Johns-Manville Sales Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johns-Manville Sales Corporation and International Chemical Workers Union and its Local 60, AFL-CIO. Case 13-CA-17917 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 28, 1980, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recommended Order as modified herein.' The Administrative Law Judge found that the Respondent was required to provide the Union with the names of approximately 34 employees whose medical files the Respondent had "red- tagged" because its doctors had diagnosed them as being partially disabled by pneumoconiosis, a lung disease. The Union's request for these names was based on an expressed desire to develop a total health program for employees and, more specifical- ly, to permit it to prepare contract proposals de- signed to protect red-tagged employees and to ad- minister and police any agreement reached. Subse- quent to the request, the parties reached an agree- ment which gave red-tagged employees certain ad- ditional seniority rights. This change in bargaining status since the original request was made persuad- ed the Administrative Law Judge to conclude that the identity of the red-tagged employees is rele- vant, and in fact essential, to the Union's effective administration and policing of this provision of the parties' contract. In addition to questioning the relevance of this information to the Union's collective-bargaining function, the Respondent contends that the names of the employees-as opposed to the number of employees that have been "red-tagged"- consti- tute confidential medical records. The Administra- tive Law Judge rejected this defense, concluding that the identities of the diagnosed employees are The Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 252 NLRB No. 56 not the equivalent of medical records and that the Respondent has not shown that it would suffer any harm if the identities were revealed to the Union. In reaching that conclusion, however, the Ad- ministrative Law Judge viewed and treated the issues presented as simply (I) the existence of a le- gitimate claim of relevance and (2) an "all or noth- ing" question of confidentiality. However, where, as here, there is substance to the position taken by both parties, we are required to balance the Union's need for the information against any legiti- mate assertion of confidentiality by the employer. See Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 314-320 (1979). The Union's principal asserted need for the information is that, in order to protect the interests of red-tagged employees, it must be able to contact them. Whatever the advantage of knowing the identities of the employees involved, that information does not appear to be essential for the specific purpose claimed or for any related pur- pose. For the Union adequately could fulfill its re- sponsibilities to these employees without that infor- mation, i.e., by informing all unit employees of their rights should they become "red-tagged" (a status which is known to the affected employees), and that the Union stands ready to assist them in applying and enforcing these rights. Thus, although the information may be relevant, we do not believe that the Union's showing of need clearly outweighs the confidentiality claimed. The weight of the Respondent's assertion of con- fidentiality is also, of course, subject to scrutiny. As found by the Administrative Law Judge, the names of the employees are distinguishable from actual medical records. Moreover, it is arguable that the Respondent itself has not treated the em- ployees' identities in a strictly confidential manner since it has revealed them to various persons in the supervisory hierarchy. Nevertheless, there exists a legitimate aura of confidentiality in the identities of those individuals who have been identified as having a certain medical disorder. The privilege in question, of course, belongs to the employees and not to the Respondent. We note that the Respond- ent has demonstrated that its refusal to disclose sensitive information privileged to those employees was made in good faith, since it sought to accom- modate the Union by submitting forms to a number of red-tagged employees on which they indicated whether or not they wished to be identified to the Union as having pneumoconiosis, and has turned over to the Union the names of those who consent- ed. We find, therefore, contrary to the Administra- tive Law Judge, that, on balance, and in the partic- ular circumstances present, the Respondent has not violated Section 8(a)(5) by refusing to furnish the 368 JOHNS-MANVILLE SALES CORPORATION Union with the identitites of the red-tagged em- ployees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Johns-Manville Sales Corporation, Waukegan, Illi- nois, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph (a): "(a) Refusing to bargain collectively with Inter- national Chemical Workers Union and its Local 60, AFL-CIO, by refusing to furnish to the Union cer- tain information necessary and relevant to the Union's performance of its collective-bargaining functions. The appropriate bargaining unit is: "All production, maintenance, quality control, and plant clerical employees employed by Re- spondent at its Waukegan, Illinois facility, but excluding all office clerical employees, guards, professional employees and supervisors as de- fined in the Act." 2. Substitute the following for paragraph 2(a): "(a) Furnish to the Union, upon request, the fol- lowing: (1) Statistical data on sputum cytology, X- rays, blood tests, and pulmonary function tests; and (2) a listing of the diseases which were and are the cause of unit employees' disability retirements which could potentially be considered occupational in nature." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Chemical Workers Union and its Local 60, AFL-CIO, by refusing to furnish said Union with information necessary and relevant to the Union's performance of its collective-bargaining functions. the appropriate bargaining unit is: All production, maintenance, quality control, and plant clerical employees employed by us at our Waukegan, Illinois facility, but exclud- ing all office clerica employees, guards, profes- sional employees and supervisors as defined in the Act. W. WILL. NOT in any like or related manner intefere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. Wt. W.l., upon request, furnish to the Union in a reasonably clear and understanda- ble form: 1. Statistical data on sputum cytology, X-rays, blood tests, and pulmonary function tests. 2. A listing of the diseases which were and are the cause of unit employees' disability retire- ments which could potentially be considered occupational in nature. JOHNS-MANVII.LE SAI.ES CORPORA- TION DECISION SIATEMILN- OF I HF. CASE DONAFLD R. HoI.I FY, Administrative Law Judge: Upon a charge filed by International Chemical Workers Union and its Local 60, AFL-CIO (herein called the Union), the Acting Regional Director for Region 13 of the National Labor Relations Board (herein called the Board) issued a complaint on February 15, 1979, alleg- ing, inter alia, that since April 17, 1978, Johns-Manville Sales Corporation (herein called Respondent) has refused to furnish the Union with requested information which is relevant and necessary to its role as the exclusive bar- gaining representative of certain of Respondent's em- ployees in violation of Section 8(a)(l) and (5) of the Act. Respondent filed timely answer denying that it had en- gaged in the unfair labor practices alleged. The case was heard before me in Chicago, Illinois, on June 11 and 12, 1979. Counsel for the General Counsel, Respondent, and the Union each filed post-hearing briefs. Upon the entire record, the briefs of the parties, and from my observation of the witnesses, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation, maintains an office and place of business at Greenwood and Sand Streets, Waukegan, Illinois, where it is engaged in the manufacture of asbestos and other related products. During the calendar year preceding issuance of the com- plaint, in the course and conduct of its business, it shipped goods valued at in excess of $50,00 directly to points located outside the State of Illinois, and during the same period it received goods valued in excess of $50,000 at its Waukegan plant directly from points locat- ed outside the State of Illinois. It is admitted, and I find, 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since November 19, 1937, the Union has been the ex- clusive collective-bargaining agent of Respondent's em- ployees in the following appropriate bargaining unit: All production, maintenance, quality control, and plant clerical employees employed by Respondent at its Waukegan, Illinois facility, but excluding all office clerical employees, guards, professional em- ployees and supervisors as defined in the Act. Respondent employs some 900 employees at its Wau- kegan facility, where it produces, inter alia, asbestos cement pipe, asbestos cement boards (mineral panels), roofing paper and felt, insulating materials, and related products. The various products are manufactured at dif- ferent locations in the facility and the record reveals that Respondent has several plant managers who oversee the individual operations. The complaint alleges, Respondent admits, and I find that the following individuals occupied the positions indicated and were agents of Respondent and supervisors within the meaning of Section 2(13) and 2(11) of the Act, respectively, at all times material herein: Roy Winkworth, employee relations manager; John W. Szcygielski, employee relations manager; Mi- chael A. Tappin, vice president, labor relations; and J. D. Anderson, labor relations manager. Through the years, Respondent and the Union have been parties to numerous collective-bargaining contracts. The 1976-79 contract between the parties was placed in evidence as General Counsel's Exhibit 2 and the current agreement effective from April 9, 1979, to April 4, 1982, is in the record as General Counsel's Exhibit 3. B. Events which Precipitated the Instant Litigation 1. April 17, 1978, meeting Prior to April 17, Respondent notified the Union by correspondence that it intended to implement a no-smok- ing rule at the Waukegan plant. The Union requested bargaining on the subject and a meeting date on April 17 was agreed upon. Numerous Respondent and union officials attended the meeting. Roy Winkworth, then Respondent's employee relations manager, and Eugene Rawhoof, an Internation- al representative of the Union, acted as the chief spokes- man for their respective groups. During the meeting, Re- spondent made a slide presentation, which was followed by remarks by doctors. The no-smoking ban was then discussed. After the discussion, the Union requested a caucus. When the meeting resumed, the Union orally proposed that the parties negotiate a total in-plant health program. In this connection, Rawhoof testified the Union made a number of specific proposals, but he did not de- scribe the proposals.' When making its proposals, the Union requested that Respondent supply it with data on employee disability retirements by length of service, age, sex, and exposure time and statistical data on sputum cy- tology tests, chest X-rays, and blood tests. Speaking for Respondent, Winkworth advised the Union that Respondent's attorney felt the Union's pro- posals were not negotiable. There was little other discus- sion regarding the Union's proposals and/or its request for information. 2. April 27 meeting The parties next met on April 27. At that time, John Szcygielski announced that he was replacing Winkworth as Respondent's employee relations manager. The Union informed Szcygielski of its health proposals and informa- tional requests, but no significant discussions occurred. 3. June 2 meeting The record reveals that the Union's health and safety proposals and its information requests were discussed ex- tensively at the June 2 meeting. Szcygielski was the Company spokesman and Rawhoof did most of the talk- ing for the Union. Rawhoof indicated that the parties discussed all of the Union's proposals during the meeting. Szcygielski re- called some of the proposals then under discussion and testified they included: issuance of coveralls to certain people working with asbestos; a voluntary no-smoking rule; a procedure for placing partially disabled employ- ees; prohibition of employees eating lunch on the floor; and correction of some safety and environmental condi- tions felt by the Union to be hazardous to employees in the plant.2 As the meeting progressed, the Union's information re- quests were also discussed. Apparently the Union's origi- nal request for information concluded with an etcetera. Szcygielski asked what the Union intended to request by using the etcetera and Rawhoof indicated they wanted any other medical information the Company possessed relating to in-plant exposure of employees. Thereupon, Szcygielski indicated the only other test administered was a pulmonary function test. The Union indicated it sought the data regarding such tests. At some point in the meeting, the parties discussed partially disabled employees who had been diagnosed by the Company doctor to have pneumoconiosis, a dust dis- ease of the lungs. The Union was informed that when the doctor determined that an employee had such a dis- ease, or there was likelihood that he may have it, his medical file was red-tagged to assure that his condition would be closely observed in the future and to cause the I General Counsel appears to contend in her brief that the Union's pro. posals were those which are enumerated on G.C. Eh. 14, which was given to Respondent at the commencement of contract negotiations in February 1979. For reasons set forth hereinafter, I conclude such was probably the case. 2 As each of the proposals appear in G.C. Exh. 14, it appears that the proposals discussed during the period April-June 1978, were the same proposals subsequently discussed during the February-April 1979, period. 370 JOHNS-MNANVILI.E SAIES CORPORATION Company to see that the employee worked in an envi- ronment which was as dust free as possible. Rawhoof asked who knew the identities of the red-tagged employ- ees and Szcygielski's reply was the doctor, the employee. the plant manager over the division of the plant in which the employee worked, the departmental superintendent, and maybe the foreman. The Union requested the names of the red-tagged employees and Szcygielski refused to divulge them stating the information was confidential. He did indicate, however, that there were then 34 red- tagged employees at the plant. During the session, Szcygielski asked at some point why the Union sought the information requested. Ra- whoof testified he replied they wanted the data as they desired to develop a total health program for employees in the plant rather than pursue the matter in piece meal fashion, i.e., negotiate regarding Respondent's no-smok- ing ban only. At some point in the meeting, Szcygielski admittedly informed the Union that Respondent would give them the statistical data on sputum cytology, X-rays, blood tests, and pulmonary function tests. The Company made no commitment to furnish the retiree information and in- dicated it was not legally obligated to bargain concern- ing retired employees. i Jul 5 meeting Prior to the July 5 meeting, the Union notified Re- spondent by letter that it was requesting data on retired employee disabilities to permit it to bargain for its active members in the bargaining unit.3 At this meeting, Respondent counterproposed that the red-tagged employee situation be referred to the environ- mental control committee, which was comprised of Union and Company representatives, with instructions that the committee develop a study of jobs in the plant and prepare a list of jobs that individuals could work on at reduced dust exposure and that the committee develop a form of superseniority for red-tagged employees. Indi- cating there were then 34 red-tagged employees in the plant, Respondent continued to refuse to divulge their names. The Union rejected Respondent's proposal that the red-tagged employee matter be referred to the environ- mental control committee, and insisted upon the names of the red-tagged employees. At the conclusion of the meeting, Szcygielski indicated the Company was having manpower problems concern- ing accumulation of the other data requested by the Union and would give that data to them at the end of August. Szcygielski testified the agreement was that the Company would furnish the statistical data on sputum cytology, X-rays, blood tests, and data regarding the dis- ability retirees by age, exposure, length of service, and sex. Prior to June 15, the Union had not indicated any time frame which was to be applicable to its request for infor- mation. At this meeting, Szcygielski indicated the Com- pany doctor had informed him the sputum cytology data would cover an 18-month period extending from January 3 See G.C. Exh 7 1, 1977, to July 1, 1978. Rawhoof objected and indicated the Union wanted sputum cytology data from the time such tests were first administered to employees some 2 years prior to January 1., 1977. 5. July 17 meeting While the record reveals that Respondent and the Union held a lengthy meeting regarding the no-smoking ban and the Union's health and safety proposals on July 17, neither Szcygielski nor Rawhoof were able to relate with any specificity what occurred during the meeting. 6. Filing of the charge On August 10, the Union filed a charge alleging that Respondent had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with it "in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment."' The record reveals that the Union requested no further meetings in connection with its health program proposals after filing the above-described charge. It likewise re- veals that Respondent failed to forward the data prom- ised to the Union by the end of August or at any time thereafter. 7. The consent form On August 9, 1978, Respondent's medical department commenced to ask employees who were found to have pneumoconiosis if they wanted to complete the following form (G.C. Exh. 10(b)): Date Having been informed today by Dr. Culmer that I have been identified as having pneumoconiosis (dust disease of the lungs), I request that the Financial Secretary of ICWU, Local 60 (be informed) (NOT be informed) of this diagnosis. /S/ Witness: By letter dated August 29, the Union indicated it had learned that such a form was being used and it requested discussion as it viewed the use of the form as "a change in employment conditions." s By letter dated August 30, Szcygielski replied (G.C. Exh. 10(a)): Dear Mr. Middleton: As requested in your letter of August 29, 1978 and per our discussion of today, the attached form has been implemented in our Medical Department as of August 9, 1978. The purpose of this form is to provide the authori- zation to release privileged/confidential medical in- formation. As I advised you today, I was ready to notify the Union of this procedural change on August 8, 1978; G.C. Exh (a) GC Exh 9 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, a subsequent meeting was never estab- lished related to the points brought up in our dis- cussions of the No-Smoking Program. Sincerely yours, /S/ J. W. SZCYGIEI.SKI Manager - Employee Relations At the time of the hearing, Respondent's doctor had asked some 16 employees who had been diagnosed as having pneumoconiosis if they wanted to execute the above-described consent form. Twelve (12) of sixteen (16) authorized Respondent to notify the Union they had pneumoconiosis. In each instance, Respondent's person- nel department notified the Union by letter that the em- ployees who had authorized disclosure had the disease. 8. February 14 or 15, 1979, meeting In mid-February, when Rawhoof and other union rep- resentatives were at the plant, Szcygielski asked what it would take to settle the Board charges. Rawhoof testi- fied the Union reiterated their request for information in each of the three areas, i.e., retiree disability information; sputum cytology, X-rays and blood tests, and; the names of the red-tagged employees. He recalled that Szcy- gielski indicated he would consider the request for re- tiree disability information; he indicated Respondent had the data on sputum cytology, X-rays and blood tests but it was not in statistical form; and he indicated Respond- ent would continue to refuse to furnish the names of red- tagged employees on the basis of confidentiality. 9. Negotiation of new contract During the period extending from February 26, 1979, to April 12, 1979, Respondent and the Union engaged in negotiations which culminated in the execution of the current contractual agreement between the parties. The proposals made by the Union during the contract renewal negotiations which relate to health and safety are, as previously indicated, in the record as General Counsel's Exhibit 14. They are: 1. Data on employee disability by age, length of serv- ice, exposure time and sex. 2. Company furnish union with all statistical data on sputum cytology, X-rays, blood tests. 3. Union Industrial Hygenist to have the right to visit plant at any time for inspection and/or to take samples and look at company Industrial Hygenist records. 4. Company to furnish worker with 3 pair cloth cover- alls per week who is exposed to asbestos, fiberglass, re- factory felt, truck shop and service depts. 5. Company furnish a 2 locker arrangement for all ex- posed workers for changing and separating home clothes from work clothes. 6. Company to send booklet "What you should know about asbestos & health" to the homes of employees. This book is to be edited by company and Bargaining Committee. 7. A voluntary stop smoking program with followup programs working toward total abstinence. 8. A designated dust free area in each department for employees who cannot quit smoking. 9. Improve and increase emphasis on employee health & safety training and not allowing anyone to work alone on a new job without I week or more training from either salary or hourly trainee. 10. Allow employees time away from job to properly wash up before eating and time away from the job to eat. Article 15, para. 58, delete: "Permitting an employee to eat his lunch while watching the operation of a ma- chine." I 11. Develop procedure to handle partially disabled em- ployee cases. 12. Provide for automatic approval of disability JM Retirement and life insurance disability for employees when no suitable work is available in the plant. 13. Consider fiberglass exposure on the same basis as asbestos. 14. Develop procedure for handling of "Red tagged" employees, and a list of these people to the Union. 15. If at any time an unsafe operation or a health hazard operation arises in any part of the plant, the oper- ation will be shut down immediately. The E.V.C. Com- mittee from the union and company will be called in im- mediately to inspect the unsafe condition. It will be from the decision reached after the inspection by the joint committee as to whether the operation is started up again until corrective measures are taken. 16. At any time an employee who is in the plant medi- cal dept. and needs advice about his medical situation that the president, financial secretary or the division chairman be called about the situation, this does not per- tain to emergencies. Rawhoof participated in the 1979 contract negotia- tions. During discussion of the Union's health and safety proposals, the Company once again asked why the Union needed the information it had requested. Rawhoof testified he stated they needed it to negotiate a total health program for all employees in the plant and to im- plement procedures to protect the health of their people inside the plant. At some point, Respondent's spokesman indicated that the data on sputum cytology covered only an 18-month period and was in raw form - just sheets with the names of people blocked out. Rawhoof testified that the Union responded they didn't feel it would be sufficient to receive the information in that form because: (1): the sputum cytology program in the plant had begun some 2 years before January 1, 1977, and testing from January 1, 1977, forward had been conducted among select groups of employees while earlier tests had in- volved all employees, and (2) the Union claimed the raw material or data alone would not be sufficient, that they needed statistical material. Inspection of article 8, section 21 of the current con- tract and a Memorandum of Agreement attached to the contract reveals that some area of agreement was reached by the parties on union proposals 4, 5, 11, and 14.6 6 Compare G.C. Exhs. 2 and 3. In sum. Respondent agreed to permit all partially disabled employees to exercise plantwide seniority to obtain Continued 372 JOHNS-MANVILLE SALES CORPORATION By letter dated March 15, 1979, Szcygielski sought to summarize his understanding of the Union's information- al requests. His letter states (G.C. Exh. 15): Mr. R. W. Kloth President I.C.W.U. 203 Greenwood Avenue Waukegan IL 60085 Dear Mr. Kloth: We have had many discussions in our negotiations of the information which you have demanded rela- tive to certain health issues. Therefore, in order to eliminate any misunderstanding or confusion and to define precisely what the Union is asking, we are herein summarizing the Union's request for informa- tion made by Messers. Rawhoof, Middleton and yourself at our meetings of February 26, 1979, March 5, 1979, March 12, 1979 and March 14, 1979 and also through the NLRB Complaint. i. Data on employee disability by age, length of service, exposure time and sex. This is information from our medical records concerning Disability Retirees with service by departments, job numbers and medical reason for disability. Exposure time could be tied into job numbers, and the Union wants any medical infor- mation related to possible O.D. cases. This would be a listing of the diseases which were and are the cause of unit employees' disability retirements by name which could potentially be considered occupational in nature. Your request wants this information as far back as practical; possibly quite a few years back. This request to include names of the individuals involved. 2. Company furnish Union with all statistical data on Sputum Cytology, X-rays, blood tests and other medical tests. This is medical information on employees since the start of the Sputum Cytology Program and since the start of using X-rays at the Plant Medi- cal Department. This also includes any data or notes related to these items noted in the employ- ees' files. These same comments also apply to any blood tests given. This information to be given by names, department and exposure time for items and 2. 3. The third item requested is the names of the "Red Tagged" employees and the procedure for the placement of these people. We trust that the foregoing is an accurate descrip- tion of the information which you have requested. jobs they could perform: it agreed to furnish two pairs of coveralls weekly to certain employees exposed to asbestos; and it agreed to pro- vide employees exposed to asbestos with double lockers Therefore we ask that after you have reviewed this letter that you sign it as indicated below and return it to us within five days of your receipt. In the event the description of the foregoing request is not deemed accurate, we request that you advise us as to any inaccuracies, in writing, within the above mentioned five day period. If we do not hear from you by March 23, 1979, we will assume that the foregoing description of the information requested is accurate. Thereafter, you will receive an appro- priate response to your request. Sincerely yours, /S/ J. W. Szcygielski Manager-Employee Relations We acknowledge that the information detailed above constitutes the Union Demand for data. On March 20, 1979, the Union replied stating (G.C. Exh. 16): Mr. J.W. Szcygielski, Manager Employee Relations Johns Manville Sales Corporation Waukegan, Illinois 60085 Re: Your letter dated 3/15/79. Dear Mr. Szcygielski: Your summary of our request for information is correct with the following exceptions: I. We don't see a need, at this time, for names therefore names are not requested. 2. Same as , however, we may, at a later date, request an outside medical review of any such tests if found necessary. Since we are currently bargaining over issues affect- ed by this information we urge you to comply with this request promptly. As you know we first re- quested this information on April 17, 1978. Very truly yours, /S/ R. W. Kloth, President By letter dated March 24, 1979, Respondent informed the Union (G.C. Exh. 17): Dear Mr. Kloth: Thank you for your letter of March 20, 1979 in re- sponse to my letter of March 15, 1979. We hereby decline to furnish the information and data sought by you for the following reasons: First, there has been no showing as to the relevancy of the data requested to your organization's role as the employees' collective bargaining agent. Second, much of the data sought particularly "sta- tistical data" does not exist in the form requested 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its compilation and production would be exces- sively burdensome and expensive. Third, the request for a "a listing of the diseases which were and are the cause of unit employees' disability retirement" together with a listing of those diseases "which could potentially be consid- ered occupational in nature" is an improper request for conclusions and admissions rather than for facts. Fourth, the request for the names of "red tagged" employees is improper because it calls for the dis- closure of privileged and confidential medical infor- mation. Sincerely yours. /S/ J.W. Szcygielski Manager-Employee Relations On April 12, 1979, the Union executed the current agreement, having, on April 5, 1979, indicated it would reach a settlement with Respondent but would not waive any of its rights regarding health and safety matters and its right to the information requested. During the hearing, Respondent's counsel represented that Respondent was willing to provide the Union with the raw data it possessed concerning all information re- quested with the exception of the names of red-tagged employees. He further represented that thousands of items are involved and it will take 12-14 months to gather the material. Analysis and Conclusions A. The Issue Summarized. paragraph VII of the complaint alleges that Respondent has failed to bargain with the Union since April 17, 1978, by failing since said date to furnish the Union with relevant information necessary to its role as the exclusive bargaining agent of certain of Respond- ent's employees. The information requested is described as "statistical data on sputum cytology, X-rays, blood tests and other tests administered to unit employees [pul- monary function tests], the identity of red-tagged em- ployees, and a listing of the diseases which were and are the cause of unit employees' disability retirements which could potentially be considered occupational in nature." Respondent contends in its post-hearing brief that the only real issues before me for determination are (1): whether it should be ordered to disclose the identity of red-tagged employees without their authorization and (2) whether the issuance of a bargaining order would effec- tuate the purposes of the Act in view of the fact that Re- spondent's counsel has indicated that Respondent will furnish all information requested in raw rather than sta- tistical form (excepting the identity of redtagged employ- ees) within 12 to 14 months of the close of the hearing. Noting that Respondent has denied the allegations set forth in paragraph VII of the complaint, I conclude the actual issues to be resolved are: 1. Has General Counsel shown that all the information requested by the Union is relevant to its function as the exclusive bargaining agent of certain of Respondent's employees? 2. Were the Union's request for the informational items sufficiently specific? 3. Assuming issues I and 2 are decided in General Counsel's favor, must the information requested be pro- vided in the form requested, i.e., statistically rather than in raw form with names of employees deleted. 4. Should application of the confidentiality doctrine excuse Respondent's failure to provide the Union with the names of red-tagged employees? 5. Should a remedial order be issued in the circum- stances prevailing in this case? The delineated issues are discussed below. B. Relevance of Information Requested As indicated, supra, the Union made its requests for in- formation in a context wherein Respondent had notified the Union it intended to impose a no-smoking ban at the plant and the Union counterproposed that the parties for- mulate a total health and safety program to protect the lives and welfare of unit employees. As the employees in question work with asbestos, a substance known to be detrimental to the health of persons, it is obvious that the requests for statistical data on sputum (saliva tests admin- istered to detect changes in cell structure), X-rays, blood tests, and pulmonary function tests constituted a request for relevant information. I so find.7 While the test data requested by the Union would be presumptively relevant because such requested data per- tains directly to workers within the bargaining unit, its request for information regarding retired employees does not stand on the same footing. See Curtis-Wright Corpo- ration, Wright Aeronautical Division v. N.L.R.B., 347 F.2d 61, 68-69 (3d Cir. 1965); and Prudential Insurance Com- pany of America v. N.L.R.B., 412 F.2d 77, 84 (2d Cir. 1969). As the information requested does not relate to active employees, the Union was obligated to show some special pertinence before Respondent would be obliged to produce the information. In my view, the Union's letter to Respondent explaining that such information was requested to permit formulation of proposals which would be applicable to unit employees constitutes the requisite showing of special pertinence. Accordingly, I find that the request for "a listing of the diseases which were and are the cause of unit employees' disability re- tirements which would possibly be considered occupa- tional in nature" was a request for relevant information. Remaining is the request for the identities of red- tagged employees. As red-tagged employees are active in the bargaining unit, and the Union indicated it desires the information to protect their health, it is clear, and I find, that the request for their names was a request for rele- vant information. I See N.L.R.B. v. Gulf Power Company, 384 F.2d 822 (5th Cir. 1967) ,where he court, in agreement with the Board, found that the phrase "other terms and conditions of employment" contained in Section 8(d) of the Act is sufficiently broad to include safety and health practices. As employers are obligated to bargain concerning safety and health matters. it necessarily follows that employers must honor requests for information relevant to safety and health practices. 374 JOHNS-MANVIII.E SALES CORPORATION In sum, I find that General Counsel has shown that all of the information requested by the Union is relevant to its duties and functions as the exclusive bargaining agent of Respondent's employees. For reasons set forth herein- after, I find that Respondent has violated Section 8(a)(1) and (5) of the Act since June 2, 1978, by failing and re- fusing to produce all items of information requested by the Union. C. Specificity of the Requests The record reveals that the Union did not indicate a time frame when it originally requested the information under discussion during the period April 17 to June 2, 1978. Nevertheless, Respondent's spokesman indicated at the June 2 meeting that the statistical data on X-rays, blood tests and sputum cytology tests were then being compiled and would be delivered to the Union by the end of August. At that time, or at the June 17 meeting, Respondent's spokesman indicated the data on sputum cytology tests would cover only an 18-month period and the data would be in raw, rather than statistical, form. Rawhoof objected, indicating that the Union wanted the data in statistical form and it wanted it from the time the tests were first administered to employees. Significantly, Respondent's employee relations man- ager, Szcygielski, indicated in his letter to Union Presi- dent Kloth on March 15, 1979, that Respondent then un- derstood that the Union was requesting data on employ- ee disability by age, length of service, exposure time, and sex from "as far back as practical," and it then under- stood the Union desired all statistical data on sputum cy- tology, X-rays, blood tests, and other medical tests [pul- monary function tests] "since the start of the Sputum Cy- tology, X-rays, blood tests and other medical tests." In sum, while the record fails to affirmatively indicate that a time frame was specified when the Union request- ed the various types of information here under considera- tion, Respondent's agreement to furnish part of the infor- mation requested (statistical data on X-rays and blood tests) coupled with the Union's objection to only 18 months of sputum cytology test results and Respondent's March 15, 1979, letter, which reveals it then was aware the Union wanted information going back as far as possi- ble, causes me to infer that Respondent was aware from June 2, 1978, forward that the Union wanted information covering as long a period as possible. 8 In the circum- stances, I find that the Union's demand for information was sufficiently specific. D. Statistical vs. Raw Data Well in advance of the hearing, General Counsel served a subpoena duces tecum on Respondent to cause it to produce records and information which would show, inter alia, the nature, format, and use of data derived from the medical tests administered to employees by the Company doctor.9 Respondent refused to comply with the subpoena, and General Counsel chose to refrain from 8 Rawhoof testified that at one point he as asked by Szcygielski if going back 5 years on X-rays ,ould be sufficient is reply was they thought it should go back as far as possible I See G.C Exh 21 adducing secondary evidence which would have shown what records Respondent maintains or their use. Conse- quently, the record contains little evidence which relates directly to the medical tests under discussion. As revealed, supra, Szcygielski originally agreed that Respondent would furnish the Union with statistical data on sputum cytology tests, X-rays, blood tests and pul- monary function tests. When asked what information he had in mind when he agreed to furnish statistical data, he replied: THE WV'INESS: There were certain written com- ments in our employees' files about their X-ray readings that say negative or some indication of change, and we've got a classification of early indi- cation of dust disease problems. There were several different sets of nomenclature on this, and what I visualized is that X amount of people were reported as having negative X-ray findings some,other people would have a nomenclature as a P-1 or an M-l which is a possibility that something may be happening to the person. There was some data on blood tests and particularly on lead levels on some of our workers who were exposed to that product. The sputum cytology, essentially, there's some categories that are negative. There's a word used called atypia where a cell is brought up and some cellular change is seen, and that type of thing, I don't remember all the categories of all things, but it was basically that. When Szcygielski indicated that the sputum cytology test data would be delivered in raw form about the end of August, the Union objected and insisted upon data in statistical form. The parties did not thereafter discuss the form of the data to be produced because Respondent ceased all efforts to gather the material requested when the Union filed its charge on August 10, 1978. In its post-hearing brief, Respondent contends that all the medical test data is in raw form and states it intends to furnish such data to the Union in raw form in 12-14 months. With the record in its present state, I am unable to find that Respondent does or does not possess the requested medical test data in statistical form. Szcygielski's descrip- tion of what he had in mind when he agreed to furnish statistical data suggests that Respondent has compiled some statistical medical test data which could be given to the Union. A similar problem was presented in Wes- tinghouse Electric Corporation, 239 NLRB 106 (1978). There the employer resisted a union request for certain statistical information contending, inter alia, that the fur- nishing of the information in the form requested would place an undue burden on it. The Board rejected the contention because the respondent had not made a legiti- mate effort to substantiate its claim and ordered produc- tion of the information stating (id. at 112-113): Thus, although it appears that Respondent has the requested statistical information in some form, we are unable to state with certainty whether Respond- ent has compiled all the information in the form re- 375 376 DECISIONS OF NATIONAL quested. We shall order Respondent to provide the information in a reasonably clear and understanda- ble form. While we shall order the Respondent to furnish the substance of all the information request- ed in items 1 through 6, it shall be the responsibility of the parties themselves, in the first instance, to apply the knowledge which they have, and we do not, about what might be involved in presenting this information in a clear and understandable form.4" As the Board has said, "If there are substantial costs involved in compiling the information in the precise form and at the intervals requested by the Union, the parties must bargain in good faith as to who shall bear such costs, and, if no agreement can be reached, the Union is entitled in any event to access to records from which it can reasonably compile the information. If any dispute arises in applying these guidelines, it will be treated in the compliance stage of the proceeding." 4 2 41 Fd Employer Council. Inc., e al., 197 NLRB 651 (1972) 4 2 Ibid. Thus, Respondent must make an effort to inform the Union of the nature of the information compiled by it, so that the Union may, if necessary, modify its requests to conform to the available information. If substantial costs would in fact be incurred, we expect the parties to bargain as to the allocation of those costs. In my view, the procedure outlined in Westinghouse Electric Corporation, supra, and Food Employer Council, Inc., et al., supra, must be utilized in the instant case. It may well be that Respondent possesses sufficient medical test data to satisfy the Union's needs. If it does not, good faith discussions by the parties should certainly enable the parties to agree to a method of production which will permit Respondent to present the requested medical test data in a clear and understandable form. ° If the agreed-upon method of production results in substantial costs, I find the parties should bargain as to the alloca- tion of those costs. E. The Confidentiality Issue The record in this case reveals that Respondent, upon ascertaining through medical examination that an em- ployee is partially disabled in the sense that he has, or may possibly be contracting a disease of the lungs (pneu- moconiosis), places a red tag on the employees' medical file. The employee is then counselled by the doctor, and key management personnel are notified the employee is a red-tagged employee to permit them to assure that he is exposed to asbestos dust as little as possible thereafter. The current collective-bargaining contract between the parties contains a clause at article 8, section 21 which provides: 10 Respondent has not claimed it is unable to furnish the retiree disabil- ity information in the form requested. I find it should be produced in the form requested. I G.C. Exh. 3. LABOR RELATIONS BOARD When it is determined by the Company based on medical evaluation, that an employee, who is unable to perform his normal job and such inability is ex- pected to be permanent, he shall be allowed to exer- cise his seniority to a job he is able to perform based on the medical evaluation of his physical ca- pabilities after review and approval of the Employ- ee Relations Manager and the Union Bargaining Committee. He shall attempt to exercise his senior- ity within his department. If no job is available within his physical capabilities and he has two (2) years or more of continuous service, he shall at- tempt to exercise his seniority plantwide. On June 2, 1978, the Union requested that Respondent furnish it with the names of red-tagged employees to permit it to prepare contract proposals designed to pro- tect those employees and to permit it to administer and police any contractual agreement reached. Respondent refused to provide such information, claiming it was con- fidential. On August 9, 1978, Respondent unilaterally commenced to ask employees whose medical files were red-tagged if they desired to sign a form indicating that the employee requests that the Union be informed he or she has pneumoconiosis. As of the date of the hearing, some 16 employees had been asked if they desired to sign the form and 12 had signed. The Union was given the identities of the 12 employees. Citing United Aircraft Corporation,'2 and Detroit Edison Co. v. N.L.R.B.,' 3 Respondent claims I should not order it to divulge the identity of red-tagged employ- ees to the Union because the information is confidential and should not be disclosed without employee consent. I find no merit in this contention. At the outset, I note that Respondent has offered no evidence in support of its confidentiality claim in this case. In this connection, the Sixth Circuit, when consid- ering the Board's petition for enforcement of the Detroit Edison Company, 218 NLRB 1024 (1975),' stated: The requirement that the bargaining representative be furnished with relevant information necessary to carry out its duties overcomes any claim of confi- dentiality in the absence of a showing of a great likelihood of harm flowing from the disclosure. Shell Oil Company v. N.L.R.B., supra, 457 F.2d at 618-619; United Aircraft Corporation v. N.L.R.B., 434 F.2d 1198, 1207 (2d Cir. 1970), cert. denied 401 U.S. 993 (1971). As Respondent has failed to sustain its burden of proof by failing to show "a great likelihood of harm flowing from the disclosure" of the identities of red-tagged em- ployees to the Union, this factor, standing alone, would warrant rejection of the defense. However, my rejection of the defense need not rest on such narrow ground as the instant situation is readily distinguished from the fac- 12 192 NLRB 382 (1971) 'S 440 U.S. 301 (1979). 14 N.L.R.B. v. The Detroit Edison company. 560 F.2d 772, 726 (1977). JOHNS-MANVILLE SALES CORPORATION tual situations before the Board and the Supreme Court in the cases cited. In United Aircraft Corporation. supra at 390, the Board stated: In response to the Unions' request for copies of the "Physical Demands Record" for each job, and the "Functional Capacity Record" for every em- ployee in the bargaining unit, Respondent refused to make copies of the former at its expense, but offered to make them available for copying by the Unions at reasonable times. We find that, by this offer, Re- spondent complied with its obligation under Section 8(a)(5). As to the "Functional Capacity Record" which is a record of physical disabilities and infor- mities of employees discovered by a physician in a physical examination, Respondent's position was that such records should not be publicized without the employee's permission unless and until that indi- vidual's physical capacities become relevant to some particular problem. In view of the generally recog- nized confidential nature of a physician's report, we find that Respondent's position with respect to fur- nishing copies of such reports was a reasonable one and did not violate Section 8(a)(5) of the Act. As revealed above, in United Aircraft the union sought "Functional Capacity Records" for each employee in the bargaining unit and the Board agreed with the employ- er's position that such records should not be disclosed until they became relevant to some particular problem. In the instant case, the Union does not seek medical re- cords; it seeks only the identities of employees who have, in effect, been determined by Respondent's doctor to be partially disabled within the meaning and intendment of article 8, section 21 of the collective-bargaining agree- ment. Moreover, the information requested by the Union here relates to a specific problem-placement of the em- ployees diagnosed as having an actual or potential dust disease of the lungs problem. Patently, the United Air- craft case is not supportive of Respondent's position. Respondent's reliance upon Detroit Edison Co. v. N.L.R.B.. supra, is similarly misplaced. There, the Su- preme Court was faced with a situation wherein the company had promised employees that their scores on an aptitude examination would be kept confidential, and the company's psychologists did not reveal the tests or report actual test numerical scores to management or to employee representatives. In finding that the Board erred by requiring the employer to give the test scores to the union which represented the employees, the Court stated, inter alia (at 318-319): There is nothing in this record to suggest that the Company promised the examinees that their scores would remain confidential in order to further paro- chial concerns or to frustrate subsequent union at- tempts to process employee grievances. And it has not been suggested at any point in this proceeding that the Company's unilateral promise of confiden- tiality was in itself violative of the terms of the col- lective-bargaining agreement. Indeed, the Company presented evidence that disclosure of individual scores had in the past resulted in the harassment of some lower scoring examinees who had, as a result, left the Company. Under these circumstances, any possible impair- ment of the function of the Union in processing the grievances of employees is more than justified by the interests served in conditioning the disclosure of the test scores upon the consent of the very em- ployees whose grievance is being processed. The burden on the Union in this instance is minimal. The Company's interest in preserving employee confidence in the testing program is well founded. As noted, in Detroit Edison the Court was dealing with information which had been treated confidentially and it determined that the union's reasons for obtaining the in- formation were outweighed by the employer's reasons for desiring that it remain confidential. Here, Respondent has failed to show that its company doctor has kept the identities of red-tagged employees confidential, and it has adduced no evidence whatsoever to show that it would suffer harm if the identities of such employees were dis- closed to the Union. In sum, I find that the Union has shown that it needs to know the identities of red-tagged employees to permit it to perform its statutory duty of representing Respond- ent's employees in an appropriate bargaining unit. With- out knowing the identity of such employees, the Union has no effective way of administering and policing, inter alia, article 8, section 21, of the current collective-bar- gaining agreement. On the other hand, Respondent has failed to show how it will be harmed by production of the information requested. In these circumstances, its fail- ure to make such a showing prompts me to find that it has violated Section 8(a)(5) of the Act as alleged since June 2, 1978, by refusing to divulge such information to the Union. 5 F. The Remedial Order Contention Respondent contends in its brief that a remedial Order is not necessary because it intends to voluntarily furnish the Union with all information requested except the iden- tities of red-tagged employees. As observed by General Counsel in her brief, the Board has held that an Order is appropriate even when Respondent's counsel has stated at a hearing that the Respondent is willing to turn over the information, without evidence that it has in fact, done so. Brazos Electric Power Cooperative Inc., 241 NLRB 1016 (1979). I find that issuance of a remedial Order is necessary and proper in this case. Remaining for discussion is General Counsel's request that I reverse certain evidentiary rulings I made during the hearing, and her motion to correct transcript, which was attached to her brief. I hereby reaffirm the eviden- tiary rulings made at the hearing. In the absence of op- position to the motion to correct transcript, I grant such motion. 16 Shell Oil Company v, N.L.R.B, 457 F.2d 615, 618-619 (9th Cir 1972); [,ied ircraff Corporation s. N.L.R.B., 434 F2d 1198. 1207 (2d Cir 1971)). cert denied 401 S 993 (1971) 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. ItEi I:FFl:ECT OF TIHt UNFAIR LABOR PRACTIICIES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCIUSIONS OF LAW 1. Johns-Manville Sales Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production, maintenance, quality control, and plant clerical employees employed by Respondent at its Waukegan, Illinois, facility, but excluding all office cleri- cal employees, guards, professional employees and super- visors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since November 19, 1937, and continuing to date, the Union has been the exclusive bargaining representa- tive of the employees in the above-described appropriate bargair,:ng unit. 5. By iling and refusing to provide the Union with: 1. Statistical data on sputum cytology, x-rays, blood tests, and pulmonary function tests; 2. The identity of Respondent's red-tagged employees; and, 3. A listing of the diseases which were and are the cause of unit em- ployees' disability retirements which could potentially be considered occupational in nature, Respondent has en- gaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TH Rii;i)Y Since I have found that Respondent has committed specific unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, includ- ing the posting of appropriate notices designed to effec- tuate the policies of the Act. Having found that Respondent violated the statute through its failure and refusal to furnish the Union with certain requested information, it will be recommended that Respondent supply the Union, upon request, with: (I) Statistical data on sputum cytology, X-rays, blood tests, and pulmonary function tests; (2). The identities of red-tagged employees employed in the appropriate bar- gaining unit; and (3) a listing of the diseases which were and are the cause of unit employees' disability retire- ments which could potentially be considered occupation- al in nature. Such information shall be provided in a rea- sonably clear and understandable form, and it shall be the responsibility of the parties themselves, in the first in- stance, to apply the knowledge which they have about what might be involved in presenting this information in a clear and understandable form.'6 As the Board has said, "If there are substantial costs involved in compiling the information in the precise form and at the intervals requested by the Union, the parties must bargain in good faith as to who shall bear such costs, and, if no agreement can be reached, the Union is entitled in any event to access to records from which it can reasonably compile the information. If any dispute arises in applying these guidelines, it will be treated in the compliance stage of the proceeding." Thus, Respondent must make an effort to inform the Union of the nature of the information compiled by it, so that the Union may, if necessary, modify its requests to conform to the available information. If substantial costs would in fact be incurred, the parties are directed to bar- gain as to the allocation of those costs. Upon the foregoing findings of fact, conclusions of law, and the entire record, I hereby issue-pursuant to Section 10(c) of the Act, as amended-the following rec- ommended: ORDER 7 The Respondent, Johns-Manville Sales Corporation, Waukegan, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively with International Chemical Workers Union, and its Local 60, AFL-CIO, as the exclusive bargaining representative of its employ- ees, by refusing to furnish: 1. Statistical data on sputum cytology, X-rays, blood tests, and pulmonary function tests; 2. The identities of red-tagged employees employed in the appropriate bargaining unit; and, 3. A listing of the diseases which were and are the cause of unit employees' disability retirements which could potentially be consid- ered occupational in nature, to the Union. (b) Interfering with, restraining, or coercing employ- ees, in any like or related manner, with respect to their exercise of rights which Section 7 of the Act guarantees. 2. Take the following affirmative action, which is nec- essary to effectuate the policies of the Act: (a) Furnish to the Union, or its designated representa- tives, upon request, the data and information described in paragraph I(a) above. (b) Post within its Waukegan, Illinois, facility, copies of the notice attached to this decision as an appendix.'8 Copies of said notice, on forms to be furnished by the Regional Director for Region 13, shall be posted by Re- spondent immediately upon their receipt, after being duly I t'etrnghoue E:Ilecrri Corporation. iupra. and /ood Employer Council, Inc.. e al.. supru. J In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as pros ided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived fir all purposes ' In the evrent the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "P'osted by Order of the National Ltabor Relations Board" shall read "Posted Pur- suainl to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 378 JOHNS-MANVILLE SALES CORPORATION signed by Respondent's authorized representative. When posted, they shall remain posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that these notices are not altered, defaced, or covered by any other material. (c) File with the Regional Director for Region 13, within 20 days from the date of this Order, a written statement setting forth the steps which Respondent has taken to comply herewith. 379