UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
6-418, AFL-CIO, ET AL., INTERVENORS; COLGATE-PALMOLIVE
UNION, KANSAS CITY, LOCAL NO. 5-114, AFL-CIO, INTERVENOR
Nos. 82-1418, 82-1419, 82-1420, 82-1743, 82-1589, 82-1940 1983.CDC.172
On Petitions for Review and Application and Cross-Applications for Enforcement of Orders of the National Labor Relations Board.
Wilkey and Edwards, Circuit Judges, and McGowan, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Edwards.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
These consolidated petitions for review and applications for enforcement involve three decisions of the National Labor Relations Board ("NLRB" or "Board") in cases dealing with requests by unions for information concerning the health and safety of employees represented by the bargaining agents. In each instance, the company was found to have violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA" or "Act")1 by failing to provide the unions with information, other than data constituting trade secrets or individually identifiable medical records, relevant to the health and safety of the employees.
Two of the employers, Colgate-Palmolive Company ("Colgate") and Borden Chemical ("Borden") have petitioned for review of the decisions adverse to them; in both of these cases, the NLRB has cross-applied for enforcement. The third employer, Minnesota Mining and Manufacturing Company ("3M"), did not petition for review, but is resisting the NLRB's application for enforcement. Notwithstanding this minor procedural difference, the challenges presented by the three employers overlap in a number of important respects. Each company argues that the requested information is not relevant to the unions' bargaining responsibilities and that, in any event, the inclusion of proprietary and trade secret data within the scope of the unions' requests for information legitimated the employers' refusal to comply with those requests. The employers, alone or in combination, also raise a number of other defenses premised, for example, on allegations pertaining to the confidentiality of employees' medical records, the burdensomeness of the unions' requests, and the unions' waivers of their right to receive relevant information. We find no merit in any of these contentions.
The Board's decisions are attacked, from a different angle, by two locals of the Oil, Chemical & Atomic Workers International Union ("International") and one affiliated with the International Chemical Workers Union . The unions, while satisfied with most aspects of the NLRB's decisions, argue that the Board ignored its statutory obligation to resolve unfair labor practice charges2 in failing to decide whether the employers' refusal to supply relevant information containing trade secrets violated the NLRA. We disagree. In our view, the Board's decisions, fairly read, reveal clearly its conclusion that the companies had not been shown to have contravened the Act by declining unconditionally to disclose the small part of the requested information constituting proprietary or trade secret material. As the Board found, however, the employers failed to satisfy their bargaining obligations concerning this information by wholly denying its relevance; accordingly, we approve the orders requiring them to bargain in good faith with the unions over the conditions under which trade secret information might appropriately be disclosed. I. BACKGROUND
A. Minnesota Mining and Manufacturing Company: Nos. 82-1418 & 82-1589
At issue in these petitions for review is the bargaining relationship -- successfully maintained for over twenty-five years -- between 3M and Local 6-418, the exclusive representative of a unit of employees at 3M's Chemolite plant in Cottage Grove, Minnesota. The employees represented by Local 6-418, the NLRB properly concluded, are regularly exposed to a wide range of hazardous or potentially hazardous substances and conditions, and employee health and safety have long been acknowledged by 3M to be legitimate and appropriate subjects of collective bargaining. Thus, the relevant collective bargaining agreement contains an extensive health and safety provision that, in addition to imposing various obligations on 3M, requires Local 6-418 to take an active role in promoting the health and safety of employees at the Chemolite plant.3
The events underlying the unfair labor practice charge against 3M commenced in 1977 when the International, increasingly concerned about health and safety problems affecting its members, instituted a nationwide program to aid its locals in investigating potentially hazardous working conditions. On October 27, 1977, in response to advice from the International, a representative of Local 6-418 requested health and safety information pertaining to employees at 3M's Chemolite plant to enable the union to "carry out its representation responsibilities under the collective bargaining agreement."4 Among the data requested were morbidity and mortality statistics for past and present employees, generic names of all substances used or produced at the plant, results of clinical and laboratory studies of employees undertaken by 3M, results of studies of toxic agents to which employees may be exposed, health information derived from insurance and workmen's compensation claims, a list of contaminants monitored by 3M, a description of 3M's hearing conservation program, and data on employees' exposure to radiation and heat. Subsequent events and testimony by representatives of the union made clear, and the NLRB properly found, that the request did not seek disclosure of individually identified medical records. In submitting its request, moreover, Local 6-418 disclaimed any intention to circumscribe "the format under which the company may choose to answer" and emphasized that "any . . . written form convenient for the company" would be acceptable to it.5
3M never responded to Local 6-418's request in writing, but the vague position communicated to the union shortly after the submission of the request crystallized at a meeting of company and union representatives on March 24, 1978. After representatives of Local 6-418 had explained the reasoning underlying their request, 3M indicated that it would not supply any of the information specified in the union's letter. In short, 3M claimed that (1) it kept no morbidity or mortality statistics, (2) the list of generic names would not aid the union and might reveal trade secrets, and (3) medical records could be supplied only to an individual's personal physician pursuant to a request by the employee or the physician.6 3M supplemented these specific responses with generalized contentions that its health and safety programs were adequate and that Local 6-418 should rely on the company to safeguard its employees' health and safety.
The NLRB found that 3M's refusal to comply with the union's request violated sections 8(a)(1) and 8(a)(5) of the NLRA to the extent that the requested material did not include either trade secrets or individually identified medical records. The Board began its analysis by approving, in large measure, the Administrative Law Judge's conclusions regarding the threshold question of relevance.7 Read together, the opinions of the ALJ and the NLRB indicate that the requested information was found relevant to Local 6-418's representational responsibilities because (1) employees at the Chemolite plant are exposed to many real and potential dangers, (2) the contract between the parties evinces genuine concern for employees' health and safety on both sides and obligates both 3M and Local 6-418 to act to protect health and safety, and (3) the viewpoints of the union and the company concerning the extent to which employees are endangered and the appropriate responses to workplace hazards inevitably will diverge from time to time. Under the particular facts of this case, the Board found, the union's "need for the information requested is not merely speculative." Minnesota Mining & Manufacturing Co., 261 N.L.R.B. No. 2, at 10 (Apr. 9, 1982). On the contrary, "Local 6-418 can hardly be expected to bargain effectively regarding health and safety matters if it, unlike
As the NLRB recognized, this conclusion did not end its inquiry; it remained necessary to balance the union's need for relevant information against any legitimate and substantial confidentiality interests asserted by the employer. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 59 L. Ed. 2d 333, 99 S. Ct. 1123 (1979). 3M alleged two such interests. The first, resting on the need to protect the confidentiality of individual medical records, was rejected because Local 6-418 had not sought individually identified medical data and the minimal intrusion that would attend the provision of aggregate data and individual records from which identifying data have been excised could not counterbalance the union's need for relevant health information.
3M also asserted a need to protect the confidentiality of its trade secrets. This interest, the NLRB found, was implicated by the disclosure of only a miniscule fraction of the generic names of raw materials sought by Local 6-418. 3M's failure unconditionally to disclose those few generic names that did constitute trade secrets, the Board implicitly held, did not amount to an unfair labor practice. But the Board found that the company had improperly maintained that the requested information was wholly irrelevant, thereby precluding bargaining over the possibility that disclosure might be made in a manner that would accommodate the legitimate interests of both labor and management. In remedying this violation, the NLRB concluded that it need not "engage in the full balancing of countervailing rights discussed by the Supreme Court in Detroit Edison. . . before first affording [the] parties an opportunity to reach an accommodation on their own. They would be in the best position to develop necessary methods and devices for the information exchange through the traditional collective-bargaining mechanism." 261 N.L.R.B. No. 2, at 19 (footnote omitted).
The Board's order thus required the release of all requested information except individual medical records from which identifying data have not been deleted and the names of substances constituting trade secrets, and it ...