
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1198                       PROVIDENCE HOSPITAL AND MERCY HOSPITAL,                           Petitioners, Cross-Respondents,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                            Respondent, Cross-Petitioner.                              _________________________                          PETITION FOR REVIEW OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                              _________________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                           and McAuliffe,* District Judge.                                           ______________                              _________________________               Maurice M.  Cahillane, with  whom Egan, Flanagan  and Cohen,               _____________________             __________________________          P.C. was on brief, for petitioners and cross-respondents.          ____               Vincent  Falvo, with  whom Frederick  L. Feinstein,  General               ______________             _______________________          Counsel,  Linda  Sher,  Associate  General  Counsel,  Aileen   A.                    ___________                                 ___________          Armstrong, Deputy  Associate General  Counsel, Linda  J. Dreeben,          _________                                      _________________          Supervisory Attorney,  and Lisa  R.  Shearin, Attorney,  National                                     _________________          Labor Relations Board, were  on brief, for respondent  and cross-          petitioner.                              _________________________                                   August 28, 1996                              _________________________          _______________          *Of the District of New Hampshire, sitting by designation.                    SELYA,   Circuit   Judge.     Petitioners   and  cross-                    SELYA,   Circuit   Judge.                             _______________          respondents,    Providence    Hospital    and   Mercy    Hospital          (collectively, the Hospitals), seek judicial review of an adverse          administrative determination.   We deny the  petition and enforce          the order of respondent  and cross-petitioner, the National Labor          Relations Board (the Board).          I.  BACKGROUND          I.  BACKGROUND                    The Hospitals are members  of the Sisters of Providence          Health  System (SPHS),  a  chain  of not-for-profit  institutions          operating  in  western  Massachusetts.   The  Hospitals'  nursing          staffs are  unionized  and the  Massachusetts Nurses  Association          (MNA) represents the nurses.   Spurred by rumors of  an impending          consolidation, an MNA representative, Shirley Astle, wrote to the          president  of  Mercy  Hospital  on August  11,  1993,  requesting          relevant  particulars.   The hospital  responded that it  was too          early  to  predict   the  changes  that   might  result  from   a          consolidation,  and that in all events a reduction in force would          likely be restricted to management personnel.                    Shortly  thereafter SPHS announced plans to consolidate          the Hospitals' administrations.  As the first step in the pavane,          it appointed  Vincent McCorkle  as president and  chief executive          officer of both institutions.  A letter dated September 28, 1993,          sent  to the union  by a member  of the newly  unified management          team, confirmed the  earlier assurance that, although  management          would  be  "look[ing] at  ways to  integrate how  [the Hospitals]          provide care,"  there  were no  definite  plans to  downsize  the                                          2          bargaining  units.   It was  simply "too  early to  determine the          nature and  extent of  any potential  impact on  employee working          conditions."                    On February  24, 1994,  McCorkle sent  a letter to  the          Hospitals'  combined  work  force.     The  letter  informed  the          employees  of a perceived "need to  adjust . . . staffing levels"          and suggested that this adjustment would be accomplished at least          in part by reduction  in force.1  Roughly three  weeks thereafter          the Hospitals advised local media outlets that some 200 positions          would  be eliminated  as part  of the  ongoing consolidation.   A          second press release, distributed later that same week, indicated          that despite  management's earlier assurances  198 Mercy Hospital          employees  and  six   Providence  Hospital  employees   had  been          cashiered.2                    On  the  very day  that  McCorkle  first announced  the          impending reduction  in force,  SPHS and a  competing health-care          system, Holyoke-Chicopee Area Health Resources  (HCAHR), signed a          memorandum  of understanding (MOU)  commemorating their intent to          merge.  McCorkle informed the Hospitals' employees of the planned          merger on February 25, 1994.  Although this statement hinted at a          further reorganization and possible future efficiencies of scale,                                        ____________________               1The  communique added  that the  Hospitals had  intended to          delay   informing  workers   about  these  layoffs   until  plans          crystallized, but that a threatened news leak forced management's          hand.               2The record  indicates that thirty-eight of  the individuals          laid off at Mercy were nurses.  The record is silent, however, as          to whether any nurses were laid off at Providence.                                          3          McCorkle claimed that no decisions had been made regarding future          staffing.  In short order,  SPHS and HCAHR submitted applications          to  federal and state agencies  in an endeavor  to gain necessary          regulatory approvals.                    On May  5, 1994    with  layoffs a  reality and  with a          merger  now in  the  offing    Astle requested  a copy  of SPHS's          "business  plan,"  saying  that  the  MNA wanted  "to  begin  its          assessment of the merger's  impact on the conditions of  work for          the  RNs  MNA  represents  at Providence  and  Mercy  Hospitals."          McCorkle  temporized  while forwarding  the  request  to counsel.          Astle wrote again on May 24, complaining that she had received no          substantive response.   The Hospitals' lawyer  finally replied on          June  2, but  he gave  MNA's request  the back  of his  hand; the          attorney took  the  position that  SPHS  "is a  totally  separate          corporation," and,  therefore, the Hospitals did  not have access          to a  copy of the desired  document (if, indeed, such  a document          existed).                    MNA  chose not  to quibble.   Instead,  it renewed  its          request in somewhat  altered form.  In letters dated  July 26 and          August 5, respectively, it set  forth a particularized listing of          documents  that it wished to examine, a detailed statement of the          reasons underlying its information  requests, and the legal basis          upon  which  the  requests   rested.3    Regarding  the  internal                                        ____________________               3Sandwiched  between   these  requests  was  a  letter  from          McCorkle to the Hospitals'  employees offering insights anent the          proposed  merger.  In this missive, dated July 29, 1994, McCorkle          acknowledged  that  some  departments  would  be  amalgamated but          predicted that "most  jobs will be saved and moved within the new                                          4          consolidation, MNA asked that the Hospitals provide copies of (1)          all documents relating to the  consolidation (or in lieu thereof,          a  detailed explanation of the consolidation);  (2) any plans for          further  work force  reductions at  Mercy Hospital;  and  (3) any          plans regarding changes in the  Hospitals' corporate status.   As          to  the anticipated merger with  HCAHR, MNA sought  (1) copies of          the MOU and other  documents explicating the merger's  terms; (2)          plans  for, or  information about,  proposed staffing  changes at          Mercy  Hospital  in  consequence  of this  merger;  and  (3)  all          documents pertaining to the Hospitals'  proposed corporate status          within  the merged group of facilities.  Each request solicited a          response within ten days.                    The Hospitals asserted that they needed additional time          to  formulate a meaningful  response.   MNA waited  patiently for          more  than a month before sending a follow-up letter on September          12.    Receiving  no immediate  response,  the  union then  filed          charges  with  the  Board.   As  the  Board's  processing of  the          charging  papers drew to a close, the Hospitals provided MNA with          some   but not all    of the requested data, characterizing their          December 29  transmittal as a  "response to the  NLRB information          charge."  The Board's regional director issued a formal complaint          ten days later.  In  May 1995   on the eve of the  NLRB hearing            the  Hospitals  supplied  MNA  with  materials  explaining  their          corporate structure and reaffirming that no further layoffs would                                        ____________________          system."   An attachment hinted at  possible future reductions in          force  (though claiming that "right now, we have no game plan for          layoffs").                                          5          result from  the internal consolidation.  They  furnished no data          relating to the proposed merger with HCAHR.                    The  matter was  heard by  an administrative  law judge          (ALJ)  who took  evidence and  reserved judgment.    Three months          elapsed before the ALJ issued his decision.  In the interim HCAHR          purported to terminate the  MOU.  Displeased no little  and quite          some, SPHS filed suit in  state court alleging breach of  the MOU          and seeking, inter alia, specific performance.                       _____ ____          II.  THE BOARD'S DECISION             II.  THE BOARD'S DECISION                    In September 1995 the ALJ published his findings and  a          proposed order.   He determined  that the Hospitals  had breached          their duty  to bargain in  good faith by  withholding information          relevant  to the  performance of  the union's  undertakings  as a          collective  bargaining representative,  and had  thereby violated          the National Labor Relations  Act (NLRA), specifically, 29 U.S.C.            158(a)(1) & (5).                    The  Hospitals  took  exception  to  the  decision  and          appealed to  the Board.  The Board adopted the ALJ's findings and          rationale,4 albeit modifying the recommended order slightly.  See                                                                        ___          Providence  Hosp., 320 N.L.R.B. No.  60 (Jan. 31,  1996), 1996 WL          _________________          48263,  at *1.   In  light  of this  adoption,  we recount  those          findings as if they were made ab initio by the Board.                                        __ ______                    The   Board   first   addressed   MNA's   requests  for                                        ____________________               4The Board  is not obliged  to make independent  findings or          conduct its own analysis of the factors prompting an order where,          as here,  it expressly adopts  the ALJ's findings  and reasoning.          See NLRB  v. Horizon Air Servs.,  Inc., 761 F.2d 22,  24 n.1 (1st          ___ ____     _________________________          Cir. 1985).                                          6          information regarding  the internal  consolidation.   It adjudged          this information relevant  because MNA might well  have needed it          "so  that  it  could determine  what  legal  effect  if any  [the          consolidation] would have on its collective-bargaining agreements          with  the hospitals, when  it should  demand bargaining  over the          effects of  the transaction,"  and what effect  the restructuring          would have  on the bargaining units.  See id.  at *7.  Turning to                                                ___ ___          the  requests regarding the proposed merger, the Board found that          information to  be relevant, even  though not directly  linked to          terms and conditions of employment.  See id. at *8.  It explained                                               ___ ___          that "MNA needed to  know the impact of the proposed  [merger] on          its  contracts," as  well as  any other  possible effects  on the          status of the bargaining units.  Id. at *9.  Moreover, McCorkle's                                           ___          letters  to the  employees suggested  the possibility  "that some          decisions might have been made which would affect bargaining unit          employees."  Id.                       ___          III.  DISCUSSION          III.  DISCUSSION                    We  start by reiterating  the deferential standard that          obtains  when federal courts review  orders of the  Board.  Then,          before moving to specifics, we discuss in general terms the scope          of  an employer's  duty  to disclose  relevant information  to an          inquiring union.                             A.  The Standard of Review.                             A.  The Standard of Review.                             __  ______________________                    When a party challenges the  Board's determination that          it has committed  an unfair  labor practice,  an inquiring  court          must scrutinize  the record as a  whole.  As to  matters of fact,                                          7          the           court should uphold the Board's findings if they are supported by          substantial evidence.   See Universal  Camera Corp. v.  NLRB, 340                                  ___ _______________________     ____          U.S. 474, 488 (1951);  Teamsters Local Union No. 42  v. NLRB, 825                                 ____________________________     ____          F.2d 608, 612 (1st Cir.  1987).  As to matters of  law, appellate          review is  plenary.   Nevertheless,  appellate courts  ordinarily          should defer to  the Board's interpretations  of the statutes  it          must  enforce, such  as the  NLRA, whenever  such interpretations          flow  rationally from  the statutory text.   See  NLRB v.  Town &                                                       ___  ____     ______          Country Elec., Inc., 116 S. Ct.  450, 453 (1995); NLRB v.  Curtin          ___________________                               ____     ______          Matheson Scientific, Inc., 494 U.S. 775, 778 n.2 (1990).          _________________________                              B.  The Duty to Disclose.                              B.  The Duty to Disclose.                              __  ____________________                    The NLRA imposes upon employers and unions alike a duty          to bargain in good faith over "wages, hours,  and other terms and          conditions of  employment."  29  U.S.C.   158(d).   The right  to          bargain collectively would be  little more than a  hollow promise          if a bargaining representative did not have the concomitant right          to  muster  the information  needed  to  conduct that  bargaining          effectively.  Thus,  "[t]he duty  to bargain collectively  . .  .          includes a duty to provide relevant information needed by a labor          union  for the proper performance of its duties as the employees'          bargaining representative."  Detroit Edison Co. v. NLRB, 440 U.S.                                       __________________    ____          301,  303 (1979).   A breach of  this duty constitutes  an unfair          labor practice under 29 U.S.C.   158(a)(5).                    Stating the rule is not a  surefire means of dispelling          all uncertainty.   Relevance, like beauty, sometimes lies  in the                                          8          eye  of   the  beholder,  and  parties  can   differ  about  what          information  is (or is not)  relevant to a  union's functions qua                                                                        ___          bargaining  agent.    Stated  in   traditional  terms,  requested          information is relevant if it seems probable that the information          will be of legitimate use to the union in carrying out its duties          and responsibilities  qua bargaining  agent.   See  NLRB v.  Acme                                ___                      ___  ____     ____          Indus. Co., 385 U.S. 432, 437 (1967).  Put another way, requested          __________          information should  be deemed relevant if  it is likely to  be of          material assistance in evaluating strategies  that may be open to          the union as part of its struggle to minimize the adverse effects          of the  employer's decisionmaking  process on persons  within the          bargaining unit.   See Western Mass. Elec. Co.  v. NLRB, 589 F.2d                             ___ _______________________     ____          42,  48 (1st Cir. 1978).  These  liberal formulations of the test          make  manifest that the relevancy  threshold is low  and that the          standard  is   neither  onerous   in  nature  nor   stringent  in          application.5  This  is as it  should be, for  a union cannot  be          expected  to   chart  a  prudent  course   without  reliable  and          reasonably specific information about the employer's plans.                    The Board and  the courts have put a gloss  on the test          for  relevancy    a gloss  that alters  the burden  of persuasion          depending upon the nature of the  data sought by the union.  When          "the requested information concerns wages and related information                                        ____________________               5The standard  is analogous  to the relevancy  standard that          governs in the pretrial  discovery process, under which discovery          initiatives are deemed  relevant as long as  they seem calculated          to  lead  to the  unearthing of  admissible  evidence.   See Acme                                                                   ___ ____          Indus., 385  U.S. at  437 (approving  "discovery-type standard");          ______          NLRB v.  New Eng. Newspapers,  Inc., 856 F.2d  409, 414 n.4  (1st          ____     __________________________          Cir. 1988) (same).                                          9          for  employees  in  the   bargaining  unit,  the  information  is          presumptively  relevant to  bargainable issues."   Soule  Glass &                                                             ______________          Glazing  Co. v.  NLRB,  652  F.2d  1055,  1093  (1st  Cir.  1981)          ____________     ____          (citation  and internal quotation marks  omitted).  In such cases          the  employer must either  disprove relevance  or explain  why it          cannot furnish the information.  See, e.g., NLRB v. Borden, Inc.,                                           ___  ____  ____    ____________          600  F.2d 313,  317  (1st  Cir. 1979).    By contrast,  when  the          requested information  only indirectly  implicates the  terms and          conditions of employment, it is the union's burden to demonstrate          the  relevance of  the  information  to  the performance  of  its          statutory obligations.  See Western Mass. Elec., 573 F.2d at 105.                                  ___ ___________________          Despite  this  dichotomy,  however,  the  ultimate  standard   of          relevancy  does not  vary.   Moreover, in  both situations  it is          necessary  to  measure  relevance   under  the  totality  of  the          circumstances  that obtain  in a  particular case.   See  NLRB v.                                                               ___  ____          Truitt Mfg. Co, 351 U.S. 149, 153-54 (1956).          ______________                    Once  the  Board has  made  its  assessment of  whether          particular information  must be produced, the  standard of review          looms large.  At  that juncture, a reviewing court  should accord          considerable respect both to the Board's determination and to the          factual  findings  underpinning  it.    See  NLRB  v.   New  Eng.                                                  ___  ____       _________          Newspapers, Inc., 856 F.2d 409, 414 (1st Cir. 1988).          ________________                                   C.  The Merits.                                   C.  The Merits.                                   __  __________                       It  is  against  this  backdrop  that  we  mull  the          assignments of error.  The Hospitals interpose both relevancy and          confidentiality objections to the Board's decision concerning the                                          10          requests for  merger-related information.   They  lodge relevancy          and  substantial compliance  objections to  the Board's  decision          concerning  the  requests for  consolidation-related information.          Finally,  they question the scope of the Board's order.  Although          the  applicable legal  principles  overlap, we  treat these  five          points separately.                    1.  Relevance  of the Planned  Merger.  The  Hospitals'                    1.  Relevance  of the Planned  Merger.                        _________________________________          relevancy objection  to the compulsory sharing  of merger-related          information  is  painted  with  too  broad  a  brush.    Whatever          generalities may pertain to proposed mergers in the abstract, the          concrete (and somewhat unusual) factual circumstances surrounding          this  proposed merger  afford  substantial evidence  adequate  to          support the Board's order.                    To be  sure, certain management actions that ultimately          may  have a  significant impact  on the  terms and  conditions of          employment within the bargaining  unit are nonetheless beyond the          purview of  collective  bargaining.   In  a much-quoted  turn  of          phrase, Justice  Stewart referred to these  actions as comprising          "the core  of entrepreneurial control."   Fibreboard Paper Prods.                                                    _______________________          Co.  v. NLRB, 379 U.S. 203, 223 (1964) (Stewart, J., concurring).          ___     ____          The  thesis holds  that important  management decisions,  such as          choosing a  marketing strategy or liquidating  lines of business,          are not  concinnous subjects for mandatory  collective bargaining          because  they "are  fundamental to  the basic direction  of [the]          corporate  enterprise."  Id.  The components forming this core of                                   ___          entrepreneurial  control  are  often  classified   as  comprising                                          11          matters that are "akin to the decision whether to be in  business          at all."   First National Maint. Corp. v. NLRB, 452 U.S. 666, 676                     ___________________________    ____          (1981).   And while such  matters are not  primarily addressed to          conditions  of  employment, they  may  have  effects    sometimes          profound effects   upon those conditions.                    Although  the content  of this core  of entrepreneurial          control  eludes   a  precise  description,  see   United  Food  &                                                      ___   _______________          Commercial  Workers, Etc., v. NLRB,  1 F.3d 24,  30-33 (D.C. Cir.          _________________________     ____          1993),  it  is plain  that the  decision  to merge  two unrelated          corporate entities  falls within it.  See  International Ass'n of                                                ___  ______________________          Machinists &  Aerospace Workers v. Northeast  Airlines, Inc., 473          _______________________________    _________________________          F.2d  549, 556-57 (1st Cir.), cert. denied, 409 U.S. 845 (1972).6                                        _____ ______          Thus, MNA had no right either to veto the decision to merge or to          request  information  for  the  purpose  of  intruding  into  the          negotiations between the merger partners (SPHS and HCAHR).                    Still, there  is an  important distinction  between the          right to  bargain about a core  entrepreneurial business decision          (a right which a union does not possess) and the right to bargain          about  the  effects  of  that  decision  on  employees  within  a          bargaining  unit  (a  right  which, depending  upon  the  overall                                        ____________________               6We think that mergers involving independent entities are to          be  distinguished  from   internal  consolidations  involving   a          combination  or realignment  of  subsidiaries owned  by a  common          parent.   Such internal  consolidations do  not require  the same          degree of "secrecy, flexibility and quickness" that, according to          Northeast Airlines, 473 F.2d at 557, renders arm's-length mergers          __________________          not easily susceptible  of collective bargaining.   In any event,          the Hospitals do  not contend  that the  decision to  consolidate          internally,  as opposed to the decision to merge with an external          partner, comes  within the core of  entrepreneurial control, and,          accordingly, we express no opinion on the topic.                                          12          circumstances,  a  union may  possess).   After  all,  subject to          considerations such as relevancy  and immediacy, unions generally          enjoy  the right to bargain  over the effects  of decisions which          are  not themselves mandatory  subjects of collective bargaining.          See First National Maint., 452  U.S. at 681; Northeast  Airlines,          ___ _____________________                    ___________________          473  F.2d at  557.   It  follows  that,  even when  a  particular          managerial  decision  is  not   itself  a  mandatory  subject  of          bargaining,   the  decision's  forecasted   impact  on  salaries,          employment levels,  or other  terms and conditions  of employment          may  constitute  a mandatory  subject  of  collective bargaining.          See, e.g., Holly  Farms Corp. v.  NLRB, 48  F.3d 1360, 1368  (4th          ___  ____  __________________     ____          Cir. 1995), aff'd, 116  S. Ct. 1396 (1996); New  Eng. Newspapers,                      _____                           ____________________          856  F.2d at 413; Penntech Papers, Inc.  v. NLRB, 706 F.2d 18, 26                            _____________________     ____          (1st  Cir.), cert. denied, 464  U.S. 892 (1983).   Embracing this                       _____ ______          tenet,  MNA   contends  that  its  requests   for  merger-related          information were relevant to  "effects bargaining," and therefore          should have been honored.                    In an effort to parry the union's thrust, the Hospitals          offer two  reasons why  MNA  could not  properly predicate  these          information requests on a desire to engage in effects bargaining.          They  suggest that  (1)  such bargaining  always  must await  the          culmination of a pending  merger (and here, the parties  have not          finalized the transaction and may never do so), and (2) even if a          pending merger can sometimes be an appropriate subject of effects          bargaining, the prospects of  this particular merger are  too dim          and its outline too  amorphous to warrant a finding  of relevancy                                          13          (especially since restraint-of-trade laws  may limit any detailed          discussions  of  operating  efficiencies   until  the  merger  is          consummated).  In our view, neither suggestion is convincing.                    The  Hospitals' contention that effects bargaining (or,          more  accurately, the  gathering  of information  preliminary  to          effects  bargaining)  always must  await  the  consummation of  a          merger depends almost entirely  on their reading of  our decision          in  Northeast Airlines.   That decision however,  is incapable of              __________________          carrying the cargo that the Hospitals load on it.  For one thing,          the question that we  discussed in Northeast Airlines arose  in a                                             __________________          materially  different  legal  posture.   There  we  affirmed  the          district court's denial  of an injunction sought by  a union as a          means   of  preventing  the  merger   of  the  employer  into  an          independent  company.  See  Northeast Airlines, 473  F.2d at 558.                                 ___  __________________          We hung our  decision on  the district court's  balancing of  the          equities   standard fare in cases seeking injunctive relief.  For          another  thing, the union's  goal in the  Northeast Airlines case                                                    __________________          was to require the employer to incorporate the union's views into          the  framework  of  the contemplated  merger.    See  id.   Here,                                                           ___  ___          however,  the  union sought  neither to  halt  the merger  nor to          meddle  in   the  negotiations  between  the  merging  entities.7                                        ____________________               7Another  difference    but one  to which  we attach  little          weight    is that  Northeast Airlines involved  the Railway Labor                             __________________          Act  (RLA), 45 U.S.C.    151-188.   We deem it settled that cases          brought under the RLA can inform the decisional process under the          NLRA.  See,  e.g., Trans  World Airlines v.  Independent Fed.  of                 ___   ____  _____________________     ____________________          Flight Attendants, 489 U.S. 426, 426-27 (1989); Lebow v. American          _________________                               _____    ________          Trans Air, Inc., 86 F.3d 661, 665-66 (7th Cir. 1996); Brotherhood          _______________                                       ___________          of  Locomotive Engineers v. Kansas City So. Ry. Co., 26 F.3d 787,          ________________________    _______________________          795 (8th Cir.), cert. denied, 115 S. Ct. 320 (1994).                          _____ ______                                          14          Because considerations  not present  here informed  the Northeast                                                                  _________          Airlines  court's  discussion  of  the  core  of  entrepreneurial          ________          control,  we  think that  Northeast  Airlines  can be  reconciled                                    ___________________          easily with authority  (to which we  subscribe) holding that,  as          long as a  pending merger  is sufficiently advanced,  a union  is          entitled to  request information  shown by  the  totality of  the          circumstances  to  be relevant  in order  to prepare  for effects          bargaining.   See Holly Farms, 48 F.3d at 1360 (upholding Board's                        ___ ___________          finding that employer's failure  to produce merger agreement when          requested   pre-merger  constituted  an  unfair  labor  practice)          (enforcing 311 N.L.R.B. 273, 350 (1993)); Children's Hosp. of San                                                    _______________________          Francisco, 312  N.L.R.B. 920, 923 (1993)  (ordering disclosure of          _________          merger agreement because its contents, even before the merger was          consummated,  "clearly would  have influenced  [the union]  as to          negotiating tactics, positions, and demands").                    This brings us to  the Hospitals' second argument.   It          is common  ground  that a  union  cannot demand  bargaining  over          effects  that  are  purely  speculative, ephemeral,  or  too  far          removed from the  underlying activity.   See Detroit Edison,  440                                                   ___ ______________          U.S. at 314-15; Northeast Airlines, 473 F.2d at 558.  But in this                          __________________          instance, the Hospitals themselves  presented the planned  merger          to their  employees and to the  media as a fait  accompli.  Their          press  release  spoke  in  categorical terms,  and  a  subsequent          memorandum sent  by McCorkle  to the  employees  crowed that  the          governing  boards  of  both  merger partners  "have  given  final          approval  to   the  proposed  [transaction],"   subject  only  to                                          15          regulatory   clearances  (which,   we  note,   were  subsequently          procured).  The same  communique mentioned "some specifics" about          the system that would  result from the merger, including  (1) the          partners' plans  to "combin[e]  some acute care,  non-acute care,          and  administrative   services"   across  facilities,   and   (2)          McCorkle's  prediction that  "most jobs  will be saved  and moved          within  the  new  System."    A  newsletter  distributed  by  the          Hospitals  in the same time frame suggested that the merger would          be completed in three to six  months.  It informed the work force          that, although "right now, [SPHS and HCAHR] have no game plan for          layoffs,"  the workers should  expect "a significant reallocation          of jobs within the new System" at some point.                    A  union  is entitled  to  plan in  advance  for likely          contingencies.   Under  the  totality of  the circumstances  that          existed  here    especially the  employer's expressed  confidence          that the  merger would take  place soon  and the emphasis  in its          handouts on the  reallocation of  personnel   we  believe it  was          within the Board's  authority to find that  the union's professed          need for  specifics about  the  merger's probable  impact on  the          bargaining  unit was  reasonable.   See Union  Builders, Inc.  v.                                              ___ _____________________          NLRB, 68 F.3d 520, 523 (1st Cir. 1995) (explaining that employers          ____          must "divulge  information of even merely  potential relevance").          In other words, given  management's professed near-certainty that          the  merger would eventuate and  its broad hints  that it already          had  formulated some ideas relative to future staffing of the new          system, the  Board reasonably could find    as it did    that MNA                                          16          needed  information  both  about  the proposed  merger  (for  the          purpose of  bargaining over its  effects, if and  when necessary)          and the  structural attributes of  the new  system (to  determine          whether  the collective bargaining  agreements would  survive the          realignment).   Thus, substantial evidence  supported the Board's          endorsement   of   the   union's  requests   for   merger-related          information.                    We add  an eschotocol  of sorts.   The Hospitals  claim          that the  ultimate failure of the merger8  takes two bites out of          the  Board's case,  serving  not  only  to moot  the  information          requests  but also to underscore  their prematurity.   We are not          persuaded.    The  relevance  of requested  information  must  be          determined  by the circumstances that exist at the time the union          makes  the request, not by  the circumstances that  obtain at the          time an agency or a court finally vindicates the union's right to          divulgement.   See NLRB v. Arkansas Rice Growers Coop. Ass'n, 400                         ___ ____    _________________________________          F.2d  565, 567 (8th Cir. 1968); Mary Thompson Hosp., 296 N.L.R.B.                                          ___________________          1245, 1250  (1989), enforced, 943 F.2d 741 (7th Cir. 1991).  Were                              ________          the law otherwise, an employer would have a perverse incentive to          drag its feet, and a union could lose deserved rights through the          ticking of the clock  and the delay inherent in  the adjudicatory          process.                    2.   Confidentiality.   The  Hospitals' second  line of                    2.   Confidentiality.                         _______________                                        ____________________               8In  candor, it is far from clear  that the merger is a dead          letter.  SPHS's suit against HCAHR is still pending in  the state          court.   In its complaint  SPHS terms the  MOU "binding" and asks          for specific performance.                                          17          defense is that the MOU was subject to a side agreement requiring          the  parties to keep all matters pertaining to the merger secret.          We agree with the basic premise  on which this defense rests:  an          employer's  commitment to, or  genuine need  for, confidentiality          sometimes  can  constitute  an  appropriate  reason  for  keeping          documents   even documents  that are potentially relevant to  the          collective  bargaining process    out  of a  union's hands.   See                                                                        ___          Detroit Edison, 440  U.S. at  319.  And  when confidentiality  is          ______________          properly  put in  issue,  the Board  must  carefully balance  the          employer's need  for privacy  against  the union's  need to  make          informed decisions  in its capacity as  the employees' bargaining          representative.  See New Eng. Newspapers, 856 F.2d at 413.                           ___ ___________________                    But there is  less here  than meets the  eye.   Because          confidentiality is in the nature of an affirmative defense, it is          the  employer's   burden  to   demonstrate  that   the  requested          information  is shielded by a legitimate privacy claim.  See Mary                                                                   ___ ____          Thompson Hosp.  v. NLRB, 943  F.2d 741, 747 (7th  Cir. 1991); see          ______________     ____                                       ___          generally  Borden, 600 F.2d at 317 (assuming relevancy, it is the          _________  ______          employer's burden to provide some good and sufficient reason  why          the union's request should  be denied).  Moreover, to  permit the          requisite balancing, the employer normally must advance its claim          of  confidentiality in  its response  to the  union's information          request.    Only  in  that  way  will  the  parties  have  a fair          opportunity  to confront  the problem  head-on and bargain  for a          partial disclosure  that will satisfy the  legitimate concerns of          both sides.  See Mary Thompson Hosp., 943 F.2d at 747.                       ___ ___________________                                          18                    Setting this principle into  motion, the Board has held          that  it is untimely for  an employer to  raise a confidentiality          objection  to an  information  request for  the first  time after          proceedings before the  Board have been  commenced.  See  Detroit                                                               ___  _______          Newspaper Agency, 317 N.L.R.B. 1071, 1072 (1995).   This protocol          ________________          represents  a responsible  application of  the statutory  duty to          bargain in good faith, and we must therefore defer to the Board's          expertise.   Thus,  because the  Hospitals  failed to  follow the          proper   procedural   sequence   and  neglected   to   assert   a          confidentiality objection  in their  exchange with the  union, we          reject this line of defense.9                    3.  Relevance of the Internal Consolidation.  The Board                    3.  Relevance of the Internal Consolidation.                        _______________________________________          also  found that  MNA's  requests for  information regarding  the          consolidation were  relevant.   This finding cannot  seriously be          questioned.                    MNA initially sought this  information in the summer of          1993.  It honed the information requests and renewed them several          times  in the succeeding months.   Aside from  broad denials that          the consolidation would have any  effect on the bargaining units,          management's first substantive response  came late in 1994 (after          MNA  had  preferred charges  and the  Board was  on the  verge of          issuing a complaint).  In the intervening  fifteen months (during                                        ____________________               9The Hospitals' asseveration that they could not explain the          need for confidentiality without revealing privileged information          proves too much.   If that was the case,  then the Hospitals were          obliged to cite that  dilemma in response to the  MNA's requests.          They did not do so.                                          19          which interval  MNA made  five separate requests  for information          about the  consolidation) the  Hospitals laid  off more  than 200          workers.   In light of the  continuing uncertainty about imminent          corporate   restructuring      uncertainty   fed   by  statements          attributable to  management   MNA reasonably  could have believed          that further changes were in the offing.  Consequently, the Board          plausibly  could have  found    as it  did    that  the requested          information had great importance to the union and was, therefore,          relevant.   This is especially  so in view  of the fact  that the          collective bargaining agreement at Providence Hospital expired on          December 31, 1994,  unless automatically renewed, and  MNA had to          decide  no  later  than October  1,  1994  whether  to allow  the          contract to renew automatically or to reopen negotiations.                    The  Hospitals offer  no  convincing  rebuttal  to  the          Board's relevancy  finding.  As  the Board noted,  see Providence                                                             ___ __________          Hosp., 1996 WL 48263,  at *7, the Hospitals' position  boils down          _____          to a naked assertion that the union had to take management at its          word  that  the  organizational  changes  portended   no  further          alterations in staffing.  That is not the way the world works:  a          union is not bound to  accept management's ipse dixit, especially                                                     ____ _____          when, as  now, the totality  of the circumstances  indicates that          something  else  may be  afoot.    Here,  extensive  layoffs  had          followed past assurances from management, and the union had every          reason  to probe.  It requested information which, if extant, had          undeniable  relevance  for  the  purpose  of effects  bargaining.          Thus,  MNA had a statutory right to receive this information in a                                          20          timely fashion,  or in lieu thereof to  receive a contemporaneous          written statement  as to  some legally  sufficient reason  why it          could not be produced  (say, that no such information  existed or          that it was somehow privileged).10                    4.  Substantial Compliance.  We dismiss out of hand the                    4.  Substantial Compliance.                        ______________________          Hospitals'   suggestion   that   their  belated   disclosure   of          consolidation-related information  cures their default.  MNA made          a  series of information requests over a period spanning thirteen          months.   The  Hospitals stonewalled  for that  entire length  of          time.  They then  furnished some information in December  of 1994          (after the Board investigation had begun) and some in May of 1995          (on the eve of the hearing).  Even assuming arguendo that the two                                                      ________          batches  of  belatedly  supplied  information  in  the  aggregate          fulfilled the union's requests,  the Hospitals' act of contrition          came too late.  As the Board explained, the protracted delay that          separated the requests from the divulgement of data could "not be          attributed  to  the  time  needed  to  assemble  the  information          furnished."  Id. at *8.  A union is entitled to timely disclosure                       ___          of relevant information.   See Capitol Steel & Iron  Co. v. NLRB,                                     ___ _________________________    ____          89 F.3d  692, 697  (10th  Cir. 1996);  Borden, 600  F.2d at  318;                                                 ______                                        ____________________               10We   reject  the   Hospitals'   contention   that   public          availability of  the requested information obviated  the need for          disclosure.   The argument is inherently circular:  MNA could not          possibly know that all  the information was in the  public domain          if  the Hospitals refused to turn over the requested documents or          to make any  other substantive response.  At the  very least, the          Hospitals had the duty to explain to MNA in a timely fashion that          everything was  out in the open.  As the Board put it, "the Union          was  entitled to hear that [news] directly from the [Hospitals]."          Providence Hosp., 1996 WL 48263, at *8.          ________________                                          21          Western Mass. Elec.,  589 F.2d at 46 n.6.   Because the Hospitals          ___________________          failed to  provide MNA with relevant  documentation regarding the          consolidation  "as  promptly  as  circumstances  allow,"  Capitol                                                                    _______          Steel, 89 F.3d at 698 (quoting Decker Coal Co., 301 N.L.R.B. 729,          _____                          _______________          740 (1991)), the Board's  finding of an unfair labor  practice is          unimpugnable.                    5.  The Scope of the Order.  We briefly  touch upon the                    5.  The Scope of the Order.                        ______________________          Hospitals'  objection  to  the  Board's  remedial  order.    Some          background is desirable.  The  ALJ initially recommended that the          Hospitals  be  required  to  furnish  "in  a  timely  fashion, on          request,  information  concerning  any  proposed  affiliation  or          consolidation of Mercy Hospital and Providence Hospitals with one          another  and  concerning  proposed  mergers,  consolidations,  or          affiliations of Providence and  Mercy Hospitals with other health          care  providers."  See Providence  Hosp., 1996 WL  48263, at *11.                             ___ _________________          This language contains an  evident ambiguity, raising uncertainty          as to  whether it applies  to all mergers  (past and  future), or          only  to the  stalled SPHS/HCAHR  merger, or  strictly to  future          (indeterminate)  mergers.    The  Board  removed  this ambiguity,          modifying  the recommended  order  "to require  the Hospitals  to          furnish to [MNA] the information requested in [MNA's] requests of          July 26 and August 5, 1994."  Id. at  *1 n.1.  To the Board's way                                        ___          of  thinking,  this  modification   "more  closely  reflects  the          violations found."  Id.                              ___                    The modified order responds  to the reality that, here,          an unusual  concatenation of  events exist, e.g.,  the Hospitals'                                          22          presentation  of the merger as a done deal, their insistence that          the  MOU  obligated the  signing  parties  even after  HCAHR  had          repudiated it,  and their stonewalling  in the  face of  repeated          information  requests.     What   is  more,  by   specifying  the          information that  the Hospitals  must disclose, the  Board limits          the remedy and leaves  future transactions untouched.  This  step          fits neatly with our  belief that each situation is  sui generis,                                                               ___ _______          and that  pending mergers may or  may not be a  proper subject of          effects    bargaining    (depending    on   the    individualized          circumstances).  Based on these  considerations, the modification          falls well within the Board's province.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go  no further.   For  the  reasons elucidated          above, we hold that  the Board's decision and order  comport with          applicable precedent and are supported by substantial evidence in          the record.                    The petition for review  is denied.  The cross-petition                    The petition for review  is denied.  The cross-petition                    __________________________________   __________________          for enforcement is granted.  Costs will be taxed in  favor of the          for enforcement is granted.  Costs will be taxed in  favor of the          __________________________   ____________________________________          Board.          Board.          _____                                          23
