the information request: ability to represent unit employees; monitor fringe benefits based on percentage of gross payroll; assist it in preparing for contract negotiations. Id. On May 5, Price convened a meeting with Callihan in an at- tempt to resolve the dispute over the request for information. Prior to the meeting, Price reviewed the emails exchanged be- tween the Union and the Respondent about the requests for information, so he was aware of the Union’s stated reasons for why they needed the information. The Respondent acknowl- edges that one of the reason the Union wanted the information was to assist it in contract negotiations. Callihan attended the meeting on behalf of the Union. Attendees for the Respondent were Price, and Micha Edson (Edson), Lincoln Branch Manag- er. The Respondent, through Price, voiced concerns about releasing the requested information. Price argued that giving the Union the information might violate the employee’s privacy interest; and it was “very likely” the information would be leaked to its competitors, thereby, placing the Respondent at a competitive disadvantage. Consequently, Price proffered sev- eral alternatives in lieu of giving the Union copies of the infor- mation. Price suggested: (1) allowing the Union to review the payroll ledger at the Respondent’s office in lieu of providing copies; (2) the Union signing a non-disclosure agreement or meet with employees to individually verify their wage infor- mation; (3) use a third-party auditor to review and verify the records; (4) release the wage information with employees’ names redacted; and (5) the Union to request a Labor Manage- ment Meeting for the parties to discuss or negotiate over the information. On May 7, Callihan again emailed the Respondent writing, “The Union maintains its request for the hourly wage infor- mation.” (GC Exh. 13.) He also noted that it was entitled to unredacted copies of the wage information so the Union could verify the employees were being paid accurately. Although the Union disputed the confidential nature of the information, it agreed not to disclose the information to the Respondent’s competitors; and discuss the matter further at a Labor Manage- ment Committee. The Union warned, however, that it still planned to file an unfair labor practice (ULP) charge over the Respondent’s refusal to comply with its information request. (GC Exh. 13.) On May 9, Price sent Callihan an email summarizing his recollection of the discussions in the May 5 meeting. He re- peated his concerns about confidentiality and belief that the monthly Zenith reports addressed the Union’s requests. (GC DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Exh. 14.) Moreover, Price testified that he believed the infor- mation the union wanted was for negotiation purposes; and told Callihan that the Union was lying about needing the infor- mation to verify members’ wage rate, but rather requested it for negotiation purposes. (Tr. 98–100.) Price acknowledged telling Callihan that if he wanted to know the wage rate for unit em- ployees to ask them individually so that there are no privacy concerns. (Tr. 101.) Since Price’s May 9, response to the Un- ion there has been no further communication between the par- ties concerning the March 10 request for information and as repeated on March 18, April 13, and May 7. III. DISCUSSION AND ANALYSIS A. Legal Standards Section 8(a) (5) of the Act mandates that an employer must provide a union with relevant information that is necessary for the proper performance of its duties as the exclusive bargaining representative. NLRB v. Truitt Mfg. Co. 351 U.S. 149, 153 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). “. . . [T]he duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor- management relations during the term of an agreement.” NLRB v. Acme Industrial Co., 385 U.S. 432, 436 (1967). Information requests regarding bargaining unit employees’ terms and condi- tions of employment are “presumptively 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); Southern California Gas Co., 344 NLRB 231, 235 (2005). If the requested information is not directly related to the bargaining unit, the information is not presumptively relevant, and the requesting party has the burden of establishing the relevance of the requested material. Disneyland Park, 350 NLRB 1256, 1257 (2007); The Earthgrains Co., 349 NLRB 389 (2007). The standard for establishing relevancy is the liberal, “dis- covery-type standard.” Alcan Rolled Products, 358 NLRB 37, 40 (2012), citing and quoting applicable authorities. In Leland Stanford Junior University, 307 NLRB 75, 80 (1992), the Board summarized its application of the principles as follows: [T]he Board has long held that Section 8(a)(5) of the Act ob- ligates 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 requested infor- mation clearly dispose of the grievance. It is sufficient if the requested information is potentially relevant to a determina- tion as to the merits of a grievance or an evaluation as to whether a grievance should be pursued. United Technologies Corp., 274 NLRB 504 (1985); TRW, Inc., 202 NLRB 729, 731 (1973). The requested information does not have to be dispositive of the issue for which it is sought, but only has to have some rela- tion to it. Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–1105 (1991). Moreover, the Board does not assess the merits of the underlying dispute to determine the relevancy of the request for information. Postal Services, 332 NLRB 635 (2000). Even if the union is unable to articulate a reason for the requested information, the surrounding circumstances may show that the employer is “on notice of a relevant purpose which the union has not specifically spelled out” and is there- fore required to produce the requested information. Beverly Enterprises, 310 NLRB 222, 227 (1993) (citing Brazos Electric Power, 241 NLRB 1016, 1018 (1979); Disneyland Park at 1257; Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). Once the relevancy of the request for information has been demonstrated, the burden shifts to the employer to establish that the information is not relevant, does not exist, or some other valid and acceptable reason why it could not be furnished. Samaritan Medical Center, 319 NLRB, 392, 398 (1995), citing Somerville Mills, 308 NLRB 425 (1992), and Postal Service, 276 NLRB 1282 (1985). B. Respondent’s Failure to Comply with Union’s RFI The General Counsel alleges that the Respondent is obligat- ed to provide the requested information because it is presump- tively relevant; and the Respondent has failed to rebut the pre- sumption of relevance, show the information does not exist, or provide a valid defense for refusing to comply. The Respond- ent counters: (1) it provided the Union with valid alternatives to accommodate the Union’s request for information; and (2) it offered a valid reason, confidentiality interest, for not furnish- ing the information in the form requested by the Union. I find the Respondent’s arguments unpersuasive. I find that the requested information is “presumptively rele- vant” because it pertains to bargaining unit employees’ terms and conditions of employment and the grievance process. Lan- sing Automakers Federal Credit Union, 355 NLRB 1345, 1351 (2010) (finding that information related to the discipline of unit employees was presumptively relevant because the Union needed it to properly process its grievances to arbitration); United Technologies Corp., 274 NLRB 504, 506 (1985) (find- ing that Section 8(a)(5) of the Act obligates an employer to furnish requested information which is potentially relevant to the processing of grievances); Live Oak Skilled Care & Manor, 300 NLRB 1040, 1049 (1990) (finding the employer was in violation of the Act by refusing to provide information shown to be necessary for the Union to determine whether or not the employer was in compliance with its agreement); Winges Com- pany, Inc., 263 NLRB 152, 156 (1982) (holding that the em- ployer must provide wage survey data to the Union to substan- tiate its claim that “remaining competitive” was the reason it could only grant minimal wage increases to certain employees); WCCO Radio, Inc., 282 NLRB 1199, 1204 (1987) (union’s request for wage information relevant because it involved “the preparation of bargaining demands and the administration of the existing contract.”), enfd. 844 F.2d 511 (8th Cir. 1988), cert. denied 488 U.S. 824 (1988); Tennessee Chair Company, Inc., 126 NLRB 1357, 1364 (1960) (holding that the employer was in violation of the Act by refusing to provide the Union, upon its request, any record information or data or other proba- tive material to substantiate its claim of inability to pay any wage increase). The Respondent does not refute the presump- tively relevant nature of the information request. Consequent- ly, the Respondent has a statutory obligation to furnish the Un- ion with the requested information unless the Respondent can establish some other valid and acceptable reason why it could COMMONWEALTH ELECTRIC CO. OF THE MIDWEST 7 not be furnished. First, I find that the Respondent has failed to prove it has a valid confidentiality concern that exempts it from its obligation to comply with the Union’s request for information. The Re- spondent contends that the requested information is confiden- tial, and it would violate the privacy interest of its employees. The party asserting a confidentiality defense has the burden of proving it has a “legitimate and substantial confidentiality” concern in the requested information. Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991); Washington Gas Light Co., 273 NLRB 116, 117 (1984). Price testified that the Union wanted to give the wage information to “their membership at the Hall. According to the Respondent, it does not want to release copies of the information because it is almost certain the individual wage rate would be “leaked” to competitors, and thereby, hurt its ability to retain employees and customer accounts. (Tr. 88– 89, 100, 102.) Moreover, Price felt releasing the information would violate the employees’ privacy, and suggested to the Union that it get releases from each individual employee to ensure there are no privacy concerns. (Tr. 101.) I find the Re- spondent has failed to establish its burden of proof. Price ad- mits that he has never been asked for the information at issue. Consequently, the Respondent cannot show it had a clear past practice or policy of confidentiality towards the Union in its capacity as the exclusive collective-bargaining representative regarding requests for payroll records. Likewise, there is no evidence that the Respondent ever informed unit employees that their wage information was confidential; nor is there any evidence that the employees held such an expectation of priva- cy. A general statement that information is confidential, with- out more, is insufficient to prove the employer’s burden. De- troit Edison, 440 U.S. at 314. See also Detroit Newspaper Agency, 317 NLRB 1071, 1072 (1995). In this case, the Re- spondent has offered nothing more than pure speculation that if handed over to the Union, the payroll information is “very like- ly” to leak which might cause them to lose employees to better paying competitors. There is absolutely no evidence of the wages being paid by competitors, if there is an over or under supply of workers in the area relative to the relevant jobs, if there are other non-financial factors which makes the Respond- ent a more or less attractive employer. In other words, there are any number of reasons that factor into the Respondent’s or any employer’s ability to recruit and retain employees. Speculation that a possible leak of the requested information would override all other factors in the Respondent’s ability to recruit and retain employees is a leap too far. Likewise, the Respondent has giv- en no reason or supporting information to show that releasing the requested information to the Union would cause it to lose customer accounts. I find that the Respondent failed to meet its burden of showing a legitimate and substantial interest in main- taining the confidentiality of the information, and therefore, it must give the Union copies of the requested information. Wat- kins Contracting, Inc., 335 NLRB 222, 226 (2001); American Medical Response West, 366 NLRB No. 146, slip op. 4 (2018) (employer violated the Act when it raised but failed to establish confidentiality interest for not disclosing names of witnesses relied upon to discipline unit employee). The Respondent also argues that in weighing the employees’ privacy interests versus the Union’s need for the information, it proffered several alternatives for releasing the information which fulfills its obligation under the Act. The alternatives the Respondent offered to the Union were: (1) allow the Union to review its payroll ledger in lieu of making copies of the payroll documents; (2) providing the information minus names; (3) using a third-party auditor; (4) a non-disclosure agreement; and (5) the parties discuss the request for information in a Labor Management meeting. The Respondent contends that it is not obligated to provide the information because it “offered to make its payroll ledger available for inspection at its business office” on a mutually agreeable date and time. (R. Br. 7.; GC Exh. 6.) Citing, Road- way Express8 and Abercrombie & Fitch Co.,9 the Respondent contends that through this offer it fulfilled any obligation it may have had to comply with the Union’s request. I find this argu- ment unpersuasive. In Roadway Express and Abercrombie & Fitch, the Board considered several factors in determining the level of access that is sufficient for complying with a union’s request for information. In both cases, the volume and com- plexity of the information requested was considered to be min- imal and uncomplicated. Abercrombie & Fitch involved a signed confession by the discharged employee, the employee’s cash register tape for 1 day, and notations of discrepancies be- tween the employee’s register tape and the records of the Cash- iers Department. In Roadway Express, the union requested a copy of a customer’s letter that was the basis for the employ- ee’s discharge. In each case, the employer offered to allow the union to review the information in lieu of receiving copies, and the Board found it to be sufficient. Roadway Express at 1107, fn. 4; Abercrombie & Fitch at 465. The Board has long held that an employer is not required to furnish relevant information in the exact form requested by the employees’ representative. Rather, “[i]t is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process of bargaining.” Cincinnati Steel Castings Co., 86 NLRB 592, 593 (1949). However, the Board has also held that in instances where the requested information is voluminous, complex, or otherwise not conducive to a simple review, the employer is required to provide the information “with an oppor- tunity for the Union to make a copy of such information if it so desires.” United Aircraft Corp., 192 NLRB 382 (voluminous records covering thousands of employees), citing Lasko Metal Products Inc., 148 NLRB 976, 978 (names, hire dates, and wage rates of all new hires and employees hired since the start of a strike). This case involves more than a single page statement or 1- day’s worth of register tape. Potentially, the records in this case will be far more voluminous because it includes payroll documents involving about 60-unit employees dating from February 2022 to late January 2023. Moreover, the Respondent acknowledged that the reports it provided to the Union in re- sponse to the information request would not give the Union the information that it needed to calculate employees straight time wages. (Tr. 82–83.) A calculation of the employees’ straight 8 275 NLRB 1107, 1107 fn. 4 (1985). 9 206 NLRB 464 (1973). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 time wages would assist the Union in determining whether the Respondent properly allocated the benefit payments, if the Re- spondent was complying with the CBA, and assist the Union to prepare for negotiations over a new CBA. Even more im- portantly, the Respondent admitted that all the requested infor- mation is kept on an Excel like spreadsheet that could easily be transmitted electronically to the Union. (Tr. 85–86.) Conse- quently, I find that the voluminous nature of the information requested, and the type of the information and its intended use made the information useless to the Union without copies to convert to an Excel like spreadsheet or other manageable form. Board precedent has established that it is the Union and not the employer who determines what information it finds useful. See, FirstEnergy Generation, LLC., 362 NLRB 630, 636 (2015). I also find the Respondent’s offer to provide a generic pay structure without the employees’ names or request that the Un- ion sign a non-disclosure agreement before receiving the in- formation inadequate. Callihan gave undisputed testimony that the Union needed the employees’ names to verify that the accu- racy of each employees’ wage and benefits payments. (Tr. 48.) The Union needed information to help determine any employ- ee’s hourly rate to ensure that the Respondent was complying with the CBA and properly allocating wages and benefits pay- ments. The January benefits reports the Respondent provided in response show the gross wages that includes overtime pay, differential pay, and other premium payments. Gable admitted that the report would not show the Union an employee’s straight time/overscale wage rate or allow the Union to deter- mine that rate. (Tr. 81–82.) Consequently, the Union has estab- lished why the proffered accommodation is inadequate which the Respondent has failed to rebut. In regard to the non- disclosure agreement, the Respondent failed to show how providing the names of the employees attached to their payroll information violates a confidentiality policy or privacy interest. As correctly noted by the General Counsel, the January fringe benefit reports that the Respondent already gives to the Union contains the names of employees and their gross wages. (GC Br. 14; GC Exh. 9, 10.) The Respondent freely gives this in- formation to the Union without any objections based on privacy or confidentiality concerns. Consequently, it should be no more concerning for the Respondent to provide the Union with the names of each employee attached to their overscale wages. See King Broadcasting Co., 324 NLRB 332, 337–339 (1997). Moreover, the Respondent’s suggestion to the Union that it can speak with each employee to get their agreement to release their information and or sign a non-disclosure agreement is against the basic principles of the National Labor Relations Act (the Act). For example, if one or more of the employees with- holds his or her consent, the Union would be “effectively pre- cluded” from assessing whether Respondent carried out the terms of the CBA related to this issue. Further, if the Union were required to get the employees’ consent before Respondent released their names attached to the payroll information, the Union’s right to enforce the most basic provisions of the CBA and obtain necessary and relevant information would depend on the desires of each bargaining unit employee. This is not an outcome envisioned by the Act. United Graphics, Inc., 281 NLRB 463, 465 (1986) (the Board held that information pre- sumptively relevant to the union’s role as bargaining agent must be provided to the union as it “relates directly to the polic- ing of contract terms.”). The Board noted in Utica-Observer Dispatch, 111 NLRB 58, 64 (1955), “The right of a collective- bargaining representative to wage data cannot be made contin- gent upon the consent of the individual employees, any more than it can be made contingent upon the consent of anyone else. Otherwise, the right becomes an empty one which is controlled by other persons. The right must be, and is, certain to enable the union to perform properly its function as the collective- bargaining representative of the employees.” I have found that the information requested is relevant and necessary to the Un- ion’s role as the exclusive collective-bargaining representative of unit employees. Further, the facts unequivocally establish that the Respondent had the information readily available. The suggestions that the Union get the information from a third-party auditor or resolve the information request in Labor Management meeting are likewise deficient. The Respondent contends that the Union can get the information it needs from third-party auditors that the Respondent (and other contractors) task with periodically auditing whether employees are accurate- ly paid. (Tr. 104–105.) Also, the Respondent claims the Union can discuss or negotiate with the Labor Management Commit- tee over the issue of the information request. However, the Respondent failed to establish how “negotiations” with the Labor Management Committee would have provided the Union with the information it was requesting. Moreover, the Labor Management Committee is not the party obligated to comply with the information request, but rather that is the Respondent’s role. The Respondent cannot demand that the Union go “hat- in-hand” to a third party, whether it is the third-party auditor or the Labor Management Committee, for presumptively relevant information that the Respondent is legally required to provide. The Board has consistently held that information available from another source does not relieve the party of its obligation to provide relevant and necessary information that is easily avail- able. Utica-Observer Dispatch at 64 (the right to relevant in- formation cannot be made contingent on the consent of the individual wishes of the employee, any more than it can be made contingent on the consent of anyone else). Accordingly, I find that Respondent’s failure to provide the information requested violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Commonwealth Electric Company of the Midwest, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, the International Brotherhood of Electrical Workers, Locals 22 and 265, AFL–CIO (the Union/Local 22/Local 265), are labor organizations within the meaning of Section 2(5) of the Act. 3. By its failure and refusal to provide the necessary and rel- evant information requested by the Union since about March 10, 2022, and repeated on March 18, April 13, and May 7, 2022, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) and (5) of the Act. COMMONWEALTH ELECTRIC CO. OF THE MIDWEST 9 4. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not violated the Act except as set forth above. REMEDY The Respondent will be ordered to cease and desist from failing and refusing to bargain collectively with the Charging Party by refusing to provide the requested information. More- over, the Respondent will be ordered to furnish the Union with the information requested as specified in paragraph 6 of the complaint. The Respondent will also 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 recommended10 ORDER Respondent, Commonwealth Electric Company of the Mid- west, in its Columbus and Kearney, Nebraska facilities, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union by fail- ing and refusing to provide the Union, information requested that is necessary and relevant to its role as the exclusive repre- sentative of the employees in following unit: All employees performing work within the jurisdiction of the Union or IBEW Local 22 who are employed by members of The Omaha & Lincoln Division, Nebraska Chapter of the Na- tional Electrical Contractors Association (NECA) and of the employers who have authorized NECA to bargain on their behalf, including the Respondent, but excluding all employees classified by the Respondent as office clerical employees, confidential employees, guards and supervisors as defined in the Act. (b) In any like or related manner, interfering with, restrain- ing, or coercing its employees in the exercise of the rights guar- anteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the purposes and policies of the Act. (a) Within 14 days from the date of the Board’s Order, fur- nish the Union with all information it has requested since on or about March 10, 2022, and continuing until late January 2023 when the Union and NECA successfully completed negotia- tions for a new collective-bargaining agreement. (b) Within 14 days after service by the Region, post at its fa- cilities in Columbus and Kearney, Nebraska copies of the at- tached notice marked “Appendix.”11 Copies of the notice, on 10 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. 11 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- forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed 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. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pen- dency of these proceedings, 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 employ- ees employed by the Respondent at any time since March 10, 2022. (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 the Respondent has taken to comply. Dated, September 15, 2023 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 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 do anything to prevent you from exercising the above rights. WE WILL NOT refuse to bargain collectively and in good faith with the International Brotherhood of Electrical Workers, Lo- cals 22 and 265, AFL–CIO by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its duties as the collective-bargaining representative of our unit employees at our Columbus and Kearney, Nebraska facilities. WE WILL NOT in any like or related manner fail and refuse to bargain collectively and in good faith with the International ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Brotherhood of Electrical Workers, Locals 22 and 265, AFL– CIO as the exclusive collective-bargaining representative of our employees in the Unit at our Columbus and Kearney, Nebraska facilities. 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. COMMONWEALTH ELECTRIC COMPANY OF THE MIDWEST The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-295606 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.