N.L.R.B. v. Borden, Inc., Borden Chemical Div.

Decision Date22 June 1979
Docket NumberNo. 78-1320,78-1320
Citation600 F.2d 313
Parties101 L.R.R.M. (BNA) 2727, 86 Lab.Cas. P 11,381 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BORDEN, INC., BORDEN CHEMICAL DIVISION, Respondent.
CourtU.S. Court of Appeals — First Circuit

Jay E. Shanklin, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moor, Deputy Associate Gen. Counsel, and Michael Murchison, Washington, D. C., were on brief, for petitioner.

William F. Joy, Boston, Mass., with whom Robert P. Joy, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The National Labor Relations Board (Board or NLRB) seeks enforcement of its order: that Borden, Inc. (Company) cease and desist from engaging in unfair labor practices; that it furnish Local No. 533, International Chemical Workers Union (Union) with the information requested; that it compensate former employee Donald J. Collette and any other eligible employees for unpaid accrued vacation benefits; and that it post the appropriate notices. 1

The events in this dispute occurred at Borden's Leominster, Massachusetts, chemical manufacturing plant between August, 1976, and January, 1977, when the Union and the Company were negotiating a new contract. The Union had represented the production, maintenance, shipping, and trucking employees at the Leominster facility for some time and, in August of 1976, began the first of a long series of negotiating sessions with the Company in anticipation of the expiration of the existing contract on September 30, 1976. Donald J. Collette was at that time the president of the Union and the chief negotiator. In that capacity, he requested that the Company furnish the following information:

(1) the Company's average cost per hour per Leominster bargaining unit employee for its insurance programs (life, accident and sickness, and long-term disability) and pension plan;

(2) the average cost (contribution) per hour to the bargaining unit employees for the above programs;

(3) the combined contributions by employees and the Company for the Blue Cross-Blue Shield plan and the number of unit employees participating therein; and

(4) the amount and distribution of the dividends received by the Company on the insurance programs.

Borden's regional labor relations manager for the Northeast area, Allan Brenning, provided only the corporate wide hourly costs per employee for these benefits. The Company took the position that it could not calculate the specific costs attributable to the Leominster bargaining unit. The Company refused to furnish the combined contributions for the Blue Cross-Blue Shield plan, asserting that the Union could make this determination itself. To the request for the number of unit employees participating in the Blue Cross-Blue Shield program, the Company furnished a figure in excess of the number of employees in the entire unit. The Company did not furnish the amount of dividends received from the The Board agreed with the administrative law judge (ALJ) and found that the Company violated section 8(a)(5) and (1) of the Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to furnish the Union with the amount of dividends which the Company received from the Metropolitan Life Insurance Company for the various plans covering Leominster bargaining unit employees. Reversing the ALJ, the Board found that the Company violated section 8(a)(5) and (1) of the Act by refusing to furnish the Union with its and the employees' average hourly cost per Leominster, Massachusetts, bargaining unit employee for the life insurance, accident and sickness insurance, long-term disability insurance and pension program. The Board, with one member dissenting, also differed with the ALJ and found that the Company violated section 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1), by withholding employees' accrued vacation pay because of their strike activity.

Metropolitan Life Insurance Company, nor did it explain how the dividends were distributed.

The Company argues that the Board's order should not be enforced for two reasons: first, there is not substantial evidence in the record as a whole supporting the Board's finding that the Company violated section 8(a)(5) and (1) when it did not furnish the Leominster cost figures and the information pertaining to the insurance dividends; second, that the Board erred as a matter of law in concluding that the Company committed an unfair labor practice when it withheld employees' accrued vacation pay until after the contractual vacation period had expired.

At the outset, we note that ours is not a review de novo, but a review to determine whether the Board's findings are supported by substantial evidence in the record as a whole. 29 U.S.C. § 160(e); Liberty Mutual Insurance Co. v. NLRB, 592 F.2d 595 at 601 (1st Cir. February 13, 1979); NLRB v. Middleboro Fire Apparatus, Inc., 590 F.2d 4, 6 (1st Cir. 1978).

I. The Violations as to the Information Sought

The Board reversed the ALJ on the conclusions drawn from the facts. The ALJ concluded that the Company fulfilled its obligation to produce information concerning the insurance plans by supplying the corporate cost. He decided that the Company had no obligation to produce the average employee costs for the benefit plan since the Union could, in his view, calculate this information from Company pamphlets. Finally, the ALJ concluded that the Company satisfied its duty to provide the information regarding the number of unit employees in the Blue Cross-Blue Shield plan when it proffered a figure reflecting unit and nonunit beneficiaries. The Board reviewed the same evidence and determined that in none of these areas did the Company fulfill its statutory obligation to bargain in good faith.

As we explained in NLRB v. Matouk Industries, Inc., 582 F.2d 125 (1st Cir. 1978): "In such cases the Board's special understanding is at least as important an aid in interpreting the facts as the ALJ's immersion in the case." Id. at 128. See also NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 117-18 (1st Cir. 1978).

Since the Board's review was based on the same facts and its interpretation is a reasonable one, we will not set it aside. Matouk,supra, at 129. We are satisfied that the Board adequately dealt with the findings of the ALJ. See Frattaroli v. NLRB, 590 F.2d 15, 18 and 19 n. 7 (1st Cir. 1978), where the Board failed to justify its finding which was contrary to the ALJ's, and consequently we did not enforce its order.

Upon examining Borden's argument on this first issue, we note with some puzzlement the novel interpretation it gives to NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). The Company takes one line from Truitt at 153, 76 S.Ct. at 756, that "(e)ach case must turn upon its particular facts," and attempts to use this as a springboard for leaping over The employer has a general obligation to provide relevant information that is needed by the bargaining representative for the proper performance of its duties. Detroit Edison Co. v. NLRB, --- U.S. ----, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); Western Mass. Elec. Co. v. NLRB, 589 F.2d 42, 46 (1st Cir. 1978).

all contrary legal precedent. By emphasizing the purported uniqueness of this factual situation, the Company dismisses peremptorily any unfavorable holding without citing any cases to support its position. We feel it necessary to tread our way through the applicable law.

The Board found that the Company's refusal to break down the corporate wide costs and to provide information concerning the insurance premiums amounted to a refusal to bargain collectively. This finding was supported by substantial evidence in the record and is in accord with the applicable law. The Board noted that in a letter of July 22, 1974, from Borden's corporate labor counsel to the NLRB concerning a prior dispute, the Company was able to pinpoint the ratio between premiums paid and the cost of claim payments specifically for the Leominster plant. 2 The Board considered the testimony of the Company's witness, Brenning, who admitted that Borden analyzes the costs of benefit programs for a particular facility for some purposes. He also testified that he met with Borden's director of employee benefits, Dennis Kiris, on September 6, 1976, in response to the Union's request for the Leominster costs. Brenning met with the Union negotiators on September 8, 1976, and informed them that he could furnish only the corporate wide costs. Despite the Union's persistent requests in the ensuing months of negotiation for the Leominster costs, Brenning did not attempt to obtain further information from Company headquarters as to reasons why the corporate costs could not be allocated nor did he explore alternatives.

The blanket refusal of the Company's chief negotiator to do more than repeat to the Union the Company's statement that unit figures were not available does not evince a good faith bargaining effort. As noted in San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977), where the requested information is intrinsic to the core of the employer-employee relationship, and the employer refuses to provide requested information, the employer has the burden to prove either lack of relevance or to provide adequate reasons why he cannot, in good faith, supply the information. Borden failed to shoulder this burden.

Relying on General Electric Co., 150 N.L.R.B. 192 (1964), Vacated on other grounds, 382 U.S. 366, 86 S.Ct. 528, 15 L.Ed.2d 420 (1966), Enforced 418 F.2d 736 (2d Cir. 1969), Cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970), the Board held that Borden...

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