SARA LEE BAKERY GROUP, INC., and its wholly owned subsidiary, THE EARTHGRAINS COMPANY v. National Labor Relations Board

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-60185
SARA LEE BAKERY GROUP, INC., and its wholly owned subsidiary, THE
EARTHGRAINS COMPANY,
Petitioners-Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
Petition for review and cross-petitioner for enforcement of an order of the
National Labor Relations Board
Board No. 25-CA-29803
Before REAVLEY, STEWART, and OWEN, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This appeal comes to this Court on petition from the Sara Lee Bakery
Group, Inc. and its wholly owned subsidiary, the Earthgrains Company (“the
Company”) seeking review of an order of the National Labor Relations Board
(“the Board”) issued against the Company. The Board has also filed a cross-
application, seeking enforcement of its order. We grant the Company’s petition
for review, and enforce the Board’s order in part and deny in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Sara Lee Bakery Group, Inc. operates approximately fifty bakeries
across the United States, including one located in Owensboro, Kentucky,
United States Court of Appeals
Fifth Circuit
F I L E D
January 16, 2008
Charles R. Fulbruge III
Clerk

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No. 07-60185
1 Even though these appeals involves actions that took place exclusively in Kentucky,
we have jurisdiction in this case because the Company transacts business in this circuit.
2 During the period of time relevant for this case, Baird’s position at the Company
shifted. In 2002 and 2003, Baird was the general manager at the London bakery, but for a
period in 2003 and 2004, he served as the manager for both the Owensboro and London
bakeries. In the fall of 2004, he assumed the position of plant manager at Owensboro.
2
belonging to its wholly owned subsidiary, The Earthgrains Company.1 At all
times relevant for this appeal, the Owensboro bakery used two types of drivers
to deliver its product: route sales drivers (who drove baked goods to retail
establishments) or transport drivers (who drove tractor-trailer trucks and
transported baked goods to other bakeries and depots owned by Sara Lee).
Chauffeurs, Teamsters, and Helpers Local Union No. 215 (“the Union”) has
served as the collective-bargaining representative for both the route sales and
transport drivers; Larry Murray was the Union’s business agent responsible for
contract enforcement at the facility while Billy Ballard was the drivers’ steward.
The Union negotiated a collective bargaining agreement (“CBA”) that was in
effect from May 10, 2005 to May 10, 2007 which provided, inter alia, a grievance
procedure culminating in arbitration.
Sara Lee also operates a bakery in London, Kentucky, approximately 220
miles southeast of Owensboro. The transport drivers at the London bakery are
employed by an unaffilated delivery-services company, Worldwide Logistics
(“Worldwide”). The Worldwide drivers are not members of the Owensboro
bargaining unit and are not represented by the Union in this case.
In 2002, the General Manager of the London bakery, William Baird,2
implemented a cross-docking system for the Owensboro and London bakeries to
deliver products to each other. Under this system, transport drivers from
London and Owensboro would meet at the Louisville, Kentucky depot, unhook
and trade their trailers, and then return to their respective bakeries with the
necessary inter-bakery product. Cross-docking served as a felicitous means of

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No. 07-60185
3
streamlining the delivery process; it was also convenient because at the time the
system was implemented, both bakeries were already servicing the Louisville
depot. Before the cross-docking system was implemented, the exclusive method
for delivering product between London and Owensboro was via a transport
driver who originated in London: the transport driver would deliver Owensboro-
bound product by making a direct run from London to Owensboro. On the
return trip, the driver would “backhaul” London-bound products to the London
bakery. It is undisputed that the Owensboro transport drivers have never
directly delivered product to the London bakery.
While there was a period in 2002 where there was no truck making the
direct London-Owensboro run, eventually scheduling problems and market
changes required re-institution of direct runs between the two bakeries.
Specifically, the Company introduced a new cottage loaf bread product that was
only baked in London, and as a result five days a week a London transport
driver needed to make a run to Owensboro. Additionally, there were occasions
when the Owensboro bakery would not meet the output requirement by the time
the transport driver had to leave to cross-dock at Louisville. In those situations,
London drivers would backhaul the product to the London bakery. The amount
of backhauling increased substantially during the summer of 2005, when the
Company introduced another new product, wholegrain white bread, that was
only baked at Owensboro and had to be delivered to the London bakery.
Throughout this time, Murray, Ballard, and other Union officials
complained to the Company about its backhauling practice. Finally, on July 28,
2005, the Union filed a grievance on the matter. The grievance cited an incident
that had happened a few days earlier when a Worldwide driver accidently drove
a trailer from Owensboro to London that was supposed to have been driven by
an Owensboro transport driver to Louisville. That incident violated specific
provisions of the CBA. On August 18, 2005, the parties met to discuss the

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4
grievance and the Company’s backhauling policy more generally. Baird
informed Murray and Ballard that the direct London to Owensboro run would
end soon, thus significantly limiting the amount of backhauling that would
occur; the Company also stated that it, nevertheless, had the right to backhaul
products under the terms of the CBA.
Despite this meeting, the Union continued to have concerns about
backhauling, and accordingly filed another grievance on September 20, 2005.
The parties met again on October 11, 2005, and Baird explained that the
practice of backhauling was being curtailed and would end completely once the
Owensboro bakery gained certification to produce additional products. At this
meeting, Murray presented Baird with a written request for information
regarding Worldwide, based on the Union’s belief that the Company had misled
it about the extent of its backhauling practice. Murray requested that the
Company provide the following information:
1. The name, address, and phone number of the subcontracting
company [Worldwide] [Paragraph One];
2. The number of baskets hauled in 2005 to date by that entity, stating
the date and amount hauled for each date [Paragraph Two];
3. The price paid to the [entity] for the loads and the total amount paid
to date [Paragraph Three];
4. The total miles to date driven by each driver performing
subcontracting work, for each day performed [Paragraph Four];
5. Copies of any letters of agreement, e-mails, contracts, or anything
else reflecting the agreement between the company and the
subcontractor [Paragraph Five].
The letter also stated that Baird should “further consider this our demand to
bargain on this new round of subcontracting work.”
After this meeting, Murray wrote a letter to the Company advising it that
the Union was advancing its grievance to arbitration. The Company responded
to the Union’s information request six weeks later on November 22, 2005. In its
response, the Company denied that the Union had lost any work due to the

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No. 07-60185
3 Under Section 8(a)(5) of the Act, an employer’s “refusal to bargain collectively with the
representatives of his employees” constitutes an “unfair labor practice.” 29 U.S.C. § 158(a)(5).
Under Section 8(a)(1) of the Act, an employer also commits an “unfair labor practice” when it
“interefere[s] with, restrain[s], or coerce[s] employees in the exercise of their [collective
bargaining] rights.” The Supreme Court has written that an employer who violates Section
8(a)(5) also commits a “derivative” violation of Section 8(a)(1). See Metropolitan Edison Co. v.
Board, 460 U.S. 693, 698 n.4 (1983).
4 The Company uses “Load Sheets” (a computer generated document which reflects the
types and quantities of product to be sent from a bakery to a destination on a given day) and
“Transport Sheets” (a handwritten sheet that reflects the types and quantities of product on
each truck) to keep track of the product that is delivered by the transport drivers. Not only do
neither of those documents specify what amount of product was backhauled by a London driver
on a particular day, but also the Company only keeps the Load and Transport Sheets for seven
days before they are discarded.
5
backhauling, highlighting that the Company had actually hired an additional
Owensboro transport driver during the relevant period. The Company also
declined to provide the requested information. On November 28, 2005, the
Union filed an unfair labor practice charge with the Board alleging, inter alia,
that the Company violated Sections 8(a)(5) and (1) of the National Labor
Relations Act (“the Act”),3 29 U.S.C. §§ 158(a)(5) & (1), by failing to provide
information sought by the Union. In response, the Company argued that the
information sought by the Union is irrelevant to the grievances, and that the
Company did not have records which specified the amount of product moved
from the Owensboro plant via backhaul by London trucks.4
On February 14, 2006, the Company supplemented its response to the
Union’s request for information. In this response, the Company provided the
information requested in paragraph one of the Union’s original request, but
refused to provide any other information. The Company disputed the Union’s
categorization of the backhauling practice as “subcontracting,” and maintained
that the act of backhauling, which had been a longstanding practice, did not
violate the CBA. Further, the Company explained that it could not provide the

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No. 07-60185
5 The Company did write in the letter that “from at least March 2002 through
September 2005, on an average of approximately three times per week, a truck emanating
from London would backhaul less than approximately half a load of product from Owensboro
to London.”
6 The ALJ also ordered the Company to provide the Board’s Regional Director with
sworn certification setting forth the Company’s efforts to retrieve the Union’s requested
information from the Company’s computerized and electronic databases as well as the
Company’s efforts to obtain information from its parent company, appropriate subsidiaries, and
from its contracting partner, Worldwide. Finally, the order required the Company to post a
remedial notice.
6
requested mileage data since it does not keep that information.5 The Company
also stated that the Union’s request for cost and contract information had no
bearing on any legitimate Union interest.
Two weeks later, the Regional Director of the Board filed a complaint and
a notice of hearing, alleging that the Company had unreasonably delayed its
response to the information requested in paragraph one, and that the Company
had unlawfully refused to provide the other information sought by the Union.
In its answer, the Company denied the material allegations and asserted the
defenses of confidentiality and waiver by the Union. The administrative law
judge (“ALJ”) rejected the Company’s defenses, and concluded that the Company
had violated Sections 8(a)(5) and (1) of the Act because it failed to provide
relevant information requested by the Union, and it unreasonably delayed
providing other relevant information requested by the Union. The ALJ ordered
the Company to cease and desist from refusing to bargain collectively with the
Union, and ordered it to provide the Union with the information that was
requested in paragraphs two, three, four, and five. The Company was also
ordered to make a reasonable effort to secure any unavailable information, and
if such information remained unavailable, it was required to explain and
document the reasons for its unavailability.6 The Company filed exceptions to
the judge’s decision, but a three member panel of the Board affirmed the ALJ’s
rulings, findings, and conclusions, and adopted the recommended order. The

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7
Company filed a petition for review before this Court on March 1, 2007; the
Board filed a cross-application for enforcement of its order on March 27, 2007.
II. STANDARD OF REVIEW
We review the Board’s factual findings under a substantial evidence
standard. Selkirk Metalbestos, North Am., Eljer Mfg., Inc. v. NLRB, 116 F.3d
782, 786 (5th Cir. 1997). “The Supreme Court has defined substantial evidence
as ‘more than a scintilla. It means such relevant evidence as a reasonable mind
would accept to support a conclusion.’” Id. (internal citation omitted). We review
the NLRB’s legal conclusions de novo; however if the NLRB gives a “reasonably
defensible” construction of a statute, we will affirm that decision. Asarco, Inc.
v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996). In agreement with other circuits,
we have explained that the NLRB’s “determination of the relevance of the
information sought in a particular case must be given great weight by the courts,
if only because it is a finding on a mixed question of law and fact which is within
the particular expertise of the Board.” NLRB v. Brazos Elec. Power Coop., 615
F.2d 1100, 1101 (5th Cir. 1980); see also NLRB v. Champion Labs., 99 F.3d 223,
227 (7th Cir. 1996).
III. DISCUSSION
A. Uncontested Findings
The Board first contends that before this Court, the Company has only
contested the following portions of the its order: that it produce the number of
baskets backhauled by Worldwide drivers (paragraph two), that the Company
produce its contract with Worldwide (paragraph five), and that it produce the
costs associated with that contract (paragraph three). Therefore, the Board
seeks summary enforcement of the two findings that the Company has not
challenged on appeal: that the Company unreasonably delayed providing
Worldwide’s contact information (paragraph one), and that it must produce the
total number of miles driven by Worldwide drivers (paragraph four).

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8
Case law has established that when an employer does not challenge a
finding of the Board, the unchallenged issue is waived on appeal, entitling the
Board to summary enforcement. See NLRB v. Brookshire Grocery Co., 919 F.2d
359, 363 n.2 (5th Cir. 1990); Montgomery Ward & Co. v. NLRB, 385 F.2d 760,
765 (8th Cir. 1967). Similarly, the Sixth Circuit has explained that “[a]n
employer’s failure to address or take issue with the Board’s findings and
conclusions with regard to . . . violations [of the Act] effectively results in
abandonment of the right to object to those determinations.” NLRB v. Talsol
Corp., 155 F.3d 785, 793 (6th Cir. 1998). Here, the Company has never, in its
briefs or during oral argument, taken issue with the Board’s findings regarding
paragraphs one and four. Since the Company “has wholly failed to contest”
these findings, the Board is entitled to summary enforcement. See id. at 794.
B. Unavailable Information
The Board next argues that the Company failed to show that information
relating to the number of baskets hauled in 2005 by Worldwide drivers
(paragraph two) is unavailable. It argues that the Company only engaged in a
cursory search for the information, and it did not conduct a reasonable inquiry
to determine whether the information is available from other, obvious sources,
such as its parent company, its sister bakeries, or Worldwide itself. In response,
the Company argues that it cannot be held liable for violating Sections 8(a)(5)
and (1) of the Act for failing to provide information it does not have. It explains
that it does not keep records reflecting the data the Union sought in paragraph
two, and even though that data could be extrapolated from its Load and
Transport Sheets, it destroys those documents after seven days.
Case law has consistently held that an employer cannot be held liable
under the Act for failing to produce information it does not have. See Vanguard
Fire & Supply Co., Inc., 345 N.L.R.B. No. 77, *42-43 (2005), enforced, 468 F.3d
952 (6th Cir. 2006); see also In re Kathleen’s Bakeshop, LLC, 337 N.L.R.B. 1081,

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9
1082 (2002), enforced, 2003 WL 22221353 (2d Cir. 2003) (explaining than an
employer “cannot be expected to provide information that it does not have.”).
But employers do have an obligation to make reasonable efforts to secure any
unavailable information. Congreso de Uniones Industriales de Puerto Rico v.
NLRB, 966 F.2d 36, 38 (1st Cir. 1992) (writing that an employer’s duty to supply
relevant information also “extends to situations where the information is not in
the employer’s possession, but where the information can likely be obtained from
a third party with whom the employer has a business relationship that is
directly implicated in the alleged breach of the collective-bargaining
agreement.”).
After reviewing the record, we find the Company’s arguments unavailing.
Even though it is unquestionable that the Company did not keep records about
the amount of product that was backhauled from Owensboro by Worldwide
drivers, we agree with the ALJ’s finding that the Company “utterly failed to
conduct a good faith inquiry” to determine whether the information was
available from any other sources. While the Company responded that such
attempts would be “futile,” it does not seem implausible that some other source,
particularly Worldwide, may in fact have some information that could provide
insight on how much product was backhauled from Owensboro to London. It
may very well be that such information simply no longer exists, but the
Company is required to show that it could not obtain the requested information
from other sources.
C. Contract and Cost Information
Finally, the Board contends that substantial evidence supports its decision
that the Company is obligated under the Act to turn over the remaining
information requested by the Union, specifically its contract with Worldwide
(paragraph five) and the costs associated with that contract (paragraph three).
Without that information, the Board argues, the Union is unable to effectively

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No. 07-60185
10
police the CBA, decide whether to pursue and arbitrate potential grievances, and
decide whether to bargain over subcontracting work. The Company asserts that
not only did the Union fail to articulate a purpose for why it was seeking this
information, but also that the Board erroneously concluded that the Company’s
contracting cost and contract with Worldwide is relevant to the underlying
dispute. According to the Company, the underlying grievance it has with the
Union involves whether the practice of backhauling violates the CBA, and the
Company’s contracting cost and contract with Worldwide are irrelevant to that
ultimate determination.
Section 8(a)(5) of the Act makes it an unfair labor practice for an employer
“to refuse to bargain collectively with the representatives of his employees . . .
.”. 29 U.S.C. § 158(a)(5). An employer is obligated to furnish, upon request,
information that is relevant and necessary to the Union’s performance of its
duties as the employees’ bargaining representative, including information
concerning contract administration, negotiations, and grievance processing.
NLRB v. Acme Indus. Co., 385 U.S. 432, 435-37 (1967) (“the duty to bargain
unquestionably extends beyond the period of contract negotiations and applies
to labor-management relations during the terms of an agreement”); Detroit
Edison Co. v. NLRB, 440 U.S. 301, 304 (1979). The key question in determining
whether information must be produced is “one of relevance.” Emeryville
Research Ctr. v. NLRB, 441 F.2d 880, 883 (9th Cir. 1971). While a union’s
request for bargaining unit data, such as wage and benefit information, is
considered presumptively relevant, when a union requests non-bargaining unit
data, such as subcontracting costs, that information is not considered
presumptively relevant. NLRB v. Leonard B. Herbert, Jr. & Co., 696 F.2d 1120,
1124 (5th Cir.), cert. denied, 464 U.S. 817 (1983). Rather, the union has the
initial burden of establishing relevancy before the employer must comply with
the information request. Id. “The Supreme Court has adopted a liberal,

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11
discovery-type standard by which relevancy of requested information is to be
judged.” Id. (citing Acme Indus. Co., 385 U.S. at 438 & n.6). In Acme, the Court
explained the Union need only be “acting upon the probability that the desired
information was relevant and that it would be of use to the union in carrying out
its statutory duties and responsibilities.” 385 U.S. at 437.
Case law also explains that in order for a union to prove that an employer
has violated Sections 8(a)(5) and (1) the union is required to make two showings
before the ALJ. First, the union must show, at the time of the information
request, that it articulated a legitimate purpose for seeking the information.
S&W Motor Lines, Inc. v. NLRB, 621 F.2d 598, 602 (4th Cir. 1980). Second, the
union has to show that the information it requested bears a logical relationship
to a legitimate union purpose. See Selkerk Metalbestos, 116 F.3d at 789.
Because the Union failed to make either showing, we reject the position
advocated by the Board.
First, the Union failed, at the time it made its information request, to
articulate a purpose for seeking the company’s contracting costs and contract
with Worldwide. Since the information being requested is not bargaining unit
data, the Union’s failure to articulate nothing more than a “bare assertion” of
relevancy falls short. See Detroit Edison Co., 440 U.S. at 314 (“A union’s bare
assertion that it needs information to process a grievance does not automatically
oblige the employer to supply all the information in the manner requested.”).
The Board counters by highlighting its decision in Brazos Elec. Power Coop., 241
N.L.R.B. 1018, 1019 (1979), enforced, 615 F.2d 1100 (5th Cir. 1980), where it
held that if the circumstances surrounding the union’s information requests are
“reasonably calculated to put the employer on notice of the union’s relevant
purpose,” the employer is obligated to provide the information even if the Union
has not explicitly stated its relevance. See also Island Creek Coal Co., 292
N.L.R.B. 480, 490 & n.19 (1989), enforced, 899 F.2d 1222 (6th Cir. 1990).

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However, even assuming arguendo that the circumstances surrounding the
information request should have put the Company on notice that the Union’s
information request was related to the practice of backhauling generally, the
Union never articulated a reason why the Company’s contract and contracting
costs with Worldwide were specifically relevant. We also agree with the
Company that the ALJ’s attempt to manufacture a post hoc theory of relevance
violates well-established precedent. See NLRB v. A.S. Abel Co., 624 F.2d 506,
513 n.5 (4th Cir. 1980) (explaining that the NLRB cannot point out ways in
which the information may have been relevant, when those reasons were not
brought to the employer’s attention contemporaneously); Calmat Co., 283
N.L.R.B. 1103, 1106 (1987) (explaining that a union cannot rely on a reason
proffered for the first time at the administrative hearing).
Second, the Board never demonstrated how the Company’s contracting
costs and contract with Worldwide are logically connected to any legitimate
union purpose. A union may legitimately request information if the information
is necessary to either (1) negotiate a new CBA or (2) to administer/police an
existing CBA. General Electric Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir.
1990). The Union’s CBA was not set to expire for another two years, and there
was no evidence presented which suggested that contract negotiations were
likely to occur in the near future. See San Diego Newspaper Guild v. NLRB, 548
F.2d 863, 868-69 (9th Cir. 1977) (rejecting a union’s claim for information when
the CBA was not up for renewal for two years and there was no evidence of
contract negotiations). To the extent that the Union contends that it needed the
information in order to police its CBA with the Company, it failed to
demonstrate before the ALJ why it needed information regarding the contract
and contracting costs between the Company and Worldwide in order to do so.
In Western Massachusetts Electric Co. v. NLRB, 573 F.2d 101, 105 (1st Cir.
1978), the court explained that a union is required to make a showing that the

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No. 07-60185
7 Baird did testify that he had conversations with the London manager about the use
of backhauling that did involve discussions regarding cost effectiveness, but he explained that
the Union was not privy to those conversations.
13
requested information is “specially relevant to the bargaining taking place.” No
such showing was made by the Union here. The issue underlying the Union’s
grievance is whether backhauling violates the CBA; information regarding the
contract or contracting cost are irrelevant to that ultimate determination.
Either the CBA allows backhauling or it does not. Additionally, the Union’s
argument that it needs this information to police its CBA is undercut by the fact
that the practice of London drivers backhauling product from Owensboro had
occurred for years.
Further, we acknowledge the “generally-recognized rule” that contracting
costs are only relevant if the union can show that the employer justified its
contracting to the Union on the basis of cost. See Western Mass., 575 F.2d 101
(1st Cir. 1978); see also Connecticut Yankee Atomic Power Co., 317 N.L.R.B. 1266
(1995). There is no evidence in the record that either Murray or Ballard ever
testified that Baird told them that the company decided to use Worldwide
drivers to backhaul products because Worldwide provided cheaper labor.7 In
Western Mass., the First Circuit wrote that the Board, when determining
whether an employer has put cost into contention, should not operate under a
theory that “subcontracting costs are always relevant in a collective bargaining
context.” Id. at 107. However, at its core, the Board’s argument in support of
the Union does exactly that.
We agree with the Company that this case is similar to the factual
situation presented to the Board in Connecticut Yankee. 317 N.L.R.B. 1266. In
that case, the ALJ found that the employer, a nuclear plant operator, violated
the Act when it failed to provide the union with requested information about an
outside contractor. Id. at 1266. In deciding against the union, the Board

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explained that the union’s requests for information were vague, and that the
union had failed to prove that the information was relevant, as there was no
evidence that union members had lost any work. Id. at 1268-69. The Board also
highlighted the fact that the company had been contracting with the outside
contractor for years, and the union had previously never complained. Id. at 1269.
Similarly, in this case, the Union failed to present the ALJ with sufficient
evidence to prove that either the information regarding the Company’s contract
and contracting costs with Worldwide was relevant or that the Company had
done anything to put cost into contention.
IV. CONCLUSION
For the foregoing reasons, the Company’s petition for review is granted.
The Board is entitled to summary enforcement of its findings regarding
paragraphs one and four, and we hold that there is substantial evidence to
support the Board’s findings regarding paragraph two; accordingly the Board’s
order is enforced in part. However, since the information requested in
paragraphs three and five is not relevant to the underlying labor dispute, we
deny enforcement of the Board’s order in part.

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