concurring in part, and dissenting in part:
I.
I do not agree with the majority that an employer, caught up in the throes of economic uncertainty associated with a strike, should not be forced to raise a “foredoomed” issue for bargaining unless the alleged violation under § 8(a)(1) “is incontestable from the very outset.” While the purpose behind this holding is apparently to protect employers from being punished twice, under both § 8(a)(1) and (5), for the good faith implementation of purportedly legal wage payments, I think this misconstrues the rationale underlying both NLRB v. Rubatex, 601 F.2d 147 (4th Cir. 1979), and Aero-Motive Mfg. Co., 195 NLRB 790 (1972), enforced, 475 F.2d 27 (6th Cir. 1973).
Although these opinions address the issue of illegal bonus payments made after the conclusion of a strike, the violations of § 8(a)(5) were found to exist because the employer, in each case, had circumvented the prescribed bargaining process and its potentially preventative effect on questionable, if not outright illegal, conduct.
As stated in Aero-Motive, the § 8(a)(5) requirement to bargain is applicable to both legal and illegal conduct:
Not altogether infrequently, both in commercial negotiations and in labor negotiations, one party may propose to do something which he believes to be lawful, but which is not. Often the raising of the subject and the discussion of possible or probable illegality will dissuade the proposing party from pursuing his proposal further. .
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We are therefore of the view that the raison d’etre of requiring bargaining in advance of changes in wages has at least as much application to proposed illegal changes as to legal ones. And so we find [the] unilateral action in paying the bonus to have been a violation of Section 8(a)(5). . . .
Aero-Motive at 792. In Rubatex, we expressly rejected the contention, now adopted by the majority, that “it would be futile to require it to bargain over payments which the union would not accept.” Rubatex at 150.
Recognizing that the purpose of the bargaining requirement is to provide a forum for candid, working discussions of all issues affecting the negotiating parties, the ALJ in the present case relied on Aero-Motive and properly held that “[e]ven if it could be expected that the Union would not agree to the proposal the Union may have persuaded Respondent against its unlawful course. In any event, it has never been the law that an employer may embark upon unilateral ac*605tion simply because it may be predicted that the Union would not agree to the employer’s proposed action.”
The NLRB, in adopting the ALJ’s conclusion, adhered to the general principle that the unilateral granting of bonuses to employees during negotiations without consulting with the bargaining representative violates § 8(a)(5). See, e. g., NLRB v. Union Mfg. Co., 179 F.2d 511 (5th Cir. 1950).1 There is nothing in either Rubatex or AeroMotive to support a departure from this established rule in favor of a more narrowly drawn statement that only post-strike, clear-cut violations of § 8(a)(1) will permit a finding of illegality under § 8(a)(5).
The majority decision seriously undermines the prophylactic effect of § 8(a)(5) and disregards well-reasoned precedent to the contrary. I would affirm the finding that the illegal bonus payments violated § 8(a)(5) of the Act.
II.
After protesting to the company that union members were being laid off in retaliation for the union’s bargaining position in contract negotiations, the union had asked for layoff information2 pertaining to both bargaining and non-bargaining unit employees for the two months preceding the strike. This information was needed to confirm allegations that the company had issued different layoff notices to non-union employees to enable them to draw unemployment compensation.3 The company orally responded to the union’s letter at a bargaining session on September 24, 1976, and refused to furnish the data, asserting that the union was not entitled to it. The union apparently did not further attempt to justify the request.
The ALJ found that the employer’s refusal to furnish the layoff data had violated § 8(a)(5) of the Act by failing to provide information requested by the bargaining representative for the proper performance of its duties. The majority, however, holds that, based on welfare and privacy interests, an employer may properly refuse to provide information concerning non-bargaining unit members unless the union first demonstrates to the employer a “need to know.”
It is well established that an employer has a statutory obligation to provide relevant information needed by a union to perform its duties effectively, and that the failure to provide such information constitutes a refusal to bargain in violation of § 8(a)(5). NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); Cone Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir. 1969); NLRB v. Whitin Machine Works, 217 F.2d 593 (4th Cir. 1954). The majority, in creating a separate “need to know” requirement apart from this governing standard of relevance, overlooks the fact, as stated in Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3rd Cir. 1965), that “necessity is not a separate and unique guideline, but is directly related to the relevance of the requested data.”
Wage data and other information concerning bargaining unit employees is presumed to be relevant, whereas information relating to employees outside the bargaining unit must be shown to be relevant to *606bargainable issues. NLRB v. Western Electric, Inc., 559 F.2d 1131 (8th Cir. 1977); San Diego Newspaper Guild v. NLRB, 548 F.2d 863 (9th Cir. 1977); NLRB v. Rockwell-Standard Corp., 410 F.2d 953 (6th Cir. 1969); Curtiss-Wright Corp. v. NLRB, supra.
Although the union had the initial burden of showing the relevancy of information concerning non-bargaining unit employees, in this case any requirement that the bargaining representative formally express the reason for requesting the information elevates form over substance. The company, in refusing to supply the layoff data regarding non-bargaining unit members, was well aware of the reason underlying the particular request. Indeed, it provided such information regarding bargaining unit employees without challenging the presumption of relevancy which attaches when the data relates to members represented by the union. Rather, the basis for its refusal was the assertion that the union was not entitled to it because the information would be used to deprive the non-bargaining unit employees of the unemployment benefits being denied to bargaining unit members.
Admittedly, the letter seeking the layoff data did not expressly state a reason for the request. In this respect, the request did not technically meet the relevancy standard. However, in view of the contemporaneous Commission hearing, the numerous claims of unfair labor practices, and the heading of the letter seeking the layoff data, supra, n.2, the information was clearly relevant in alleging discriminatory treatment of employees solely due to union representation. The purpose for requiring a showing of relevancy, which allows an employer to protect non-bargaining unit members by determining the validity of an informational request regarding such employees, is clearly met in a situation such as this.
The majority reasons that “[i]t was the fact that such inconsistent positions were being taken, not the names, addresses and social security numbers of individual employees, which mattered to the Union.” The union’s admission at oral argument that the social security numbers were not needed is then extended to include names and addresses as well. Finally, the fact that the Employment Security Commission ruled in favor of the bargaining unit employees is also relied on to support the inference that the requested information was not really needed.
The outcome of the Commission hearing has no bearing whatsoever on the statutory duty of the employer to supply the requested information. At least the names, and possibly the addresses, of the non-bargaining unit employees would obviously be relevant in substantiating either the claim before the Commission or an unfair labor practice charge, although the company could probably refuse to divulge social security numbers unless their relevancy were shown.
By sanctioning such managerial footdragging under the guise of protecting non-bargaining unit employees, the majority impairs the ability of bargaining representatives to weed out a substantial number of unmeritorious complaints without needlessly resorting to a full-fledged inquiry by the NLRB. According, I would affirm the finding of a violation of § 8(a)(5) for the refusal by the company to furnish at least the names of non-bargaining unit employees who were laid off during the specified period.
I concur with the remaining aspects of the majority opinion.
. John L. Clemmey Co., 118 NLRB 599 (1957); DeDiego Taxi Cabs, Inc., 107 NLRB 1026 (1954).
. In a letter to the company dated September 15, 1976, and entitled “Re: Contract Negotiations and NLRB Charges,” the union had requested copies of all layoff slips and “a complete list of the names, Social Security numbers, addresses, and date placed on layoff status of each non-bargaining unit employee.
. On the same day as the union request, the idled union employees appeared at a hearing of the state Employment Security Commission to protest the company’s assertion that they had been laid off because of a labor dispute and were therefore not entitled to unemployment benefits. On October 1, 1976, the Special Appeals Deputy ruled in favor of the employees, and his decision was adopted by the Commission on May 25, 1977.