Brazos Electric Power Cooperative, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1016 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brazos Electric Power Cooperative, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
346, AFL-CIO. Case 16-CA-7760
April 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On December 12, 1978, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions' and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that Re-
spondent did not violate Section 8(a)(5) and (1) of the
Act by refusing to furnish to the Union certain infor-
mation, requested by letter dated January 30, 1978,
pertaining to a wage increase granted nonbargaining
unit employees. He found, inter alia, that the infor-
mation requested by the Union had no probable or
potential relevance to the Union's function as bar-
gaining representative. For the reasons set forth be-
low, we find that Respondent's refusal to furnish the
Union the information requested by its letter of Janu-
ary 30, 1978, was violative of Section 8(a)(5) and (1)
of the Act.
The facts which gave rise to this litigation are
largely undisputed. Since 1968, the Union has been
the exclusive bargaining representative of all produc-
tion and maintenance employees at Respondent's
I Respondent has moved to strike the General Counsel's exceptions to the
Administrative Law Judge's Decision on the grounds they failed to comply
with Sec. 102.46(b) of the Board's Rules and Regulations, Series 8, as
amended, which requires, inter alia, that exceptions set forth specifically the
questions of procedure, fact, law, and policy to which exception is taken;
identify that part of the Administrative Law Judge's Decision to which ob-
jection is made; designate by precise citation of page the portions of the
record relied on; and state the grounds for the exceptions. Respondent also
filed an answering brief to the General Counsel's exceptions in the event we
denied Respondent's motion to strike.
We have considered Respondent's motion to strike and have decided to
deny it because, when the exceptions are considered in light of the support-
ing brief, we conclude that there has been substantial compliance with the
requirements of Sec. 102.46(b). Since it does not appear that Respondent was
substantially prejudiced by the form of General Counsel's exceptions, and
since Respondent filed an answering brief and seemed to be fully apprised of
the issues raised by the General Counsel's exceptions, we have proceeded to
consider the merits of the case.
three powerplants in the vicinity of Belton, Weather-
ford, and Mineral Wells, Texas, excluding office cleri-
cals, professionals, and line transmission employees,
shift engineers, senior operators, and all other super-
visors as defined in the Act. The unit employees are
employed in nine separate job classifications, with
each classification receiving a different wage scale. In
uncontradicted testimony, Union Representative
T. R. Shelton stated that a "more or less" parallel
structure of nonunit classifications exists and that it
has been the practice of the Company to maintain
wage parity between counterpart unit and nonunit
classifications. Shelton further testified that there was
a degree of similarity in skills and functions on the
part of some employees in the two groups.
The historical bargaining practice of the parties has
been to negotiate contractual agreements of I or 2
years' duration. Upon completing negotiations with
the Union, Respondent would determine the wages
for nonunit employees so that on January 1, the com-
mencement date of the Union's collective-bargaining
agreements, the unit and nonunit employees would
traditionally get a wage increase. The established past
practice for 1-year contracts has been that the union
contract would set the pattern for the percentage
wage increase of the nonunit employees. Thus any
wage gains negotiated by the Union would be simi-
larly granted in percentage terms to nonunit employ-
ees. However, the testimony was inconclusive regard-
ing what effect, if any, the Union's negotiated wage
increases had on the nonunit employee wage struc-
ture for the second year of a 2-year contract.
Effective January 1, 1977, the Union negotiated a
2-year collective-bargaining agreement with Respon-
dent which expired, by its terms, on December 31,
1978. In accord with past practice, on January 1,
1977, the nonunit employees were granted the identi-
cal percentage wage increase as was granted unit em-
ployees under the terms of the negotiated agreement.
On January 1, 1978,2 the beginning of the second year
of the contract, the unit employees received a 6.4-
percent wage increase as provided by the contract.
By letter dated January 30, Shelton advised Re-
spondent's general manager that it was his under-
standing that Respondent had recently granted a
larger pay increase to nonunit employees than was
granted to bargaining unit employees. Shelton re-
quested "all information pertaining to this increase,
pay scales of all classifications and the amount of in-
crease granted to all employees not within the bar-
gaining unit. The only exception . . . [being] those
employees classified as supervisors, watchmen or
guards." Shelton contended that the Union was enti-
2 All dates unless otherwise indicated are 1978.
241 NLRB No. 160
1016
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
tied to this information "in accordance with the Na-
tional Labor Relations Act." Shelton expressed regret
that Respondent had not granted the unit employees
the same increase and asked for the Company to re-
consider on the grounds that its failure to do so was
"a clear violation of [Section 8(a)(3)] of the National
Labor Relations Act." Respondent was also informed
that legal action would result if the information was
not provided by February 10.
Respondent's personnel manager, Harvey Spross,
in a letter dated February 9, provided the following
response to the Union's request for information:
The general wage increase granted to the em-
ployees of Brazos Electric Power, which you re-
ferred to in your January 30th letter to Mr.
James E. Monahan, was decided in order to keep
our wage structure equitable for the several skills
and cooperation needed to render our customers
proper service.
This action is in no way intended nor can it be
considered a violation of Section [8(a)(3)] of the
National Labor Relations Act.
Upon receipt of Spross' letter, Shelton telephoned
Spross and again requested the wage data which he
stated were necessary in order to determine if the
nonunit employees had been granted a larger wage
increase than unit employees. Spross replied that the
Union was not the bargaining agent for the nonunit
employees, and the requested data were "none of [his]
business."
On March 6 the Union filed a grievance alleging
that Respondent had acted in contravention of the
contract's prohibition of discrimination for union ac-
tivity 3 "in its failure to grant wage increases compara-
ble with non Bargaining Unit Employees." After ex-
hausting the first two steps of the grievance
procedure, the Union proceeded to the third and final
step, which called for the selection of an arbitrator.
Subsequently, Shelton requested that the arbitrator
delay his consideration of the grievance pending the
Union's receipt of the requested information which
was needed to ascertain whether the grievance was of
sufficient merit to warrant the continued processing
of the grievance.
During the course of the hearing, counsel for Re-
spondent stated that, while adhering to its position
that it had no legal obligation to comply with the
Union's request, it was now willing to furnish the in-
formation to the Union.4 However, Respondent
3The collective-bargaining agreement provides in art. I11, sec. 5:
The Cooperative agrees that there shall be no discrimination. interfer-
ence, restraint, or coercion by the Cooperative or any of its agents,
against any employer because of any lawful activities by him on behalf
of the Local Union.
'The record does not show that Respondent did in fact furnish the re-
quested information at the time of the hearing.
stressed that it would not enter into any settlement
agreement, post any kind of notice that it had vio-
lated the law, or in the future repeat any disclosure
which it considered premature.
In his opening statement, the General Counsel
stated that one reason why the Union needed the re-
quested information was in order to adequately for-
mulate wage proposals for unit employees. The col-
lective-bargaining agreement contains a 90-day
reopening clause which provides for submission of
written proposals 90 days in advance of the contract
expiration date and commencement of negotiations
60 days in advance of said date. The Administrative
Law Judge credited Shelton's testimony that in order
to have contract proposals ready to be submitted by
October as provided by the contract, the Union had
planned to conduct a series of employee meetings be-
ginning in March. Shelton deemed it necessary to
cancel these meetings with the membership during
the spring and summer of 1978 due to Respondent's
failure to provide the data concerning the nonunit
employees' January I wage increase.
Shelton testified that he was convinced that the
unit employees would insist on bringing their wages
up to the nonunit employee standard. Shelton readily
conceded that the Union's wage proposals would not
necessarily be limited by the amount paid to the non-
unit personnel. When asked how the Union would
react if the wage rate of the nonunit employees had
been cut below the prevailing unit wage structure
during the second year of a 2-year contract, Shelton
replied, "I can't answer that because I've never had it
happen."
In recommending dismissal of the 8(a)(5) and (1)
complaint alleging that Respondent's refusal to sup-
ply the requested information was an unlawful refusal
to bargain, the Administrative Law Judge found that
the General Counsel had failed to make a sufficiently
precise showing that the information was relevant to
the Union in carrying out its statutory duties and re-
sponsibilities. Thus, the Administrative Law Judge
agreed with Respondent's contentions that the griev-
ance was not predicated on a sufficiently viable the-
ory of contract violation as to demonstrate in an ini-
tial and threshold manner that some violation had
occurred or was imminent.
With regard to the alternative reason for disclosure
urged by the General Counsel, the Administrative
Law Judge considered the Union's request from the
standpoint of its need for the formulation of wage
proposals for unit employees, even though this need
was not specifically advanced until the hearing in this
case. Although the Administrative Law Judge recog-
nized that "in order to prepare for bargaining ... a
Union is entitled to such relevant information as may
be reasonably necessary to the formulation of wage
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals," the Administrative Law Judge concluded
that the Union had failed to demonstrate that infor-
mation relating to the wages of nonunit personnel
had the special pertinence to the Union's bargaining
obligation which would mandate disclosure of the
data by Respondent. In this connection, the Adminis-
trative Law Judge was not satisfied that the Union
had demonstrated the necessary degree of functional
or skill interrelationship or similarity as between the
two employee groups. The Administrative Law Judge
concluded that the Unions acknowledgment that its
wage proposals would not be limited by the level of
wages paid the nonunit employees was indicative of
the essential dissimilarity between the two groups.
We find, contrary to the Administrative Law
Judge, that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to comply with the Union's
request for information concerning the wage rates
and recent percentage wage increase granted Respon-
dent's nonunit employees. In so concluding, we find it
unnecessary to reach the issue of whether the infor-
mation was relevant in order for the Union to make
an intelligent appraisal of the merit of an outstanding
grievance against Respondent.
The primary issue of this case is whether the infor-
mation requested has relevance to any legitimate
union need. The general approach has been to apply
a liberal discovery type of standard to the issue of
relevancy in evaluating each case on its facts.5 Disclo-
sure of information regarding compensation of em-
ployees outside the bargaining unit has been required
when it has been demonstrated that such data would
be relevant and necessary for the performance of a
union's collective-bargaining function.
Under the facts of this case, we have no hesitation
in concluding that the data were relevant to the
Union's preparation of a collective-bargaining pro-
posal for upcoming negotiations. It is not surprising
that the Union was concerned with the compensation
granted nonunit personnel, given the similarity of
skills and job classifications between the unit and
nonunit employees over the years. In addition, the
record discloses that Respondent has maintained a
degree of wage parity or equivalency between the two
groups. The Union was convinced that the alleged
greater wage increases granted the nonunit employees
would have been an item of great interest among the
unit employees. The lack of firm data concerning the
wage increases in question caused the Union to post-
pone employee meetings concerned with the formula-
tion of contract proposals.
The record further discloses that for at least I-year
contracts, the Union has traditionally assumed the
role of wage leader, with nonunit personnel getting
the same percentage wage increases as negotiated by
See N.L.R.B. v. Acme Industrial Co.. 385 U.S. 432. 437 (1967).
the Union. Shelton's acknowledgment that the wage
increases granted the nonunit personnel would not
limit the wage proposals of the Union does not, con-
trary to the Administrative Law Judge's contention,
raise the reasonable inference that the Union recog-
nized that there was no relationship between the wage
structures of the two groups. Rather, it seems clear
that the Union would have a special interest in the
wage increases granted the nonunit personnel in or-
der that it reestablish its perceived role as the pace
setter vis-a-vis the wages of the two groups. It is prob-
able that the percentage wage increase granted the
nonrepresented employees would be viewed as an
amount the Union would strive to improve upon.
Even if the goal was to stay even with the wage in-
creases of nonunit personnel, it would not be unusual
for a bargaining representative to demand more than
parity in the initial collective-bargaining proposals.
Under the circumstances of this case, where the es-
tablished past practice of Respondent was to main-
tain a degree of wage parity between nonunit and
unit employees of similar skills,6 where the percentage
wage increase granted the nonunit employees would
be likely viewed by the Union as the floor from which
it would make demands and below which it would
not settle, where employee meetings were scheduled
the next month to discuss contract proposals, and
where written proposals were to be submitted within
the year, the wage data concerning the nonunit per-
sonnel assume probable or potential relevance to the
Union's statutory responsibility to fully prepare for
upcoming negotiations.
The remaining issue in this case is whether the em-
ployer was put on notice that this information was
being requested in order for the Union to prepare for
negotiations. As already noted, it was not until the
hearing that Respondent was specifically informed
that an additional basis for the Union's request was in
order to formulate wage proposals for unit employ-
ees. An employer is not obligated to honor a union's
request for information when such request lacks both
specificity and clarity and when the employer could
not have been aware of the intent and purpose of the
union's request.7 However, where the circumstances
surrounding the request are reasonably calculated to
put the employer on notice of a relevant purpose
which the union has not specifically spelled out, the
employer is obligated to divulge the requested infor-
mation.8 Here, the request was made during the sec-
See HollyHood Brands, Inc., 142 NI.RB 304 (1963). enfd. 324 F.2d 956
(5th Cir. 1963), rehearing denied 326 F.2d 400 (5th Cir. 1963). cert. denied
377 U.S. 923 (1964).
' See, e.g., Rodney and Judith Adams, d/b/a Adams Insulation Company,
219 NLRB 211 (1975).
8 See Amphlett Printing Company, 237 NLRB 955 (1978); see also The East
Dayton Tool and Die Co., 239 NLRB 141 (1978).
1018
BRAZOS EI.ECTRIC( POWER COOPERATIVE. IN('
ond year of the 2-year agreement which called for the
submission of contract proposals as early as 3 months
before the expiration date of the contract. In light of
the historical wage pattern discussed above, Respon-
dent could reasonably anticipate what in fact was the
case, that the Union intended to gather relevant data
for the formulation of contract proposals in advance
of the submission date. We therefore reject Respon-
dent's contention that the request as it related to col-
lective-bargaining preparation was untimely and pre-
mature. We conclude that Respondent had
constructive notice that the Union needed the data in
order to prepare for upcoming negotiations.
Any possibility of doubt as to Respondent receiv-
ing notice concerning the reasons the Union needed
the information was removed in the course of the
hearing.9 The General Counsel fully apprised Re-
spondent that one reason why the data were being
requested was in order for the Union to formulate
contract proposals. No objection was made by Re-
spondent as to the effect of notice at the time of the
hearing, no claim of surprise was made, and no re-
quest for a continuance came forth. The issue of the
potential relevance of the information to the Union's
framing of unit wage proposals was fully litigated by
the parties and considered by the Administrative Law
Judge. We have concluded that the totality of circum-
stances put Respondent on notice that one of the
Union's reasons for requesting the information was in
order to formulate collective-bargaining proposals.
Accordingly, Respondent's refusal to divulge the in-
formation was a refusal to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Bra-
zos Electric Power Cooperative, Inc., Waco, Texas, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Brotherhood of Electrical Workers, Local 346,
AFL-CIO, by refusing to supply relevant information
upon request.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Furnish, upon request, to International Broth-
erhood of Electrical Workers, Local 346, AFL-CIO,
information pertaining to the January 1, 1978, wage
9 See Amphlenl Printing Company, supra
increase granted to nonunit employees, except for
those employees classified as supervisors, watchmen,
or guards.
(b) Post at its offices and places of business, where
notices to employees represented by the aforesaid
Union in the bargaining unit hereinabove noted are
customarily posted by Respondent. copies of the at-
tached notice marked "Appendix."' ° Copies of said
notice, on forms provided by the Regional Director
for Region 16. after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including, as described above, all places
where notices to employees employed in the appro-
priate bargaining unit are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
to In the event that this Order is enforced by a judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Entorcing an Order of the National
Labor Relations Board."
APPENDIX
NOTI(CE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIl.L NOT refuse to bargain collectively
with the aforesaid Union by refusing to supply
relevant information, upon request, needed by
said Union to prepare for collective bargaining.
WE WIIL, NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
WE WIlt.t, upon receipt, furnish International
Brotherhood of Electrical Workers, Local 346,
AFL-CIO, information pertaining to the Janu-
ary 1, 1978, wage increase granted to nonunit
employees, except for those employees classified
as supervisors, watchmen, or guards.
BRAZOS ELECTRIC POWER COOPERATIVE,
INC.
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
SIAIIMEN I OF -[ll. CASE
JAMES T. BARKIER. Administrative Law Judge: This case
was heard before me at Waco, Texas, on August 22, 1978,
pursuant to a complaint and notice of hearing issued on
March 20. 1978, by the Regional Director of the National
Labor Relations Board fr Region 16.' The complaint,
which was timely issued in relation to the charge filed by
International Brotherhood of Electrical Workers, Local
346, AFL-CIO. herein called the Union, alleges violations
of Section 8(a)(5) and () of the National Labor Relations
Act, as amended, hereinafter called the Act. The parties
were afforded full opportunity to examine and cross-exam-
ine witnesses, introduce relevant evidence, present oral ar-
gument, and file brietfs with me. Counsel for the General
Counsel and counsel for Respondent, Brazos Electric Power
Cooperative, Inc., availed themselves of the opportunity to
make opening statements and timely filed briefs.
Upon the entire record in this proceeding.' my observa-
tion of' the witnesses, and the briefs filed by the parties. I
make the following:
FINDING(S ()F FACT
1. IIII BlUSINISS ()0 RL:SP()NI)-N
At all times material herein. Respondent has been a cor-
poration organized under the laws of the State of Texas
with its principal offices and place of business in Waco,
Texas, where it is engaged in the generation and transmis-
sion of electricity.
During the 12-month period immediately preceding the
issuance of the complaint herein. Respondent. in the course
and conduct of its business operations, purchased goods or
services valued in excess of' $50,000 directly from points
located outside the State of Texas and had a gross volume
of business in excess of $250,000.
Respondent concedes, and I find, that at all material
times Respondent has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. 1 I.ABOR ()ORGANIZAriON INVo(I.VED)
Respondent admits, and I find, that at all material times
the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
III. 111i All.lGiED UNFAIR t.ABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether Respon-
dent violated Section 8(a)(5) and (1) of the Act by refusing
to honor the Union's January 30, 1978, request to supply
I Unless otherwise specified, all dates herein refer to the calendar year
1978.
: The General Counsel's unopposed motion to correct the transcript of the
proceedings is hereby granted. and the documents pertinent thereto are in-
corporated in the record as Administrative Law Judge's Exh. I.
information concerning a wage increase granted nonbar-
gaining unit line employees in early January 1978, during
the second year of a 2-year agreement covering production
and maintenance employees. This issue raises a threshold
question of whether the requested information was relevant
and necessary to the Union's role as bargaining agent in
administering or policing the collective-bargaining agree-
ment covering production and maintenance employees. It is
the contention of the General Counsel that the requested
information was essential, in the first instance, to enable the
Union to fashion contract proposals for submission during
the course of contract negotiations likely to commence in
November 1978 under the contract reopener clause of the
Union's agreement with Respondent and in determining
also whether to process a grievance charging the Company
with a violation of the nondiscrimination provision of the
collective-bargaining agreement by virtue of its failure to
grant increases to unit employees comparable in percentage
to those granted nonunit employees in January 1978. Re-
spondent avers, in substance, that the information which
the Union was seeking was prematurely requested, during
the midterm of a 2-year collective-bargaining agreement
which fixed the wages of unit employees for the entire term
of the contract, and was consequently irrelevant and unnec-
essary to any legitimate collective-bargaining or grievance
processing purpose.
B. Pertinent Facts
I. Background facts
a. The current bargaining agreement
On November 3, 1959, pursuant to a secret-ballot elec-
tion conducted under the supervision of the Regional Di-
rector on September 30. 1959, the Regional Director certi-
fied a predecessor local of the Union as the exclusive
bargaining representative of a unit of Respondent's employ-
ees. On September 27, 1968, the Regional Director issued
an amendment of certification. changing the name of the
certified representative to International Brotherhood of
Electrical Workers, Local 346, AFL-CIO, and clarifying
the unit description so as to define the appropriate bargain-
ing unit as follows:
All production and maintenance employees at the Em-
ployer's Bob Poage Power Plant near Belton, Texas.
North Texas Plant near Weatherford, Texas. and the
Randell W. Miller Plant near Mineral Wells, Texas,
excluding office clerical, professionals, and line trans-
mission employees, shift engineers. senior operators,
and all other supervisors as defined in the Act.
At all relevant times since September 27, 1968, the Union
has been the exclusive bargaining representative of the em-
ployees in the above-described unit.
The current collective-bargaining agreement between Re-
spondent and the Union became effective January 1, 1977,
and will expire, by its terms, on December 31, 1978. The
agreement contained, inter alia, a 90-day reopening clause
providing for submission of written proposals 90 days in
advance of the contract expiration date and commence-
ment of negotiations 60 days in advance of said date and
1020
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
containing also a three-step grievance procedure providing
for binding arbitration. Further. the agreement provides at
article Ill section 5:
The Cooperative agrees that there shall be no discrimi-
nation. interference, restraint, or coercion by the Coop-
erative or any of its agents. against any employee be-
cause of any lawful activities by him on behalf of the
Local Union.
There is no provision in the agreement requiring or other-
wise treating with Company disclosure of data or informa-
tion in support of the Union's bargaining or contract ad-
ministration responsibilities.
b. Prior wage adljustenels
For a number of years the Company and the Union have
negotiated collective-bargaining agreements of I- or 2-year
duration covering employees represented by the Union. and
it has been the practice over the years following execution
of the agreement for the Company to determine the wages
for nonunit employees and to proceed thereafter to imple-
ment those wage determinations. The collective-bargaining
agreements with the Union have served to fix the wage lev-
els of unit employees for the term of each collective-bar-
gaining agreement. whether of I- or 2-year duration. His-
torically, effective from the January I commencement date
of the new collective-bargaining agreement covering unit
employees. Respondent has granted wage increases to non-
unit employees equal in percentage terms to those granted
unit employees pursuant to the newly effective bargaining
agreement. There is no historical practice governing wage
decisions reached with respect to nonunit employees during
the second year of an existing 2-year collective-bargaining
agreement covering the wages, hours, and terms and condi-
tions of employment of unit employees.3
Effective January 1, 1977. marking the first year of the
current 2-year agreement, nonunit employees were granted
the same percentage wage increase as was granted unit em-
The testimony of Leonard Carpenter. Respondent's finance manager.
and of T. R. Shelton, business manager of the Union. relating to the general
issue of wage increases for nonunit employees during the second year of an
existing collective-bargaining agreement covering unit employees is too im-
precise, contradictory, and speculative to warrant an affirmative finding or
conclusion with respect to the asserted existence of a definitive practice.
Based on a careful analysis of Carpenter's testimony both on direct examina-
tion and on cross-examination. I do not credit his statement on direct that
over the years the percentage wage increases granted nonunit employees was
invariably passed on to unit employees. His later testimony was inconsistent
with so literal an interpretation. Neither do I credit the testimony of Shelton
to the effect that since 1971. during the course of collective-bargaining nego-
tiations, the Company's representatives stated orally and authoritatively that
any percentage increase in wages granted unit employees would be applied
to nonunit employees as well. The testimony of Albert Hampel and Leonard
Carpenter is to the contrary, and I credit them.
In this connection. I have considered Shelton's credible testimony to the
effect that unit and nonunit employees alike received the same percentage
wage increases retroactive to January I. 1974. Shelton testified further that
nonunit employees received "approximately" the same percentage increase
in 1975 but that during the second year of the 2-year agreement then in
effect, Company wage determinations for nonunit employees were predi-
cated upon a wage survey which had been undertaken and completed. and
"some" of the nonunit employees received wage increases. This testimony
does not support the existence of a practice governing midterm wage in-
creases to nonunit employees. The 1974 agreement was for I year only, and
the 1975 wage actiln was accompanied by special circumstances.
ployees on January I. 1977, under the terms of the new
agreement.' The current collective-bargaining agreement
also provides for wage increases to unit employees effective
January I. 1978.
2. The alleged unlawful conduct
In mid-January T. R. Shelton received information sug-
gesting that nonunit employees had received an 8-percent
wage increase, in contrast to the 6.4-percent increase
granted unit employees covering the second year of' the cur-
rent 2-year contract. By letter dated January 30, addressed
to James E. Monahan, general manager of Respondent,
Shelton advised Monahan as follows:
It has been brought to my attention that Brazos
Electric Power Cooperative has recently granted a
larger pay increase to nonbargaining unit employees
than was granted to bargaining unit employees.
As Bargaining Agent. I am requesting all informa-
tion pertaining to this increase, pay scales for all classi-
fications and the amount of increase granted to all em-
ployees not within the bargaining unit. The only
exception would be those employees classified as su-
pervisors, watchmen or guards. In accordance with the
National Labor Relations Act, this Local Union is en-
titled to this information. I will expect it to be in this
office by close of business on Friday, February 10th, or
I will be compelled to take legal action.
I regret that the Cooperative has seen fit not to grant
bargaining unit employees this increase, and I hope
you will reconsider this decision for it is a clear viola-
tion of 8A 3 of the National Labor Relations Act. And.
you will leave us no alternative but to pursue this mat-
ter by all legal means.
In his letter response dated February 9, Harvey F.
Spross, manager, personnel division of Respondent. advised
Shelton as follows:
The general wage increase granted to the employees of
Brazos Electric Power. which you referred to in your
January 30th letter to Mr. James E. Monahan, was
decided in order to keep our wage structure equitable
for the several skills and cooperation needed to render
our customers proper service.
This action is in no way intended nor can it be consid-
ered a violation of Section 8A-3 of the National Labor
Relations Act.
After receiving Spross' letter, Shelton contacted Spross by
telephone and asked Spross to furnish the requested infor-
mation in order to permit Shelton "to ascertain if [the non-
unit employees] had been granted a larger increase" than
unit employees. Spross responded that since the Union was
not bargaining for the nonunit employees, the information
which Shelton was seeking was "none of [his] business."
Subsequently, on March 6. the Union filed a grievance
alleging the Company to be "in violation of' Article III.
section 5, in its failure to grant wage increases comparable
with non Bargaining Unit Employees." The parties were
'The testimony of T. R. Shelton establishes the finding.
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to resolve the matter at the first or second grievance
step, and they proceeded under the terms of the collective-
hargaining agreement to the selection of an arbitrator. In
an April 5 letter to the Federal Mediation and Conciliation
Service (FM('S). Shelton framed the arbitration issue as
follows:
The Union feels the cooperative discriminated against
bargaining unit employees by failing to grant pay in-
creases in line with those given non-bargaining unit
employees and, refusing to furnish the Union relevant
information pertaining to this grievance.
In response, Spross, on behalf of the Company, dispatched
a letter to FMCS noting the "unilateral statement of issue"
contained in Shelton's April 5 letter and articulating the
position of the Company as follows:
Brazos Electric Power Cooperative entered into a two-
year contract with Local Union 346. IBEW, for the
period January 1, 1977. to January 31, 1978 in which
wages were fixed for that period for the bargaining
unit. On January 1., 1978. the Cooperative raised wages
of persons not within the bargaining unit. The Coop-
erative's position is that such wage increases to persons
outside the bargaining unit are not discriminatory and
are outside the jurisdiction of the bargaining agent and
that the requested wage information is irrelevant.
In the meantime, on Fehruary 21, the Union filed an 8(a)(5)
and (I) charge which gave rise to the instant proceeding.
Thereafter, on May I. Shelton requested the arbitrator to
stay the arbitration proceeding until the instant Board mat-
ter had been resolved.
The record establishes that, in point of fact, in January
1978, at the beginning of the second year of the current
collective-bargaining agreement covering unit employees,
the Company granted a general wage increase to most, but
not all, of the nonunit employees.
Shelton credibly testified that, commencing in March of
the expiration year for the current collective-bargaining
agreement, the Union hierarchy begins a series of monthly
meetings with unit employees for the purpose of fashioning
contract proposals to be submitted during the course of up-
coming bargaining negotiations. Shelton testified that this
practice had not been followed in 1978 because meetings
had been deferred pending receipt of the nonunit wage in-
formation which had been requested from the Company on
January 30, as found above.
Shelton credibly testified, in substance. that the wages
paid nonunit employees do not limit or otherwise define the
wage levels embodied in the Union's contract proposals
prepared in advance for submission during the course of
negotiations, even though Shelton speculated that wage in-
formation of the type requested on January 30 would have
"something to do with" the Union's formulation of its wage
proposals for unit employees.
Shelton flirther testified that he requested the delay in the
arbitrator's further consideration of the grievance matter
because he had been placed in the position, by virtue of the
Company's refusal to comply with his request fr submis-
sion of data relating to the January 1978 wage increases
granted nonunit employees, of having filed a grievance
without full conviction of its merits and needed the re-
quested infbrmation to assist him in determining whether to
continue to process the grievance.
The record evidence also establishes that in 1975 the
Company completed a job evaluation and wage survey, and
on March 31, 1975, the Union filed a grievance which went
to arbitration under an issue framed as follows:
Whether the Company violated the collective-bargain-
ing agreement by failure to furnish results and to allow
the Union to introduce imput into the recent job evalu-
ation plan and wage survey formulated by the Com-
pany.
The grievance was denied by the arbitrator, who held that
the Union's request for the information was premature. In
reaching this conclusion, the arbitrator reasoned that the
agreement remained in effect and that the Union had no
present requirement for the information in order to permit
it to bargain intelligently, nor would such need arise until
the Union were to commence preparation for the upcoming
negotiation. In specific terms, the arbitrator concluded as
follows:
Until Management attempts to implement the Consul-
tant's recommendations, the Union has no cause for
concern. Needless to add, the Union would be entitled
to the study subsequently: within a period of time suf-
ficient for it to prepare for negotiations relative to a
new Agreement. In addition, similarly. the Union
would be entitled to the results of the job evaluation
plan in the event the Company sought to implement
the results of the study.
During the course of' the hearing, counsel for Respondent
stated on the record that, while Respondent adheres to its
position that it has no legal obligation to comply with the
Union's request for information which is the gravamen of
the instant proceeding Respondent has, nonetheless, ad-
vised the Union that it will furnish the requested informa-
tion which was assertedly prematurely requested. Respon-
dent adds the caveat. however, that such acquiescence is
without precedential implication with respect to any future
premature request.
Conclusions
It is well established that a labor organization obligated
to represent employees in a bargaining unit with respect to
their terms and conditions of' employment is entitled to
such information from the employer as may be relevant and
necessary to the proper execution of that obligation. 'ertol
Division, Boeing ('ormpav., 182 NI.RB 421 (1970): N...R.B.
v. W/lintn Machinel Uorks, 217 F.2d 593 (4th Cir. 1954),
cert. denied 349 U.S. 905 (1955): Curriss-Wright Corpora-
nlon, Wright A.erolutoical Diviion, 145 NLRB 152 (1963).
enfd. 347 F.2d 61 (3d ('ir. 1965). The right to such informa-
tion exists not only for the purpose of negotiating a contract
but also for the purpose of administering a collective-bar-
gaining agreement. including deciding whether to file or
continue the processing of a grievance initiated on behalf of
unit employees. (Goodyear Aero.space Corporation, 157
N .RB 496 (1966); General Electric (okmpan . 199 NLRB
286 (1972). Ihe employer's obligation in either instance, is
1022
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
predicated upon the need of the union for such information
in order to provide intelligent representation of unit em-
ployees. F. W. Woolworth Co., 109 NLRB 196 (1954), enfd.
352 U.S. 938 (1956). The test of the union's need for such
information is simply a showing of "probability that the
desired information was relevant, and that it would be of
use to the union in carrying out its statutory duties and
responsibilities." N.L.R.B. v. Acme Industrial Co., 385 U.S.
432, 437 (1967). The union need not demonstrate that the
information sought is certainly relevant or clearly disposi-
tive of the basic negotiating or arbitration issues between
the parties. The fact that the information is of probable or
potential relevance is sufficient to give rise to an obligation
on the part of an employer to provide it. The Brooklyn
Union Gas Companv. 220 NLRB 189 (1975). The appropri-
ate standard in determining the potential relevance of infor-
mation sought in aid of the bargaining agent's responsibil-
ity is a liberal-type standard. Acme Industrial Co.. supra.
Wage data relating to unit employees are presumed rel-
evant and must be disclosed unless they plainly appear ir-
relevant in the factual context pertaining, but no presump-
tion of relevance attaches to information relating to nonunit
employees. Boston Harold-Traveler Corporation v. N.L.R.B.,
223 F.2d 58, 62-64 (Ist Cir. 1955). enfg. 110 NLRB 2097
(1954); Curtiss- Wright Corporation, Wright Aeronautical Di-
vision, supra; N.L.R.B. v. Yawman & Erhe Manufacturing
Co., 187 F.2d 947. 949 (2d Cir. 1951). An employer is not
relieved of its obligation to supply information to the exclu-
sive bargaining agent merely because the information re-
lates to nonunit employees; nonetheless, where the request
for information concerns matters outside the bargaining
unit, the union must ordinarily demonstrate more precisely
the relevance of the data requested. Adams Insulation Com-
pany, 219 NLRB 211 (1975): Vertol Division, Boeing Com-
pany, supra, at 425. Information concerning employees out-
side the bargaining unit must be shown to he "relevant to
bargaining issues," and "[wlhen a union requests informa-
tion which is not ordinarily relevant to its performance as
bargaining representative, but which is alleged to have be-
come so because of peculiar circumstances, the Courts have
quite properly required a special showing of pertinence be-
fore obligating the employer to disclose." Prudential Insur-
ance Company of America v. N. L.R.B., 412 F.2d 77, 84 (2d
Cir. 1969), and cases cited therein. The Board has recently
restated and applied these principles in Westinghouse Elec-
tric Corporation, 239 NLRB 106 (1978).
Respondent contends, in substance, that the Union's re-
quest for wage data, relating as it did to wage increases
granted nonunit employees, was both premature under the
collective-bargaining agreement and unsupported by a suf-
ficiently precise showing of need to warrant an order requir-
ing its disclosure. Respondent does not challenge the pre-
sumed relevance of wage information covering unit
employees, but it is Respondent's contention that its freely
negotiated collective-bargaining agreement with the Union
fixed the wage rates of unit employees for the entire 2-year
term of the agreement and that the Union has failed to
convincingly demonstrate that production of the nonunit
wage data which are here sought would be of material as-
sistance in formulating wage proposals for later submission
during the course of the bargaining process once it finally
commences pursuant to the reopener provision of the exist-
ing contract.' In tandem, Respondent further asserts that
there exists no basis for an actionable grievance under the
contract, either on the theory of a guarantee of wage parity
as between unit and nonunit employees or on the basis of
an alleged established practice limiting or otherwise defin-
ing the size of wage adjustments for nonunit employees dur-
ing the second year of an existing 2-year unit contract.
Moreover, in this latter respect, Respondent contends that
the Union's reliance upon the standard nondiscrimination
clause of the current collective-bargaining agreement to
support a grievance allegation of discrimination violative of
Section 8(a)(3) of the Act is facially frivolous, and it is Re-
spondent's view that the Union resorted to the grievance
process as a tactical device for obtaining information to
which it otherwise would not be entitled. Respondent ad-
vances no claim of undue hardship with respect to the in-
formation requested, but avers that the data is proprietary
in nature and confidential as to the employees involved,
mandating a circumspect approach by management with
respect to premature disclosure. Nonetheless, Respondent
states a willingness to supply the data once bargaining com-
mences for a new agreement.
It is well established that the collective-bargaining pro-
cess is continuous and does not end with the execution of a
collective-bargaining agreement or the filing of a grievance.
Unit wage rates are uniquely a concern of the duly desig-
nated bargaining representative, and, when open to nego-
tiation, they become a mandatory subject of collective bar-
gaining. Similarly, in order to prepare for bargaining or to
intelligently fulfill its contract administration function, a
union is entitled to such relevant information as may be
reasonably necessary to the formulation of wage proposals
or to an informed judgment as to the propriety of going
forward with the grievance process. Clearly,. however,
where, as here, a union is seeking information relating to
employees not included in the bargaining unit, the request
must be supported by a showing of special relevance before
an employer may be subjected to a disclosure order. Re-
spondent correctly contends that the Union's request was
not supported by the requisite showing.
The record discloses that employees represented by the
Union populate nine separate job classifications within the
bargaining unit, and each classification commands a differ-
ent wage scale. Testimony was adduced from Union Repre-
sentative Shelton to the effect that a "more or less" parallel
structuring of nonunit classifications exists and that over
the years the "same wages" had been applied as between
counterpart unit and nonunit classifications. No authorita-
tive support for this claim of wage parity is found in the
record, and in this respect the General Counsel made no
showing that nonunit employees performed bargaining unit
work or that there was a significant correlation between the
job functions and skills found in the unit and those repre-
sented in the nonunit group. Only a degree of similarity in
skills and functions on the part of some employees in the
two groups was claimed. No interchange of work was al-
leged, and no likelihood of imminent change was postulated
by the General Counsel. In the circumstances, and in the
I Collective bargaining could commence as early as November . consis-
tent with the terms of the agreement.
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of a more specific demonstration of functional and
skill interrelationship or similarity as between the two em-
ployee groups, mere commonality of the employing entity is
not deemed sufficient to warrant a disclosure order. See,
e.g., Times-Herald, Inc., 237 NLRB No. 135 (1978). This
conclusion is reinforced by the concession of the Union's
agent, Shelton, that in the actual context of bargaining,
Union wage proposals would not be limited by the level of
wages paid nonunit employees. This concession implies rec-
ognition on the part of the Union of a separateness and
dissimilarity between the two work groups, justifying, at
least theoretically, separate and different wage levels. It
suggests also, and I find, that in the end, when the wage
proposals are prepared and advanced in the context of ac-
tual bargaining, Union demands will be based on craft,
skill, job content, supply and demand, and broad economic
and industry trends, and not on any disparity that might
exist between unit wages and those paid by the Company to
employees employed in a separate, and apparently self-con-
tained, facet of the operation. Shelton's testimony to the
effect that disclosure of wage variations between unit and
nonunit employees unfavorable to the former would "prob-
ably" serve as a rallying point in the councils of the em-
ployee bargaining committee for an upward adjustment in
unit wages is not, in my view, the "special showing of perti-
nence obligating the employer to disclose" comprehended
by the Board or courts as justifying a directive to an em-
ployer to produce nonunit wage data. Cf. Prudential Insur-
ance Company v. N.L.R.B., supra; Vertol Division, Boeing
Company, supra, N.L.R.B. v. Acme Industrial Co., supra.
Nor was the Union entitled to the wage data for ostensi-
ble use in deciding whether to proceed to arbitration with
its pending grievance charging discrimination against unit
employees under the standard nondiscrimination clause of
the collective-bargaining agreement. As previously found,
this grievance was predicted upon the theory that the unit
employees had been subjected to discrimination within the
meaning of the nondiscrimination clause of the contract by
virtue of the January 1978 wage increase granted nonunit
employees. The General Counsel is quite correct in his con-
tention that, in the abstract, the test of relevance is met by
a showing that the requested information bears upon a
union's determination to initiate or continue the grievance
process. See Vertol Division, Boeing Corporation, supra;
General Electric Company, supra. It is also true that it is
within the province of an arbitrator, and not the Board, to
decide the merits of an arbitration issue, and the threshold
question of relevance under the Acme standard is in no
manner dependent upon the fact that an arbitrator may
ultimately find the union's grievance to be unpersuasive.
E.g., Fawcet Printing Corporation, 201 NLRB 964 (1973).
Nevertheless, where, as here, the information being sought
relates to employees outside the bargaining unit, under
well-established principles, as previously found, a showing
of relevance and reasonable need, unaided by any presump-
tion, must be accomplished, and the burden is with the
General Counsel. See Curtiss-Wright Corporation v.
N.L.R.B., supra; Vertol Division, Boeing Corporation, supra,
San Diego Newspaper Guild, etc. v. N.L.R.B., 548 F.2d 863
(9th Cir. 1977) enfg. 220 NLRB 1226 (1975). A "probability
of relevance" must always be present, and when a union
asks for information which is not presumptively relevant,
the showing "must be more than a mere concoction of some
general theory which explains how the information would
be useful in determining if the employer has committed
some unknown contract violation." See Southwestern Bell
Telephone Company, 173 NLRB 172 (1968); San Diego
Newspaper Guild, etc. v. N.L.R.B., supra. In short, under the
implicit finding of Southwestern Bell and San Diego News-
paper Guild, a trier of fact is obligated to closely examine
the theory of relevance under which the General Counsel is
proceeding and to reach a threshold judgment as to
whether the information being sought by the union has a
probable and rational bearing upon the challenge posed by
the grievance. See also Westinghouse Electric Corporation,
supra. My analysis, undertaken within the limitations de-
scribed, leads to the conclusion that the General Counsel
has failed to sustain the burden of showing how the re-
quested information here under scrutiny would be useful to
the Union in prosecuting any grievance action reasonably
cognizable under the terms of the collective-bargaining
agreement.
To sustain his case, and to suggest the existence of a
viable grievance which could serve as the focal point for
determining probable relevance and need under the Acme
and Vertol precedents, the General Counsel is supported by
proof establishing the fact of a wage increase to unit employ-
ees reasonably believed by the Union to have been larger in
percentage terms than that achieved by unit employees un-
der their collective-bargaining agreement negotiated I year
earlier for a fixed term of 2 years and by the existence of a
contractual provision forbidding discrimination on the basis of
membership in the Union. The grievance filed by the Union
postulates a violation of this contractual provision by Re-
spondent "in its failure to grant wage increases comparable
with non-bargaining unit employees." The General Counsel
asserts the right of the Union to the information requested
on the theory, as found, that such information would assist
the Union in evaluating the merits of proceeding to arbitra-
tion on the pending grievance. However, scant attention is
given by the General Counsel to the question of whether
the grievance itself is supported by a sufficiently viable the-
ory of contract violation as to demonstrate in an initial and
threshold manner that some violation has taken place or is
imminent. The comment of the Ninth Circuit Court of Ap-
peals in San Diego Newspaper Guild, etc. v. N. L. R. B., supra,
in sustaining the Board's finding that the union therein had
not met its burden of establishing relevance is pertinent
here:
[T]he issue is whether the Union must offer more than
a mere "suspicion or surmise" for it to be entitled to
the information. It would seem reasonable that a
greater showing is required. When [sic] union asks for
information which is not presumptively relevant, the
showing by the union must be more than a mere con-
coction of some general theory which explains how the
information would be useful to the union in determin-
ing if the employer has committed some unknown con-
tract violation. To hold otherwise would be to give the
union unlimited access to any and all data which the
employer has. Conversely, however, to require an ini-
tial, burdensome showing by the Union before it can
1024
BRAZOS ELECTRIC POWER COOPERATIVE, INC.
gain access to the information which is necessary for it
to determine if the violation has occurred defeats the
very purpose of the "liberal discovery standard" of rel-
evance which is to be used. Balancing these two con-
flicting propositions, the solution is to require some ini-
tial, but not overwhelming, demonstration by the
union that some violation is or has been taking place.
I find that the General Counsel has failed to make the re-
quired showing of need as would support his theory ot a
violation of a bargaining obligation.
Initially, the Union's pending grievance is dependent for
validity upon the viability of the underlying theory that
disparate wage treatment of the precise character encom-
passed by the grievance is grievable as a breach of the non-
discrimination clause of the collective-bargaining agree-
ment. This theory is essential to the Union's claim, for it is
clear from the evidence that Respondent entered into no
contractual commitment to maintain wage parity between
unit and nonunit employees, and there is no claim that the
wage increase granted nonunit employees in January 1978
was part of an antiunion campaign finding expression else-
where in the conduct of Respondent. In close context, the
General Counsel's case relies heavily upon the asserted ex-
istence of a bargaining table commitment on the part of
Respondent to maintain wage equivalence as between unit
employees and the nonunit group and upon an alleged
practice of granting nonunit employees the same percent-
age increase as had been accorded contractually to unit
employees under any existing collective-bargaining agree-
ment between the Union and Respondent. The unstated
premise is that a breach of this promise or practice, in the
context of a broad contractual commitment on the part of
Respondent not to discriminate against unit employees in
any manner, would constitute a violation of Section 8(a)(3)
of the Act.
To be certain, Respondent has maintained a degree of
wage parity or equivalence between the two groups, as
found, but no oral or contractual commitment on Respon-
dent's part required this, and there is no contractual provi-
sion keying nonunit wage levels to the wage scales of the
contract. Moreover, contrary to the General Counsel, there
exists no controlling practice relative to the size of wage
increases to be granted nonunit employees during the sec-
ond year of a 2-year contract fixing the wages of unit em-
ployees for the entire term of the contract. The credited
testimony of record negatives the existence of any defined
practice, one way or the other, as would form the basis for
a reasonably based claim on the part of the Union that the
Company had agreed to permit contractual wage scales to
serve as an automatic cap or ceiling for nonunit wages.
Indeed, the evidence relating to the wage action taken in
1975 by Respondent, on behalf of the nonunit employees
during the second year of the 2-year collective-bargaining
agreement then in effect between the Company and the
6 Such prior grievance precedent as exists between the parties under the
terms of the collective-bargaining agreement is not in point and is not con-
trolling here.
Union, suggests that wage parity was not maintained in
that instance, and, in actuality, the percentage accorded
nonunit employees was more liberal and thus not identical
to that which unit employees were accorded under the
terms of the collective-bargaining agreement.6 Nor is there
basis in the record for finding an actionable contractual
right accruing to the Union to reopen unit wage rates for
discussion during the term of the contract under a broad,
comprehensive wage escalation clause "built into" the col-
lective-bargaining contract as a "protection" to unit wages
for the entire term of the contract. Thus, in my view of the
record, the General Counsel has failed to establish the exis-
tence of any contractual right accruing to the Union or any
contractual limitation upon the freedom of Respondent to
vary the wage levels paid nonunit employees as would serve
to augment and give added dimension to the otherwise
bare-bones theory of a Section 8(a)3)-type discrimination
underlying the Union's grievance theory. In final analysis, it
is clear that the Union's grievance is, in fact, predicted
upon little more than surmise and suspicion that an arbitra-
tor might ultimately find a contract violation arising from
the January 1978 wage action involving nonunit employees.
This is an underpinning too insubstantial to transfer the
matter from the province of the Board to the exclusive juris-
diction of the arbitrator.' In sum, I find that the General
Counsel has failed to make a sufficiently precise showing of
relevance to sustain the allegations of the complaint.'
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Lo-
cal 346, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
I No issue of deferral and the applicability of General American Transpor-
tation Corporation, 228 NLRB 808 (1977), is present here.
This conclusion is not invalidated by the professed willingness of Re-
spondent to disclose the requested data once collective-bargaining for a new
contract commences. Nothing in the record suggests an intention on the part
of Respondent to concede that the issue of relevance is to be here determined
by the viability of the bargaining-table activities of the respective parties to
the collective-bargaining process.
Conversely, Respondent's record assurances of a willingness to proffer the
requested information in no manner poses an issue of mootness in the con-
text and to the extent discussed by counsel for the General Counsel in his
bnrief Counsel too broadly interpreted colloquy of record which arose during
a discussion of need on the part of counsel for Respondent to amend its
answer in light of the content of his opening statement. In any event, as
Respondent perpetrated no violation of Section 8(a)(). the issue of mootness
becomes superfluous
1025
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By refusing to honor the Union's request for all infor- did not refuse to bargain collectively with the Union in
mation pertaining to a January 1978 wage increase granted violation of Section 8(a)(5) of the Act.
9
employees outside the bargaining unit, including pay scales [Recommended Order for dismissal omitted from publi-
for all classifications and the amount of increases granted to cation]
all employees not within the bargaining unit, Respondent
9 On November 7, 1978, counsel for the General Counsel filed a motion to
strike certain written submissions proffered to me by counsel for Respondent
under date of November 3, 1978. 1 find merit in the motion of counsel for the
General Counsel, and said motion is hereby granted. The motion, the written
submission to which it pertains, and a related item of correspondence dated
November 8, 1978, from T. R. Shelton, business manager of the Union, to
me, are likewise incorporated, and the documents are sui sponte incorporated
in the record herein as Administrative Law Judge's Exh. 2. The contents of
this stricken material have in no manner been relied upon by in reaching my
decision on the merits of the complaint.