Columbia University

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 941 (N.L.R.B. 1990)

COLUMBIA UNIVERSITY 941
Columbia University in The City of New York and
Local 1199, Drug, Hospital, and Health Care
Employees, Union RWDSU, AFL-CIO. Case
2-CA-22918
June 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 26, 1989, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
The Respondent argues that because interest ar-
bitration is a nonmandatory subject of bargaining,
it is not obligated to provide the information re-
quested by the Union for use during the interest ar-
bitration proceeding. We find no merit to the Re-
spondent's argument.
We agree that interest arbitration clauses them-
selves are nonmandatory subjects of bargaining.
NLRB v. Columbus Printing Pressmen Local 252,
543 F.2d 1161 (5th Cir. 1976). Those clauses repre-
sent the contracting parties' agreement, through
then-current collective bargaining, to resolve future
bargaining disputes by interest arbitration. See
Tampa Sheet Metal Co., 288 NLRB 322, 326 fn. 12
(1988). Such agreements, when made, have no im-
mediate effect on employees' terms and conditions
of employment. Ibid. In contrast, an agreement,
made during negotiations, to submit the contract
currently under negotiation to interest arbitration is
a substitute for further negotiations. Sea Bay Manor
Home, 253 NLRB 739 (1980), enfd. mem. 685 F.2d
425 (2d Cir. 1982). In Sea Bay, the parties agreed to
submit the contract under negotiation, including all
mandatory bargaining subjects, to interest arbitra-
tion, thus giving the agreement to interest arbitrate
the characteristics of the mandatory subjects them-
selves. Similarly, the parties in the instant case
agreed during negotiations to submit the issue of
wages for School of Social Work faculty secretar-
ies, part of the contract under negotiation, to inter-
est arbitration. Because Wages are undeniably a
1 We find it unnecessary to pass on whether a respondent would be
obligated to provide information if requested for use during interest arbi-
tration in a different factual situation.
mandatory subject of bargaining , the interest arbi-
tration agreement here, serving as a substitute for
further negotiations over wages , has taken on the
characteristics of that mandatory subject.
The Respondent was no less required to supply
the Union with the information requested in the
May 6 , 1988 subpoena after the arbitration hearing
had begun , and the Union had put on most or all of
its case, than it was before the arbitration process
had started . The Respondent alluded to the infor-
mation in its opening statement at the arbitration
hearing, the arbitrator refused to quash the subpoe-
na, and the information was related to compensa-
tion , grade levels , and appropriate job classifica-
tions, which are plainly mandatory subjects of bar-
gaining . Whether to advance its position in its in-
chief and rebuttal cases and in cross-examination of
the Respondent 's witnesses at the arbitration hear-
ing, or to assess the prospects for compromise or
settlement during or after the hearing , or simply to
be better informed generally about the terms and
conditions of employment so that it could carry
out its statutory duties and responsibilities, the
Union was entitled to the information it sought.
See NLRB v. Acme Industrial Co., 385 U.S. 432,
435-437 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956).
Accordingly , the Respondent 's refusal to provide
to the Union the information requested , which is
relevant to a mandatory subject, violated Section
8(a)(5) and (1).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Columbia
University in the City of New York, New York,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Local 1199, Drug, Hospital and Health Care Em-
ployees Union, RWDSU, AFL-CIO, by refusing
to supply, on request, relevant information needed
298 NLRB No. 134
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Union to represent the employees covered
under its contract with us.
WE WILL NOT mislead the Union with respect to
the existence of documents or information request-
ed by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish, on request and in timely fash-
ion, to the Union, the information the Union has
requested relating to the grading structure or job
evaluation process employed by us; factors consid-
ered by us in determining grade levels and rates of
compensation for positions held by our unionized
employees; the identification and qualifications of
persons responsible for the development and appli-
cation of such processes; and information relating
to our determination that faculty secretaries in the
School of Social Work should be classified at the
grade V level; updated, if necessary, to the current
period, together with all other information request-
ed by the Union in a subpoena issued by its counsel
to us in an arbitration proceeding on May 6, 1988,
either in the form of documents as requested or by
furnishing equivalent information.
COLUMBIA UNIVERSITY IN THE CITY
OF NEW YORK
Margit Reiner, Esq. and David Pollack, Esq., for the Gen-
eral Counsel.
James J. Dean, Esq. (Putney, Twombly, Hall & Hirson), of
New York, New York, for the Respondent.
Mitra Behroozi, Esq. (Eisner & Levy, P.C.), of New York,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was tried in New York, New York, on Decem-
ber 1, 1988. The complaint was issued on August 19,
1988.1 The complaint alleges that for 20 years and at all
times material in this case Respondent, Columbia Univer-
sity in the City of New York, and Local 1199, Drug,
Hospital and Health Care Employees Union RWDSU,
AFL-CIO (the Union), were parties to collective-bar-
gaining agreements wherein the Union was recognized as
the bargaining representative of the following appropri-
ate collective-bargaining unit:
INCLUDED: All office clerical employees of the
Employer at the Morningside Heights Campus em-
ployed in the Libraries , Computer Center, Central
Mail Room, School of Social Work and in the Con-
1 All dates are in 1988 unless otherwise indicated
troller's Office at Hogan Hall, 2910 Broadway, New
York, New York (excepting Data Processing).
EXCLUDED: All supervisory confidential, exec-
utive and managerial employees, and Columbia Uni-
versity student employees (including Teachers Col-
lege and Barnard College), part-time employees
who work less than 10 hours per week, temporary
employees as defined herein, and such other em-
ployees as are listed as excluded in the stipulations
annexed to the collective-bargaining agreement be-
tween Respondent and the the Union, described
below in paragraph 7.
It is alleged that on May 5 the Union requested copies
of certain documents allegedly necessary for and rele-
vant to the the Union's performance of its functions as
the bargaining representative of the unit, which Re-
spondent, by letter dated May 11, refused to furnish and
which it has refused to furnish since that date. This re-
fusal is alleged to constitute a violation of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act).
The Respondent does not dispute the description of the
bargaining unit, the Union's status as its representative,
the demands for copies of the documents, and the Re-
spondent's refusal to furnish them, but disputes that it
thereby violated the Act.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have ' been
filed on behalf of the General Counsel and the Union.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Union (none
having been filed on behalf of Respondent), I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a not-for-profit corporation, operates
a private university in New York City offering educa-
tional services to the public. It annually derives gross
revenues in excess of $1 million annually and purchases
and receives goods and materials valued in excess of
$5000 from suppliers located outside the State of New
York. Respondent admits, and I find, that it is an eni-
ployer engaged in commerce within the meaning of Sec-
tion (2), (6), and (7) of the Act and that the the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
1. The Facts2
The issue in this case is whether the Respondent vio-
lated Section 8(a)(1) and (5) of the Act by refusing to
2 The matters narrated in this decision without evidentiary comment
are those facts found by me on the basis of admissions in the answer, data
contained in the exhibits, stimulations between or concessions by counsel,
undisputed or uncontradicted testimony, and, in instances where conflicts
in the testimony did not warrant discussion, the testimony which I have
credited.
COLUMBIA UNIVERSITY 943
comply with subpoenas issued by the Union in an arbi-
tration proceeding. That proceeding was concerned with
the Union's claim that 14 secretaries employed in the
School of Social Work were entitled to additional pay or
to upgrading of their positions because they had acquired
and were using word processing skills which had not
been part of their original work duties. The only person
to testify in the hearing before me was Rebecca Miller, a
union organizer who was examined by the counsel for
the General Counsel and counsel for the Charging Par-
ties and cross-examined by counsel for Respondent.
After the General Counsel rested, the Charging Parties
offered no evidence and Respondent rested without of-
fering and evidence.
The Union represents 400 employees under a contract
which it negotiated with Respondent during the period
from December 1986 to March 24, 1987, and 100 cafete-
ria workers covered by a separate contract. Two hun-
dred of the employees represented by the Union are li-
brary workers whose jobs are graded under a system dif-
ferent from the one which governs the secretaries and
their jobs are categorized in a written classification
system with which the Union is familiar.
The collective-bargaining relationship between Re-
spondent and the Union has existed for about 20 years.
The most recent collective-bargaining agreement covers
a term from January 1, 1987, through December 31,
1989. Appended to it is a list of covered job titles in the
Office of the Controller; the School of Social Work; the
Central Mail Room; and the Computer Center, showing
the grades, job titles, workplace location, and weekly
pay rates effective on January 1 in the years 1987, 1988,
and 1989. The employees covered by this agreement in-
clude the 14 faculty secretaries in the School of Social
Work. When the current contract was being negotiated,
the issue of "the upgrading or/and a differential of job
classification of Word Processor in the School of Social
Work" was left open for resolution in further meetings
which the parties agreed to hold at reasonable intervals
after completion of negotiations on the rest of the con-
tract during a 30-day period up to April 24. It was fur-
ther agreed that if the issue was not resolved during the
extended negotiation period it could be submitted to ar-
bitration within the next ensuing 30-day period.
Miller's testimony is unclear as to the time and the cir-
cumstances of the parties' first meeting during the sup-
plemental 30-day negotiation period. A letter dated April
30, 1987 sent to Miller by Raj Singh, the university's
manager for employee and labor relations,' dated refers to
a meeting ; on that date attended by Miller and Mary
Powell, a union delegate, and, for the university, by
Bergis Mamudi, compensation analyst; Courtney McKee-
man, business officer (who had participated in the collec-
tive-bargaining negotiations); Carl Stemmer, director of
employee and labor relations, and Raj Singh. Miller in-
sists that there was an earlier meeting at which no nego-
tiations took place but at which Singh and Mamudi inter-
viewed the secretaries from the School of Social Work
regarding the details of their work functions. Either way,
however, it is clear that at no point in any meeting or
during the 30-day extended negotiation period did Miller
request any information regarding the university's job
grading structure.
Singh's letter of April 30 is referenced, "Third-step
grievance, job classification-Faculty Secretary, Grade
V, School of Social Work." In it, Singh asserted that,
"Full opportunity was afforded all parties to present and
discuss the facts of the matter under review." He con-
cluded as follows:
After a careful examination of all the facts sur-
rounding this matter, I am of the opinion that the
Faculty Secretary, Grade V position in the School
of Social Work is properly graded. 1, therefore, re-
gretfully must inform you that I am unable to agree
to the Union's request.
Accordingly, on May 8, 1987, counsel for the Union
initiated an arbitration proceeding in the American Arbi-
tration Association on the basis of "Failure to Upgrade
Class." The demand for arbitration and request for desig-
nation of an arbitrator set forth the issue in dispute as
follows:
The Employer has violated the collective bargain-
ing agreement, by improperly refusing to compen-
sate secretaries for learning and using word proces-
sors despite the fact that their workload has in-
creased and that management pays substantially
more for temporaries using the same skill.
In that arbitration proceeding, the Union requested in-
formation in purely documentary form. The Union
served three subpoenas duces tecum in connection with
the arbitration, dated, respectively, January 27, February
5, and May 6, all of which bore the legend alongside
their captions, "Subpoenas Duces Tecum (Documents)."
A letter to McKeeman dated January 27 enclosing a
copy of the subpoena of that date begins, "Enclosed
please find a subpoena requesting production of the doc-
uments in the above-referenced arbitration."
The first subpoena demanded production of job de-
scriptions for the grade V and VI positions at the School
of Social Work, job posting for such positions since
1984, and
... any system of job classification or job specifi-
cations used by Columbia University to determine
or set salaries in bargaining unit positions in the
School of Social Work
The letter goes on to request their production for inspec-
tion in advance of the hearing.
The subpoena, dated February 5, required production
of a copy of Respondent's contract with an office tempo-
rary agency which had been supplying Respondent with
word processing personnel.
The first meeting with the arbitrator, on February 8,
was devoted entirely to the question of whether the pro-
ceeding was an interest arbitration or a rights arbitration.
The Union contended, notwithstanding the terminology
employed in its demand for arbitration, that the proceed-
ing was an interest arbitration because the parties had in-
stituted it for the purpose of resolving issues which re-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
marred outstanding when the parties reached their col-
lective-bargaining agreement and involved no claim of
contract violation . At this session , Respondent produced
job descriptions and advised the Union that certain re-
quested documents did not exist . However, at this meet-
ing there was no discussion of the grading structure. The
reference to nonexistent documents did not include any
items mentioned in the portion of the subpoena which I
have quoted above.
In March , the arbitrator ruled that the proceeding was
an interest arbitration . A session was held that month,
but the first day of hearings on the merits was April 18.
On that day, the the Union advised the arbitrator that it
was ready to proceed . It put its case on first. It presented
as witnesses secretaries from the School of Social Work,
a word processing teacher who testified as to the diffi-
culty of the work, and an expert witness on the subject
of current wages paid for word processing services in
the metropolitan area. The hearing was recessed at 3
p.m. because of special circumstances unrelated to the
case, without the Union having rested its case.3 During
this session , Respondent 's counsel declared that Re-
spondent did not intend to comply with the subpoenas.
As a result of his statement , the Union hired a classifica-
tion expert who attended two of the arbitration sessions
for the purpose of listening to the testimony which the
Union expected from the university 's witnesses regarding
the university's job classification system.
In preparation for an arbitration session scheduled for
June 10, the Union issued the third subpoena duces
tecum , dated May 6, listing requested documents in a
five-paragraph rider. The first three paragraphs demand-
ed "All documents describing , reflecting or in any way
relating to" the grading structure and the factors consid-
ered in determining grade levels and rates of compensa-
tion . The fourth paragraph demanded "all documents re-
flecting or describing" the qualifications of the persons
responsible for the development and application of the
"grading structure ." The fifth called for production of
"all documents relied upon by the the university or in
any way relating to its determination that faculty secre-
taries in the School of Social Work should be classified
at the grade V level" on each occasion that such a deter-
mination had been made , including its decision in April
1987 to deny the upgrading or pay increase for the facul-
ty secretaries which the Union had tried to obtain in the
collective-bargaining negotiations.
Respondent 's counsel wrote to the Union 's counsel on
May I1 that he would move to quash the subpoena of
May 6 because there was no provision for discovery in
arbitration, and, since the case involved "interest arbitra-
tion," it was his opinion that "reference to obligations
under the National Labor Relations Act is inappropri-
ate." The entire session of June 10 was devoted to argu-
ment on the Respondent 's motion to quash the subpoena.
In the oral argument counsel for Respondent contended
that the Union was not entitled to receive information
from Respondent before Respondent had had an oppor-
tunity to present its own "case-in -chief" on the merits.4
Miller testified that counsel for Respondent told the arbi-
trator that the university had a grading system; had
looked into the union claim and found that the secretar-
ies were compensated properly; and warned the arbitra-
tor that if their positions were upgraded or if they were
given a salary differential, "You're going to throw this
whole system out of whack" Maureen Roker, a compen-
sation analyst from the personnel department , told the
arbitrator that the university's system was not a point
system, but a comparison system, and that the secretar-
ies' positions could not be upgraded or the secretaries
given a differential because it would upset the system.
In explaining the reason for the issuance of the last
subpoena, Miller testified that the Union had to assume
the compensation department followed some method,
and that there must have been something in writing in an
organization whose compensation department was rou-
tinely engaged in grading , evaluating , and fixing pay
scales for 8000 employees. The assumption was strength-
ened , or at least not undermined , by the statements of
Respondent 's counsel that giving the secretaries an in-
crease would disrupt the system and throw it "all out of
whack." The Union had to probe the reasons why that
would have been so. As Miller put it:
We were suspicious that they might not have a
system but we, if there was a system and whatever
the compensation department used we needed and
we have a right to that information.
The arbitrator upheld the subpoena issued on May 6
and directed Respondent to comply with it, but Re-
spondent continued its refusal.
Further sessions with the arbitrator were held on
August 24, October 19, and November 30, 1988, at
which another reason for Respondent 's refusal was as-
serted . Mamudi testified before the arbitrator that "in
fact no documents exist in connection with the grading
structure for benchmark jobs." She testified that when
her department was requested to set a grade for a posi-
tion the job under scrutiny was compared with existing
jobs. Unlike the system used for library employees,
which had been codified in writing , no written guide ex-
isted which set forth a system for fixing the compensa-
tion of the other employees , including the faculty secre-
taries. There was no point system , there were no docu-
ments describing the grading structure, and there were
no written evaluations of faculty secretaries . Miller testi-
fied that until Mamudi testified she had been unaware of
the fact that there was nothing at all in writing which
governed the procedure for the grading of these employ-
ees' positions.
4 Miller testified at one point that in his statement to the arbitrator, Re-
spondent 's counsel did not use the word "documents " Later she testified
Respondent's counsel asserted during the course of final argument at that he made reference to "Documents of either the grading system, or
the hearing before me that the Union rested its case on April 18 Howev- job descriptions " In the latter instance, her testimony is not specific as to
er, no proof was offered to controvert Miller's testimony to the contrary whether he referred to grading system or job description documents
COLUMBIA -TNIVERSITY 945
B. Analysis
1. Obligation to respond to request for information
or documents
The proposition which is basic to this case is that an
employer must respond to a union's request for relevant
information within a reasonable time, either by comply-
ing with it or by stating its reasons for noncompliance
within a reasonable period of time. Failure to make
either response in a reasonable time is, by itself, a viola-
tion of Section 8(a)(5) and (1) of the Act. Some kind of
response or reaction is mandatory. Ellsworth Sheet Metal,
232 NLRB 109 (1977).
Miller's uncontroverted testimony established that sala-
ries at the university are negotiated according to grade.
She testified that the purpose of the Union's request for
documents was to determine if employees were graded
properly and whether the Union should go forward in
the arbitration. Though Respondent provided the Union
with some job descriptions of the first day of the arbitra-
tion, it did not supply any information respecting the
grading system which had been employed in fixing the
wages for the positions. Since most of the university's
clerical employees work in the accounts payable depart-
ment and in central mail and are represented by District
65 of the UAW, which also represents most of the secre-
taries at Columbia, the Union wanted to determine if
District 65's classification system, was being employed.
The Union was, of course, aware that at least one differ-
ent system existed, the one applicable to the library
workers. This, according to Miller, was the reason for
the broad language employed in the subpoena issued on
May 6 and the reason why it was not limited to employ-
ees of the School of Social Work. As Miller put it, "So
... we were dust looking for anything to help us make a
decision about why they chose not to compensate these
workers after they have learned an additional skill."
Respondent never contended that the,May subpoena
was too broad or that it was unclear or burdensome. The
information was requested for use in arbitration proceed-
ing conducted by the Union as the employees' collective-
bargaining representative, and insofar as it pertained to
the members of the bargaining unit, was presumptively
relevant. Insofar as it requested information regarding
persons outside the bargaining unit, Miller's testimony
satisfactorily demonstrated the probability that the re-
quested information is relevant and would be of use to
the Union in carrying out its statutory duties and respon-
sibilities. A broad, discovery-type standard of relevance
is applicable. The Supreme Court has observed that the
duty to bargain does not end with the reaching of an
agreement; it is a duty that continues throughout the
term of the agreement. NLRB v. Acme Industrial Co., 385
U.S. 432, 435-437 (1967). In the present case, the parties
were engaged in what the arbitrator determined was an
interest arbitration. NLRB v. Acme Industrial Co., supra,
Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531
R2d 1381 (6th Cir 1976); Curtiss-Wright Corp., 145
NLRB 152 (1963), affd. 347 F.2d 61 (3d Cir. 1965); Gen-
eral Electric Co., 199 NLRB 286 (1972); Montgomery
'Ward & Co., 234 NLRB 588 (1978). As to employees
outside the bargaining unit, the test is whether the infor-
mation is relevant to the Union's statutory duties and ob-
ligations and need not be related directly to the employ-
ees in the bargaining unit. Curtiss-Wright Corp., supra;
General Electric Co., supra at 288; Hollywood Brands, Inc.,
142 NLRB 304 (1963), enfd. 324 F.2d 956 (5th Cir.
1963), rehg. denied 326 F.2d 400 (1964), cert. denied 377
U.S. 923 (1964). Information sought by a union for the
purpose of assessing the strength of its case in an arbitra-
tion is required to be furnished by the employer. Boeing
Co., 182 NLRB 421 (1970).
As the Union had previously been unaware of the ex-
istence of a universitywide grading system, the state-
ments made by Roker and by Respondent's counsel fur-
nished an additional justification for the requests. She
testified that a response to the subpoena of May 6 would
have enabled the Union to determine whether to proceed
with the arbitration. Other things being equal, therefore,
Respondent was required to respond to it.
2. The purported justifications for Respondent's
conduct are insufficient to excuse its
violation of the Act
The thrust of Respondent's defense is that the informa-
tion was not requested in good faith. In Hawkins Con-
struction Co., 285 NLRB 1313 (1987), rev. 857 F.2d 1224
(8th Cir. 1988) (on basis of Board's improper rejection of
credibility determination of administrative law judge) the
Board held that the good-faith requirement of a union in-
formation request is met if at least one reason for the
demand can be, justified (citing AGC of California, 242
NLRB 891, 894 (1979), enfd. as modified 633 F.2d 766
(9th Cir. 1980), cert. denied 452 U.S. 915 (1981). The
Board went further (at 1314): "Moreover, the presump-
tion is that the union acts in good faith when it requests
information from an employer until the contrary is
shown." See also 0 & G Industries, 269 NLRB 986, 987
(1984). I find that Respondent has not, in this case,
shown that the Union's information request was not
made in good faith.
The Respondent has argued that the Union knew that
no documents existed which embodied a system, of grad-
ing secretaries' jobs but nevertheless subpoenaed non-
existent documents in order to score a "strategic" point
in the arbitration proceeding by compelling Respondent
to admit that none existed. No contention is made that
the request itself was inherently improper, irrlevant, or
burdensome. (The latter point, of course, could not be
pressed because a request for nonexistent documents
cannot be burdensome.) I find counsel's assertion that the
subpoena request was only a stratagem employed by the
Union in the arbitration hearing to compel the university
to admit that it had no system, and that his responses
thereto were similarly a stratagem, to be an altogether
inadequate excuse for making misleading statements to
the Union and to the arbitrator.
The information sought is concededly, and patently,
relevant to the Union's obligation as collective-bargain-
ing representative of the unit and, as the Board has
noted, "it is well established that, where a union's re-
quest is for a proper and legitimate purpose, it cannot
make any difference that there may also be other reasons
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the request or that the data may be put to other
uses." AGC of California, 242 NLRB 891, 894 (1979),
modified and enfd. 633 F.2d 766 (9th Cir. 1980), cert.
denied 452 U.S. 915 (1981). So long as the request is
made in good faith, the information must be supplied,
and the good-faith requirement is met if at least one
reason for the demand for information can be demon-
strated. Hawkins Construction Co., supra. The statements
of Respondent's counsel and Roker certainly provided
reason enough to request the information. See, also, Elec-
trical Energy Services, 288 NLRB 925 (1988); W. L. Mold-
ing Co., 272 NLRB 1239, 1241 (1984).
(a) The first problem, with Respondent's excuse is that
if, in fact, the Union was employing a "stratagem," it
was entitled to do so in pursuit of a legitimate end, and it
unquestionably was entitled to obtain information for the
ascertainment of the existence or nonexistence of a uni-
versitywide grading system.
(b) The Respondent was also incorrect in its conten-
tion that disclosure in the arbitration proceeding of the
information requested would have afforded the Union
discovery to which it was not entitled in an arbitration
proceeding. Precedents authorizing demands for relevant
information in arbitration proceedings have already been
noted. Respondent attempts incorrectly to draw an anal-
ogy to unfair labor practice hearings, which are gov-
erned by Board Rules and Regulations which make no
provision for discovery in such proceedings, and in
which, for reasons of policy, the Board is careful to pre-
vent circumvention of its rules.-5
(c) Respondent has not introduced any evidence to
controvert Miller's testimony that the Union had reason
to suspect that a formal system might exist. At the hear-
ing, counsel for Respondent argued that the Union,
having dealt with the university for 20 years must have
known that there was nothing in writing, but counsel's
speculation and arguments do not constitute evidence,
and the state of the evidence suggests, if anything, that
the Union had ample reason to believe that a subpoena
should be issued in order to properly represent the em-
ployees in the arbitration proceeding. One codified
system was known to govern library workers' pay; an-
other union' represented many clerical employees; and
5 See WXON-TV, 89 NLRB 615 (1988) (charge filed 1 day after infor-
mation was requested by letter, the information was never requested in a
bargaining context, the Union preferring to prosecute rather than bargain
with Respondent , and Board concluding that the information request was
therefore akin to a discovery device, in addition to which the information
sought did not concern a mandatory subject of bargaining and did not
have to be provided), General Electric Co., 163 NLRB 198, 210 (1967)
(demand made after charges filed, the trial examined reasoned that nei-
ther the Act nor the Board Rules provide for preheating disclosures, and
union's demand was for evidence concerning respondent's defenses un-
available even to the General Counsel , besides which the information re-
quested was not otherwise required to be furnished), American Oil Co.,
171 NLRB 1180 , 1188 (1968) (fording that General Counsel 's subpoena
issued after commencement of unfair labor practice hearing, asserte4ly
for union use in negotiations , was really for use in the hearing, and hold-
ing that obtaining information by "the 8 (a)(5) route" was improper);
Huck Mfg Co., 254 NLRB 739, 755 (1981), modified on other grounds
693 F 2d 1176 (5th Cir 1982) (information regarding discharged employ-
ee refused by the employer because his discharge had been referred to
the Board as an unfair labor practice , as the union had elected to press
the charge rather than negotiate with the employer about it, Board prac-
tice governed and the union was not entitled to the information)
statements made at the arbitration hearing by Maureen
Roker and by Respondent's counsel strongly suggested
the existence of a universitywide system. The Union's
own speculation that a university which routinely set
wages for 8000 employees would utilize written guide-
lines is not unreasonable.
(d) Respondent's counsel, in attempting to quash the
subpoena, made other statements which justified the
Union's effort to investigate the existence of documents,
which were of a nature which tended to mislead the
Union and clearly violated the spirit of NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The refusal by Respond-
ent's counsel to comply with the subpoena was based on
contentions that discovery was not available to the
Union in an arbitration proceeding, that it was inappro-
priate in an interest arbitration, that disclosure would
give away Respondent's "case-in-chief," and that the
Union's demands would throw the university's system,
"out of whack. 116 The only argument he did not make
was that it called for nonexistent documents . His silence
in that regard was admittedly misleading and part of it is
counter strategy.
(e) The Respondent made an energetic attempt to
show that the Union, or at least Miller, did not believe
the information or the documents were needed. Re-
spondent points to many opportunities which the Union,
and Miller specifically, let pass, when she could have re-
quested information about the grading system and failed
to do so, beginning with negotiations regarding the 14
faculty secretaries early in 1986. The subject of the
proper placement of the faculty secretaries was an issue
which came up several times. Raj Singh told Miller,
during the negotiations , "that the compensation depart-
ment was responsible for upgrading" but she did not ask
him for any information about the grading structure. The
union negotiating subcommittee never met with any rep-
resentative of the compensation department to find out
why faculty secretaries were graded at grade V. Though
the issue survived the end of the negotiations and was
the subject of the separate agreement to continue negoti-
ations, no request was made during the 30-day extended
negotiation period for any information regarding the
grading structure. Prior to the April 18 session with the
arbitrator, the Union made no requests for information.
Respondent also established that during the collective-
bargaining negotiations Miller consulted with her super-
visor and with union counsel, but never ' complained to
them that Respondent had failed to provide her with any
information which she felt was needed in the negotiation
process. She herself testified that she believed she had
presented the secretaries case "with all of its merits" to
Respondent in the negotiations . In her testimony, she
failed to respond in a straightforward manner to a ques-
tion as to whether she had believed she had in her pos-
session sufficient information to discuss pay proposals for
the secretaries intelligently with the university, and I ac-
cordingly treat her testimony as indicating that she did
so believe. In fact, Miller conceded that during the
6 The quoted phrase means "out of order or shape", "out of accord, as
with other production methods." Webster's Third New International Dic-
tionary, G & C Merrian, Co., 1981, p 2599
COLUMBIA UNIVERSITY 947
period from the signing of the collective-bargaining
agreement through the 30-day additional negotiating
period arranged for the outstanding issues, she did not
know how employees were graded into grades V or VI
and never requested an explanation, though the grades
are provided for in the collective-bargaining agreement.
But none of these circumstances negate Miller's testi-
mony that, since salaries are negotiated according to
grade, the May subpoena was issued to obtain documents
and information needed to determine if employees were
graded properly and ' whether the Union should go for-
ward in arbitration. The arbitration proceeding was an
inherent part of the collective-bargaining process in this
case; issues had been, left for resolution by a process of
negotiation and, if necessary, arbitration, and the arbitra-
tor held that it was an interest arbitration. The fact that
Miller might not have felt the need for the information in
the collective-bargaining negotiations up to that point
does not preclude the Union from deciding differently at
a latex stage or from determining that information not
needed in negotiations may nevertheless be of use in an
arbitration proceeding, whether or not that' proceeding is
deemed part of a continuing negotiation process.
In any event, the remarks of Respondent's counsel to
the arbitrator and the testimony of Roker substantially
altered the situation. Respondent's counsel deliberately
fueled suspicions that a written system utilized by the
university and theretofore unknown to the Union might
be affecting the negotiations. Prior to that time, Miller
might reasonably have felt that the needs of the case did
not require her to obtain information about the grading
structure beyond what was already known. She asserts
that even after the Union came to believe that certain in-
formation would enable it to judge the strength of its
case in arbitration, an immediate demand was not made
because as of that time the actual arbitration was not im-
minent and other matters were more immediate. Until
Respondent's counsel made his opening statement to the
arbitrator, 'Miller operated within the parameters of the
grading system as defined in the collective-bargaining
agreement and did not believe and other data was
needed. Respondent's counsel, in his opening statement,
disclosed the possibility that something unknown to the
Union had, had a major impact on the contract negotia-
tions. It was, by definition, a matter that was relevant
and necessary and the Union quickly demanded informa-
tion about it and had a compensation expert at the arbi-
tration hearing to analyze it when it was disclosed.'
(f) Finally, Respondent seems to be under the impres-
sion that its collective-bargaining obligation was dis-
charged by its belated communication to the Union ad-
vising that the documents listed in the subpoena do not
exist. Essentially, however, the statutory obligation is to
bargain collectively in good faith. Producing documents
and supplying information is merely a way of doing that.
Consequently, the form of the demand is not more im-
portant than the form of the response as an indication of
the presence or absence of good faith. The Union de-
manded the production of documentation either in an er-
roneous belief that a universitywide grading system exist-
ed or in an attempt to find out whether one existed. Re-
spondent knew what the Union was looking for. It un-
derstood the nature of the information requested. It is
well settled that when production is appropriate in re-
sponse to a union demand, data may not to be withheld
because of some technical deficiency in the manner in
which it is designated in the request. Information re-
quested in an inappropriate form but otherwise produci-
ble, cannot be withheld because the union has incorrect-
ly identified or improperly described its form. United
Technologies Corp., 277 NLRB 584, 585 (1985).
CONCLUSIONS OF LAW
1. Columbia University in the City of New York, the
Respondent, 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 mean-
ing of Section, 2(5) of the Act.
3. Respondent has violated Section 8(a)(5) and (1) of
the Act by unreasonably delaying a response to a sub-
poena issued by the Union in an arbitration proceeding
on May 6, 1988; by failing to furnish to the Union the
information requested in the subpoena; and by misleading
the Union into believing that certain documents might
exist which in fact were nonexistent.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Accord-
ingly, Respondent will be directed to furnish to the
Union the information requested in the subpoena issued
by the Union's counsel in an arbitration proceeding on
May 6, 1988, either in the form of documents as request-
ed or by furnishing equivalent information.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Columbia University in the City of
New York, New York, New York,its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local 1199,
Drug, Hospital, and Health Care Employees Union,
RWDSU, AFL-CIO, by refusing, on request, to supply
relevant information in timely fashion needed by the
Union to perform its duties as collective-bargaining rep-
resentative of the following employees in the unit:
7 The arbitration hearing was closed without the the Union putting its
compensation expert on the stand as a result of the testimony by the uni-
versity's witnesses that the university, in effect, had no system or no
meaningful system
8 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All office clerical employees of the Respondent at
the Morningside Heights Campus employed in the
Libraries, Computer Center, Central Mail Room,
School of Social Work and in the Controller's
Office at Hogan Hall, 2910 Broadway, New York,
New York (excepting Data Processing).
(b) Misleading the Union with respect to the existence
of documents or information requested by the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish, on request and in a timely fashion, to the
Union the information relating to the grading structure
or job evaluation process employed by the Respondent;
factors considered in determining grade levels and rates
of compensation for positions held by unionized employ-
ees of the Respondent; the identification and qualifica-
tions of persons responsible for the development and ap-
plication of such processes; and information relating to
Respondent's determination that faculty secretaries in the
School of Social Work should be classified at the grade
V level; updated, if necessary, to the current period, to-
gether with all other information requested by the Union
in a subpoena issued by its counsel to Respondent in an
arbitration proceeding on May 6, 1988, either in the form
of documents as requested or by furnishing equivalent in-
formation.
(b) Post at its offices in New York City, copies of the
attached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "