Norris v. National Labor Relations Board

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 9, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

NORRIS, A Dover Resources
Company,

Petitioner - Cross-
Respondent,

v. Nos. 03-9597 and 03-9608
NATIONAL LABOR RELATIONS
BOARD,

Respondent - Cross-
Petitioner.

PETITION FOR REVIEW OF
DECISION OF THE NATIONAL LABOR RELATIONS BOARD
(CASE NO. 17-CA-21436)

W. Kirk Turner (Keith A. Wilkes with him on the brief), of Newton, O’Connor,
Turner & Ketchum, P.C., Tulsa, Oklahoma, for Petitioner - Cross-Respondent.

Arthur F. Rosenfeld, General Counsel (Robert J. Englehart, Supervisory Attorney,
Jeffrey M. Hirsch, Attorney, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, with him on the brief), National Labor Relations Board,
Washington, D.C., for Respondent - Cross-Petitioner.
Before SEYMOUR , HARTZ , Circuit Judges, and BRACK , District Judge *.

HARTZ , Circuit Judge.

This is an unfortunate case in which a little good will from both parties to a

collective bargaining agreement (CBA) would have saved everyone considerable

time and expense. A steward for the United Steelworkers of America, Local

Union No. 4430 (Union), requested records from Norris, a Dover Resources

Company (Company). The Company had legitimate confidentiality concerns

regarding the records but rejected out of hand the steward’s attempt to satisfy

those concerns. Rather than seeking an explanation or further negotiation, the

steward then filed a charge with the National Labor Relations Board (NLRB or

Board) alleging an unfair labor practice. The Board found that the Company

violated § 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C.

§ 158(a)(1) and (5), by refusing to bargain in good faith. It ordered the Company

to post a notice acknowledging the Union members’ rights, pledging not to

interfere with the exercise of those rights, and stating that it would not refuse to

bargain in good faith with the Union. Norris Sucker Rods, 340 N.L.R.B. No. 28,

*
The Honorable Robert C. Brack, United States District Judge for the
District of New Mexico, sitting by designation.

-2-
2 (2003), 2003 WL 22173545, at *2. It also ordered the Company to produce the

requested records, with confidential information redacted.

The Company petitions for review and the NLRB cross-petitions for

enforcement of its decision and order. We have jurisdiction under 29

U.S.C. § 160(e) and (f). Although we can sympathize with the Company’s view

that the Union, through its steward, was too quick to halt the dialogue, we must

defer to the NLRB’s reasonable view. Hence, we deny the Company’s petition

for review and grant the NLRB’s cross-petition for enforcement.

I. BACKGROUND

A. Facts

The Company, a manufacturer of steel products in Tulsa, Oklahoma,

employs about 250 people. Some 180 of them are members of a bargaining unit

represented by the Union. Under the CBA’s Excessive Absentee and Tardiness

provision, an employee who is late or absent for medical reasons but does not

provide a doctor slip will receive “points,” the accumulation of which leads to

disciplinary action.

Zachary Trosky, an employee of the Company, a Union steward, and the

charging party in this action, allegedly received oral complaints that the doctor-

slip policy was administered unevenly. Pursuing the allegations, on October 19,

2001, he requested from a Company nurse all the doctor slips for the previous six

-3-
months. The nurse referred him to Dan Bisett, the Company’s human resources

manager, who spoke with Trosky the same day. He informed Trosky that because

the doctor slips included confidential medical information, they could not be

released unless the Union obtained signed medical-release forms from the

employees. He provided Trosky a copy of the form.

Four days later Trosky filed a grievance on behalf of a Union member

alleging a violation of the CBA because of a point given for an inadequate doctor

slip. Shortly thereafter he filed one on his own behalf alleging that he was

improperly given a point for a previously excused absence. Trosky’s grievance,

unlike the first one, alleged a violation of the NLRA as well as the CBA. Both

grievances were later withdrawn by Union officials.

On October 29, while both grievances were pending, Trosky left on Bisett’s

desk a written request for the doctor slips. It said:

In order to prepare for a grievance I am requesting a list of the names
of all employees who have had doctor slips over the past six months,
and copies of each doctor slip for those employees. Doctor slips that
have any medical information directly stating diagnosis, treatment, or
medication given should have said information blocked out. All
other information should be kept intact.

R. Vol. II at GC 4. Bisett responded the next day with the following handwritten

note at the bottom of the request:

Request denied. The Union must have signed a authorization from
each ee [employee], permitting the co [Company] to release
personal/medical information. You have that form in your

-4-
 possession. With respect to the number of ee’s [employees]
presenting doctor’s slip-such a task is laborious & expensive process.
The co [Company] will under take such a task at the Union’s
expense. Kindly inform the company if you (Union) are ready to pay
for it.

Id. Trosky did not respond to Bisett’s note and the parties had no further contact

regarding the request.

On November 7 Trosky filed an unfair-labor-practice charge alleging that

the Company violated the NLRA § 8(a)(1), (3) and (5) because it disciplined him

in retaliation for his activities as a Union steward and refused to produce

information necessary and relevant to his representation of bargaining-unit

employees—namely, the doctor slips. On January 30, 2002, the regional director

for the NLRB issued a Complaint and Notice of Hearing charging that the

Company’s response to Trosky’s written request for the doctor slips was a refusal

to bargain collectively, in violation of NLRA § 8(a)(1) and (5).

B. Proceedings Below

A hearing was conducted before an administrative law judge (ALJ) on

May 21, 2002. The ALJ heard testimony from Trosky, Bisett, and Michael

McGahey, vice-president and shop steward of Local No. 4430. The Company

objected that the request was for confidential medical information. Bisett

testified that the proffered solution to confidentiality concerns—redacting

references to diagnosis, treatment, or medication—was inadequate because the

-5-
doctor’s name and clinical specialty were sufficient to reveal confidential medical

information about the patient. The Company also objected that the request

encompassed irrelevant information because it was not limited to bargaining-unit

members. In addition, the Company claimed that the request was burdensome and

expensive because it required reviewing and photocopying 1000 to 1500 slips.

Finally, the Company asserted that the Union failed to bargain in response to the

request that it pay production costs.

The ALJ found that the requested information was relevant to issues

governed by the CBA because the “request was a legitimate inquiry designed to

inform [the Union], through comparative analysis, if the [Company] was

disparately interpreting medical slips or unfairly giving points to employees.”

Norris Sucker Rods, 340 N.L.R.B. No. 28, at 3. The ALJ also found that the

Company “ha[d] not met its burden of showing that it had a legitimate and

substantial interest in sheltering censored doctor’s slips as confidential.” Id. The

ALJ concluded that the Company’s refusal to produce the doctor slips as

requested violated its duty to bargain collectively. Id. He ordered the Company

to provide the redacted doctor slips and bargain in good faith with the Union. Id.

at 4.

The Company filed several exceptions to the ALJ’s decision and order.

The exceptions reflect its contentions that the request was overbroad because it

-6-
included non-bargaining-unit employees, that the information regarding non-

bargaining-unit employees was not presumptively relevant and the request did not

establish relevance, that the ALJ’s ruling did not adequately address the

Company’s legitimate confidentiality concerns, and that the Union, not the

Company, refused to bargain. The Company also argued that the complaint had

been filed by Trosky on his own behalf and not on behalf of the Union.

The NLRB affirmed the ALJ’s decision and order, but modified it in

agreement with the Company’s objections based on overbreadth and

confidentiality. The Board wrote:

[W]e agree with the Respondent that the Union made no showing of
relevance with respect to nonunit employees. Indeed, the record
reflects that the Union intended to request the names and excuse slips
of bargaining unit employees only, and did not intend for the request
to encompass nonunit employees. We shall modify the judge’s
recommended order accordingly.
With regard to the redacted absence excuse slips, [the
Company] asserted during the hearing that, even after the Union’s
proposed redaction, it would be possible to discern the type of
treatment provided to its employees by examining the treating
physician’s name. The Union did not assert any claim to the names
of the treating physicians. In these circumstances, we shall require
[the Company] to produce the absence excuse slips with the names of
treating physicians and medical information directly stating
diagnosis, treatment, or medication given redacted.

Norris Sucker Rods, 2003 WL 22173545, at n.1.

C. Issues Presented for Review

-7-
 To begin with, the Company appears to raise two procedural contentions. It

complains that Trosky did not file his charge with the NLRB on behalf of the

Union and that he did not pursue his claims through the CBA’s grievance process.

Regarding the merits, the Company contends that the NLRB’s decision and order

is not supported by substantial evidence in the record. It points to Trosky’s

testimony during cross-examination that the Company never flatly refused to

produce the doctor slips and that he did not continue bargaining after Bisett’s

response. It further argues that its refusal to provide the doctor slips in the

manner requested was justified and not a refusal to bargain collectively because

the request included non-bargaining-unit employees and the proposed redactions

did not adequately address the Company’s legitimate confidentiality concerns.

The Company does not challenge the NLRB’s conclusion that the doctor slips of

bargaining-unit members are relevant to the Union’s duty to process grievances

under the CBA.

II. DISCUSSION

A. Standard of Review

“Although we ordinarily review questions of law de novo, the Board’s

construction of the National Labor Relations Act is entitled to considerable

deference.” NLRB v. Okla. Fixture Co., 79 F.3d 1030, 1033 (10th Cir. 1996).

“For the Board to prevail, it need not show that its construction is the best way to

-8-
read the statute; rather, courts must respect the Board’s judgment so long as its

reading is a reasonable one.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 409

(1996).

When considering a petition for review of an NLRB decision and order,

“the findings of the Board with respect to questions of fact if supported by

substantial evidence on the record considered as a whole shall . . . be conclusive.”

29 U.S.C. § 160(f). The same standard applies to the NLRB’s cross-petition for

enforcement. 29 U.S.C. § 160(e). And the standard applies regardless whether

the NLRB affirms the ALJ’s decision and order in its entirety, modifies it, or

reaches contrary findings. NLRB v. L & B Cooling, Inc., 757 F.2d 236, 241 (10th

Cir. 1985).

Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB,

340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Although “th[is] phrasing . . . readily len[ds] itself to the

notion that it [is] enough that the evidence supporting the Board’s result [is]

‘substantial’ when considered by itself,” Universal Camera, 340 U.S. at 477-78,

“the standard of proof required of the Labor Board by the [NLRA] is the same as

that to be exacted by courts reviewing every administrative action subject to the

Administrative Procedure Act.” Id. at 487. “The substantiality of evidence must

-9-
take into account whatever in the record fairly detracts from its weight.” Id. at

488. NLRB findings are “entitled to respect,” but they must be set aside if “the

record . . . clearly precludes the Board’s decision from being justified by a fair

estimate of the worth of the testimony of witnesses or [the Board’s] informed

judgment on matter within its special competence or both.” Id. at 490.

B. Procedural Contentions

We quickly dispose of the Company’s apparent procedural contentions.

First, in a footnote in its appellate brief it points out that the charge Trosky filed

with the NLRB named himself, not the Union, as the charging party. But the

Company fails to elaborate why that fact would have any consequences in this

proceeding. The Board itself issued the complaint whose resolution is before us.

Because the Company has not adequately briefed any argument it may have based

on Trosky’s being the charging party, we decline to pursue the matter further. See

Gross v. Burggraf Const. Co., 53 F.3d 1531, 1547 (10th Cir. 1995); Fed. R. App.

P. 28(a)(9)(A).

Second, the Company objects that Trosky failed to seek redress through the

grievance process set out in the CBA rather than immediately filing an unfair-

labor-practice charge. To be sure, when a collective bargaining agreement

provides for arbitration of a particular type of dispute, the NLRB may in some

circumstances refrain from acting until the arbitration process has been

-10-
completed. See DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 438-39 (D.C. Cir.

2002). Nevertheless, “certain statutory rights are not subject to contractual

abrogation unless the aggrieved party has clearly and unmistakenly waived the

statutory rights at issue.” Id. at 439. In particular, “[a]n alleged refusal by an

employer to furnish relevant information needed by a union for use in collective

bargaining or grievance processing . . . is not subject to . . . deferment [until

arbitration has been completed,] absent a clear and unmistakable waiver.” Id.

Here, the Company has provided no evidence of such a waiver.

C. The Merits

1. The Duty to Bargain Collectively

Section 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5), requires an employer

to “bargain collectively with the representatives of his employees.” The duty to

bargain is also imposed on unions. See 29 U.S.C. § 158(b)(3). This reciprocal

duty includes the duty to bargain “with respect to wages, hours, and other terms

and conditions of employment.” 29 U.S.C. § 158(d). Parties must bargain in

good faith to comply with the statutory duty, but bad faith is not a necessary

element for a breach of the duty. NLRB v. Katz, 369 U.S. 736, 742-43 (1962)

(“Clearly, the duty . . . may be violated without a general failure of subjective

good faith; for there is no occasion to consider the issue of good faith if a party

-11-
has refused to even negotiate in fact—‘to meet . . . and confer’—about any of the

mandatory subjects.”).

The employer’s duty to bargain collectively “includes a duty to provide

relevant information needed by a labor union for the proper performance of its

duties as the employees’ bargaining representative.” Detroit Edison Co. v. NLRB,

440 U.S. 301, 303 (1979). Processing grievances under a CBA is one of a union’s

duties as a bargaining representative. Resorts Int’l Hotel Casino v. NLRB, 996

F.2d 1553, 1556 (3rd Cir. 1993).

The employer’s duty to bargain collectively does not, however, impose an

unlimited duty to produce requested information. The information must be

relevant. “The test of relevancy is whether, under a liberal discovery-type

standard, the information would aid the union in performing its statutory duties.”

Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956 (10th Cir. 1982). If the request

is for information about bargaining-unit employees “it is presumed that the

requested information is relevant . . . , and the employer must provide the

information unless it can show the information is irrelevant. By contrast, the

burden is on the union to demonstrate the relevance of information about

nonunion employees.” United States Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C.

Cir. 1998). Accord East Tenn. Baptist Hosp. v. NLRB, 6 F.3d 1139, 1143 (6th

Cir. 1993). Nevertheless, “an employer may not simply refuse to comply with an

-12-
ambiguous and/or overbroad information request, but must request clarification

and/or comply with the request to the extent it encompasses necessary and

relevant information.” Keauhou Beach Hotel, 298 N.L.R.B. 702 (1990). In short,

although the union has the burden to explain why it is requesting presumptively

irrelevant information at the time of the request, its failure to do so does not

relieve the employer from providing any relevant information identified in the

request.

The duty to provide information may also be limited by other

considerations.

A union’s bare assertion that it needs information to process a
grievance does not automatically oblige the employer to supply all
the information in the manner requested. The duty to supply
information under § 8(a)(5) turns upon the circumstances of the
particular case, and much the same may be said for the type of
disclosure that will satisfy that duty.

Detroit Edison, 440 U.S. at 314-15 (internal quotation marks and citation

omitted). In particular, when the union requests “‘relevant, but assertedly

confidential information, the Board is required to balance a union’s need for the

information against any “legitimate and substantial” confidentiality interests

established by the employer.’” Resorts, 996 F.2d at 1556 (quoting Pa. Power &

Light Co., 301 N.L.R.B. 1104, 1105 (1991)). An employer asserting

confidentiality “must offer to accommodate both its concern and its bargaining

obligations.” United States Testing, 160 F.3d at 20. “[T]he onus is on the

-13-
employer because it is in the better position to propose how best it can respond to

a union request for information. The union need not propose the precise

alternative to providing the information unedited.” Id. at 21.

2. Application to this Case

The underlying facts are not really in dispute. It is the characterization of

events that divides the parties. In the NLRB’s view, there were two rounds of

discussions. In the first round Trosky orally requested the doctor slips and Bisett

responded by (1) saying that because the slips contain confidential medical

information, they could be produced only if the individual employees signed

releases and (2) giving Trosky a form of release. In the second round Trosky

made a written counterproposal, requesting the slips with certain confidential

information redacted, and Bisett’s written response repeated the prior demand for

employee releases and added a demand for Union payment of expenses to collect

the doctor slips.

The Company counters that there was really only one round of discussion,

with Trosky’s written request being only the formal statement of the prior oral

request. In support of this view, it notes Trosky’s admission at the hearing that

Bisett had asked him to put his oral request in writing. A reasonable person could

agree with the Company’s view. But this view does not take into account

Trosky’s concession that the slips be redacted—a concession made in the written

-14-
request but not the oral one. The written request did not repeat the first request

but attempted to accommodate the concern expressed in Bisett’s initial response.

In any event, the Company’s view is certainly not compelled by the record. The

Board’s view is a reasonable characterization of the evidence, and we must

therefore accept it. Universal Camera, 340 U.S. at 488, 490.

Given that there were two rounds of discussion, the Board was not

unreasonable in deciding that the Company quit bargaining when, in response to

Trosky’s redaction proposal, the Company merely repeated its prior demand,

modified only by adding a payment requirement. The duty to bargain requires

good-faith negotiation in which “the parties enter into discussions with an open

mind and a sincere intention to reach an agreement consistent with the respective

rights of the parties.” Borden, Inc. v. NLRB, 19 F.3d 502, 512 (10th Cir. 1994)

(internal quotation marks omitted). Although a party is “not required to make

concessions or to yield any position fairly maintained,” id. (internal quotation

marks omitted), the employer “is obliged to make some reasonable effort in some

direction to compose his differences with the union, if § 8(a)(5) is to be read as

imposing any substantial obligation at all.” NLRB v. Reed & Prince Mfg., 205

F.2d 131, 134-35 (1st Cir. 1953). Thus, it is not unreasonable for the NLRB to

conclude “that the failure by an employer to submit any counterproposals tends to

frustrate further bargaining and may thus constitute a clear rejection of the

-15-
collective bargaining duty spelled out in the [NLRA].” Nat’l Mgmt. Consultants,

Inc., 313 N.L.R.B. 405, 408 (1993). The Board held that the employer in

National Management refused to bargain when it “offered no reasons, offered no

counterproposals and made no attempt to schedule any meetings to discuss” the

union’s offer. Id.

In this case, as the Company points out, it did not refuse to produce doctor

slips and Trosky made no effort to respond to Bisett’s written reply. But the

Board is not unreasonable in ruling that a party refuses to bargain in good faith

when it merely repeats its prior position in response to a concession by the other

party, at least when, as here, it does not attempt to explain why the other party’s

concession fails to satisfy its previously expressed concerns.

The Company also argues that it had no duty to respond to Trosky’s request

because it was defective in various respects: (1) Trosky’s request was on his own

behalf, not the Union’s; (2) the request was overbroad; and (3) the request called

for irrelevant confidential information. We address each in turn.

The assertion that Trosky’s request was solely on his own behalf rests on

the observation that Trosky’s request was “on his personal station[e]ry.” Aplt.

Br. at 1. Both the premise and conclusion are flawed. The record does not

indicate the source of the paper. It is plain paper on which is typed an inside

address containing Trosky’s name and a post office box number, which could as

-16-
well be a Union address as a personal one for all the record reveals. Moreover,

the Company does not explain why a request on behalf of the Union could not be

made on personal stationery. As a steward, Trosky handled grievances on behalf

of the Union. When he made the request, he was pursuing grievances, one on his

own behalf and one on behalf of a fellow union member, for which doctor slips

were relevant. In any event, Bisett did not reject the request as not being on

behalf of the Union. On the contrary, his response treats the request as coming

from the Union; in particular, his last sentence is: “Kindly inform the company if

you (Union) are ready to pay for [obtaining the slips].” R. Vol. II at GC 4

(emphasis added). The Board could properly treat the request as being one from

the Union.

The basis of the Company’s overbreadth claim is that the request includes

doctor slips from employees not covered by the CBA. The factual premise is

undisputed. The Board agrees that the request includes information regarding

employees outside the bargaining unit. It also agrees that no need has been shown

for that information; indeed, the Board modified the ALJ’s order to exclude such

records from the required production. But a request for information cannot be

rejected outright just because it is overbroad. As previously stated, “an employer

may not simply refuse to comply with an ambiguous and/or overbroad information

request, but must request clarification and/or comply with the request to the

-17-
extent it encompasses necessary and relevant information.” Keauhou Beach

Hotel, 298 N.L.R.B. 702 (1990). The Company neither complied with the request

nor sought clarification. Moreover, it did not state that the request was

objectionable because of overbreadth. See generally DaimlerChrysler Corp., 331

N.L.R.B. 1324, 1328 (2000) (failure to make objection at time of request for

records precludes raising objection before Board), enforced by DaimlerChrysler

Corp. v. NLRB, 288 F.3d 434 (D.C. Cir. 2002). The Board did not rule that the

Company committed an unfair labor practice by refusing to produce doctor slips

with respect to employees outside the bargaining unit. See Country Ford Trucks,

Inc. v. NLRB, 229 F.3d 1184, 1192 (D.C. Cir. 2000) (“The alleged overbreadth of

the Union’s information request is also irrelevant because the Board only found

that petitioner engaged in an unfair labor practice by failing to provide

information about unit employees.”).

Finally, the Company complains that Trosky’s willingness to have certain

information redacted from the doctor slips did not fully satisfy its confidentiality

concerns. It notes that the Board itself modified the ALJ’s order to require the

redaction of not only the “diagnosis, treatment, or medication given,” as proposed

by Trosky, but also “the names of treating physicians,” as sought by the Company.

Norris Sucker Rods, 340 N.L.R.B., at n.1. This modification, it claims, vindicates

its response to Trosky.

-18-
 We disagree. It is well-established that the party raising a confidentiality

objection carries the burden of proposing mutually agreeable accommodations.

United States Testing, 160 F.3d at 20. The NLRB found that the Company did not

meet this burden when it simply insisted on its first response to the request. The

Company neither explained the inadequacy of the redaction proposed by Trosky

nor offered any alternative to the proposal.

We agree that the mere refusal to “disclose the requested records in the

form and manner demanded by the Union” is not a failure to bargain. East Tenn.

Baptist, 6 F.3d at 1143-44. But East Tennessee Baptist Hospital is

distinguishable. The union in that case demanded information regarding nonunit

employees that the Hospital considered confidential. Id. at 1141. The Hospital

declined to provide the information as requested, but, as an alternative, suggested

that the information be turned over to a mutually agreed upon certified public

accountant to evaluate it and report any violations of the collective bargaining

agreement. Id. The union declined the Hospital’s accommodation, apparently

without comment or further negotiation. Id. The Sixth Circuit denied the

NLRB’s request for enforcement because “the [u]nion failed to establish that it

was entitled to confidential information concerning nonunit employees . . . [and]

the Hospital’s offers were facially reasonable and not a pretext for refusal to

bargain in good faith.” Id. at 1145.

-19-
 This dispute began similarly. Trosky requested confidential information.

The Company objected, citing confidentiality concerns, and offered to release the

information if the Union obtained signed medical-release forms. But this is

where the similarity ends. At this point the union in East Tennessee Baptist

Hospital ceased bargaining. Trosky, however, submitted a second, written request

that proposed a different accommodation—redaction of medical information.

Perhaps the Company did not think the redaction adequate, but rather than suggest

the additional redaction of the doctor’s name and specialty, the accommodation it

eventually accepted as adequate, it reiterated its insistence that the Union obtain

signed medical-release forms. Given the sequence of events, it was not

unreasonable for the NLRB to conclude that the Company, not the Union, ceased

bargaining.

IV. CONCLUSION

The Company’s petition for review is DENIED and the NLRB’s cross-

petition for enforcement is GRANTED. The NLRB’s motion to correct caption is

DENIED.

-20-