Anheuser-Busch, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 982 (N.L.R.B. 1978)

DECISIONS OF NATIONAIl LABOR RELATIONS BOARD
Anheuser-Busch, Inc. and International Brotherhood
of Electrical Workers. IAlcal t nion No. 2295. AFI-
CIO. CLC. Case 31 CA 6636
August 25. 1978
I)E('lSION AND ORI)DER
On September 26. 1977. Admninlisratlte l.as, Judge
Richard D. Taplitz issued the attached D)ecision in
this proceeding. I'hereafter. Respondent filed eNxcep-
tions and a supporting brief. and the Gener al ('ouln-
sel filed a brief in support of the Adm inistirat is l.e I
Judge's Decision.
The National L.ahor Relations Board has consid-
ered the record and the attached [)ecision ill II-ht of
the exceptions and briefs and has decidedi to affirim
the rulings, findings. I and concIlusions ,f the Adin in-
istrative Lavw Judge onl, to the e\tent collsistent
herewith.
The pertinent facts are as follows: Respondent op-
erates a brewer,. International Brotherhood of Ilec-
trical Workers, I.ocal LInion No. 2295 AFI'. ('10.
CLC'. herein called the Union. represents Respon-
dent's maintenance electricians. journeIm Men. applrenl-
tices. and working foremen. Ihe collective- blhgirai n-
ing agreement in effect at the time of the incidents
herein occurred provides for a grievance procedure
culminating in binding arbitration.
On TIhursday , August 12. 1976. cmiplo\ee Richard-i
Roberts was involvsed in an altercation with enmplo-
ee Joe McDaniel. TIhe follos ing da'. Robertss W as
involved in another altercation witth ermploee Joe
Vaccare. McDaniel and Vaccare reported these inci-
dents to General Foreman Vincent Petretti. Shortl\
after the second incident. IElectrical F[oreman IFrank
Fennell interviewed McDaniel. Vaccare. and Rob-
erts. Fennell told Roberts that he was being suspend-
ed pending an investigation b\ the Frmployer's indus-
trial relations department. Fennell then asked
McDaniel. Vaccare, and Petretti to put their versions
of the August 12 and 13 incidents in vriting and for-
ward them to Industrial Relations Manager .lames
Turner.
After Roberts was suspended. Fennell learned that
Roberts had been involved in similar incidents in the
past with employee Robert Jones and lMaintenance
Foreman Roy Slabex. Fennell asked Jones and Sla-
be) to put their versions of these prior incidents in
I he Respiondent h.as cxceprted It ocrtlain crcdlbihl\i hidig. miade hx h.
Admilsrn itrlt i . la udge It s the B.oard's c.tahlhihed p0oh.1 1i.t lr ,l\.
rulc .an Adrilulistrailsc La.k Juldgc' Ic lution lw h ti vspt o1 , L lcd d lhic\
unless the clear prepondela nce if 1all of hlie lecia nllt eident e cn, .rcnic tus
thiat the Rcesolutionr c ire IllCOTl[CO. S1,m , ltd 1), ii t /' tlth .I r , 9I
Nl RB 544 I95O)., enfd 188 2d 362 ((C A. 3. i9ll t\c hace carefull;
exlamined the record and find no hbais Ifor reersing his findirigs
wr-itine. I' nnell also mailed two disciplinar- reports
to Roberts. one a reprimand for using "threatening
and abuIsi'e language toward a fellow employee. Mr.
McI)aniel." and ther other a suspension notice which
stated that Roberts , as "suspended with intent to
discllrLe"'' for usinLg "threateining n and abusive lan-
*tnage tosXald Mr. Nar ccare." I'he use of threatening
and ahusixe lanLuage tow ard a fellow employee is a
ioalition of Respondelnt's plant rules.
Induistriaal Relations M\anager James Turner began
his inv\xestica tion on Alucust 13. On londav. August
16. hli called a mecetinL of Roberts. Acting nL rion
Ste\kal-d [)ecke. I einnlell. and I'ennell's superior.
( ireoi e I d airds. l)urling this meeting. ITurner asked
Rober ts ahout sc\ eeral incidents of u-hich he had
letaried in the coiurse of his investigation. including
one ill \hicll Roberts had allecedl\ thrown a stick
and one in \k5hich he h;ad allecedly brandished a
w rsenc.l Roberts discussed the facts and circurn-
stanccs ot thle prior intcidents as he recalled them and
supp'llied the iamiles of' the enrplo',ees and supervisors
iln.olxed. :lso on AuuList 1(. Roberts filed a cries-
ance allegtin- tiiat he had been unj ustlN suspended.
Bet.cIenA \A Lust 1SI 6 and 23. 1Turiine acquired state-
nients fromn enplosees \Waxne Soltxs and Herb Nies-
sleill trecariding tile incidelnts whici I urner had dis-
cussed \\ithi Roberts on August 16. On Friday.
Aull ust 20. 1 urner telephoned Roberts aind informed
hilnl th;t ta 5- da suspension had been imposed on
hii. coserlinc the v, eek of Autgust 16 2(). Roberts re-
tiurned to ,s ol k on M'onida . August 23.
()On Aucust 23. the I nioll requested a meeting on
Roberts' riesvanlce At this meetingi. Turner and Fe-
nell represented Respondent. and IUnion Business
Repriesentative l)onald F rakes and Steward James
Dalton represented the l nion. Roberts also attend-
ed. 1lThe incidents of August 12 and 13 were dis-
cussed. Roberts gitine his version and Fennell giving
the substance of MlcDaniel's alnd Vaccare's state-
ments. At this meetinl. l'urner said that he had writ-
ten staitemeniits fiom \McDaniel and Vaccare. He also
mentioned the prior incidents and said that he had
statements from eliploxecs involved in them, but he
did ncot miention the names of emploNees other than
\Mlcl)anicel and Vaccare. F rakes asked that the I.!nion
be allo, ed to see the statements, but did not request
the n;ailies of eliploy ees S who had gi en them or the
substance thereof. TIurner refused to shov, the state-
ments to the Union, saving that the people who pro-
vided statemnenlts had been told their identities would
not be disclosed. that turning them over to the I Jnion
,.,ohll opein up an) opporlunit' for Roberts to harass
those w ho ga ve statements. and that, because the em-
plo!,eess who gas; statemlents * ere union memniers,
the IlUnion itself could obtain the information. 'Turner
237 NLRB No. 146
982
ANHEUSER-BUSCH, INC.
offered to trade the statements for the Union's state-
ment from Roberts. Frakes replied that the Union
did not have a statement from Roberts. Nothing ever
came of the offer and the matter was not raised
again. Neither party ever asked Roberts for a written
statement.
In a letter to Turner dated August 30. Frakes reit-
erated his request for the statements. On August 31.
the Union requested that Roberts' grievance proceed
to arbitration. During late August and September.
Frakes and Dennis Harley, the Union's attorney. re-
peatedly requested that the Union be provided with
copies of the statements. Also during this time, Stew-
ard Dalton was directed to investigate the incidents
for the Union. Dalton spoke with McDaniel, Vac-
care, and Jones, each of whom refused to give the
Union written statements or copies of the statements
given to Turner. Dalton also heard rumors that Sla-
bey, Soltys, and Niesslein had given statements, but
Dalton did not talk with them, did not ask Roberts
about them, and did not pass on the rumors to other
union officials. As steward, Dalton had been aware
of the circumstances surrounding the Jones and Sla-
bey incidents when they occurred. 6 months and I-
1/2 years, respectively, before Roberts' suspension.
Dalton did not, however, inform the Union that
these incidents may have been the ones to which
Turner had referred during the August 23 grievance
meeting.
On several occasions during September through
December, the Union's attorney, Harley,. and Re-
spondent's attorney, Willard Carr. discussed the
Union's requests for the statements. Neither Harlex
nor the Union ever asked for anything other than the
statements themselves. In late November. the Union
filed the instant 8(a)(5) and (1) charges. On Decem-
ber 30, Carr wrote a letter to counsel for the General
Counsel at the Board's Regional Office stating that
Respondent and the Union had reached the follow-
ing informal settlement of the 8(a)(5) and (1)
charges: Harley would withdraw the charges: Carr
would give Harley a list of the employees who had
given statements: when a witness was called at the
arbitration hearing, that witness' statements would
be given to Harley; and such statements were to be
provided to Harley only and were not to be disclosed
to Roberts or union officials. The Regional Office
did not accept this proposed settlement and proceed-
ed with the 8(a)(5) and (1) charges.?
-At the unfair labor practice hearing. Harles testified Ihat C( rr'. letter to
counsel for the General Counsel was an iccurate reflection of hi, a.rceneliln
with Carr, except that he had not agreed Ihat the statements ,ulltd he
limited to his use onlb and 'sould not be disclosed iio the L nion I he Ald-
ministrative liaw Judge found. and we agree. that }larles and ( arr did not
have a full meeting of the minds with regard to .a complete resioltlon of Ihe
matter.
During a meeting on January 4. 1977, Carr offered
to show the statements to Harley if Harley agreed
not to review them with the Union. Harley declined
the offer. Cart then read portions of the statements
to Harley and gave him a list of the employees who
had given statements. By letter dated Janaury 7, Har-
ley asked each of the seven individuals who had giv-
en statements to contact him so they could discuss
the matter. None of the seven responded to Harley's
request.
On January 27. Harley had his first face-to-face
conversation with Roberts. This was the first time
Roberts had been asked by the Union about the inci-
dents prior to August 12 and 13. Harley asked Rob-
erts if he had been involved in any altercations with
employees other than McDaniel and Vaccare. Rob-
erts related one prior incident but denied ever having
threatened any employees.
The arbitration hearing was held on February 15.
The stipulated issues were whether Roberts' suspen-
sion violated the collective-bargaining agreement
and, if so, what the appropriate remedy was. Of the
seven individuals who had given statements, six testi-
fied.'. I he statements of McDaniel and Vaccare were
placed in evidence and the Union. therefore, ob-
tained access to them. Following the direct examina-
tion of the other four witnesses, their statements were
shown to Harlev. but at Carr's insistence they were
not shovwn to Roberts or to the union officials. When
questioned at the arbitration hearing about the inci-
dents prior to August 12 and 13. Roberts admitted
having threatened to run Jones out of the plant, hav-
inc told Soltvs he would take him outside and beat
some sense into him, having thrown a stick at Soltys.
and having threatened Niesslein with a wrench. Rob-
erts also testified that during the August 16 meeting
he had provided Turner with the names of the em-
plovees involved in these prior incidents. On June 9,
the arbitrator issued his award. finding that Robert's
suspension was not in violation of the collective bar-
gaining agreement.
The lawfulness of Roberts' suspension is not at is-
sue in this proceeding before the Board. The ques-
tion, rather, is whether Respondent had an obliga-
tion under Section 8(a)(5) of the Act to honor the
Union's requests for the statements.
The Administrative Law Judge found that the
statements, relating to alleged improper conduct by
Roberts. were relevant to and needed by the Union
in order to evaluate the merits of Roberts' grievance
and to determine whether to proceed to arbitration.
Relying primarily on \N,L.R.B. v. .4cme Industrial
I niplol ee leselr l did ii,1 ictlf' L It he arbitrltion hearing Hits rIae-
iellt thcrefle. va, iv lt h,,h n to iiarle, at that hearine All seven state-
ielC . ,ere .inrodIuced nli esidlence at the unfair libor pratlice hearing
983
DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Co., 385 U.S. 432 (1967), the Administrative Law
Judge concluded that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to honor the
Union's requests for the statements.
We disagree with the Administrative Law Judge's
conclusion that Respondent had a statutory obliga-
tion to furnish the witness statements to the Union.
We, of course, recognize and continue to adhere to
the Acme principle that Section 8(a)(5) of the Act
imposes on an employer the "general obligation" to
furnish a union, upon request, information relevant
and necessary to the proper performance of its duties
as bargaining representative. Witness statements,
however, are fundamentally different from the types
of information contemplated in Acme, and disclosure
of witness statements involves critical considerations
which do not apply to requests for other types of
information. We do not believe that the principle set
forth in Acme and related cases dealing with the stat-
utory obligation to furnish information may properlyi
be extended so as to require an employer to provide
a union with statements obtained during the course
of an employer's investigation of employee miscon-
duct.4
Requiring prearbitration disclosure of witness
statements would not advance the grievance and ai-
bitration process. In this regard. we note particularly
the recent opinion of the Supreme Court in N.L.R.B.
v. Robbins Tire and Rubber Compan.lv, 98 S.Ct. 231 1
(1978). The issue before the Court in that case was
whether the Freedom of Information Act (FOIA). 5
U.S.C. § 552, required the Board to disclose, prior to
a hearing on an unfair labor practice complaint,
statements of witnesses whom the Board intended to
call at the hearing. In determining that the FOIA
does not require the Board to disclose such state-
ments, the Court discussed the potential dangers of
their premature release, including the risk that "em-
ployers, or in some cases, unions will coerce or intini-
4 Member Murph, i who joins in the holding hercin. finds this cac ,iJtin
guishable from Tool and Die MA'r%' lodge :o, ", , l*tlnitt\i Io lit! h
International .14.ociarion ,rf ,Uac hiitsls ailli .4ieroipa-c i1or ier, t1II ( 10
(Square D ( ompant. Mlilaaukee Planti. 224 N.RB 11I 1 1976I i hllch she
dissented from the finding that a union did not unlai fulls refustlC i hir iarill
in ilolatisn of Section lof)(3) bh declining to disclose ti the conlpall he-
fore arbitration certain assertedil relevant docurients which the unilon
claimed to have in its possession. ihere the doicuments i ought were ni1l
statements of witnesses. the union asserted the inforna lion ait dilpois li..
of its claim but adamanti, refused lt suppl ceni aIn inkling of the Illiltter
to which it was referring, and the crimpans haid no basis for idenitif.litg the
nature of the claimed informalion: on those fact s Memllber MIurphil foiund
the union's position to he analogous tii that of in ernplhier h,. hits the
oblgatioln to furnish information to it union so that the Uinlitl i i1 Inielli
gently decide whether to proceed on ii gri evance. i accord with % I1 R it
.4cme Industrial Co. isupra In contrast. in the instant ca se the I iion itsi a
all times in full possession of all facts upon which It could deterninlte fhclth
er it wished to proceed on the griesance: furtherniore the ('onlipane here
orally informed the Union of the substance of the affidavits anld sliupphlcl
much detail, including the identity of most of the a(ffliants
idate employees and others who have given state-
ments, in an effort to make them change their testi-
mony or not testify at all." 98 S.Ct. at 2325. The
Court also expressed concern that witnesses may be
reluctant to give statements absent assurances that
their statements will not be disclosed at least until
after the investigation and adjudication are complete.
98 S.Ct. at 2325. In Robbins Tire, the narrow issue
before the Supreme Court was whether production of
witness statemetns taken by the Board would "inter-
fere with enforcement proceedings" within the mean-
ing of Exemption 7(a) of FOIA, 5 U.S.C. §
552(b)(7)(A). We, however, believe that the same un-
derlying considerations apply here and that requiring
either party to a collective bargaining relationship to
furnish witness statements to the other party would
diminish rather than foster the integrity of the griev-
ance and arbitration process.
Moreover, in the present case, Respondent did not
withhold from the Union its view of the incidents
which resulted in Roberts' disciplinary suspension
and in no way impeded the Union's investigation of
Roberts' grievance. The disciplinary reports which
Flennell mailed to Roberts stated that on August 12
and 13 Roberts had violated the plant rule against
using threatening and abusive language toward fel-
low emnployees. These reports gave McDaniel's and
Vaccare's names and, at the August 23 meeting, Fen-
nell informed the LUnion of the substance of Mc-
Daniel's and Vaccare's versions of the August 12 and
13 incidents based on their statements. On August
23, the Union also learned that Respondent had
statements from other employees and supervisors
who had been involved in similar incidents with
Roberts in the past, hut the Union did not request
the names of those individuals or any other informa-
tion concerning those incidents.5 Furthermore, Act-
ing Union Steward Decker was present at the August
16 meeting during swhich Roberts himself discussed
the circumstances surrounding the incidents prior to
August 12 and provided the names of the employees
involved. In addition, Steward Dalton, who was per-
sonallN aware of at least some of the prior incidents,
was not prevented from investigating them on behalf
of the Union. Also. on Janaury 4. 1977, Respon-
dent's attorney gave the Union's attornev a list of the
employees who had given statements and read por-
tions of the statements aloud.
In an, event. without regard to the particular facts
of this case, we hold that the "general obligation" to
honor requests for information, as set forth in Acme
Xn cnliplol ci does, I hae a dut, to furnish a union. upon request. the
name i .,of viltiesses to an incident for which all ermplo)see was disciplined
Iti/nr t \j q .ii Jeti .. 233 NI RB 694 ( 1977). However. the record clearl,
establishics lhalt t all tinlcs imaterial herein. the Union requested onlv that
Rcsp.l dellttil furnish lile wItTrics sitcn lelils thent .reles
984
ANtiIFTSER-BSCH, IN9
and related cases, does not encompass the duty to
furnish witness statements themselves. Accordingl\.
we shall dismiss the complaint in its entiretv.
ORDER
Pursuant to Section 10(c) of the National lIabor
Relations Act, as amended, the National l.abor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entiretv.
DECISION
SlAriMINlI O1 iiH Cs[i
RICHARD D TAPI.IIz. Administrative Law Judge: This
case was tried at Los Angeles. California, on Ma, 5 and I I,
1977. The charge was filed on November 26. 1976. b' In-
ternational Brotherhood of Electrical Workers. Local
Union No. 2295, AFL CIO. .CLC, herein called the Union.
The complaint, which issued on January 17, 1977, and was
amended at the hearing, alleges that Anheuser-Busch. Inc.,
herein called the Company, violated Section 8(a)(5) and ( 1)
of the National Labor Relations Act, as amended.
Issue
The primary issue is whether, in the context of grievance
proceedings, the Company unlawfully refused to bargain
by failing to honor the Union's request to furnish it with
copies of written statements the Company had taken from
employees and supervisors relating to a 5-day suspension
of employee Richard Roberts.
All parties were given full opportunity to participate, to
produce relevant evidence. to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs. which
have been carefully considered, were filed on behalf of the
General Counsel and the Compan'.
Upon the entire record of the case,' and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINtuN(;s or Fa T
I D lF BtSINISS (O riti ( OMPAN)
The Company is a Missouri corporation with an office
and place of business in Van Nuys. California. where it
operates a brewery. The Company annually sells and ships
goods and services valued in excess of $50,000 directl', to
customers located outside California and annually derives
gross revenues in excess of $500,000. The Company is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
' B post-trial motion. counsel fir Respondent requests Ihait t I opiloln
and award of 3rhitraiior Williiam S Rule. dated lunc 9. 1977 which relaiic
to the suspenslion of Roberls. he miade pant of Ihe reiird i n ihis se ( ounl-
sel for the General ( ounsel urges, hal the motion he -rallled I he ollOlt l 1s
herebh granted and the decis n ain d ti.al rd .ir iled to the exhibil fil is
Resp :xhh II
11 tIE: L.ABOR O()R(iNIZA1ION IN\()till)
I'he I nimon is a labor organization within the meaning of
Section 215) of the Act.
III IH lt i(il:lI) lNIFAIR L'BOR PRACII(ES
A. Irltroduction
The Union represents the Company's maintenance elec-
tricians, journeymen, apprentices, and working foremen.2
The collectiie-hargaining relationship goes back to 1954.
The collective-bargaining contract in effect at the time of
the incidents involved in this case occurred provides for a
grievance procedure culminating in binding arbitration.
On August 12. 1976. Richard Roberts. an employee of
the Comrpan?. was involved in an altercation with fellow
emplosee Joe McDaniel. On August 13, 1976, Roberts was
involved in another altercation with fellow employee Joe
Vaccare. The ('ompany undertook an investigation of the
two incidents and secured statements from five emplosees
and two supervisors. Some of the statements related to the
August 12 and 13 matters, and others related to prior inci-
dents in which Roberts had allegedly engaged in improper
conduct toward employees. Roberts was given a suspension
with intent to discharge, which was later changed to a 5-day
suspension. A grievance was filed on behalf of Roberts and
ultimately an arbitration award sustained the 5-day suspen-
sion.
Shortl5 after the statements were taken, the Union asked
to see them so that it could intelligently evaluate Roberts'
erievance. The Union's request was repeated on numerous
occasions. The Compan, consistently refused to show any
of the statements to the U1nion before the arbitration hear-
ing took place. Two of the statements were put in evidence
at the arbitration hearing. In addition, during the arbitra-
tion hearing. the Company showed the Union's attorney
the statements of individuals whom the Company called as
witnesses. Ihe union attorney looked at those statements
with understanding that he would not show them to the
Union. Except for the two statements that were palced in
evidence at the arbitration hearing, the Union had access
to the statements for the first time when the Company
placed the statements in evidence during the hearing of the
instant case.
The sole question presented at this hearing was whether
the (Compans had an obligation under Section 81a)(5) of
the Act to honor the Union's request to see the statements.
T1he propriety of the 5-day suspension is not itself in issue.
B. The Sequence of Events
I. The statements
The facts involved in the August 12 and 13, 1976, inci-
dents were not litigated at the hearing of this case. 'Ihey
:ie h ip kolplI;itt alCge. the ansuer aidmlt, and I find Ihat the I non
eirce tit rhe ( onipallS' eniplo.ee s im the folloHing Iapproprllte IlilI
'\11 lllmtilltci/inlt c¢ trltl. i i . iurnl'.nien .apprenicee and iiorklrig
OlClleien. hill excluidi ali l otiler emploees. office clerical emploees.
i"tfnic 'l l i e pll o l eett. lual inand 'tupersislir s a.s defined in the Act
985
)DEC(ISIONS ()1 NA'I IONAI. I ABOR RI- AIlIONS BOARI)
were litigated in the arbitration hearing. I he arhitirattr
held:
The record is quite clear the (irie ant had a confron-
tation with Mr. Mcl)aniel at about 1:3() a.m. on Au-
gust 12 and that he had words with MNr. VCacare earl I
in the morning of August 13. The record is also clear
the Grievant meant to intimidate hoth men. McI)aniel
was sitting in a chair in front ot a cabinet andi the
Grievant deliberatesl opened the dooi of the cabinet
into him without saying anything. The (irieant ,ant
not speaking to McDaniel and had not been for some
time. The Grievant wenit to Vaccare on L.ine I palletis-
er. told him he didn't want t o work with him anl more
and that Vaccare should go on dass.
IThe arbitrator also referred to prior incidents in olv inr
Roberts. as follows:
The Grievant stated on the record he wias upset with
Jones in November 1975 or Januars 1976 and that he
told Jones something to the effect that Jones
shouldn't work here. The (irievant admitted he either
brandished or raised a wrench toward Niesslein
though he claimed it w;as only to get his attention. I-he
Grievant stated he had thrown a stick at Solths though
only after Soltys had driven close to him with his fork
truck. The Griev ant also admitted shouting at Slahbe
on a job .when he xwas in a hurrs and this had been
reported to Fennell.
Shop Steward Dalton did acknov wledge that McD)an-
iel. Vaccare, Jones, and Slabev had all coniplained to
him about threats by the Grievant at one time or an-
other.
After an initial inquiry, the (ompan? gave Roberts a
"notice of violation of plant rules and regulations" dated
August 13, 1976. which notified him that he was suspended
with intent to discharge.
Between August 12 and 19. company representatives
took statements from a number of employees and supervis-
ors concerning the August 12 and 13 incidents as xwell as
prior incidents relating to Roberts. A company representa-
tive interviewed Roberts about those matters but did not
take a written statement. Five employees gave statements.
McDaniel gave one concerning the August 12 incident.
Vaccare gave one concerning the August 13 incident. Nies-
slein gave a statement (as written up by Don Burnell)
which concerned an incident sometime before in which
Niesslein asserted that Roberts challenged him to a fight.
Jones gave a statement in which he claimed that in Novem-
ber 1975 Roberts threatened to run him out of the plant.
Soltys gave a statement in which he asserted that on prior
occasions Roberts had abused him. In addition, General
Foreman Vincent Petretti gave a statement concerning the
August 12 and 13 incidents, and Maintenance } oreman
Slabey gave a statement relating to prior misconduct bh
Roberts.)
On August 20, 1976. Industrial Relations Manager
1 I was stipulated, and I fitnd that Petreil and Slahc ; ale SiperM-lsl,
withil the meaning of the Act
James I urnetr imposed a 5-da, suspension on Roberts. I he
suspension lasted from August 16 through 20). 1976. Rob-
erts returLned to x ork on August 23. 1976.
()n August 16. 1976. .while Roberts was in a suspended
staitus. a rie liance was filed protesting the suspension. 4
2. Efforts by the Union to secure the statements
On August 16. 1976, Acting Union Steward George
Liglean asked IElectrical Foreman Frank Fennell and
Malntenalnce Superintendent (ieorge Edwards to see the
statements concerniing the Roberts incident. Both told him
that it ,,as III the hatinds of the industrial relations depart-
ment and that the! had nothing to do with it. The griev-
anice ,ais filed the same da!.
()n August 23. 1976. a grievancee meeting was held. I he
[Ilnion had asked foi the meeting to discuss the suspension
of Roberts. Inidustrial Relations Manager James Turner
and i:lectrical Foreman I rank Fennell represented the
(oompanl at the meeting. I'he nion was represented by
Business Representative Ionald F rakes and Steward
James l)alton. Roberts also attended. There was a general
discussion concerning the incidents which led to Roberts'
suspension, in the course of which Turner made reference
to incidents that had occurred prior to August 12 and 13.
I urner mentioned an incident in which Roberts brand-
ished a v, renc h atali nst another cmployee. lie did not iden-
tif the othelr cinploees invol ed in the prior incidents.
I)urLing the meetiing. lurner said that he had statements
from McDaniel. \acc;are. and others. Union Business Rep-
resentative Frakes asked to see the statements and Turner
replied that he could not give them to him. Frakes said that
he \uanted the statements to determine how the facts the
Union had obtained from Roberts and the chief steward
compalretd with the ('onpans's information. Frakes also
said that it was necessars for the I nion to have those state-
ments so that it could determine the merits of the griev-
ance. I urner replied that it was not the first problem that
thes had had with Roberts. that he respected the confiden-
tialitN of the employees who gave him the statements, and
that if the Company provided the statements to the Union
it would open up an opportunity for Roberts to harass
those emplo, ees. Iiurner also said that the people who
gae the statements xwere members of the Union and that
the U nion could obtain the information from them. Turner
told Frakes that if the Union would provide the CompanN
with a copy of Roberts' statement the C(ompanN might be
willing to trade statements. Frakes replied that if the Union
had Roberts' statement it would be happy to provide the
Company with a copy. The matter was then dropped and
nothing further came of the suggestion.
B' letter dated August 30, 1976, Frakes once again asked
for copies of the statements. The letter stated:
During the grievance meeting of August 23. 1976, I
requested copies of the statements that had been given
to the ('ompan! in regards to Richard Roberts' sus-
O() Scplemhcr I . d 1in 10. 7 t, ll ,,lhl r grlc.anccs were filed relating to
Robhci l ' .]1 iill l mn t Is I1h1I [ pellc flml M.c e,,s mll his personnel file.
()On Sceptember ii 1i971 . Roehrts bhrought Imtlraunllomn charges againsM
I licc.lr l I t icmi an I rank I ct icil i hihm lhh allcged thai I ennell falseis
jckt11,t1 d :tlid 'tms. .'licm d d SIiml
986
ANtIEUSER-BUSCH. IN(
pension. so that this office could evaluate the validity
of the Company's action.
I am again requesting the Compan\ to provide all
statements that were given in regard to Richard Rob-
erts.
If, this office has not received the requested infor-
mation by the close of business September 5. 1976. we
will have no alternative but to take other measures to
acquire the requested information.
Because of the time limitations set forth in the contract,
the Union, by letter dated August 31, 1976. formalls re-
quested that the Roberts suspension grievance proceed to
arbitration. A few days later. Frakes spoke to Turner about
the August 30 letter in which the Union had again request-
ed the statements. T urner said that the Company hadn't
changed its position. Frakes replied that if he did not get
the statements the Union could not determine whether
they had a case or not and the Company would be forcing
the Union to go to arbitration. Turner replied that his posi-
tion had not changed and that the Union could do what it
had to.
In addition to requests by union officials for the state-
ments there were a number of written and oral communi-
cations between Union AttorneN Dennis Harle, and Com-
pany Attorney Willard Carr. Jr.. concerning the same
matter.
On September 10. 1976. HarleN called Carr and asked
whether Carr was aware of Roberts' suspension. Carr re-
plied that he had just returned from vacation and was not
familiar with the situation. Harlev told Carr that the Com-
pany had statements concerning the incidents that led to
the suspension. He said that those statements were relesant
to the question of whether or not the Union should pursue
the grievance to arbitration, that the 1Union had the right to
those statements, and that the statements were needed to
evaluate the grievance. Carr replied that he would check
into it and call back. Harlev said that the Union was pre-
pared to evaluate the matter and change its position about
going to arbitration.
In mid-September 1976. Harley called Carr again and
asked whether a decision had been made with regard to the
statements. Carr replied that the Compan' would not give
the Union the statements. Carr also said that the [Union
could pursue the matter to arbitration and seek to have the
arbitrator issue an order compelling the Cornpan' to pro-
duce the documents. Harley answered that he thought such
a procedure would be very costlN and that the ULnion
shouldn't have to go to arbitration in order to get state-
ments it needed to determine whether or not to go to arbi-
tration. Carr said that another alternative would be to give
Harley a copy of an individual's statement when the indi-
vidual was called to testify at the arbitration. Carr told
Harley that Roberts was a violence-prone individual who
had threatened people and that the Compan) would not
make the statements available. Carr also said that the indi-
viduals who gave statements had been promised that their
identities would not be disclosed unless the, were called to
testify at the arbitration proceeding.
By letter dated September 27. 1976. Harley notified Carr
that the Union intended to pursue appropriate administra-
tive remedies to secure the statements. T he letter also indi-
cated an agreement between the parties to hold the arbitra-
tion in abeyance until the resolution of the administrative
remedies.
On September 28. Harle\ called ('arr on the telephone
once again. Harley said that his client wanted to go for-
ward with the arbitration and that without the statements
the Union could not respond to Roberts in a meaningful
way when he asked wh,, he was suspended. Harley said
that he vwanted to rev i e the Company's previous offer re-
lating to the arbitrator's deciding whether the statements
should be gien to the L nion. Carr repeated that he would
not give the statements until the arbitrator had ordered it.
C(arr also said that if the arbitrator ordered the production
of the statements he probabl, w ould not comply with re-
gari do o the supersisors' statements.
( arr testified that during his various meetings with Har-
le' an agreement was reached to the effect that the state-
ments would be made available to Harlex at the arbitration
hearing if the people who gave the statements were called
to testif. Carr w rote to counsel for the General Counsel on
I)ecember 30. 1976. stating that the parties had reached an
informal settlemient based on an agreement that Harle'
would u ithdraw the charges: that the Compan) would pro-
side Itarle' with a list of the employees who had given
slatelllents, that when a irtnes.s was called at the arbitra-
tion the statement of that witness would be given to tiar-
leN: and that the information on such statements was to be
provided to Harles onl, and \was not to be disclosed to
Roberts or ans union representative. 1The General Counsel
did not accept the proposed settlement. Harley testified in
substance that the procedure set forth in Carr's December
30 letter was in fact folloved at the arbitration proceeding
and that he thought the) had worked the situation out as far
as the NLRB ails conccrned He also testified that it was
not his understanding that the statements would onl, be
gi en to hili and not to the I nion. and that he never
agreed to such a procedure. (Carr and Harley were both
fulls credible witnesses. Their different interpretations of
what was said in their convsers.atiions satisfies me that the)
did not have a full meeting of the minds with regard to a
complete resolution of the problem.
There was another disagreeement between Harle' and
Carr. Carr testified that es en though Harley did not say
anything specifically to the effect that the Inion had to go
to arbitration because Roberts was agressive toward the
protection of his rights. everything that Harles did sa' led
Carr to that conclusion. Hlarle had told Carr that Roberts
had threatened to file charges or sue the Union if the
Union did not arbitrate the case. Though Carr ma' have
believed that the matter was going to arbitration whether
or not he gave the nimon the statements. Harley did tell
Carr that the U nion was prepared to evaluate the matter
and change its position about going to arbitration. There
was no meeting of minnds ith regard to the inevitability of
arbitration.
On Januarx 4. 1977. C('arr and Harley met in Carr's of-
fice. liarlex said that the mnion was entitled to the state-
ments and ('arr disagreed. Carr offered to show Harlex the
statements if alirlex agreed not to review them with Rob-
erts. Harle ansAered thiat if he obtained the statements he
987
DE-CISIONS OF NATIONAL IABOR RELA IONS BOARD
would have to give them to the Union and it was the Union
who had to decide what to do with the case. ('arr said that
the individuals who had given the statements had been
promised that their identities would not be divulged unless
they testified. However, during that meeting Carr gave
Harley a list containing the names of the seven individuals
who had given statements and told him who were supervis-
ors. Carr believed that the Union already knew the names
through discussions with Roberts.
By letter dated January 6, 1977. Harley notified Carr
that the Union had not previously known the names. In
that letter Harley stated that Carr's offer to provide the
Union 6 with a copy of employee statements at the time the
employee testified at the arbitration was not a sufficient
resolution of the dispute. The letter went on to say.
The union should have been provided this information
at such time as the parties met to discuss the matter
and my client's position is not advanced in any way by
receiving these statements after the individual witness-
es testify. Please be advised that I intend to raise these
objections in the appropriate form.
3. The Union's efforts to secure the information and
statements from the employees and supervisors
On a number of occasions, union representatives spoke
to Roberts with regard to the suspension. Business Repre-
sentative Frakes spoke to Roberts about six times between
August 16. 1976. and the arbitration of 1:ebruary 15, 1977.
Roberts told Frakes that the Union should arbitrate the
suspension and that if the Union did not do so he would
bring charges against the Union.
Immediately after the grievance meeting of August 23.
1976. Frakes instructed Union Steward Dalton to interview
Vaccare, McDaniel, and others who might have informa-
tion, and to obtain written statements from them. Vaccare
and McDaniel gave Dalton their versions of the incidents
in question but refused to give a written statement. They
also refused to give Dalton a copy of the statements that
the Company had taken. Dalton also spoke to Jones, who
said that he did not want to get involved and would not
give a statement. Dalton had heard rumors that employee
Soltvs and a machinist named Herb, as well as Mainte-
nance Foreman Rov Slabey. had given statements to the
Company. Dalton did not talk to Soltys or Herb because
they were not on the same shift as Dalton and he did not
know them. Dalton did not talk to Slabes because Slabes
was a supervisor.
On January 4, 1977. the Union obtained from the com-
pany a definitive list of the names of people who gave
statements. That list did not contain addresses. B' letter
dated January 7, 1977. Union Attorney Harley asked all
seven of the people who had given statements to contact
him so that he could discuss the matter swith them. Those
letters were given to Industrial Relations Manager 'I urner
It appear. thai ct'n a.s o1 Jaltiara O. 1977, theJre eas, 6./uIht lt I .i {,
Ahether Ihe stalemcnts w"ere to he shhoun oInl] tio t;irlM c r hthct l ItE x
uere to he shown also t, tIhe It nlill
who delivered them to the people involved. Harley did not
receive a reply from any of those people.
4. The arbitration
The contract between the parties contained an arbitra-
tion clause that provided, "The arbitrator shall render a
decision upon the question presented only and shall not
have authority to change or modify any of the terms of this
agreement." 7 The contract also provided that each party
would bear the expense of its own presentation and that
the charges of the arbitrator would be born equally by the
Company and the Union. There is no language in the con-
tract relating to the production of documents by a party in
grievance or arbitration proceedings.
The attorney for the Company and the attorney for the
Union executed an arbitration submission agreement un-
der which they agreed that the arbitrator was to determine
the following issues: "(a) Was the suspension of Richard
Roberts on August 16. 1976, a violation of the Agreement?
(b) If the answer to (a) is in the affirmative, what is the
appropriate remedy?" 'lhat agreement also provided that
the arbitrator was to have no authority to add to, subtract
from, change, or modify any provision of the agreement
and that the arbitrator was authorized only to interpret the
provisions of the agreement and apply them to the specific
facts of the specific grievance.
The arbitration hearing was held on February 15, 1977.
Six of the seven individuals who gave statements to the
company testified at that hearing.' The statements of Vac-
care and McDaniel were placed in evidence, and therefore
the Union had an opportunity to see them. When the other
four witnesses testified, their statements were shown to
Union Attorney Harley, but on the Company's insistence
those statements were not shown to Roberts or the Union.
All the statements were admitted in evidence in the trial of
the instant case.
On June 9. 1977, the arbitrator issued his award finding
that Roberts' suspension was not a violation of the agree-
ment. In his decision the arbitrator referred not only to the
August 12 and 13 incidents, but also to prior incidents in-
volving Roberts.
C. Analvsis and Conclusions
As the United States Supreme Court held in N.L.R.B. v.
4Acmen I dustrial Co., 385 U.S. 432, 435-436 (1967):
There can be no question of the general obligation
of an employer to provide information that is needed
by the bargaining representative for the proper perfor-
mance of its duties. N.L.R.B. v. Truitt Mfg. Co., 351
U.S. 149. Similarly, the duty to bargain unquestion-
ably extends beyond the period of contract negotia-
tions and applies to labor-management relations dur-
ing the term of an agreement.
I lie. olltrati states
[I \1n cnlplA,.c uho feels agr'eued as the result oif any disciplinary
CInoll akct h\, the ( oinpans. oIr entertains an) other grievance or
,l iLI cl cI/llln2 .dll pplha tl)on of this agreement, shall have recourse to
Ithl pil C\ ilvcE pricLdure is set forth il this agreement
I he si\ iCic \ itc.ari., Solls, JiIler. Petretti. McI)aniel. and Slahe 5
'sc ssil.t did lIt,, testlli
988
ANHEUSER-BUSCH. INC
In that case the high court sustained the Board's finding
that an employer violated Section 8(a}(5) of the Act bh
failing to furnish a union with information relating to the
transfer of certain plant equipment. Grievances had been
filed under the contract relating to that transfer. The court
referred to a discovery type standard and held that the
Board had acted "upon the probability that the desired
information was relevant, and that it would he of use to the
union in carrying out its statutory duties and responsibili-
ties." (385 U.S. at 437). The court also held (385 U.S. at
438):
Far from intruding upon the preserve of the arbitra-
tor, the Board's action was in aid of the arbitral pro-
cess. Arbitration can function properly only if the
grievance procedures leading to it can sift out unmeri-
torious claims. For if all claims originally initiated as
grievances had to be processed through to arbitration.
the system would be woefully overburdened. Yet. that
is precisely what the respondent's restrictive Vtew
would require. It would force the union to take a
grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the
claim.
In Ohio Power Compan.v, 216 NLRB 987. 991 (1975).
enfd. 531 F.2d 1381 (C.A. 6, 1976), the Board adopted an
Administrative Law Judge's Decision that held:
Where the information sought covers the terms and
conditions of employment within the bargaining unit,
thus involving the core of the employer-employee rela-
tionship, the standard of relevance is very broad, and
no specific showing is normally required.
The same logic applies to a situation where information is
needed for a union to intelligently evaluate the merits of a
grievance. 9
In the instant case the Company took statements from
five employees and two supervisors. all relating to alleged
improper conduct by Roberts. Roberts was given a 5-day
suspension, and a grievance was filed with regard to that
suspension. The Company contends that the suspension
was keyed solely to incidents that occurred on August 12
and 13. 1976. However, the Company's investigation, the
statements taken, and the subsequent arbitration award all
dealt with prior conduct of Roberts in addition to the Au-
gust 12 and 13 incidents. In order to intelligently process
the grievance, the Union had to obtain information relat-
ing to the August 12 and 13 incidents and to the other
matters set forth in the statements.
In Acme, supra. the Supreme Court held 1(385 l S. at 43.i
Sec. 8(a){5) proscribes failure to hargain collectisel i (n ls the mnist
general terms. but section 8id) amplifies it b) defining "to bargain
collectively" as including "the mutual obligation of the enplophcr aid
the representative of the emploees to meet at re.loln;llhie inmes iand
confer in good faith with respect to. an? question arislng lunder an
agreement]."
(Cf. Uinied Steel/worAers v. at rrl.. & (ld is, (o. h 13 5 74, i81
"The grievance procedure is. in other w'ords. a part of the Co litllllt s
collective bargaining process.'
The Union owed a dut, of fair representation to all erm-
plosees in the bargaining unit. I'aca e al., v. Sipes. 386
U.S. 171 (1967): Kahj ling . N.L. RB.. 503 F.2d 1044 (('.A.
9. 1975): lMizrandit Fuel C(.rtpan/II . I,(. 140 NLRB 181
(1962), enforcement denied 326 F.2d 172 (C.A. 2. 1963).
That dut, required the Lnion to use its best efforts to
properly evaluate Rohberts' rievance and to obtain all the
information it could in order to make a determination as to
whether to press the grtievance to arbitration. As the Board
held in P.P G. Indulsriet . c Inorporated, 229 NLRB 713
(1977), a union breaches its duty of fair representation
when it arbitrarily ignores a meritorious grievance or pro-
cesses it in a perfunctory fashion. Under the circumstances
of this case. the information contained in the statements
was clearly relevant and would have been of use to the
Union in carr\ying out its statutory duties and responsibili-
ties.
As is set forth in detail above, the Union sought to ob-
tain information directly from the individuals involved af-
ter the ('ompan) refused to furnish the statements. It had
onl ,er- limited success in that regard. Some of the indi-
viduals involved did not speak to the Union at all. none of
them gave written statements to the Union. and none of
them responded to the union attorney's written request to
speak to them. l'nder those circumstances the statements
in the CompanN's possession were needed by the Union for
the Union to properly perform its duties.:"
The Union repeatedly requested the statements from the
Company and clearly informed the Company that the state-
ments were needed for the Union to determine the merits of
the grievance. The union attorney told the company attorney
that the Union was prepared to evaluate the matter and
change its position about going to arbitration. When the
Company suggested that the arbitrator decide whether the
statements should be produced, the Union's attorney an-
swered that he thought such a procedure would be very costly
and that the Union should not have to go to arbitration in
order to get statements that it needed to determine whether
, Ite old held In Artroer ('rmpami. 226 NI RR 1B I2 t '14 t I9'i ¢:
Shsctll speclA) IrI LIIstnitC .I uTltl n's right ti, Infltrllt l . ll s 111I
defeatied nierel' hkliatle the lllotn nti\ icquire the needed Itfornitation
Iirl. . ll niicplentdclt ot-lurs ifI In\eslsatilton ' I he uliiOii Is utlder 1ilo
ih ig.ltiln to tltliih ' .I httiLlIdtl ilol c proceduirc of obttl ti s disiredCj i1-
formarioin a hetc hi, impl ser ti.s h:pe Ihuih intfornl.atlln adi..ll.lc 1it
ia l re cnl,lr t eTllt t f,,l ilt Ic i1itrio is entitled to an accur;ite lnmd ail-
thlorl.tinc staterrirnl t f fA;its 'hich onls the emphlrer is in i position
io imike Iit is Ihtls tcear Oih.t hilere .,i icquct for relevanl informaltion
.Idciqu.ltcls Ilf,,mr the eriploier tff the data needed, the tcnipol.ci
cllh ,ipl l1LM sqlp l. h oll Omlll; o or adeqaalkc] st for thhc t c.le o/l ~
's1 IIt Is nli ti e to oii 1C ltplx
'4,-,'nc an Heel'Pafc, h I, 193N RBg 111'. 1 120I971) (f Blt/d
tl[( tt lllllt l; :Dl//tw llrn 4 iaw111017 t?f I llT-,,njl. \('~ral4,[ ] $ N I R H
14 ( 197i: Reihrt . H 1/i t aisI Rai, lhad A It ,h/r d h a It tl,',, I cc
A I/l. ,J ( , p,7 , i 161 I1 RB 10i4 It15 i6 (19tt).
1 II A,, l ,t ( , 10{8 NI RB ltls. 16'20 21 (liq4t %lo:cot, et
;sNtiilill. t r1iii'iiildtl. l1t it e I Ilt il k u tltksono i llreadeis possessed :l
of tihe inece.lr\ intformailtlmn. Rcspo.dtlet *otuld a( ie.lst he ohiliilled
tO titu tile I III , ti iiit I ct C-t11i f atiisrh Titl tifornl altion which the
I lion did Iot .air.ads\ polh ,
( f . 1 4 IdII;I' ( l.t/-,lm Itl NI RH 10(79 1197' ( 1%il) . I
( ue ( ,.,uIn, tR,,, IAhi1 ,£ l,/ / ,, I 11I NI RB 520 ( 1957. enfd 25
I 2d 149 1( N 7 19 S
989
DI)I'(ISIONS OF NAl IONAI I ABOR RE Al'IONS BOARD
or not to go to arbitration.'l
None of the statements were shoNsn to the I.nion before
the commencemn nt of the arl-itration proceeding. I so of
the statements were admitted in evidence during the arbi-
tration proceedings. and at that time the 1!nion could see
those statements. Four other , itnesses were called bh the
Company and their statements shoin to the attorne; for
the Union. but the I nion ,Was not permiltted to see them
The seventh statement was not shosri to either the Lni1on
attorney or the I nion until all seven staltemelits wetre
placed in evidence in the instant case.
The Company contends that the issues raised bh the
complaint are moot in that the parties agreed to tile proce-
dure followed at the arbitration. As set forth abhose there
was never a full meeting of the minds wvith regard to that
procedure. In addition. there is still a sharp disagrecment
between the parties with regard to tshlicther the ( onipanti
had an obligation to show the 1tnion the statemnlents prior
to the arbitration at a time when the t 'lion could has e
used them to assist it in its evaluation of' the merits of the
grievance and in its determination whether or not to pro-
ceed to arbitration. 'he issues in dispute are not moot.
The Company contends that it had no obligation to fur-
nish the statements because it had the right to protect the
confidentiality of the indiiduals who gas e the statements.
However. the (ompany has not established that there , was
sufficient likelihood of violence or other improper conduct
to relieve it of its obligation to furnish ilecessar' informia-
tion.' 2
In Acme. suipra. the Supreme (Cout held that the Board
has jurisdiction to enforce a union's statutory right to in-
formation and that the Board need not await an
arbitrator's determination of the relevancs of the requested
information before enforcing the U nion's right. 'The Board
has the authority to decide cases of this nature. Hoowever.
the Board can, as a policy matter. defer to an arbitral fo-
rum. A very serious question is presented as to whether
outstanding Board policy dictates such a deferral in the
instant case. Roberts' 5-dla, suspensiotn y5as not in itself
subject to Board litigation. I'hat matter u5as properis the
province of the arbitrator. 'Ihe issue at bar relates solels to
an ancillary matter involving the processing of the 5-da\
suspension grievance. 'Ihe parties have some 23 years expe-
rience in the collective-bargaining process. Thes have a
procedure through arbitration to resolve the central ques-
tion of whether Roberts was properly suspended for the S
days. The statements in question are peripheral to that cen-
tral matter. A serious argument can be made that the
Board should not use its limited resources to invole itself'
in cases of this nature. Hlowever. the parties are in sharp
disagreement as to what the Compans's obligations are un-
der the Act, and future problems may he avoided if clear
legal guidelines are established be a resolution of the issues
raised by the complaint.
In Amnerican Standard, Inc.. 203 NILRB 1132 (1973). the
I S11 th re aI , atni C\Ch}alt s t..c IlLirpuld Ci II Mh ll Thei r
ilmtn11iirl f Ihc tfrhi}irltr ilr de ln wdi hthe r the siett ellllt hiI ll1bl i, < 1pw
duIed. hait issue waIs noi siubrihn lted o Ihe rhirllt[ilt l
Itr is nte d tha t ( rp al\ il vlc the I nwn /M I t i1 11r rlilrs ,f
t}01s whlo fliae stateClllClts
Board held that certain information sought b\ a union \was
either not releant or not needed to enable the Union to
represent employees more effectivel, . However, in that
case the Board set forth the criteria to be used in determin-
ing te hether deferral to arbitration was proper. The Board
held (2()03 N RB at 1132)
It is nriou well settled that a collective-bargaining
represenitathie is entitled to information which mas be
rele.anlt to its task as bargaining agent, and this is not
a matter of delerral to arbitration where. as here, the
materiail is sought as a statutory, rather than a con-
tract. right.l It is clear in the case before us that there
is no contra;t clause dealing specificallNs ith the fur-
nishiriL of information necessars and relevant to the
processing of grie ances or ant other clause b? which
the 'Union staites its statutor, right to such informa-
tion.' Ilnder these circumstances we do not agree with
the Adlministratisc I aw Judge that this issue should be
deferred to thie arbitration procedure under (ollvetr.
Ih I A , ,r i /H- Hur' ( a/ ,,im/pt 118 Nit RB t5 cnrds
2 _i J'd 746 1( A. 1. 19031.
Ncc v i fh, !o,/1 ,',
r
( ,t U I ) NIt RB 14(3 14(i , eri
l,,q-!1 1.t dell ('d ,I I "I ' , 1( \ 5 'iix. rl'Ce i .Hid rerl.illrr 'd
S I", 1II 1o(
In the instant case the infortmation sought bh the Union
Ias relvant to its tasks as bargaining agent. the Union was
seeking the maiterial as a statutor, rather than a contract
right. the applicable contract did not have a clause dealing
specificall? with the furnishing of information necessary
and relevant to the processing of grievances. and there was
no contract clause by which the l nion waived its statutory
right to such information. In addition. the contract in ques-
tion specificall) prosided that the arbitrator had authority
to render a decision only t upon the question presented and
had no authorit, to change or modif) ans, of the terms of
the contract. The arbitration stipulation provided that the
arbitrator had no authority to add to, subtract from.
change. or modify any pro, ision of the contract and was
onl\ authorized to interpret the provisions of the contract
and appl) them to the specific facts of the specific griev-
ance. Under the teachings of .4merican Standard. it would
appear that the instant case should not be deferred to arbi-
tration. I Hlowever, the viability of the American Slandard
decision is put somewhat in doubt by the Board's decision
in R,,i R,hino,,t. Itc., d hi a Rol Robin son (lherrolet, 228
NI.RB 828 ( 1977). In that case the complaint alleged that a
cornpani violated Section 8(a)(5) and (I) of the Act by
closing its bods shop and discharging three employees
without prior n'otice to or bargaining with a union. The
contract provided that the employer should have the exclu-
site right to discharge employees. There was a contract
provision entitled "Sub-Contracting," but that provision
dealt onls with employees working off hours. The contract
contained a grievance procedure culminating in arbitration
that was applicable to "An) complaint arising among the
emplohees in the shop over the interpretation of this Agree-
FS .CC 1t t Stir-rI t i S r1' ( / r',, r ltl , ... I r i I. .. I trlui, h/, , 214
N RB I 1
.
21 24 1 974 t: 1 () ,t ,Ipar. i,, 223 NI.RB 838. 843
lIi(Ge 1. >I,uh rh , , ...).ll,. .t ,! Ifn. Ii,, 20i2 NI RtB 729 73(1
'-1 (Iq1')-
990
ANHEUSER-BLUSCH. INC
ment relative to hours, wages. overtime. working condi-
tions, discrimination, classifications. or other terms of this
Agreement (228 NLRB at 828)." There appeared to be no
contract provision dealing directly with the close of part of
the operation. A serious argument could be made that the
issue in question related solely to a statutory right and not
to a contract right. However, a majority of the Board held
that the case should be deferred to arbitration, saving (228
NLRB at 830):
As to the dissenters' argument that there is no con-
tract provision which could even arguably give color
to Respondent's conduct, we disagree. The Supreme
Court said in United Steelworkers of America v. War-
rior & Gulf Navigation Co., 363 U.S. 582-583. that an
order to arbitrate a particular grievance should not be
denied "unless it may be said with positive assurance
that the arbitration clause is not susceptible of an in-
terpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage." 'e believe
that the dispute here falls within that standard and is
therefore properly referable to the parties' arbitration
procedure.
While the matter is not free from doubt. I believe that
the American Standard rather than the Roy Robinson case is
controlling in the instant matter. American Standard dealt
with the specific issue of the duty to supply information. It
would appear anomalous to hold that a union is required
to go to arbitration in order to obtain a determination as to
whether it was entitled to the very information it needed to
evaluate whether a grievance should be processed to arbi-
tration. In addition, both the contract and the submission
in the instant case narrowly restricted the jurisdiction of
the arbitrator, and there appears to be no contract right to
the statements that an arbitrator would have authority to
vindicate. I therefore find that this case is not deferrable to
arbitration.
In sum, I find that the statements taken by the Company
from two supervisors ana five employees relating to mis-
conduct by Roberts were needed by the Union for it to
evaluate the merits of Roberts' grievance and to assist it in
determining whether the gnevance should go to arbitra-
tion, and that the Company violated Section 8(a)(5) and (1)
of the Act by refusing to honor the Union's request for
those statements.
IV THE EFFECT OF THE UNFAIR LABOR PRACT 1I(S t PON
COMMER( I
The activities of the Compan), set forth in section III.
above, occurring in connection with the operations of the
Company described in section 1. above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V itE REMEDY
Having found that the Company has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
All seven statements were placed in evidence in the hear-
ing of this case. The Union has full access to them."4 There
is, therefore, no need to order the Company to make those
particular seven statements available to the Union.
I-he General Counsel argues that the Company should
be ordered to bear the burden of the Union's share of the
arbitration expenses.
The Company's breach of its obligation to bargain was
not such an egregious and flagrant flouting of the statute as
to warrant an extraordinary remedy or to require a broad
cease-and-desist order. Schuck Component Systems, Inc.,
230 NL.RB 838 (1977).'5 In addition, it is noted that in view
of Roberts' threat to sue the Union if the Union did not
arbitrate his grievance, it is quite possible that the Union
would have arbitrated even if it had timely obtained the
statements. The Company and the Union agreed in the
contract that each party would bear the expense of its own
presentation, and that the charges of the arbitrator would
be borne equally by the Company and the Union. Under
all of the circumstances, I do not believe that an extraordi-
nary remedy or a deviation from the contract agreement
would be appropriate.
('O(N i sIONS of LkU
I. The Compan\ is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes of
collective bargaining:
All maintenance electricians. journeymen, appren-
tices. and working foremen, but excluding all other
employees, office clerical employees. professional em-
ployees. guards and supervisors as defined in the Act.
4. The Union is the exclusive bargaining representative
of the Company's employees in the above-described unit.
5. The Company refused to bargain in violation of Sec-
tion 8(a}(5) and ( I) of the Act byv refusing. in the context of
a grievance procedure. to furnish the Union with copies of
written statements the Company had taken from five em-
ployees and two supervisors relating to conduct by employ-
ee Richard Roberts which led to a 5-day suspension.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
4I I li.. I-tled ial the rea ince to ,i hch those silaements related has
heen full\ rclkcd Ihroiugh .rhitrihlon
I .liko find 1hit the defelnses ralxcd h\ the ( orpinan in the insmlnt Case
,ere dehalah lc rather that [lt.il.ou ( f 711&j Pr( u,- Iin, . 194 NlRB
1214 19;': enfj a, mrndified 50: I 2d 349 I( a 1) ( 1974
991