DaimlerChrysler Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 2002 Decided May 7, 2002

No. 00-1518

DaimlerChrysler Corporation, f/k/a Chrysler Corporation,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

K.C. Hortop argued the cause for petitioner. On the briefs

was Theodore R. Opperwall.

Christopher W. Young, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Margaret A. Gaines,

Supervisory Attorney.

Before: Edwards and Randolph, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: In 1971, the National Labor

Relations Board ("NLRB" or "Board") rendered its seminal

decision in Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

Collyer holds that when the parties to certain types of

disputes have provided for arbitration in their collective bar-

gaining agreement ("CBA") the Board will not pursue unfair

labor practice proceedings until arbitration has run its course.

Deferment under Collyer is appropriate only when the CBA-

provided arbitration offers an expeditious and fair means for

resolution of the parties' dispute. See id. at 842. Under a

closely related policy, the Board also defers to the results of

arbitration, so long as the arbitral decision meets certain

general criteria. See Hammontree v. NLRB, 925 F.2d 1486,

1491 (D.C. Cir. 1991) (en banc) (discussing Board's deference

policies).

Collyer is not without limits, however. Indeed, the scope of

the Collyer doctrine has changed over the years as the Board

has continued to shape a deferral policy that harmonizes

private contractual rights emanating from CBAs and public

statutory rights flowing from the National Labor Relations

Act ("NLRA" or "Act"). See 1 The Developing Labor Law

1378-90 (Patrick Hardin & John E. Higgins, Jr. Editors-in-

Chief, 4th ed. 2001). And in Metropolitan Edison Co. v.

NLRB, 460 U.S. 693 (1983), the Supreme Court indicated that

certain statutory rights are not subject to contractual abroga-

tion unless the aggrieved party has clearly and unmistakably

waived the statutory rights at issue. See also Wright v.

Universal Mar. Serv. Corp., 525 U.S. 70, 79-80 (1998).

An alleged refusal by an employer to furnish relevant

information needed by a union for use in collective bargaining

or grievance processing is a type of case that is not subject to

Collyer deferment absent a clear and unmistakable waiver.

Since at least 1984, the Board has consistently held that such

disputes will not be deferred to arbitration. This policy is

justified in part because the obligation to provide such infor-

mation is derived from statutory duties independent of the

labor contract, NLRB v. Acme Indus. Co., 385 U.S. 432, 437

(1967); American Standard, Inc., 203 N.L.R.B. 1132 (1973),

and in part because such information is essential to the union

if it is to function effectively as the bargaining agent for unit

employees, Acme, 385 U.S. at 435-36. The Board has also

declined to defer cases involving alleged refusals to furnish

information for fear of fostering a "two-tiered arbitration

process," in which parties first proceed to arbitration over

information requests and then proceed to arbitration over the

underlying grievances. See United Technologies Corp., 274

N.L.R.B. 504, 505 (1985) (quoting General Dynamics Corp.,

268 N.L.R.B. 1432, 1432 n.2 (1984)), supplemented on other

grounds by 277 N.L.R.B. 584 (1985).

The instant case involves DaimlerChrysler Corporation

("DC") and the International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America,

Local 412, Unit 53, AFL-CIO (the "Union"). One of the

Union's stewards at DC sought relevant information from DC

in connection with employee grievances. When the informa-

tion sought was not furnished to the satisfaction of the Union,

an unfair labor practice ("ulp") charge was filed with the

NLRB. The Board found that DC's refusal to provide the

requested information violated the NLRA. See Daimler-

Chrysler Corp., 331 N.L.R.B. No. 174 (Aug. 25, 2000) ("Or-

der"), at 1. DC requested that the Board decline to adjudi-

cate the unfair labor practice charges and defer them to

arbitration under the parties' CBA. The Board, however,

adhered to its longstanding practice of refusing to defer

disputes over requested information to the arbitration pro-

cess. DC now asks this court to overturn the Board's policy.

We decline. While the Board may in the future decide to

reconsider the scope of the Collyer doctrine, this court has no

authority on this record to second-guess the Board's applica-

tion of well established precedent.

One of the grievances for which the Union steward sought

information involved an employee who was discharged pursu-

ant to a "last-chance" agreement into which he had entered

after being discharged a year earlier. Under established

practices between DC and the Union, "last chance" agree-

ments have no precedential value with regard to the treat-

ment of other employees. Because of this practice, DC

argues that it was not required to furnish information to the

Union on such agreements. The Board held that the infor-

mation could still be relevant to the Union in determining

whether to process a grievance to arbitration. In light of the

liberal, discovery-type standard that governs information re-

quests, the Board did not err in requiring DC to furnish the

information sought. Nor did the Board err in finding that

DC committed an ulp when it threatened the Union's steward

with disciplinary action, including possible discharge, if he

continued to request information. Accordingly, we deny DC's

petition for review and grant the Board's cross-application for

enforcement.

I. Background

After reviewing the record in this case, we conclude that

the Board's findings are supported by substantial evidence on

the record as a whole. See Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951). What follows is a summary

of the relevant facts found by the Board.

DC is a large automobile manufacturer employing more

than 100,000 employees in the United States. In 1997, Keith

Valentin was elected to be the chief steward at DC's plant in

Auburn Hills, Michigan, which employs about 130 engineers

represented by the Union. Order at 3-4; Br. of Petitioner at

5. This petition centers on a number of requests for informa-

tion made by Mr. Valentin in his capacity as chief steward.

DC furnished no information in response to the disputed

requests.

Most of Mr. Valentin's requests were related to employee

grievances. For example, between December 1997 and Janu-

ary 1998, he filed three grievances alleging that DC had

violated the CBA by offering more overtime to transmission

engineers than to engine engineers. He filed a request for

information, seeking an alphabetical list of access badge

swipes for all bargaining unit members for a period during

1997 and 1998, as well as lists of unit members on corporate

shuttle flights to and from Indiana (where DC had another

facility) for the same period. Order at 4-5. He also request-

ed a list of overtime hours that were offered to the transmis-

sion engineers but not to the engine engineers, along with

copies of the relevant time cards. Instead of providing the

requested information, DC sent Mr. Valentin a memo re-

questing the relevance of the information to any active griev-

ance, and expressing DC's "understanding" that the griev-

ance had already been resolved. Id. at 5; Memorandum from

DesirEe Redenz to Keith Valentin (Apr. 20, 1998), reprinted

in Joint Appendix ("J.A.") 149-51. Later, Mr. Valentin testi-

fied that the grievance had not been resolved to his satisfac-

tion and that it was his understanding that he could appeal

the grievance with information obtained through the informa-

tion requests. See Transcript of Administrative Law Judge

("ALJ") Hearing ("Tr.") at 121, reprinted in J.A. 62. Mr.

Valentin also filed information requests in connection with an

engineer named Kareem Schkoor claiming discrimination in

promotion. He also filed other requests related to other

grievances. Order at 4-7 (detailing requests).

Many of Mr. Valentin's memoranda contained language

that DC managers found objectionable. For instance, in

May, Mr. Valentin sent a memorandum to DC's diversity

manager regarding an ulp charge he had filed. Memoran-

dum from Keith Valentin to Monica Emerson (May 6, 1998),

reprinted in J.A. 169. He wrote: "As a matter of profession-

al courtesy, I strongly recommend that you seek private legal

counsel to protect your individual rights in the event that

Corporate and individual agent (yourself) interests diverge."

Id. Mr. Valentin also included the following sign-off, which is

found at the end of many of his memoranda to DC manage-

ment: "If you have any questions or concerns ... contact me

at your earliest convenience rather than feign confusion and

ignorance at a later date." Id.

Particularly relevant to this appeal is a request Mr. Valen-

tin made regarding so-called "last chance" data. In 1998,

engineer Arthur Sibert was discharged for being absent from

work. The Union filed a grievance in protest, which was

denied at the initial steps of the grievance procedure. Mr.

Sibert had been discharged by DC once before, in 1996, and

had returned to work on a "last chance" basis. Order at 5-6.

The Union and DC had agreed generally that matters re-

solved on a last chance basis could not be used in connection

with the resolution of any other grievance. Tr. 48, reprinted

in J.A. 45. In April 1998, Mr. Valentin requested information

regarding all employees disciplined pursuant to a last chance

agreement since 1993. Order at 6. DC refused to provide

the information because of the agreement that such cases

would not have any precedential value. Id. Mr. Valentin

also filed grievances in connection with Mr. Sibert's initial

1996 discharge. Pursuant to those grievances, he requested

records regarding, inter alia, Mr. Sibert's rights under the

Family and Medical Leave Act ("FLMA"). Order at 6.

In early May, DC gave Mr. Valentin a memorandum stat-

ing that most of his information requests and other communi-

cations were "inappropriate." Memorandum from Don Pen-

tecost to Keith Valentin (May 6, 1998), reprinted in J.A. 163.

The memorandum continued:

We feel [these information requests have] been an at-

tempt by you to harass, intimidate and create work

rather than pursue any legitimate need for information.

These letters are often sarcastic and demanding in tone,

which we find totally unacceptable, counter productive

[sic] to the resolution of grievance disputes and an abuse

of the grievance procedure. Additionally your requests

are either inappropriate, devoid of any apparent rele-

vance, and/or over-burdening on the Corporation, and

therefore the Corporation will not respond to any of your

previous requests.

Id. The memorandum concluded by advising Mr. Valentin

that "continuance of this type of inappropriate, harassing

activity may result in disciplinary action being taken up to

and including discharge." Id.

Following a two-day hearing, the ALJ found that DC had

violated NLRA s 8(a)(1) by threatening Mr. Valentin with

discharge for making further information requests. Order at

4. He also found that DC violated NLRA s 8(a)(5) by

refusing to provide the requested information. The ALJ

found, however, that DC had not violated the Act in refusing

to provide information about employees who had been disci-

plined pursuant to last chance agreements, because such

information was "irrelevant" to the Union's representational

duties. Id. at 6. A three-judge panel of the Board unani-

mously adopted all of the ALJ's findings, except with regard

to the last chance information. With one member dissenting,

the Board found that last chance information could, "at a

minimum, be useful to the Union in deciding whether" it was

worthwhile proceeding to arbitration on Mr. Sibert's griev-

ance. Id. at 2. In dissent, Member Brame contended that

the parties' agreement rendered last chance data irrelevant

because it had no precedential weight. Id. at 2-3.

DC argued to the Board that resolution of the s 8(a)(5)

allegations should be deferred to the parties' grievance and

arbitration procedure. The Board, however, held that allega-

tions involving an employer's refusal to furnish information

are not deferrable. Order at 1 n.3 (citing Clarkson Indus.,

312 N.L.R.B. 349, 353 n.21 (1993); United Technologies

Corp., 274 N.L.R.B. at 505).

II. Discussion

A. Challenges Regarding Employee Schkoor

Following the ALJ's decision, DC filed exceptions to most

of his findings. See Respondent's Exceptions to Administra-

tive Law Judge's Decision and Recommended Order (July 2,

1999), reprinted in J.A. 202-08. DC failed, however, to

except to five of the ALJ's findings regarding information

requested in connection with employee Schkoor. Specifically,

DC did not file exceptions to the ALJ's findings that DC

violated the Act with respect to the following Union informa-

tion requests: (1) a request in early March regarding the

factors used in deciding to promote other engineers to the

position that Schkoor had sought; (2) a March request for

Schkoor's performance evaluations; (3) an April request re-

garding one of the employees hired for the position Schkoor

had sought; (4) an April request regarding workplace diver-

sity policies; and (5) an April request regarding other em-

ployees who allegedly had not received their performance

evaluations on time. See Order at 1 n.2, 5; Respondent's Ex-

ceptions, reprinted in J.A. 202-08.

The NLRA provides that "[n]o objection that has not been

urged before the Board ... shall be considered by the court,

unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances." NLRA

s 10(e), 29 U.S.C. s 160(e). DC argues that it excepted

generally to the ALJ's alleged failure to consider whether DC

was excused from complying with all of Mr. Valentin's re-

quests on the grounds that he made the requests in bad faith.

DC also objected to the ALJ's alleged failure to consider

DC's assertion that all of the requests for information should

be deferred to the parties' grievance and arbitration proce-

dures. Reply Br. of Petitioner at 2-3. We need not decide

whether these two general exceptions gave the Board ade-

quate notice that DC intended to contest the violations sur-

rounding Mr. Schkoor's grievances. Assuming arguendo that

DC adequately challenged the findings before the Board, we

reject both of DC's general exceptions on the merits, as

explained infra.

B. The Unfair Labor Practices

This court's role in reviewing the Board's findings is limit-

ed. See Tasty Baking Co. v. NLRB, 254 F.3d 114, 123-24

(D.C. Cir. 2001). We must uphold the Board's findings of fact

as long as they are supported by substantial evidence in the

record, considered as a whole. Id.; NLRA s 10(e), 29 U.S.C.

s 160(e). The NLRA requires employers to bargain collec-

tively with the employees' lawfully designated bargaining

agent. NLRA s 8(a)(5), 29 U.S.C. s 158(a)(5). The duty to

bargain includes the obligation to provide information that a

union needs in order to perform its duties in grievance

processing and collective bargaining negotiations. See Acme,

385 U.S. at 435-37. This includes information relevant to the

processing of existing grievances and the investigation of

potential grievances. See id. at 437-38. While the informa-

tion must be relevant, "the threshold for relevance is low."

Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191

(D.C. Cir. 2000). The Supreme Court has described the

relevance standard as a liberal, "discovery-type" standard.

Acme, 385 U.S. at 437. Moreover, "[i]nformation related to

the wages, benefits, hours, [and] working conditions" of unit

employees is presumptively relevant. Country Ford Trucks,

229 F.3d at 1191. Other information must also be furnished

if the union can show that it is relevant to the performance of

its duties. See Local 13, Detroit Newspaper Printing &

Graphic Communications Union v. NLRB, 598 F.2d 267, 271

n.5 (D.C. Cir. 1979).

In this case, the requested information pertained to em-

ployee grievances and was limited by the Board to informa-

tion regarding bargaining unit employees. The requests

concerned disputes over the allocation of overtime, an em-

ployee who was discharged, an employee who was denied

promotion, and other appropriate subjects of representation.

DC did not provide any of the requested information, so it

clearly violated the Act.

DC now argues that many of the requests were overly

broad. DC did not raise this complaint with the Union at the

time when the requests were made, however. Nor did it

respond to the requests in part. Thus, as the Board found,

its belated objection rings false. See Country Ford Trucks,

229 F.3d at 1192 ("Even accepting, for the sake of argument,

that the Union's request was over-broad, this does not excuse

the Company from providing the requested information to

which the Union had an undisputed right.").

DC also argues that Mr. Valentin's requests were made in

bad faith, so it was under no obligation to respond to any of

them. This argument fails. First, nothing in the text or

context of his requests indicates bad faith. All of the re-

quests related to what appear to be legitimate grievances or

potential grievances. The Board presumes that requests for

presumptively relevant information are made in good faith,

until the company demonstrates otherwise. See id.; Colum-

bia Univ., 298 N.L.R.B. 941, 945 (1990). While Mr. Valen-

tin's memoranda contained unusual language (instructing re-

cipients not to "feign ... ignorance," for example), they were

not worded so offensively as to justify ignoring them entirely.

Moreover, DC's arguments that particular requests were

made in bad faith do not withstand scrutiny. For example,

DC argues that Mr. Valentin's request for FMLA information

regarding employee Sibert was made in bad faith, because

the only issue the Union was pursuing regarding Mr. Sibert's

termination was whether he had a legitimate justification for

failing to appear for work on the day in question. DC ignores

the fact that Mr. Valentin sought the information in connec-

tion with new grievances he had filed concerning Mr. Sibert's

initial 1996 termination. See Order at 6. The Board found

the FMLA information to be presumptively relevant to the

grievance Mr. Valentin had filed. Thus, the argument that

the request was made in bad faith fails.

Finally, DC argues that it was not required to provide the

last chance data, because of the Union's agreement that

resolution of last chance matters would not have precedential

value. As the majority of the Board panel noted, the infor-

mation could nonetheless prove useful to the Union "in decid-

ing whether even to proceed to arbitration on Sibert's griev-

ance." Order at 2 (citing, inter alia, United States Postal

Serv., 308 N.L.R.B. 547, 549 (1992)). In other words, the

Board found that the Union could use the information as a

non-binding indicator of the company's general practices re-

garding last chance agreements. While dissenting Member

Brame is correct that DC is not bound to treat the new

grievance in the same way it treated previous last chance

grievances, information about the past may nevertheless pro-

vide the Union with a helpful barometer as it decides whether

to pursue a grievance founded on a last chance agreement.

The information was therefore relevant under the liberal

standard of relevance that governs DC's obligation to provide

requested information.

DC also violated the act by threatening Mr. Valentin with

discipline and discharge if he continued to make information

requests. Section 8(a)(1) of the NLRA prohibits "coercive

statements that threaten retaliation against employees for the

exercise of their rights to organize and to participate in union

activities." Tasty Baking, 254 F.3d at 124 (characterizing 29

U.S.C. s 158(a)(1)). An employer's action violates the Act if,

"considering the totality of the circumstances, the statement

has a reasonable tendency to coerce or to interfere with those

rights." Id. While an employer may discipline employees to

maintain order, see J.P. Stevens & Co., 219 N.L.R.B. 850

(1975), enf'd, 547 F.2d 792 (4th Cir. 1976), it may not threaten

or discipline a union official when it dislikes the way he

carries out his union job, see NLRA s 8(a)(1), 29 U.S.C.

s 158(a)(1); ILGWU v. Quality Mfg. Co., 420 U.S. 276, 280-81

(1975).

The Board correctly found that the memorandum to Mr.

Valentin threatening discharge was overly broad, because it

could be read to threaten discipline for any future request for

information. This blanket threat was unwarranted and inter-

fered with Mr. Valentin's ability to perform his representa-

tional duties. As such, it violated the Act.

C. The Board's Collyer Doctrine

In the proceedings before the Board, DC maintained that

the allegations concerning its refusal to furnish information

should have been deferred under the Collyer doctrine to the

grievance and arbitration procedure set forth in the parties'

CBA. As noted above, however, the Board has long adhered

to a policy of refusing to defer disputes concerning informa-

tion requests. See, e.g., General Dynamics Corp., 270

N.L.R.B. 829 (1984). It is also clear that the Board is not

required by the NLRA or by "national labor policy" to defer

information request cases to arbitration. Acme, 385 U.S. at

438-39. Indeed, in Acme, the Supreme Court observed that

when the Board acts to ensure the flow of relevant informa-

tion, it does so "in aid of the arbitral process." Id. at 438.

The Court noted that "[a]rbitration can function properly only

if the grievance procedures leading to it can sift out unmerito-

rious claims," and that it would be inefficient to require "the

union to take a grievance all the way through to arbitration

without providing the opportunity to evaluate the merits of

the claim." Id.

This court is obliged to uphold the Board's policy on the

scope of Collyer so long as it is "rational and consistent with

the Act," and so long as the Board's reasoning is not "inade-

quate, irrational, or arbitrary." Allentown Mack Sales &

Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (internal

quotations omitted); accord NLRB v. Am. Nat'l Can Co., 924

F.2d 518, 522 (4th Cir. 1991) ("The Board's decision concern-

ing deferral to arbitration is to be affirmed unless found to be

an abuse of discretion."). The Board "acts unreasonably if it

departs from established policy without giving a reasoned

explanation for the change." Chelsea Indus., Inc. v. NLRB,

No. 00-1443, slip op. at 4 (D.C. Cir. Apr. 12, 2002) (citing

ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1443-44 (D.C. Cir.

1997)). As we have already indicated, the Board's decision in

this case is perfectly consistent with, not a change from, well

established precedent. Therefore, the Board had no obli-

gation to offer a reasoned explanation for any change. There

was no change of Board policy in this case and DC does not

suggest any.

DC's primary argument is that, in refusing to defer the

s 8(a)(5) allegations, the Board contravened its decision in

United Aircraft Corp., 204 N.L.R.B. 879 (1972), aff'd sub

nom. Int'l Ass'n of Machinists v. NLRB, 525 F.2d 237 (2d

Cir. 1975). In United Aircraft, the Board held that the

interpretation of the parties' CBA, particularly its provision

on the duty to furnish information at the second stage of the

grievance procedure, was best left to an arbitrator. Id. at

880. DC argues that United Aircraft governs, because the

parties' CBA states that, at Step Two of the grievance

procedure, each party will "endeavor in good faith" to furnish

all information available with respect to the grievance. See

Agreements Between Chrysler Corporation and the UAW

s 21(b) (Oct. 14, 1996), reprinted in J.A. 132-33.

DC's argument is unpersuasive. United Aircraft is an

almost 30-year-old case that does not reflect the Board's

current policy on the application of Collyer to information-

request cases. And United Aircraft is the only case cited by

DC in support of its position. At oral argument before this

court, DC's counsel acknowledged that the Board's policy

since United Aircraft has been entirely consistent in holding

that information cases will not be deferred under Collyer.

He also acknowledged that DC was seeking to overturn this

well-established policy and not that the Board's decision in

this case reflects a change in policy. Indeed, counsel ac-

knowledged that all of the Board's case law since United

Aircraft supports the Board's decision in this case.

At most, United Aircraft stands for the unsurprising prin-

ciple that "the union's right to disclosure of relevant and

necessary data can be waived by the union in a collective

bargaining agreement." 1 The Developing Labor Law, supra,

at 859. And after the Court's decision in Metropolitan

Edison, such a waiver must be "clear and unmistakable." 460

U.S. at 708. Otherwise

United Aircraft may have been overruled sub silentio.

In International Harvester Co., [241 N.L.R.B. 600

(1979)] without citing United Aircraft, the Board held

that a provision in a collective bargaining agreement that

vested the arbitrator of a grievance with authority to

order disclosure of information did not require deferral

of unfair labor practice charges alleging wrongful refusal

to turn over information that would assist the union in

determining whether to initiate the grievance process.

In later decisions, the Board has refused to defer to

arbitration in cases where the information sought relates

directly to the subject matter of other pending griev-

ances. Even where an employer claimed that the under-

lying subject matter was arbitrable, the Board refused to

defer to arbitration.

1 The Developing Labor Law, supra, at 888 (footnotes omit-

ted).

The Board's current practice appears to emanate from two

cases decided in the mid-1980's. In the first, General Dy-

namics Corp., the Board adopted the conclusions of the ALJ,

who had found that the union had a statutory right to receive

the requested information. 270 N.L.R.B. at 829-30. The

ALJ found that the union had not "clearly and unmistakably"

waived that right in the CBA, despite the presence of a clause

providing for factual investigation at Step Two of the CBA's

grievance procedure. Id. at 834-35 (citing Metropolitan Edi-

son, 460 U.S. at 708 & n.12). The Board held that it would

not defer the disputes over requests for information to arbi-

tration. The Board cited its earlier decision, also called

General Dynamics Corp., in explaining its Collyer policy of

refusing to defer information cases to the grievance and

arbitration process:

[T]he procedural issue of disclosure of the [information]

is merely preliminary to the resolution of the parties'

substantive dispute over the [issues raised by the griev-

ances]. In these circumstances, we find no merit in

encumbering the process of resolving the pending ...

grievances with the inevitable delays attendant to the

filing, processing, and submission to arbitration of a new

grievance regarding the information request. Such a

two-tiered arbitration process would not be consistent

with our national policy favoring the voluntary and expe-

ditious resolution of disputes through arbitration.

Id. at 829 (citing 268 N.L.R.B. at 1432 n.2) (brackets and

ellipses in original).

The Board reaffirmed the policy of General Dynamics in

United Technologies. In that case, the Board refused to defer

any of the unfair labor practices concerning requests for

information, notwithstanding the presence of an information

provision in "Step Two" of the parties' CBA. 274 N.L.R.B. at

505 (citing General Dynamics). The Board also found that

the union had clearly and unmistakably waived its statutory

right to receive certain information in connection with the

preparation of a future grievance. Id. at 507. However, the

"clear and unmistakable" waiver was not based on the "Step

Two" grievance provision alone. Instead, the Board's deci-

sion rested on the conjunction of the CBA's Step Two infor-

mation provision and a separate letter of understanding

between the union and the company in which the union

explicitly relinquished its right to certain requests for infor-

mation. Id. United Technologies thus demonstrates that a

Step Two information provision in the CBA, on its own, is not

enough to constitute a clear and unmistakable waiver of the

statutory right to receive information. The result in United

Technologies was not surprising, because the Board has long

held that "the mere existence of a grievance machinery does

not relieve a company of its obligation to furnish a union with

information needed to perform its statutory functions."

Timken Roller Bearing Co., 138 N.L.R.B. 15, 16 (1962), enf'd,

325 F.2d 746 (6th Cir. 1963).

The Board's policy of excluding information-request cases

from Collyer's reach has remained consistent since General

Dynamics and United Technologies. See Clarkson Indus.,

312 N.L.R.B. at 355 (holding that the Board "has not deferred

cases involving requests for information") (citing United

States Postal Serv., 276 N.L.R.B. 1282, 1285 (1985)); United

States Postal Serv., 307 N.L.R.B. 1105, 1108 (1992) (stating

that it is "the Board's general policy not to defer information

requests to the parties' arbitration process") (citing Clinch-

field Coal Co., 275 N.L.R.B. 1384 (1985)), enf'd, 17 F.3d 1434

(4th Cir. 1994). The crystal-clear nature of the Board's

Collyer doctrine was most recently highlighted by its opinion

in Ormet Aluminum Mills Products Corp., 335 N.L.R.B. No.

65 (Aug. 27, 2001), in which the Board adopted the ALJ's

finding that the company had violated NLRA s 8(a)(5) by

refusing to furnish certain requested information to the union.

Chairman Hurtgen dissented, arguing that it would be more

prudent to have an arbitrator decide both the contractual

question at issue in the underlying grievance and the "infor-

mational" issue. Id. at 4. Chairman Hurtgen argued that it

is "not sensible to have one forum (the Board) decide informa-

tion issues and another forum (the arbitrator) decide the

merits." Id. He "recognize[d] that the Board refuses to

'Collyerize' information cases," but he advocated abandoning

that policy and adopting his recommended approach, which,

he urged, would "prevent the waste of the Board's time and

resources." Id. (footnote omitted).

The majority rejected Chairman Hurtgen's approach, in

part because it found that his approach ignored "the benefit

to the grievance procedure derived from a party's prompt

fulfillment of its obligation to furnish requested information."

Id. at 3. The majority cited the Supreme Court's reasoning

in Acme, in which the Court disapproved of forcing a union to

"take a grievance all the way through to arbitration without

providing the opportunity to evaluate the merits of the claim."

Id. (citing Acme, 385 U.S. at 438). In short, the majority

found that the arbitration process could only function effec-

tively if the Board continued to enforce directly the duty to

furnish relevant information.

We do not purport to take sides in this colloquy between

Board members. The Board always will be free in the future

to consider expanding Collyer to include deferment of infor-

mation cases, either on a theory of "exhaustion," see Ham-

montree, 925 F.2d at 1496-99, or because the parties agreed

to arbitrate the claim, see id. at 1503 (Edwards, J., concur-

ring) (stating that even without a "clear and unmistakable"

waiver, the Board could still require deferment where parties

agree to arbitrate a statutory claim). Such a change, howev-

er, is squarely within the purview of the Board, not of this

court. That few cases challenging this aspect of the Board's

Collyer policy have been brought before the Courts of Ap-

peals in the past two decades suggests that the Board's

latitude in this regard is obvious. Cf. Am. Nat'l Can Co., 924

F.2d at 522 (upholding a refusal to defer requests for infor-

mation and recognizing that "the Board has traditionally

refused to defer in right-to-information cases"); NLRB v.

Safeway Stores, Inc., 622 F.2d 425, 428-29 (9th Cir. 1980)

(holding that the Board did not abuse its discretion by

refusing to defer an information dispute to arbitration).

One final word is in order. The Board's refusal to depart

from its Collyer policy simply because of the presence of a

Step Two information provision in the CBA grievance proce-

dure is perfectly consistent with established Board policy.

First, the mere reference to "information" in a single step of

a grievance procedure falls short of the Board's current

requirement of a "clear and unmistakable" waiver. Indeed,

DC did not mount a serious argument that the parties' CBA

in this case contained a clear and unmistakable waiver of the

Union's right to receive information at any stage of the

grievance procedure, or even outside the context of a formal

grievance. Nor could it have. The grievance procedure's

clause on information at Step Two is not, on its own, the kind

of express relinquishment of statutory rights that the Board

requires. See General Dynamics, 268 N.L.R.B. at 1432 n.2

(holding that the Step Two language "does not constitute a

'clear and unmistakable' waiver" and refusing to defer the

dispute over the union's request for information).

Second, when one considers that not all requests for infor-

mation arise in the context of a formal grievance, let alone at

"Step Two," it would make no sense to rely on such a

provision to overcome the Board's current policy under Col-

lyer. In this case, for example, the request for "last chance"

information was made after the employee's grievance had

already been denied at Step Two. Order at 1. As discussed

supra, the Union made the request in order to evaluate

whether it was worth proceeding to arbitration on the under-

lying grievance. In other cases, a union might make a stand-

alone request for information in order to determine whether

to initiate a grievance at all. It is therefore unsurprising

that, in United Technologies and in this case, the Board

refused to defer the issues notwithstanding the presence of a

Step Two information provision.

III. Conclusion

For the foregoing reasons, we deny the petition for review

and grant the Board's cross-application for enforcement.