## Facts

- ASARCO operated an underground zinc mine where an employee died after an apparent tractor accident at a work bench with a steep drop-off.
- The collective-bargaining agreement assigned the union safety-related responsibilities, including assisting management in promoting safety and enforcing safety rules.
- ASARCO promptly reported the fatal accident to federal mine safety regulators, who conducted an extensive on-site investigation with ASARCO representatives and a union safety-committee member present; ASARCO took photographs during that investigation.
- After regulators permitted removal of equipment and cleanup, the union requested (1) access for its industrial hygienist to inspect the accident site, (2) copies of ASARCO’s accident-site photographs, and (3) ASARCO’s internal accident investigation report.
- ASARCO denied site access, refused to provide the photographs, and refused to produce the internal report, asserting the union could rely on the federal investigation report and information from union participants in the investigation.
- An ALJ found violations of NLRA §§ 8(a)(1) and 8(a)(5) and ordered ASARCO to grant access and provide the photographs and internal report; the NLRB adopted the order with modifications.

## Issues

1. Whether ASARCO violated NLRA §§ 8(a)(1) and 8(a)(5) by refusing to provide the union’s requested accident-site access, photographs, and internal accident investigation report.
2. Whether substantial evidence supported the Board’s findings and whether the ordered remedies exceeded what the Act required given the record and ASARCO’s asserted justifications.

## Decision

- The court granted enforcement in part and set aside or limited enforcement in part.
- The court enforced the order requiring ASARCO to provide the union with accident-site photographs as relevant and necessary information for the union’s safety and representational duties.
- The court declined to enforce, or significantly limited, the order compelling production of ASARCO’s internal accident investigation report to the extent it swept in internal evaluative material beyond necessary factual information.
- The court declined to enforce the order compelling the specific physical access requested for the union hygienist, given the prior investigation, union participation, subsequent alteration of the site, and the availability of alternative information sources.

## Legal Principles

- An employer violates § 8(a)(5) (and derivatively § 8(a)(1)) by refusing to furnish a bargaining representative information that is relevant and necessary to the union’s performance of statutory and contractual duties.
- Safety and health information bearing on workplace hazards and accident causation is generally presumptively relevant, particularly where the union has assigned safety functions.
- The duty to provide information is not unlimited; an employer may resist requests that are overbroad, unduly burdensome, duplicative in a meaningful sense, or that intrude on legitimate confidentiality and managerial interests.
- An employer generally may not dictate the form of disclosure when the requested factual material (such as contemporaneous photographs) provides distinct value even if other sources exist.
- Internal investigative reports may warrant different treatment than objective factual materials; compelled disclosure of evaluative analysis may be restricted when underlying facts are otherwise available and the union’s need is not shown.
- Courts review Board determinations for substantial evidence and defer on reasonable expertise-based judgments, but may deny enforcement where the remedy is not supported by the record.

## Conclusion

The Sixth Circuit held that ASARCO had a duty to supply the union with relevant factual accident information, including photographs, but the Board’s broader remedies compelling the union hygienist’s site access and production of the employer’s internal investigative report were not justified on this record and were therefore set aside or narrowed.


ASARCO, Inc. v. Nat’l Labor Relations Bd., 805 F.2d 194 (6th Cir. 1986)