                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 09 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


ENDO PAINTING SERVICE, INC.,                    No.    14-71316

             Petitioner,                        NLRB No. 20-CA-080565

 v.
                                                MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,

             Respondent.

NATIONAL LABOR RELATIONS                        No.    14-71541
BOARD,
                                                NLRB No. 20-CA-80565
             Petitioner,

 v.

ENDO PAINTING SERVICE, INC.,

             Respondent.


                     On Petition for Review of an Order of the
                         National Labor Relations Board

                     Argued and Submitted February 21, 2017
                               Honolulu, Hawaii

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.

      Endo Painting Service, Inc. (“Endo”) seeks review of an administrative law

judge’s order (“the Order”), adopted with modification by the National Labor

Relations Board (“the Board”). The Board found that Endo violated the National

Labor Relations Act by failing to produce information requested by the International

Union of Painters and Allied Trades, Painters Local Union 1791 (“the Union”) and by

failing to inform the Union, within a reasonable time, that certain requested

information did not exist. The Board cross petitions for enforcement of the Order.

We have jurisdiction under 29 U.S.C. § 160(e) and (f). We deny Endo’s petition for

review and grant the Board’s petition for enforcement.

      1.   Substantial evidence supports the Board’s determination that Endo

committed an unfair labor practice by failing to produce the requested information,

because the information was “relevant and necessary” to the administration and

negotiation of the parties’ collective bargaining agreement (“CBA”). See 29 U.S.C.

§§ 158(a)(5), 160(e); Frankl ex rel. NLRB v. HTH Corp., 693 F.3d 1051, 1064 (9th

Cir. 2012) (citation omitted). The information was relevant because it was related to

Union employees’ “wages, hours, [and] conditions of employment” and necessary for

the Union’s investigation into a class grievance filed against Endo. See Press

Democrat Publ’g Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir. 1980); NLRB v.


                                         2
Associated Gen. Contractors of Cal., Inc., 633 F.2d 766, 770 (9th Cir. 1980). Thus,

the Board correctly found that Endo violated its statutory duty to bargain in good faith

by failing to furnish the Union with the requested relevant information. See Frankl,

693 F.3d at 1064.

      Substantial evidence also supports the Board’s finding that the Union’s

information request did not seek confidential information, did not constitute

harassment, and was not overbroad, unduly burdensome, or sought in bad faith.

Moreover, because an employer’s statutory duty to provide requested relevant

information is not limited to “information relevant to grievable disputes,” Endo’s

objections to the underlying grievance’s merits do not excuse its noncompliance. See

NLRB v. Safeway Stores, Inc., 622 F.2d 425, 430 (9th Cir. 1980), cert. denied, 450

U.S. 913 (1981) (declining to add a grievability requirement to federal labor law); see

also NLRB v. Acme Indus. Co., 385 U.S. 432, 436-38 (1967) (rejecting the argument

that a grievance’s merits limit an employer’s statutory duty to disclose requested

relevant information).

      2. Substantial evidence also supports the Board’s finding that Endo committed

an unfair labor practice by delaying nearly three months in informing the Union that

a requested company organizational chart did not exist. See 29 U.S.C. § 160(e). The

Union’s request for the chart was not complex. Nor did Endo ever inform the Union


                                           3
that it was difficult to determine whether such a chart existed. Under the totality of

the circumstances, Endo’s delay was unreasonable. See W. Penn. Power Co., 339

N.L.R.B. 585, 587 (2003) (“In evaluating the promptness of the response, ‘the Board

will consider the complexity and extent of information sought, its availability and the

difficulty in retrieving the information.’”) (quoting Samaritan Med. Ctr., 319

N.L.R.B. 392, 398 (1995)).

      3. In light of well-established Board policy “that issues regarding a refusal to

provide information are not subject to deferral to the grievance-arbitration procedure,”

the Board did not abuse its discretion by refusing to defer this information-request

dispute to arbitration. Chapin Hill at Red Bank, 360 N.L.R.B. 116, 122 (2014); see

Acme Indus., 385 U.S. at 436-39; Safeway Stores, 622 F.2d at 428-29.

      Endo’s petition for review of the Order is DENIED. The Board’s petition

for enforcement of the Order is GRANTED.1




      1
        The Board’s motion for leave to file a response to Endo’s supplemental brief
is denied as moot.
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