PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                   Nos. 18-1640 & 18-1973
                       _____________

       CROZER-CHESTER MEDICAL CENTER;
     DELAWARE COUNTY MEMORIAL HOSPITAL,
           Petitioners/Cross-Respondents

                               v.

           NATIONAL LABOR RELATIONS BOARD,
                 Respondent/Cross-Petitioner
                       ____________

 On Petition for Review and Cross-Petition for Enforcement
          from the National Labor Relations Board
          (Nos. 04-CA-172296 & 04-CA-172313)

                  Argued: January 23, 2019

   Before: CHAGARES and BIBAS, Circuit Judges, and
            SÁNCHEZ, Chief District Judge +.

                 (Filed: September 24, 2020)

       +
         The Honorable Juan R. Sánchez, Chief United States
District Judge for the Eastern District of Pennsylvania, sitting
by designation.
Andrew M. Grossman [ARGUED]
Richard Bryan Raile
Baker & Hostetler
1050 Connecticut Avenue, N.W.
Suite 1100
Washington, DC 20036

     Counsel for Crozer-Chester Medical Center and
Delaware County Memorial Hospital

David Habenstreit
Elizabeth A. Heaney
Gregory P. Lauro [ARGUED]
National Labor Relations Board
1015 Half Street, S.E.
Washington, DC 20570

      Counsel for National Labor Relations Board

Claiborne S. Newlin [ARGUED]
Jonathan K. Walters
Markowitz & Richman
123 South Broad Street
Suite 2020
Philadelphia, PA 19109

       Counsel for Pennsylvania Association of Staff Nurses
& Allied Professionals



                      _____________




                             2
                 OPINION OF THE COURT
                     _____________

CHAGARES, Circuit Judge.

       It has long been established that an employer, as part of
its obligation under the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 151 et seq., to bargain in good faith
with a union, must furnish to the union all information relevant
to the union’s bargaining obligations. In this case, a union
representing certain employees of a healthcare network learned
that the network was being sold to another entity. And it also
learned –– from the employer itself –– that the sale agreement
contained information bearing on the terms and conditions of
its members’ employment. So the union asked the employer
for a full copy of the sale agreement for “effects bargaining.”
But the employer, asserting that the agreement was
confidential and not relevant to collective bargaining, refused
to provide any of it. Eventually, the union filed unfair labor
charges with the National Labor Relations Board (the
“Board”), which found that at least part of the agreement was
indeed relevant and that the employer, in failing to turn it over,
violated the NLRA. As a remedy, the Board ordered the
employer to provide a complete, unredacted copy of the
agreement to the union. The employer now petitions us to
review the Board’s order, and the Board cross-petitions to
enforce it. For the following reasons, we conclude that
substantial evidence supported the Board’s conclusion that the
employer violated the NLRA, but we also conclude that the
Board abused its broad remedial discretion in ordering the
employer to disclose the entire agreement. We therefore will
grant the employer’s petition in part and deny it in part, grant




                                3
the Board’s cross-petition in part and deny it in part, and
remand to the Board for further proceedings.

                                I.

                                A.

        Crozer-Keystone Health System (“Crozer”) is a
healthcare network that –– at least at the start of this litigation
–– comprised four hospitals 1 and several other healthcare
facilities. Crozer’s employees, at all relevant times, consisted
of ten bargaining units, represented in total by five unions.
This case is about Crozer’s interactions with one of those
unions –– the Pennsylvania Association of Staff Nurses and
Allied Professionals (the “Union”).

       The Union heard rumors about the sale of Crozer
beginning in fall 2015 and engaged in discussions with the
putative buyer, Prospect Medical Holdings (“Prospect”), in
approximately November 2015. In January 2016, Crozer
informed the Union that it had reached a “Definitive
Agreement” to be acquired by Prospect. Joint Appendix
(“J.A.”) 59. Crozer shared with the Union a letter to all Crozer
employees and physicians about the Prospect sale on January
8, 2016 (the “January 8 letter”). In that letter, Crozer explained
that several things would not change “under [the] Definitive
Agreement with Prospect.”

“Prospect
will offer to hire active non-union employees in good standing
at the rate of pay, title and seniority level at time of close,

       1
           Two of those hospitals, Crozer-Chester Medical
Center and Delaware County Memorial Hospital, are parties in
this case.




                                4
subject to standard pre-employment screening processes.”

that “unionized employees in good
standing will be offered employment subject to initial terms set
by Prospect,” which would “meet with the various labor
organizations that represent [Crozer] employees and enter into
appropriate recognition agreements with them.” 2

noted in that letter that certain things
will change, including that “Prospect will assume [Crozer]’s
outstanding pension liability, funding $100 million of the
obligation at closing and providing distributions to pay all
benefits owed to pension participants and beneficiaries within
five years of the closing date.” J.A. 60. Attached to the letter
was a list of Frequently Asked Questions, which included short
explanations about how the Prospect sale would affect the
terms and conditions of employment for unionized and non-
unionized employees, as well as the continued operation of the
hospitals and union relations.

      Ten days after receiving a copy of the January 8 letter,
the Union emailed Crozer, “requesting the complete Asset
Purchase Agreement [(“APA”)] and all attachments and
schedule[s] of the agreement.” J.A. 67. The Union wrote that
“[u]pon receipt of the agreement we will review and you can

       2
        The letter also stated that all of Crozer’s “hospitals will
remain open”; “[c]ritical service lines such as [emergency
department], trauma, burn, behavioral health, maternity,
neonatal intensive care and pediatrics will stay in place or be
expanded”; Crozer’s “charity care policies will be
maintained”; and “wellness, health education, and other
community programs” would remain “at similar levels.” J.A.
59.




                                5
expect a request for effects bargaining shortly after.”

it was “unable to give [the Union] a copy
of the APA at this time because it is confidential and
proprietary.” J.A. 69. Crozer explained that the APA “is
covered by the terms of a confidentiality agreement to which
Crozer is subject” and that “the entire APA is not relevant for
effects bargaining over the terms and conditions of
employment of bargaining unit members.”

Union that it was “open to considering any alternative requests
[the Union] may have.”

to the Union, which wrote back:

       We were hoping to avoid involving the Labor
       Board in our request for the APA but we intend
       to file a charge if [the] Crozer Administration
       continues to refuse to provide the APA, including
       attachments and schedules. If your email is
       intended as an offer to negotiate over
       confidentiality, the union is prepared to bargain
       over confidentiality, provided there is an
       understanding that the APA, with attachments
       and schedules, will be forthcoming.

J.A. 70. Crozer didn’t budge.

        Crozer and the Union broached the subject again when
they met the next month for a bargaining session over a nursing
unit at one of Crozer’s hospitals. 3 There, the Union reiterated

       3
         The Union had been recently certified as the
bargaining representative for this unit of nurses, and this
session was for initial bargaining.




                                6
its request for the APA. Crozer again explained “that much of
[the APA] was confidential and proprietary,” but “that [it]
would be willing to determine what was relevant and share that
with the Union.” J.A. 253. According to a Union official
present at that bargaining session, Crozer never explained why
the APA was confidential. The two sides, at any rate, remained
entrenched in their positions.

        The next day, Crozer sent the Union a more official
response to its information request. It wrote, among other
things:

      [Crozer] objects to the request on the basis that it
      is premature, overbroad and seeks irrelevant
      information. Indeed, as you know, the [Crozer]
      transaction with Prospect is contingent upon
      regulatory approval that has not yet occurred and
      as of this point, has not yet even been scheduled.
      Additionally, as you may be aware, [Crozer’s
      and the Union’s attorneys] recently discussed
      this request. On behalf of [Crozer], [Crozer’s
      attorney] offered to discuss with [the Union] the
      potential for production of those portions of the
      [APA] and any attachments and schedules
      thereto that relate to or affect [Crozer]
      employees, including those who are members of
      [the Union]. [The Union’s attorney] refused this
      offer, stating that [the Union] wants everything.
      [The Union] offered nothing more to explain
      why the entire document is relevant or needed for
      it to fulfill its functions as bargaining
      representative for certain [Crozer] employees.
      We again renew that offer to discuss which




                               7
      portions of the documents are relevant to [the
      Union’s] role as bargaining representative with
      respect to effects bargaining. Please let me know
      if you would like to have further discussions on
      this issue.

      [Crozer] further objects to the request on the
      basis that it seeks confidential and proprietary
      information that is subject to legal prohibitions
      on disclosure. As [Crozer’s attorney] explained
      to [the Union’s attorney], the entire [APA] is the
      subject of a confidentiality agreement between
      [Crozer] and Prospect that [Crozer] is legally
      obliged to follow. Therefore, to the extent the
      parties were able to reach agreement on the
      production of any relevant portion of the
      Agreement, before [Crozer] can turn over
      anything contained in the Agreement, [the
      Union] must agree to the terms of a
      confidentiality agreement acceptable to [Crozer]
      and Prospect that adequately protects [Crozer’s]
      and Prospect’s confidential and proprietary
      interests in those portions of the [APA] to which
      [the Union] may be entitled.

J.A. 72–73. The Union did not respond. Instead, four days
later, it filed charges with the Board.

       Two other unions soon requested from Crozer “sections
of the APA that say what Prospect is going to assume and not
assume relative to employees.” J.A. 74. In response to those
requests, Crozer’s General Counsel advised Crozer’s Vice
President of Human Resources, Elizabeth Bilotta, that Crozer




                              8
“should provide relevant redacted excerpts from the APA” to
those two unions, noting that “[t]hat is essentially what [it]
previously offered to [the Union] as a compromise.” Id.4

       Although Crozer still had provided no parts of the APA
to the Union, the two sides proceeded to engage in effects
bargaining over the Prospect sale in late May and early June
2016.

       As part of the sale process, Crozer filed a petition in the
Delaware County Court of Common Pleas to obtain approval
of the sale.5 Because that petition included the body of the
APA, the Union obtained a copy from the Pennsylvania
Attorney General’s Office on June 6, 2016. Crozer’s filings
with the Court of Common Pleas, however, did not include the
APA’s attachments or schedules. At the request of the Attorney
General, Crozer provided the Union on June 22 with copies of
schedules 4.13(a) (“Employee Benefit Plans”) and 4.18(a)
(“Labor, Unions, Collective Bargaining Agreements”), but no
other attachments or schedules.

                               B.




       4
         According to Bilotta, Crozer drafted a confidentiality
agreement for those two unions, but it ultimately never needed
to use it (or provide those two unions with redacted copies of
the APA) because, as we will explain, the APA, minus the
attachments and schedules, soon became public as part of a
court petition.
       5
         The Court of Common Pleas eventually approved the
Prospect sale, which was finalized on July 1, 2016.




                                9
        In December 2016, an Administrative Law Judge
(“ALJ”) held a trial on the charges the Union filed against
Crozer. Considering the demeanor of the witnesses, other
evidence, and briefing, the ALJ ultimately concluded, in a
written opinion, that Crozer had “violated Section 8(a)(5) and
(1) of the [NLRA] by failing and refusing to provide the [APA],
including all attachments and schedules, that was requested by
the [Union].” J.A. 15. The ALJ explained that “it was clear to
both parties that the APA contained relevant information and
needed to be produced in whole or in part.” J.A. 13. In
addition, the ALJ observed that “the record contains no
explanation why either Crozer or Prospect actually believed
that certain portions of the APA were confidential or
proprietary,” and that Crozer had thus “failed to meet [its]
burden of proving a valid confidentiality interest in the APA.”
J.A. 14.

        As a remedy, the ALJ ordered Crozer “to produce to the
Union the entire APA with all attachments and schedules.” J.A.
15. The ALJ explained that Crozer is “not now entitled to a
second chance to assert objections to production that should
have been raised in a timely manner when the request was
initially made over a year ago. To do so would place [Crozer]
in a more advantageous position than [it is in] now.”

the Board adopted the ALJ’s order by a vote
of 2-1. The Board explained that Crozer never “substantiated
[its] asserted confidentiality interest.” J.A. 6 n.2. In the
Board’s view, Crozer also did not “engage in accommodative
bargaining at the time [it] first asserted a confidentiality
interest,” and thus had “unfairly imposed, and unjustly reaped
the benefit of, an additional year of delay upon an uninformed
bargaining partner.”

       One Board Member dissented in part. He agreed that
Crozer violated the NLRA by not providing the parts of the
APA “that were non-confidential and relevant for purposes of
effects bargaining.” J.A. 7. But he believed the Board’s
remedy –– ordering production of the entire APA, including all
schedules and attachments –– was impermissibly punitive. He
explained that Crozer has “legitimate confidentiality interests
that deserve protection, and the Union had no right to insist on
the blanket disclosure of these documents.”

have ordered Crozer just to “provid[e] such relevant
and non-confidential portions of the APA to the Union and
engag[e] in accommodative bargaining over the remaining
confidential relevant portions.”

for review, and the Board
cross-petitioned for full enforcement of its order.

                              II.

       We have jurisdiction under 29 U.S.C. § 160(e) and (f),
and the Board had jurisdiction under 29 U.S.C. § 160(a). In
reviewing the Board’s decision, 6 we accept as conclusive its

       6
         “Where the Board adopts the ALJ’s findings of fact
and conclusions of law, it is the ALJ’s determinations that we
review.” Trafford Distrib. Ctr. v. NLRB, 

, 179 (3d
Cir. 2007) (quoting SCA Tissue N. Am. LLC v. NLRB, 

, 988 (7th Cir. 2004)). But “[w]here the Board has
adopted the ALJ’s decision in part, the Court reviews both.”

generally “affirm[ed] the [ALJ’s] rulings,
findings, and conclusions,” and adopted its recommended
Order. J.A. 6. But it also provided additional discussion of its




                              11
factual findings if they are “supported by substantial evidence
given the record as a whole” and determine whether the
decision “is in accordance with applicable law.” Hertz Corp.
v. NLRB, 

, 872–73 (3d Cir. 1997). If the Board’s
“construction of the [NLRA] is reasonably defensible, it should
not be rejected merely because [we] might prefer another view
of the statute.” Ford Motor Co. v. NLRB, 

, 497
(1979). “Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol. Edison
Co. v. NLRB, 

, 229 (1938). And the Board’s
remedial authority “is a broad discretionary one, subject to
limited judicial review.” Fibreboard Paper Prods. Corp. v.
NLRB, 

, 216 (1964).

                              III.

        Crozer argues that the Board erred in finding that it had
violated the NLRA. We hold that, despite Crozer’s protests,
substantial evidence did support the Board’s finding that the
Union sufficiently established the relevance of at least part of
the APA and that Crozer did not establish any confidentiality
interest in it. Substantial evidence thus supports the Board’s
conclusion that Crozer, by failing to provide those relevant
parts to the Union, violated the NLRA. But we also hold that
the Board, in ordering Crozer to disclose the entire APA, which
included information never established as relevant, abused its
broad remedial discretion.

                               A.


own. We therefore review both the Board and the ALJ
decisions.




                               12
                               1.

        The NLRA prohibits employers from refusing to
bargain in good faith with unions representing their employees
regarding “wages, hours, and other terms and conditions of
employment.” 29 U.S.C. § 158(a)(5), (d). While an employer
has no duty to bargain about its decision to sell its business, an
employer is obligated to bargain with a union over the effects
of such a sale because “the effects of that sale are considered
‘conditions of employment’ within the meaning of” § 158(d).
E.I. DuPont de Nemours & Co. v. Sawyer, 

, 793
(5th Cir. 2008) (quotation marks omitted); see also First Nat’l
Maint. Corp. v. NLRB, 

, 686 (1981); NLRB v.
Royal Plating & Polishing Co., 

, 196 (3d Cir.
1965). An employer’s “refus[al] to bargain collectively with
the representatives of [its] employees” constitutes an unfair
labor practice under NLRA section 8(a)(5), 29 U.S.C. §
158(a)(5). Violation of NLRA section 8(a)(5) also results in a
derivative violation of section 8(a)(1), 29 U.S.C. § 158(a)(1),
which provides that employers who “interfere with, restrain, or
coerce employees in the exercise of the[ir] rights guaranteed”
by the NLRA have committed an unfair labor practice, id.; see
N.J. Bell Tel. Co. v. NLRB, 

, 791 n.2 (3d Cir.
1983); cf. Metro. Edison Co. v. NLRB, 

, 698 n.4
(1983) (“Although §§ 8(a)(1) and 8(a)(3) are not coterminous,
a violation of § 8(a)(3) constitutes a derivative violation of §
8(a)(1).”).
        The duty to bargain in good faith includes “the general
obligation of an employer to provide information that is needed
by the bargaining representative for the proper performance of
its duties.” NLRB v. Acme Indus. Co., 

, 435–36




                               13
(1967). This obligation promotes intelligent and informed
representation of union members.

       The threshold question is whether the requested
information is relevant to fulfilling the Union’s bargaining
duties. We have determined that “if the requested data is
relevant and, therefore reasonably necessary, to a union’s role
as bargaining agent,” then an employer’s failure to furnish this
information constitutes an unfair labor practice under section
8(a)(5). Curtiss-Wright Corp. v. NLRB, 

, 68 (3d
Cir. 1965); see 

. 7 Courts and the Board
employ a liberal and broad “discovery-type standard” in
assessing relevance in the labor context. Acme 

. Accordingly, the burden of showing relevance is
light and requires only “the ‘probability that the desired
information [is] relevant.’” Oil, Chem. & Atomic Workers
Local Union No. 6-418 v. NLRB, 

, 359 (D.C. Cir.
1983) (alteration in original) (quoting Acme 

); see Country Ford Trucks, Inc. v. NLRB, 

, 1191 (D.C. Cir. 2000) (“[T]he threshold for relevance is
low.”). This undemanding standard of relevance is necessary
because “[u]nless each side has access to information enabling
it to discuss intelligently and deal meaningfully with
bargainable issues, effective negotiation cannot occur.” Local
13, Detroit Newspaper Printing & Graphic Commc’ns Union

       7
          We note that relevant information must be produced
unless, as the Board points out, the employer can demonstrate
a “legitimate and substantial countervailing” interest, such as
that confidentiality may be compromised by the employer’s
disclosure. Board Br. 22. Crozer’s challenge to the Board’s
ruling rejecting its confidentiality claim is addressed in section
III.B., infra.




                               14
v. NLRB, 

, 271 (D.C. Cir. 1979) (citing Curtiss-

); see NLRB v. Pub. Serv. Elec. & Gas
Co., 

, 230 (3d Cir. 1998). The relevance standard
is not unlimited, however, as it safeguards against unfounded
“fishing expeditions” by parties. 8 See Detroit Edison Co. v.
NLRB, 

, 318 (1979) (declining to endorse “the
proposition that union interests in arguably relevant
information must always predominate over all other interests,
however, legitimate”). Determinations of relevance are made
by considering the facts and circumstances present in
individual cases. See Oil, Chem. & Atomic 

(citing NLRB v. Truitt Mfg. Co., 

, 153
(1956)).




                              2.

      We hold that substantial evidence in the record supports
the ALJ’s finding that the APA contained relevant information

      8
        We emphasize that nothing in this opinion should be
construed as encouraging unions to make overbroad
information requests hoping for a kernel of relevant
information or, as Crozer fears, as endorsing a rule that an
employer “will be punished unless it capitulates entirely.”
Crozer Br. 3. In this regard, we agree that “just as there are
some limits as to what is discoverable information under the
[Federal] Rules of Civil Procedure, there are similar limits to
discoverable information in the collective-bargaining context.
These limits are not stringent, however.” NLRB v. George
Koch Sons, Inc., 

, 1332 (7th Cir. 1991).




                              15
for the Union’s effects bargaining. The ALJ, in fact, found that
Crozer admitted that parts of the APA were relevant, and this
finding was also supported by substantial evidence. For
instance, Crozer’s initial response to the Union’s request was
that “the entire APA is not relevant for effects bargaining” —
not denying partial relevance and essentially acknowledging
that some of the APA is relevant. J.A. 69. In addition, when
other unions requested copies of the APA, Crozer’s General
Counsel wrote: “I believe we should provide relevant redacted
excerpts from the APA to [the other unions]. That is essentially
what we previously offered to [the Union] as a compromise.”
J.A. 74 (emphasis added).9 As the ALJ observed, Crozer
proffered no explanation as to why that redacted version was
not provided to the Union. And if the concession of relevance
by Crozer was not clear, at the trial before the ALJ, Crozer’s
sole witness (Bilotta) explicitly made this admission in her
testimony. See J.A. 308 (“Q[:] You’re aware that some items
in the APA are relevant to bargaining unit employees at
[Crozer], correct? A[:] Yes.”); see also J.A. 309 (“Q[:] . . .
[W]ould items in an APA be relevant to contract negotiations?
A[:] Yes, generally, yes.”).

       The ALJ specifically found relevant provisions
pertaining to “employees’ terms and conditions of
employment, the name of the hospitals, the continuation or
expansion of certain service lines, capital investments,
standards of care, equipment and property.” J.A. 13. The ALJ

       9
         Crozer argues that its preparation of a redacted copy
of the APA for other unions should be understood as a
compromise, not a concession of relevance. But Crozer
glosses over the statement of its own internal counsel that the
APA contained relevant parts.




                              16
explained that this information, at a minimum, “would be
relevant to the availability and location of unit work, the
potential for layoffs and hiring, whether the pension plan
would be fully funded, and whether non-unit employees were
receiving pay or benefits the Union might want to negotiate
(for parity) on behalf of unit employees.”

clear
to both Crozer and the Union that the APA contained relevant
information directly bearing on the terms and conditions of
unionized employees. See Compact Video Servs., Inc., 

, 144 (1995) (acknowledging the “legal realit[y]”
that a selling employer “must bargain about the effects of . . . a
decision [to sell] on unit employees, and as an incident thereto,
it must normally give the union access, upon request, to the
sale agreement and more generally, to ‘information concerning
the sale’”), enforced, 

, 483 (9th Cir. 1997)
(enforcing the Board’s order “to provide [a] [u]nion with
contracts relating to the acquisition and takeover”). Under the
expansive standard for relevance and according proper
deference to the Board’s finding of relevance, we perceive no
reason to upset the Board’s determination that parts of the APA
were relevant. See NLRB v. Compact Video Servs., Inc., 

, 483 (9th Cir. 1997) (noting “the great weight we
must give the Board’s finding that the information in the sales
contract is relevant”); NLRB v. New Eng. Newspapers, Inc.,

, 414 (1st Cir. 1988) (“[T]he Board’s
determination of relevancy is entitled to great deference.”).


                               3.

       Crozer’s main argument is narrow: that it had no
obligation to furnish the APA or any part of it to the Union
because the Union did not specify its relevance to Crozer. We




                               17
disagree and determine that Crozer had a duty to furnish at least
part of the APA under the circumstances here.

                               a.

        Allocation of the burden to demonstrate relevance
depends upon the type of information that a union requests. As
we have held, “wage and related information pertaining to
employees in the bargaining unit is presumptively relevant.”
Curtiss-

; see U.S. Testing Co. v. NLRB,

, 19 (D.C. Cir. 1998) (“For information about
employees in the bargaining unit, it is presumed that the
requested information is relevant to the union’s negotiations.”).
Unions thus are not required to demonstrate the precise
relevance of requested information that is presumptively
relevant as such information “concerns the core of the
employer-employee relationship,” unless an employer is able
to rebut its relevance. Curtiss-

. This
rule regarding presumptively relevant materials “avoids
potentially endless bickering between management and the
union over the specific relevance of information, the very
nature of which ought to render its relevance obvious.”
Emeryville Rsch. Ctr. v. NLRB, 

, 887 (9th Cir.
1971); see Oil, Chem. & Atomic 

(“[A] presumption of relevance, of course, may substantially
simplify the assessment of a union’s request for information.”).
However, requests for other information, such as information
pertaining to non-bargaining unit employees, do not implicate
a presumption of relevance, and “a union must, by reference to
the circumstances of the case, as an initial matter, demonstrate
more precisely the relevance of the data it desires.” Curtiss-

; see U.S. Postal Serv. v. NLRB, 

, 1101 (3d Cir. 1994). The same liberal standard of




                               18
relevancy applies, regardless of whether the request for
information is subject to the presumption of relevance.
Curtiss-

.

       The ALJ began its analysis by discussing presumptive
relevance. Referencing Crozer’s January 8 letter “that the
APA contained information about how the operation would
change and not change under new management with regard to
such things as [, inter alia,] employees’ terms and conditions
of employment,” the ALJ ultimately found that “[s]ome of this
information would be presumptively relevant.” J.A. 13; see
U.S. Postal 

–01 (noting that
presumptively relevant information includes “[i]nformation
about the terms and conditions of employment” and “is
required to be produced”). Substantial evidence in the record
supports this finding. Crozer informed the Union (and
Crozer’s work force) that the APA covered multiple items
bearing upon terms and conditions of employment, including
offers of employment for unionized employees and the status
of several service lines and hospitals. J.A. 59–60. The Court
of Appeals for the First Circuit, in fact, has ruled that an
employer must provide a union with its contract of sale because
the contract of sale “concern[ed] a condition of employment,
[and] . . . it is presumptively relevant and must be disclosed
unless it plainly appears irrelevant.” New Eng. 

(quotation marks omitted). As a result,
substantial evidence supports the finding that at least some of
the information in the APA was presumptively relevant, and
Crozer did not rebut its relevance. 10

      10
         We note, however, that the ALJ was unclear
regarding exactly what portions of the APA were
presumptively relevant.




                              19
       Even if the Union was not entitled to this presumption
regarding the relevant evidence in the APA, any specificity
lacking in its request for the APA would not change the result
given the circumstances of this case. Crozer asserts that it did
not “understand [the Union’s] asserted need for the Purchase
Agreement,” Crozer Reply Br. 8, and contends that the Union
did not meet a standard set forth in our decision in Hertz Corp.
v. NLRB that a union requesting information pertaining to non-
members of a bargaining unit has a “minimal obligation” to
advise the employer of the factual basis for its 

.11

       But the Hertz decision also provides that in some cases,
a union’s reason “will be readily apparent,” and “[w]hen it is
clear that the employer should have known the reason for the
union’s request for information, a specific communication of
the facts underlying the request may be unnecessary.”

a case and, hence, Hertz does not absolve Crozer of its
obligation to provide relevant parts of the APA to the Union.

       11
           The Board has observed that Hertz creates a “more
demanding standard” than it recognizes. H&R Indus. Servs.,
Inc., 

, 1224 (2007). We do not here intend
to expand this obligation. Moreover, insofar as Hertz involved
a different context — an investigation of discrimination — the
standard we enunciated was tied to that context: the union
“needed only to communicate some reasonable basis for its
suspicion that the employer might be engaging in

. Perhaps this is why the
Union, appearing in this case as an intervenor, did not refer to
Hertz in its brief. However, we will assume without deciding
that the standard set forth in Hertz applies to this case.




                              20
       Our determination is compelled by analysis of the
context of the Union’s request as well as the facts and
circumstances present. See Truitt 

;
Curtiss-

. The Union was advised in
Crozer’s January 8 letter that the APA had been finalized and
that the final step — regulatory approval of the sale — would
“take several months.” J.A. 60. This meant that the Union
would need to move quickly to bargain, and as we have noted:

       [d]uring a transition period between employers,
       a union is in a peculiarly vulnerable position. It
       has no formal and established bargaining
       relationship with the new employer [and] is
       uncertain about the new employer’s plans . . . .
       While being concerned with the future of its
       members with the new employer, the union also
       must protect whatever rights still exist for its
       members under the collective-bargaining
       agreement with the predecessor employer.

Grane Health Care v. NLRB, 

, 153 (3d Cir. 2013)
(first alteration in original) (quoting Fall River Dyeing &
Finishing Corp. v. NLRB, 

, 39 (1987)).

       The Union requested a single document from Crozer to
prepare for and conduct effects bargaining: the APA. See J.A.
13–14 n.8 (ALJ noting “that the Union indicated a desire to
obtain the APA with all attachments and schedules for use in
bargaining over the effects of the sale”); see also Crozer Reply
Br. 12 (“[T]he right to effects bargaining [is] virtually always
triggered by the sale of a business.”). A sales agreement such
as the APA is what the Board has acknowledged to be “the




                              21
single, most authoritative and reliable source of data which
would have formed the underpinnings of effects bargaining.”
New Eng. Newspapers, Inc., 

, 128 (1987),
enforced, 

(1st Cir. 1988). The Crozer point
person for responding to the Union’s request — Bilotta,
Crozer’s vice president of human resources — testified before
the ALJ that she had in excess of thirty-five years of
experience. See J.A. 13 (ALJ finding that Bilotta “has
extensive experience dealing with information requests”).
Bilotta candidly agreed that generally, the contents of an APA
would be relevant to bargaining, J.A. 309 (“Q[:] . . . [W]ould
items in an APA be relevant to contract negotiations? A[:] Yes,
generally, yes.”), and, as discussed earlier, she admitted that
parts of this particular APA would be relevant to the Union.
Ultimately, the ALJ found that “experienced bargaining
parties, such as these, could reasonably expect the Union to use
[the APA] in connection with [the] upcoming contract
negotiations.” J.A. 13–14 n.8. 12 Hence, the Hertz standard is

       12
          It is hardly unusual for unions to request (and receive)
sales agreements, and other decisions have required sales
agreements and similar documents to be produced when
requested by unions representing sellers’ employees in various
circumstances. See, e.g., Supervalu, Inc. v. NLRB, 

, 951–53 (8th Cir. 1999); Compact Video 

; Providence Hosp. v. NLRB, 

, 1018–20
(1st Cir. 1996); Mary Thompson Hosp. v. NLRB, 

, 746–47 (7th Cir. 1991); New Eng. 

–14; Sierra Int’l Trucks, Inc., 

, 950–51
(1995); St. Marys Foundry, 

, 233 (1987),
enforced, 

(6th Cir. 1988); J.A. 13 (ALJ decision
acknowledging that “[i]n prior cases, the Board has ordered
production of sales agreements for the purchase of employers




                               22
met because Crozer “should have known the reason for the
union’s request for [the 

.

        Other facts and circumstances unique to this case
support our conclusion. In its January 8 letter, Crozer advised
the Union as well as its employees and physicians that under
the APA, important operations and conditions would and
would not change and informed them about particular items of
interest that would impact them. Items chosen by Crozer to
mention in its letter included hiring of union workers with
“initial terms set by [the new employer],” hiring non-union
employees, continuation of certain service lines, employee
pension liability, impacts of becoming a for-profit hospital, and
the duration of existing health and welfare benefits. J.A. 59–
66; see also J.A. 61–63 (providing, in January 8 letter,
“Frequently Asked Questions” regarding “Definitive
Agreement with Prospect,” such as “What does this mean for
unionized Crozer-Keystone employees?,” “Will Crozer-
Keystone employees receive the same benefits?,” and “What
will happen to labor union relations under Prospect?”); J.A.
95–97 (listing APA schedules such as “Closed Hospital
Departments,” “Crozer Retention Bonuses,” “Crozer Pension
Plan Actuarial Assumptions, Terms, and Conditions,”
“[Worker Adjustment and Retraining Notification (WARN)]
Act,” and “Crozer Pension Contributions Schedule”).
Accordingly, Crozer should have known the reason why the
Union would request the APA that contained the items it had
broadcasted to the Union and its work force.




where the agreements were requested by unions that
represented employees employed by the seller”).




                               23
        The Court of Appeals for the First Circuit’s decision in
Western Massachusetts Electric Co. v. NLRB, 

(1st Cir. 1978), is instructive. In that case, the employer
contended that “the union never made clear the reasons why it
wanted [certain] cost information.”

But the court
noted that the employer had “put costs in[to] contention”
through assertions it had made to the union.

that the information should be produced, and
addressing the employer’s assertion, determined that in light of
the employer’s representations, the employer “appear[ed] to
have had a sufficient basis for understanding the purpose of the
union’s request.”

decision is not an
outlier. See U.S. 

–20 (rejecting
employer’s contention that it had insufficient notice regarding
the potential relevance of a union request for individual
insurance claims information because “context is everything,”
and the employer “put on the table” the concern of growing
health care costs); Providence 

–20
(holding that where, inter alia, the employer distributed written
information about a merger, including some workplace
changes such as “broad hints that it already had formulated
some ideas relative to future staffing of the new system” and
its expected regulatory approval, “[u]nder 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,” substantial evidence supported the Board’s order
requiring disclosure of merger-related documents); Caldwell
Mfg. Co., 

, 1160 (2006) (ruling that an
employer “made the information relevant and created the
obligation to provide the requested data” because of the
employer’s factual assertions to the union). Because Crozer




                               24
chose to put items in the APA in play, it is “readily apparent”
why the Union would request the APA. 

.

       Relatedly, the Union was entitled to verify or
substantiate the representations that Crozer made to the
employees in the January 8 letter. See Truitt 

–53 (determining that an employer committed an unfair
labor practice when it refused a union request to substantiate a
claim that it could not pay higher wages); E.I. DuPont de
Nemours & Co. v. NLRB, 

, 1316 (D.C. Cir.
2007) (holding “that a union is entitled to inspect the data relied
on by an employer and does not have to accept the employer’s
bald assertions or generalized figures at face value”); W. Mass.
Elec. 

(acknowledging that when an
employer makes “assertions, the duty to bargain in good faith
required [the employer] to provide, upon demand, such
information as was reasonably necessary to substantiate
them”); see also Mary Thompson 

(holding that a union was entitled to a sales and transfer
agreement “in order to verify the data it obtained through
alternative sources”). The failure of Crozer to furnish any part
of the APA to the Union made such verification and
substantiation impossible. See J.A. 295 (Bilotta testimony
acknowledging the frustration of the union representative at
bargaining and the representative’s feeling that “we were in the
light and they were in the dark” without the APA). We agree
with the ALJ’s conclusion that “the Union was entitled to the
actual document to verify the summary [in the January 8 letter]
and to obtain additional details.” J.A. 13.

       In sum, it is clear that Crozer should have known the
reason for the Union’s request for the APA. The ALJ found
that “it was clear to both parties that the APA contained




                                25
relevant information.”

therefore, for
the Union to communicate specific facts underlying the
request. 

.13 We emphasize that meeting
the standard set forth in Hertz depends upon the circumstances
of each case and caution that a union’s mere invocation of the
necessity of a sales agreement for bargaining in the context of
an employer’s sale may not be enough.

                              b.

       We turn to the employer’s obligation to produce
relevant information. Notwithstanding the relevance of at least
some of the APA, Crozer failed to furnish the Union with any
part of it. This failure was the basis of the Board’s ultimate
conclusion that Crozer violated section 8(a)(5) and (1). We
agree.

       The employer must disclose relevant parts of a
document in response to a union request. This disclosure duty
exists even if other parts of a document are not subject to
production. See Country Ford 

(determining that even if “the Union’s request was overbroad,

       13
          In addition, in the context of this case, the Union
could not be blamed for not providing more specificity
regarding which parts of the APA it desired as it had no idea of
the APA’s contents, save a few summarized aspects in
Crozer’s January 8 letter. See Olean Gen. Hosp., 363 N.L.R.B.
No. 62, slip op. at 10 (Dec. 11, 2015) (rejecting an employer’s
claim that the Union failed to show a “specific need” for a
requested report and holding that “[t]he inability to identify
specific relevant information in the report can hardly be held
against the Union, which has never seen the report”).




                              26
this does not excuse the [employer] from providing the
requested information to which the Union had an undisputed
right”); Oil, Chem. & Atomic 

(“[T]he mere fact that a Union’s request encompasses
information which the employer is not legally obligated to
provide does not automatically excuse him from complying
with the Union’s request to the extent that it also encompasses
information which he would be required to provide if it were
the sole subject of the demand.” (quoting Fawcett Printing
Corp., 

, 975 (1973)));

(noting that
a claim that some requested information encompassed trade
secrets “could not justify the companies’ total noncompliance
with the unions’ requests”). 14 The ALJ was correct in holding
that the APA contained relevant information and that it
“needed to be produced” at least “in part.” J.A. 13.

       The Federal Rules of Civil Procedure “frequently”
provide useful “guidance” to the Board. NLRB Div. of Judges,
Bench Book i (2019); cf. NLRB v. Yawman & Erbe Mfg. Co.,

, 949 (2d Cir. 1951) (“The rule governing
disclosure of data [to a union] is not unlike that prevailing in
discovery procedures under modern codes.”). The discovery
standards set forth in the Rules and the decisions that apply
them lend support to our analysis.

       Federal Rule of Civil Procedure 34(b)(2)(C) provides
that a party may object to a document request, but “must
specify the part and permit inspection of the rest.” The
advisory committee note explains that the rule “make[s] clear

       14
          Application of the disclosure principles discussed
herein depends upon the facts and circumstances of each case.
See Truitt 

.




                              27
that, if a request for production is objectionable only in part,
production should be afforded with respect to the
unobjectionable portions.” Fed. R. Civ. P. 34 advisory
committee’s note to 1993 amendment; see Bogosian v. Gulf
Oil Corp., 

, 595 (3d Cir. 1984) (“Of course, where
the same document contains both facts and [privileged
material], the adversary party is entitled to discovery of the
facts.”); Breon v. Coca-Cola Bottling Co., 

, 55
(D. Conn. 2005) (“It is not proper to withhold an entire
document from discovery on grounds that a portion of it may
be privileged.”).15 So, as in a civil lawsuit, an employer facing
a request for documents must furnish the union with the
relevant material upon demand, even if other material covered
by the demand is not subject to production. The ALJ correctly
held that Crozer violated this obligation given the facts and
circumstances in this case.

        In addition, the ALJ held that Crozer “failed to indicate
what portions [of the APA it] deemed irrelevant and
confidential, or explain why.” J.A. 13. Substantial evidence
supports this determination, and, indeed, the Board has applied
its “straightforward” standard that an employer responding to
a union information request has a duty “to adequately explain

       15
          We have applied similar rules of production in the
Freedom of Information Act context. For instance, we have
determined that “‘[a]n agency cannot justify withholding an
entire document simply by showing it contains some exempt
material,’” and, instead, “the agency must demonstrate that all
reasonably segregable, nonexempt information was released.”
Abdelfattah v. U.S. Dep’t of Homeland Sec., 

, 186
(3d Cir. 2007) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of
Air Force, 

, 260 (D.C. Cir. 1977)).




                               28
why [unproduced] information will not be furnished.”
Regency Serv. Carts, Inc., 

, 673 (2005); see
also Board Br. 41 (arguing that “[a]ll Crozer needed to do was
‘at any time, sen[d] an email to the Union with a redacted
version of the APA, including the list of schedules . . . and an
explanation as to why certain information was being
withheld’” (quoting J.A. 38)); Oral Arg. Tr. 24:18–21 (Board
arguing that “it’s not an overwhelming obligation” because
“[a]ll [Crozer had] to do [was] . . . identify what [it was] not
providing, and explain why”). We note that the Federal Rules
of Civil Procedure are in accord. Rule 34 provides that a
responding party has the obligation to “state whether any
responsive materials are being withheld” and state the reason
or reasons why. Fed. R. Civ. P. 34(b)(2)(C). See Smash Tech.,
LLC v. Smash Sols., LLC, --- F.R.D. ---, 

,
at *5 (D. Utah June 30, 2020) (citing Rule 34(b)(2)(C) and
observing that a responding party “must state whether
responsive materials were withheld and link each specific
objection to what was withheld”). This explanation by the
responding party should provide enough detail to “facilitate an
informed discussion” about why the material was withheld.
Fed. R. Civ. P. 34 advisory committee’s note to 2015
amendment.

       The ALJ noted that Crozer should have produced
relevant parts of the APA “along with an explanation of what
they were withholding so the parties could engage in
meaningful discussions about the proper scope of production.”
J.A. 14; see J.A. 13 n.8 (ALJ observing that Crozer was “best
situated to initiate a discussion of [what would be withheld]
because they were in possession of the information”).
Although Crozer did eventually assert a boilerplate objection
that the Union request for the entire APA sought “irrelevant




                              29
information” and was premature and overbroad, J.A. 72,
Crozer never specified which parts of the APA this objection
pertained to or why and, of course, it withheld everything.
Accordingly, Crozer failed to meet its production obligations
in the circumstances of this case.

       The above-described disclosure obligation —
furnishing relevant parts of a document to the requesting party
and identifying what has been withheld and the reasons why
— was not foreign to Crozer. Indeed, at the trial before the
ALJ, Crozer’s sole witness (Bilotta) testified about what she
does when she receives a request for information from a union
— a “pretty frequent” occurrence. J.A. 290. For instance,
Bilotta testified that when a union requests information, “I’ll
provide all of the information that is relevant and I’ll [include]
in my response as to what I’m not providing and why . . . and
that we’re willing to continue discussions about it.” J.A. 291.
Considering this testimony about Bilotta’s “standard operating
procedure,” the ALJ noted that “it is unclear why she did not
follow it with regard to the APA.” J.A. 13. This failure is
especially curious given that Crozer supplied nothing to the
Union but gave parts of the APA to other unions and that
Crozer made public the APA (without schedules or
attachments) through its June 3, 2016 filing in the Delaware
County Court of Common Pleas, although the Union only first
saw the APA when it was provided by the Pennsylvania
Attorney General’s Office on June 6, 2016.


       Crozer strenuously complains that the Union failed “to
meet it halfway,” Crozer Br. 1, and was “stonewalling,” Crozer
Reply Br. 21, by refusing to recede from its request for the
entire APA. The Union certainly could have been more




                               30
communicative, and we cannot say that its conduct was
exemplary. But this does not absolve Crozer of its production
obligations. The ALJ correctly determined that Crozer could
not avoid or delay meeting its obligation to produce relevant
portions of the APA through, for instance, seeking alternative
requests. See U.S. 

(noting that “the
onus is on the employer because it is in the better position to
propose how best it can respond to a union request for
information,” and that “[t]he union need not propose the
precise alternative to providing the information unedited”). In
particular, as the ALJ recognized, Crozer was “not entitled to
withhold information [it] already had an obligation to provide
as leverage in asking the Union to accept less than it may
otherwise be entitled to receive.” J.A. 14. This is tantamount
to a responding party holding “hostage” information that it
should have produced until the requestor capitulates to the
responding party’s demands for concessions — a type of
gamesmanship that will not promote justice in the labor or any
civil context. Further, we agree with the ALJ that because of
Crozer’s failure to comply with its production obligations, “the
Union was not put to the test of altering its position.”

    * *

       Crozer’s failure to disclose relevant information from
the APA to the Union “does not facilitate effective collective
bargaining and, therefore, does not meet the requirements of
Section 8(a)(1) and (5).” 

. We
will enforce the Board’s order and deny Crozer’s petition
regarding this issue.




                              31
                               B.

      Crozer next argues that, putting relevance aside, it did
not have to provide the Union with the APA because it was
confidential. This argument also cannot withstand scrutiny.

        When a union requests relevant, yet confidential
information, “the Board is required to balance a union’s need
for the information against any ‘legitimate and substantial’
confidentiality interests established by the employer.” Resorts
Int’l Hotel Casino v. NLRB, 

, 1556 (3d Cir.
1993) (quoting Pa. Power & Light Co., 

,
1105 (1991)); see Detroit 

–20. But
importantly, “[b]efore such a balancing takes place, the party
seeking to withhold relevant information on the basis of
confidentiality bears the burden of demonstrating a legitimate
claim of confidentiality.” Resorts 

. And
“an employer cannot prevent production of [relevant]
information simply by asserting that it is ‘confidential.’” Nat’l
Steel Corp. v. NLRB, 

, 934 (7th Cir. 2003); see
NLRB v. Pfizer, Inc., 

, 891 (7th Cir. 1985)
(rejecting the notion that “an employer’s bare assertion that the
information sought is confidential entitle[s] it to resist
production with impunity”). Further, the employer “must offer
to accommodate both its concern and its bargaining
obligations, as is often done by making an offer to release
information conditionally or by placing restrictions on the use
of that information.” U.S. 

.

       Substantial evidence supported the ALJ’s finding that
Crozer failed to meet its “burden of proving a valid
confidentiality interest in the APA.” J.A. 14. The record
reveals that Crozer’s asserted confidentiality interest in the




                               32
APA stemmed from the agreement’s confidentiality provision.
That is, Crozer’s concern was that providing the Union with a
copy of the APA simply would violate the agreement’s clause
that generally prohibits disclosure of the agreement to third
parties. As Crozer itself put it in an email to the Union:

       [Crozer] further objects to the request on the
       basis that it seeks confidential and proprietary
       information that is subject to legal prohibitions
       on disclosure. As [Crozer’s attorney] explained
       to [the Union’s attorney], the entire [APA] is the
       subject of a confidentiality agreement between
       [Crozer] and Prospect that [Crozer] is legally
       obliged to follow.

J.A. 73. Crozer’s concern was thus a technical one. At no point
did Crozer ever assert that certain parts of the APA were
inherently sensitive. J.A. 14 (ALJ finding that Crozer “never
identified portions of the APA [it] wanted to keep confidential
from the Union”). 16 At most it said that the APA was

       16
          Crozer argues that it is “beyond dispute” that it “has
a cognizable confidentiality interest in the kind of business and
financial information contained in the Purchase Agreement.”
Crozer Br. 32. But nearly all the cases Crozer cites for that
proposition have to do with relevance, not confidentiality. See,
e.g., Teleprompter Corp. v. NLRB, 

, 9 (1st Cir. 1977)
(“Financial data need not be disclosed in the course of contract
negotiations unless the bargaining representative first makes a
showing that it is specially relevant to the bargaining taking
place.”).     More to the point, Crozer, in all of its
communications with the Union, never invoked “business and
financial information contained in the Purchase Agreement” as




                               33
“confidential and proprietary,” J.A. 69, but such a naked
assertion of confidentiality is insufficient to meet Crozer’s
burden, J.A. 14 (ALJ noting that “the record contains no
explanation why [Crozer] actually believed that certain
portions of the APA were confidential or proprietary”). See
Nat’l Steel 

.

       We agree with the ALJ that the APA’s confidentiality
provision, on its own, did not suffice to create a legitimate and
substantial confidentiality interest.         A confidentiality
agreement, like the one here, is ultimately just a contract. Any
two parties can agree to keep certain matters secret, but that
does not mean that those matters are inherently sensitive. 17 See
Wash. Star Co., 

, 397 (1984) (rejecting a
confidentiality argument and holding that a selling employer’s
“obligation to provide the sales agreement [cannot] be defeated
by a private agreement between [the employer] and [the
buyer]”).       Indeed, as Crozer itself acknowledges,
confidentiality provisions in sales agreements are often just
boilerplate. Crozer Br. 32. Crozer does not provide, nor can
we locate, any authority permitting an employer to withhold
relevant information from a union based solely on a contractual
interest. 18 And that makes sense because allowing employers


a basis for its asserted confidentiality interest. It always relied
upon the confidentiality provision.
       17
          The ALJ also read the confidentiality provision as
permitting disclosures to the Union. We need not determine
whether the ALJ’s reading was correct, because the provision,
even if it did bar disclosure, did not create a valid
confidentiality interest.
       18
            Crozer cites Northern Indiana Public Service
Company, 

, 212 (2006), where the Board




                                34
to withhold relevant information on such a basis would allow
private parties to undermine the NLRA’s statutory scheme. We
therefore agree with the ALJ that Crozer’s contractual interest
here did not trump its statutory duty to furnish relevant
information to the Union.

       Because Crozer never established a legitimate and
substantial confidentiality interest, it does not matter whether
“Crozer was always willing to discuss and reasonably
accommodate the Union’s request.” Crozer Br. 31; see Watkins
Contracting, Inc., 

, 226 (2001) (rejecting an
employer’s assertion of confidentiality where the employer
“only stated that the information should be held confidential
and then asked if the Union would agree to sign a
confidentiality agreement”).            Without a legitimate
confidentiality interest, Crozer needed to provide all relevant
information to the Union. See Howard Indus., Inc., 

, 892 (2014) (“When a party is unable to establish
confidentiality, no balancing of interests is required and it must
disclose the information in full to the requesting party.”). 19


observed that “a promise of confidentiality is relevant to the
issue of whether the information will be considered
confidential.” But in Northern Indiana, the Board found that
“a legitimate and substantial confidentiality interest” existed
beyond the promise of confidentiality itself.

That
is not the case here.
        19
           For this reason, Crozer’s reliance on Good Life
Beverage Co. (Silver Bros. Co.), 

(1993), is
misplaced. In that case, the union requested specific financial
information that was undoubtedly confidential.

And so the Board found that, given the “substantial and
legitimate confidentiality concerns regarding [the requested]




                               35
       In sum, substantial evidence supports the Board’s
conclusion that Crozer, in failing to provide the Union with
requested, relevant information, violated the NLRA.

                              C.

       Crozer also challenges the Board’s remedy. We
conclude that the Board abused its discretion by issuing a
punitive remedy.

       The Board’s remedial “power is a broad discretionary
one, subject to limited judicial review.” Fibreboard Paper
Prods. 

. We accord “special respect” to
the Board’s remedy because “the Board draws on a fund of
knowledge and expertise all its own.” NLRB v. Gissel Packing
Co., 

, 612 n.32 (1969). As the Supreme Court has
instructed, “courts must not enter the allowable area of the
Board’s discretion and must guard against the danger of sliding
unconsciously from the narrow confines of law into the more
spacious domain of policy.” Sure-Tan, Inc. v. NLRB, 

, 899 (1984) (quoting Phelps Dodge Corp. v. NLRB, 

, 194 (1941)). But at the same time, “the Board’s
discretion to select and fashion remedies for violations of the
NLRA, though generally broad, is not unlimited.” Hoffman



information,” the employer had a right to discuss its
confidentiality concerns with the union, and that the union
failed to engage in accommodative bargaining.

But Crozer, unlike the employer in Good Life Beverage, never
established a “substantial and legitimate confidentiality”
interest.




                              36
Plastic Compounds, Inc. v. NLRB, 

, 142–43
(2002) (citations omitted).

        One relevant limit is that “Board orders may not be
punitive or confiscatory and must be reasonably adapted to the
situation that calls for redress.” Frito-Lay, Inc. v. NLRB, 

, 68 (3d Cir. 1978) (quoting NLRB v. Townhouse T.V.
& Appliances, Inc., 

, 830 (7th Cir. 1976)). This is
so because “[t]he function of the remedy in unfair labor cases
is to restore the situation, as nearly as possible, to that which
would have occurred but for the violation.” Sys. Mgmt., Inc.
v. NLRB, 

, 308 (3d Cir. 1990) (quoting Kallmann
v. NLRB, 

, 1103 (9th Cir. 1981)).

        Here, the Board’s order –– directing Crozer to disclose
the entire APA, with all schedules and attachments –– was not
“tailored to the unfair labor practice it [wa]s intended to
redress.” 

. As explained earlier, at
least some of the APA is relevant, and Crozer’s unsuccessful
confidentiality claim is not an impediment to production of that
relevant information. The ALJ was not specific, however,
about which parts are relevant, perhaps because he ultimately
ordered production of the entire APA. It may be that other parts
of the APA (including schedules and attachments) are not
relevant. And thus the Board, instead of restoring the situation
to the status quo ante, placed the Union in a far more
advantageous position vis-à-vis Crozer. That is punitive, not
restorative.

       We are unaware of any precedent for ordering an
employer to furnish information to a union that has not been
established as relevant. The cases relied upon by the Board
hold that an employer that claims relevant information to be




                               37
confidential, yet never tries to substantiate or accommodate
that claim, is not entitled to another round of bargaining and
must produce that relevant information. See, e.g., W. Penn
Power Co., 

, 586 (2003) (“Having violated
the Act by refusing to provide relevant and necessary
information, the Respondent is now obligated to produce the
information.”). But those cases all involved information that
had been established as relevant. In none of them did the Board
order an employer to provide information where relevance had
not been established.

        The Board majority, for its part, defended its remedy on
the grounds that Crozer, by failing to “engage in
accommodative bargaining at the time they first asserted a
confidentiality interest,” “unfairly imposed, and unjustly
reaped the benefit of, an additional year of delay upon an
uninformed bargaining partner.” J.A. 6. But that reasoning
conflates the analytically distinct issues of relevance and
confidentiality. Confidentiality is a defense that an employer
may invoke in response to a union’s request for relevant
information. Here, the Union never established the relevance
of the entire APA, and thus Crozer cannot be faulted for failing
to produce any irrelevant parts.

        Again, we are mindful of the Board’s broad discretion
in crafting remedies for violations of the NLRA. But “the rule
of deference to the Board’s choice of remedy does not
constitute a blank check for arbitrary action.” Detroit 

. The remedy for a failure to disclose relevant
information is the disclosure of that relevant information, not
the disclosure of other, irrelevant information. In ordering
disclosure of the entire APA, the Board abused its broad
remedial discretion.




                              38
       Before concluding, we observe that the only part of the
APA that the Union has yet to receive is its schedules and
attachments (aside from schedules 4.13(a) and 4.18(a)). Based
on the list of schedules and attachments contained in the
record, it may be that some of those schedules could be
relevant, while others are not. We hold just that the Board
abused its discretion in ordering Crozer to disclose all of the
schedules and attachments to the Union. We leave it to the
Board on remand to determine which schedules and
attachments have been sufficiently established as relevant and
thus which schedules and attachments the Union has a right to
receive.

                               IV.

       For the foregoing reasons, we will grant Crozer’s
petition for review in part and deny it in part, grant the Board’s
cross-petition in part and deny it in part, and remand to the
Board for further proceedings consistent with this opinion.




                               39
BIBAS, Circuit Judge, dissenting in part.
   I join my colleagues in holding that Crozer did not show a
confidentiality interest in the sale agreement. And I agree that
the Board’s remedy was punitive. So I too would grant
Crozer’s petition for review. But I write separately because I
cannot join Part III.A of the majority’s opinion.
    Unions and employers must bargain in good faith. The em-
ployer here, Crozer, agreed to be bought by a third party, and
the two signed an acquisition agreement. Soon after, Crozer
told Union members about the upcoming sale and explained its
effects, even though it had no duty to do so. The Union then
asked to see the whole agreement. But the agreement’s scope
was broad. It orchestrated a multi-million-dollar sale, so it con-
tained heaps of sensitive financial information not relevant to
the Union. To be sure, some parts touched on topics near and
dear to employees, like pensions and healthcare benefits. Rec-
ognizing this, Crozer repeatedly put these parts on the table,
ready for the Union’s taking.
    The Union said no. From the very start, it wanted the whole
agreement. But it never justified why the entire document, not
just the parts affecting employees, was relevant. And despite
Crozer’s repeated offers to turn over these parts, the Union
would not budge. It wanted all or nothing.
    Nothing it got, and nothing it deserved. The Union did not
satisfy its statutory duty to act in good faith. By contrast,
Crozer consistently acted in good faith, so it did not violate the
National Labor Relations Act. But in the face of the governing




                                1
statute and precedent, the majority holds otherwise. I respect-
fully disagree.
  I. THE UNION DID NOT JUSTIFY WHY IT NEEDED THE
                WHOLE AGREEMENT

    The Act requires employers and unions “to bargain collec-
tively” with each other. 29 U.S.C. § 158(a)(5), (b)(3). That
duty, in turn, requires the two sides “to meet at reasonable
times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment.” § 158(d).
These topics are “the subjects of mandatory bargaining.” NLRB
v. Wooster Div. of Borg-Warner Corp., 

, 349
(1958).
    These terse statutory commands have spawned many du-
ties. One is relevant here: as part of its duty to confer in good
faith, an employer must give unions the information they need
to perform their duties properly. N.J. Bell Tel. Co. v. NLRB,

, 790–91 (3d Cir. 1983). That makes sense. Infor-
mation asymmetries plague labor relations, and an employer
could hurt unions by hoarding key information.
    The Supreme Court has compared this duty to civil discov-
ery, and it comes with similar triggers and limits. See NLRB v.
Acme Indus. Co., 

, 437 (1967). To start, the union
must make a request for information that is “specific” enough
“to apprise the company of what information is sought.” NLRB
v. N.J. Bell Tel. Co., 

, 150 (3d Cir. 1991). And the
request must include facts that “support[ ] an objective basis”
for the union’s concerns. Hertz Corp. v. NLRB, 

,
874 (3d Cir. 1997). So a “union’s bare assertion that it needs




                               2
information . . . does not automatically oblige the employer to
supply all the information in the manner requested.” Detroit
Edison Co. v. NLRB, 

, 314 (1979).
    Or at least that is how it is supposed to work. It did not hap-
pen here. The Union never made a specific request for infor-
mation grounded in the facts. As the majority recounts, Pro-
spect agreed to buy Crozer in a multi-million-dollar deal. Their
hundred-page-long contract covered everything from tax pro-
rations to antitrust compliance. That contract also came with
seventy-seven exhibits and schedules. Taken together, these
documents touched on Crozer’s most sensitive information.
Here is a sample:

       • Crozer’s intellectual property;
       • The condition of all Crozer assets and any material
         defects;
       • Any insurance policies on those assets and the de-
         tails of those policies;
       • Any significant contracts to which Crozer was a
         party;
       • Any investigations into Crozer that were pending or
         threatened; and
       • Any litigation or proceedings involving Crozer.
To be sure, the agreement also touched on topics that matter to
the Union’s members, like employee benefits.
   Soon after entering the contract, Crozer told the Union of
the sale and reassured it that many key employment terms




                                3
would stay the same. The Union then asked for “the complete
Asset Purchase Agreement and all attachments and schedule[s]
of the agreement.” App. 67. But it never explained why it
needed the whole agreement. Crozer responded that the whole
agreement was not relevant to bargaining and that it would con-
sider alternative requests. The Union stuck to its guns, again
asking for the whole agreement “with attachments and sched-
ules.” App. 70. Again, it offered no explanation.
    The Union did not have to say much. It could have asked
for all contractual terms affecting mandatory-bargaining sub-
jects like wages or benefits. That information is presumptively
relevant. Or it could have asked Crozer to prove every claim it
made about the sale, from the transaction’s effect on hospital
closings to its treatment of pensions. See Int’l Tel. & Tel. Corp.
v. NLRB, 

, 371 (3d Cir. 1967). Or it could have
thrown a Hail Mary and tried to justify why it needed the whole
agreement. But it did none of that.
    Instead, the Union simply asserted that it needed the whole
agreement “for effects bargaining.” App. 67. In other words,
the Union needed the agreement because it was relevant, and it
was relevant because the Union needed it. That circularity does
not satisfy the Union’s burden. The Union puts forth all sorts
of justifications now, but we cannot consider them. 

–74. So we are left with no justification at all.
    The whole agreement was not relevant; the majority does
not contest that. See Maj. Op. 16–17. But, as the majority cor-
rectly notes, the agreement contained some relevant infor-
mation. Maj. Op. 17. According to the majority, Crozer had to




                                4
give the Union those relevant parts of the agreement. The Un-
ion, however, did not ask for that particular information; it
asked for the whole agreement. And the Union’s burden is to
justify its request then and there, not to make an overbroad,
boilerplate request and hope that a court will later find some
subset relevant. By cabining its inquiry, the majority lets the
Union off the hook.
   II. THE UNION CANNOT RELY ON PRESUMPTIONS OR
                     CONTEXT

    Finding no help in the general standard, the Union seeks
refuge elsewhere in our law. First, it tries to escape its burden
through a limited exception. Second, it claims that the context
made an explanation unnecessary. Neither argument works.
    To start, the Union claims that the whole agreement was
presumptively relevant. “[W]age and related information per-
taining to employees in the bargaining unit is presumptively
relevant.” Curtiss-Wright Corp., Wright Aeronautical Div. v.
NLRB, 

, 69 (3d Cir. 1965). A union need not “show
[its] precise relevance.”

applies only
to information about “the core of the employer-employee rela-
tionship”—that is, mandatory-bargaining subjects.

the agreement touched that core, the Union’s blanket
request went well beyond it. The Union swung for the fences,
but it missed. So it gets no help here.
   The Union’s context argument also fails. Take a step back:
When Crozer first told the Union of its upcoming sale, it reas-
sured Union members that “many things at Crozer-Keystone




                               5
[would] not change.” App. 59. Hospitals would stay open, un-
ionized employees could keep working, and key services
would remain or grow. Crozer also preemptively answered
more than thirty questions, including how the sale would
change pensions and healthcare benefits. All in all, it gave Un-
ion members eight pages of detailed information about how the
sale would affect them.
    Nothing forced Crozer to give out this information up front.
It was an olive branch. But because of that good-faith gesture,
the Union says, Crozer made the whole agreement relevant and
had to turn it all over. There are indeed times when the context
of a request makes any further justification unnecessary. In that
situation, the employer must disclose—no questions asked. See

.
    This is not one of those times. At most, the context here
made relevant only those provisions that touched on employee-
related issues. If the Union had asked for only those provisions,
it might have been entitled to them without further explanation.
But the Union asked for the whole contract, not just for those
provisions. So it cannot benefit from this exception, and
Crozer’s good deed should go unpunished.
    In holding that the context here required disclosure, the ma-
jority emphasizes Crozer’s letter to the Union about the Pro-
spect sale. Maj. Op. 23–25. So I worry that the majority’s hold-
ing will perversely discourage employers from giving employ-
ees extra information at the outset. That sort of disclosure ben-
efits unions and their members, but employers may no longer
be so forthcoming. If Crozer had said nothing, this appeal
might have come out the other way. The takeaway for future




                               6
employers is as clear as it is troubling: choose silence over
transparency.
  III. THE UNION’S BROAD REQUEST DID NOT REQUIRE
        CROZER TO TURN OVER SPECIFIC PARTS
                 OF THE AGREEMENT

    So the Union keeps looking for shelter. Its next argument
goes like this: even though the whole agreement was not rele-
vant, some parts were, and Crozer’s blanket request for the
whole agreement required Crozer to turn over those relevant
parts. In other words, employers facing overbroad requests
must ferret through their haystacks and turn over any needles
that they find. The majority buys that argument and crafts an
even more troubling rule. But the authority for these rules is
shaky. Crozer kept offering to turn over the relevant parts. The
Union rejected those offers and should reap no reward for its
stubbornness.
   A. Beware the Union’s rule
     I turn first to the Act. That is not where the Board starts.
After decades of agency precedents, the Board has lost sight of
its foundational grant of authority from Congress. A reminder:
the Act requires employers to “meet [with employee represent-
atives] at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employ-
ment.” 29 U.S.C. § 158(d). The statute says nothing about in-
formation requests, let alone overbreadth.
   So we turn to the agency’s interpretations of the Act, to
which we owe deference. The administrative law judge here
pointed to one: “an employer may not simply refuse to comply




                               7
with an ambiguous or overbroad information request, but must
request clarification and/or comply with the request to the ex-
tent it encompasses necessary and relevant information.” App.
13 (quoting agency decisions). The Union asks us to adopt that
rule as our own.
    But this rule has a few problems. First, it is a bright-line
rule. A categorical approach to the statute strays from what the
Supreme Court has told us should be a fact-bound, case-by-
case inquiry. NLRB v. Truitt Mfg. Co., 

, 153–54
(1956). Though the statutory requirement of good faith is
amorphous, it at least requires the Board to analyze the facts of
each case. Faced with a conflict between the Board and the Su-
preme Court, we should follow the Court’s lead.
    Second, the rule could let unions make overbroad requests
and leave it to the employer to winnow the wheat from the
chaff. What is to stop a union from asking every month for all
available information, and leaving it to the employer to turn
over anything relevant? On the Board’s view, perhaps nothing
at all. Not only would that undercut the case-by-case inquiry
into good faith, but it would flip the burden from the union to
the employer.




                               8
   B. Even if an overbroad request is okay, Crozer
      complied with the Board’s rule

    But assume that the Board has it right, and even an over-
broad request calls for “clarification and/or” partial compli-
ance. Keauhou Beach Hotel, 

, 702 (1990);
see also Norris, a Dover Res. Co. v. NLRB, 

, 1171
(10th Cir. 2005) (enforcing this rule). This rule is disjunctive,
so employers can comply by either clarifying or complying.
Crozer did both.
    To start, Crozer did ask the Union to clarify its request. Af-
ter the overbroad request, Crozer told the Union that “the entire
APA is not relevant for effects bargaining over the terms and
conditions of employment of bargaining unit members.” App.
69. Then it said that it was “open to considering any alternative
requests [the Union] may have.”

the re-
quest was overbroad and asking the Union to make an alterna-
tive, narrower request, Crozer met its duty to follow up. But
the Union did not clarify, narrow, or justify its request. Instead,
it again asked for the whole agreement.
    Crozer also offered to give the Union the relevant parts of
the agreement. In a letter to the Union, Crozer said that its law-
yer had “offered to discuss with [the Union] the potential for
production of those portions of the Asset Purchase Agreement
and any attachments and schedules thereto that relate to or af-
fect [Crozer] employees, including those who are members of
[the Union].” App. 72. And the letter renewed that offer.
   Two Union employees also testified that Crozer made the
same offer orally. A Union representative said that Crozer’s




                                9
lead negotiator had “offered up the relevant portions of the”
sale agreement. App. 206. And the Union’s executive director
confirmed that Crozer’s lead negotiator “may have also said
that they would be willing to determine what was relevant and
share that with the Union.” App. 253. The executive director
agreed that Crozer specifically discussed “produc[ing] the por-
tions relevant to employees.” App. 266.
    Despite Crozer’s oral and written offers to produce the rel-
evant parts of the agreement, the majority claims that Crozer
“refused to provide any” part of the agreement. Maj. Op. 3. But
Crozer made exactly the offer that the majority says it did not.
So it satisfied both parts of the Board’s overbreadth rule.
   C. Fear the majority’s rule
    The majority casts aside the Board’s overbreadth rule and
crafts its own: An employer, faced with an overbroad infor-
mation request, must somehow identify and produce the rele-
vant parts. Then, for any parts not produced, the employer must
explain why it withheld those parts. Maj. Op. 30.
    The Board did not ask for this rule. Nor did the Union. So
where does the majority get it? It imports it wholesale from the
Federal Rules of Civil Procedure. Maj. Op. 27–30. Now, the
Supreme Court has compared the information-exchange pro-
cess to federal civil discovery, calling it a “discovery-type
standard.” Acme 

. We have recognized
this analogy before. N.J. Bell Tel. 

. But
that is as far as the Supreme Court has gone—an analogy. It
has never found that the Federal Rules of Civil Procedure gov-




                              10
ern. And for good reason: we must assess the exchange of in-
formation case by case. As the Supreme Court has repeatedly
emphasized, “[e]ach case must turn upon its particular facts.”
Truitt Mfg. 

. This is true of both the em-
ployer’s duty to disclose and “the type of disclosure that will
satisfy that duty.” Detroit Edison 

–15. In
short, whether an employer acted in good faith is fact-specific.
Yet the majority borrows a categorical rule.
    That rule is not only categorical, but also unworkable. Like
the Board’s rule, it licenses fishing expeditions. Unions no
longer need justify their requests, but can just ask for monthly
data dumps. And it discourages bargaining in good faith. Here,
the Union submitted a bare-bones request; it demanded the
whole Agreement and refused to say which parts it thought rel-
evant. Under the majority’s rule, Crozer had to pore over it all,
including its many exhibits and schedules, and guess what in-
formation would be relevant. Crozer then had to give the Union
those parts of the agreement, even though the Union had re-
peatedly rejected Crozer’s offers to do just that. So Crozer is
punished for failing to give the Union the parts it had rejected.
So much for good faith.
       IV. THE UNION DID NOT ACT IN GOOD FAITH
    It bears repeating: The Act requires both employers and
Union representatives to “confer in good faith.” 29 U.S.C.
§ 158(d). In failure-to-disclose cases, “[t]he inquiry must al-
ways be whether or not under the circumstances of the partic-
ular case the statutory obligation to bargain in good faith has
been met.” Truitt Mfg. 

–54.




                               11
    This case showcases the risks of departing from that case-
by-case inquiry. The Union repeatedly did not act in good faith.
It refused to accept the information that it now seeks. It repeat-
edly rebuffed Crozer’s offers to turn over the agreement’s rel-
evant parts. And it had no good reason for doing so. The Union
knew the agreement contained irrelevant information. For in-
stance, it knew that the contract affected Crozer locations
where no Union employees worked. Yet the Union made its
overbroad request anyway. It later admitted its real motivation:
it wanted a peek at Crozer’s finances, not just at employment-
related terms.
    This lack of good faith should be central to our analysis.
The majority’s presumptions and categorical rules obscure
these damning facts. But the Supreme Court mandates a case-
by-case approach, and we should apply it. Doing so makes
clear that this Union did not act in good faith. It should not now
reap the Act’s benefits.
                             * * * * *
    This circuit rarely opines on the Board’s interpretations of
labor law. When we do, we must pay special care to the rules
we approve and pronounce. Today, this Court faults an em-
ployer for sharing, in good faith, information about an upcom-
ing sale. It flips the burden from unions to employers to decide
what is relevant, upending a decades-old scheme by analogiz-
ing too literally to civil discovery. It blesses agency actions that
are unmoored from the governing statute. And it overlooks key
facts in the record. So I respectfully dissent from Part III.A of
the majority’s decision, but join the rest.




                                12