Conrock Company

National Labor Relations Board - Board Decisions

Sep 20, 1982

263 N.L.R.B. 1293 (N.L.R.B. 1982)

CONROCK COMPANY
Conrock Company and Building Material & Dump
Truck Drivers, Local 420, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America. Case 31-CA-10668
September 20, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On April 14, 1982, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent 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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Respondent owns and operates rock quarries and
cement-mixing facilities. It also delivers rock prod-
ucts and cement. Respondent delivers those materi-
als primarily in its own trucks, but it also contracts
with "subhaulers" for a portion of the delivery
work. The subhaulers are independent contractors
who use their own trucks. Respondent's collective-
bargaining agreement with the Union contains an
article regarding job protection. That article pro-
vides:
It is the intent of the parties to this Agree-
ment to protect the work performed by em-
ployees in the bargaining unit.
The Employer recognizes that it is impor-
tant and desirable to utilize its own equipment
and drivers to the greatest extent possible prior
to using sub-haulers and/or non-Company
trucks.
The Union recognizes that under certain
conditions, such as those dictated by customer
demands, equipment requirements, daily dis-
patch determinations, materials to be hauled
and similar factors, that sub-haulers and/or
non-Company trucks are necessary and have
been so utilized throughout the Industry for
many years.
The Employer, in accordance with the
above, must, however, determine the number,
type and location of its working equipment in
conformity with its business requirements. The
Employer further must be able to determine,
in keeping with sound business practices, the
263 NLRB No. 183
extent to which it will replace equipment
which is too costly to operate, obsolete or
damaged.
Under these conditions, the Employer
agrees that sub-haulers and/or non-Company
trucks will not be utilized as a subterfuge to
defeat the protection of the bargaining unit
work,
In keeping with the above, the Union recog-
nizes that the Employer will utilize such sub-
haulers and/or non-Company trucks as re-
quired by location and classification only after
all the available Company trucks at such loca-
tions and in similar classifications have been
initially dispatched.
In 1979 and 1980, Respondent removed more
trucks from service than it purchased and placed in
service. Respondent laid off several drivers in
August 1980,1 and two of them complained about
this to Ronald Kennedy, the Union's business
agent. Kennedy investigated the matter. He discov-
ered that Respondent was continuing to use a large
number of subhaulers, even though it had retired
some of its own trucks from service.
Kennedy began to process a grievance on behalf
of the laid-off drivers. The grievance alleged that
Respondent violated the job protection clause of
the collective-bargaining agreement by removing
trucks from service and laying off drivers while
continuing to use subhaulers. Kennedy requested
that the drivers be recalled with backpay and that
all of their rights be restored. The initial meeting to
discuss the grievance was held on September 17.
Arthur Battle, Respondent's manager of industrial
relations, maintained that the fourth paragraph of
the job protection clause gave Respondent the
right to remove the trucks from service. Battle
stated that the trucks were retired because they
were too costly to operate. Kennedy responded by
asking Battle to be more precise. Kennedy also
asked Battle for maintenance and repair records to
substantiate his claim. Respondent refused to fur-
nish those records. On September 25, at the next
step of the grievance procedure, a joint panel of
employer and union representatives, Battle contin-
ued to maintain that Respondent retired the trucks
because they were too costly to operate. The joint
panel was unable to resolve the grievance. By
letter dated September 26, the Union informed Re-
spondent that it was exercising its right, pursuant
to the grievance procedure contained in the collec-
tive-bargaining agreement, to take the grievance to
arbitration. By letter dated October 9, Kennedy re-
quested Respondent to provide the Union with "[a]
' All dates herein are in 1980 unless otherwise indicated.
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of all mechanical work performed on all ma-
terial bottom dump trucks starting August 1, 1979,
to and including August 1, 1980, plus a company
estimate for cost of repair." Respondent refused to
provide the Union with this information. In a letter
dated November 4, Battle stated that "the informa-
tion requested is irrelevant to the issues in the sub-
ject grievance and unnecessary for proving the
labor agreement or fairly representing bargaining
with [sic] employees." Battle reiterated Respond-
ent's position that it had the right to retire trucks
that were too costly to operate, and also alluded to
Respondent's policy of retiring trucks that reach a
certain age regardless of maintenance or repair
cost. Soon afterwards, the Union filed an unfair
labor practice charge alleging that Respondent was
violating Section 8(a)(5) and (1) of the Act by re-
fusing to furnish relevant and necessary informa-
tion.
The Administrative Law Judge dismissed the
complaint. He found that the information sought
by the Union was not relevant to the grievance and
thus Respondent was not obligated to provide it.
He reasoned that the information was not relevant
because Respondent took the position at the hear-
ing that it would not contend at an arbitration pro-
ceeding that the trucks were retired from service
because they were too costly to operate. Instead,
Respondent claimed that the trucks were retired in
accordance with its policy regarding obsolete
equipment. Pursuant to that policy, Respondent re-
tires trucks after they have been in service for 10
years, regardless of maintenance costs.
We do not agree with the Administrative Law
Judge. It is well settled that an employer has an
obligation, as part of its duty to bargain in good
faith, to provide information needed by a union to
enforce and administer a collective-bargaining
agreement. 2 An employer must furnish information
that is of even probable or potential relevance to
the union's duties.3 The refusal by an employer to
provide relevant information requested by the
union is a violation of Section 8(a)(5) and (1) of the
Act.
In this case, the information sought by the Union
is clearly relevant to the grievance it had filed. The
Union wanted records of repair work performed
on Respondent's trucks, and the estimated costs of
repair. The information is relevant because Re-
spondent's manager of industrial relations, Arthur
Battle, maintained at the initial grievance meeting
and again before the joint panel that the trucks
were retired from service because they were "too
N.LR.B. v. Acme Industrial Ca, 385 U.S. 432 (1967).
a Leland Stanford Junior University, 262 NLRB 136 (1982); Los Angeles
Chapter, Sheet Metal and Air Conditioning Contractors National Associ-
ation, 246 NLRB 886 (1979).
costly to operate." The job protection clause of the
collective-bargaining agreement provides that Re-
spondent may retire trucks for this reason. Infor-
mation regarding repair costs is obviously relevant
for evaluating the propriety of Respondent's deci-
sion. The information also appears to be relevant to
similar contractual claims that the Union may wish
to pursue or at least to consider.4
Contrary to the Administrative Law Judge's
finding, relevant information cannot be rendered ir-
relevant by an employer's promise not to raise a
particular defense at an arbitration proceeding.
That notion is inconsistent with a union's right to
evaluate relevant information while deciding
whether to pursue the grievance at all.5 Also, a
union has the right and the responsibility to frame
the issues and advance whatever contentions it be-
lieves may lead to the successful resolution of a
grievance. It follows that a defending employer
may not limit the theories that a union wishes to
pursue by denying information to the union, as Re-
spondent has attempted to do here. 6 In addition,
we are not willing to speculate regarding what de-
fense or defenses an employer will raise in an arbi-
tration proceeding. It would also be impossible for
the Board to police an arbitration proceeding to
assure that certain defenses are not raised, directly
or obliquely, as the employer promised. We are not
questioning the integrity or good faith of Respond-
ent and its counsel. Rather, we simply acknowl-
edge that, due to any number of exigencies or de-
velopments, the operating costs of Respondent's
trucks could be at issue in an arbitration proceed-
ing, despite Respondent's promise not to raise it as
a defense.
Accordingly, we reverse the Administrative Law
Judge's Decision and find that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
furnish the Union with the information it sought.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
4The job protection clause also provides, for example, that the em-
ployer will use its own equipment and drivers "to the greatest extent pos-
sible" before it uses subhaulers, that the employer will not use subhaulers
as a "subterfuge" to undermine the protection of bargaining unit work,
and that although the employer may replace equipment that is too costly
to operate or is obsolete, it may do so only in accordance "with sound
business practices." We have examined the collective-bargaining agree-
ment only to determine whether the information sought by the Union is
potentially relevant. We are not expressing any opinion about the merits
of any contractual claim. N.LR.B. v. Acme Industrial Co., supra at 437-
438.
a N.L.R.B. v. Acme Industrial Ca. supra at 438-439.
c See Transport of New Jersey, 233 NLRB 694 (1977).
1294
CONROCK COMPANY
Conrock Company, Los Angeles, California, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Build-
ing Material & Dump Truck Drivers, Local 420,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, by re-
fusing to furnish the said labor organization with
records pertaining to repair work and estimated
costs of repair of bottom dump trucks, which
records are needed to enable it to process a griev-
ance on behalf of employees in the bargaining unit.
The appropriate unit is:
All employees of employers who have volun-
tarily signified their consent to be part of the
Rock Products and Ready Mixed Concrete
Employers of Southern California multi-em-
ployer bargaining unit and to be bound to the
1979-1982 collective bargaining agreement be-
tween that multi-employer bargaining unit and
Locals 420, 692, 495, 88, 982, 235 and 871 of
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, employed in the classifications set
forth in Article IV of the collective bargaining
agreement, excluding all other employees
properly covered in other bargaining units,
office clerical employees, technical and profes-
sional employees, guards, watchmen, and su-
pervisors as defined in the Act as amended.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with
Building Material & Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
by furnishing to the said labor organization the
records pertaining to repair work and estimated
costs of repair of bottom dump trucks, which
records are needed to enable it to process a griev-
ance on behalf of employees in the above-described
bargaining unit.
(b) Post at its facility in Los Angeles, California,
copies of the attached notice marked "Appendix." 7
7 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Building Material & Dump Truck Driv-
ers, Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive bargain-
ing representative of the employees in the ap-
propriate unit set forth below, by refusing to
furnish the said labor organization with
records pertaining to repair work and estimat-
ed costs of repair of bottom dump trucks,
which records are needed to enable it to proc-
ess a grievance on behalf of employees in the
bargaining unit. The appropriate unit is:
All employees of employers who have vol-
untarily signified their consent to be part of
the Rock Products and Ready Mixed Con-
crete Employers of Southern California
multi-employer bargaining unit and to be
bound to the 1979-1982 collective bargain-
ing agreement between that multi-employer
bargaining unit and Locals 420, 692, 495, 88,
982, 235 and 871 of the International Broth-
erhood of Teamsters, Chauffeurs, Warehou-
semen & Helpers of America, employed in
the classifications set forth in Article IV of
the collective bargaining agreement, exclud-
ing all other employees properly covered in
other bargaining units, office clerical em-
ployees, technical and professional employ-
ees, guards, watchmen, and supervisors as
defined in the Act as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain collectively
with Building Material & Dump Truck Driv-
ers, Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, by furnishing to the said
labor organization the records pertaining to
repair work and estimated costs of repair of
bottom dump trucks, which records are
needed to enable it to process a grievance on
behalf of employees in the bargaining unit.
CONROCK COMPANY
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Admnistrative Law Judge: On
August 20 and November 5, 1981, I conducted a hearing
at Los Angeles, California, to hear issues raised by a
complaint issued on January 15, 1981, based on a charge
filed by Local 420 on November 28, 1980.' The com-
plaint alleges that Conrock Company (herein called Con-
rock) violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, by refusing to furnish
Local 420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(herein called Local 420) with truck maintenance records
and repair estimates over the period August 1, 1979,
through August 1, 1980, to aid Local 420's investigation
and processing of a grievance to arbitration over Con-
rock's layoff of drivers represented by Local 420 and
covered by an agreement between an employer associ-
ation with which Conrock was affiliated and several
locals of the International Brotherhood of Teamsters
(IBT), including Local 420. Conrock conceded it refused
to furnish the requested documents, but contends its re-
fusal was not violative of the Act because those docu-
ments were not necessary, relevant, or material to any
issue raised by Local 420's grievance. The major issue is
whether the Company's contention is supported by the
evidence.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
examine and cross-examine witnesses, to argue, and to
file briefs. The General Counsel argued orally and Con-
rock submitted a brief.
Based upon my review of the entire record, observa-
tion of the witnesses, perusal of the brief and argument,
plus research, I enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find at
all pertinent times that Conrock was an employer en-
gaged in commerce in a business affecting commerce and
I Read 1980 after all further date references omitting the year.
that Local 420 was a labor organization within the mean-
ing of Section 2 of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Conrock is one of the largest, if not the largest, owner
and operator of rock quarries, cement-mixing, and deliv-
ery facilities and seller and transporter of rock products
and ready-mix cement in the United States, and certainly
in southern California. As part of its business, it owns
and operates a large fleet of trucks, including mixer
trucks, bottom dump trucks, 2 and tractor-trailers. For
many years Conrock has contracted with subhaulers for
transportation of a portion of its materials in their vehi-
cles, in addition to the use of its own fleet.
At all pertinent times, Conrock has been affiliated with
an employer association known as the Rock Products
and Ready Mixed Concrete Employers (the Association)
and the rates of pay, wages, hours and working condi-
tions of its drivers and related employees have been gov-
erned by agreements between the Association and a
number of IBT Locals in southern California 3 with geo-
graphical jurisdiction over the southern California por-
tion of Conrock's operations. The agreement involved
here was executed in 1979 for a term extending from
August 1, 1979, through August 1, 1982.
That agreement, inter alia, provided (art. XIX, "Job
Protection"):
It is the intent of the parties to this Agreement to
protect the work performed by employees in the
bargaining unit.
The Employer recognizes that it is important and
desirable to utilize its own equipment and drivers to
the greatest extent possible prior to using sub-haul-
ers and/or non-Company trucks.
The Union recognizes that under certain condi-
tions, such as those dictated by customer demands,
equipment requirements, daily dispatch determina-
tions, materials to be hauled and similar factors, that
sub-haulers and/or non-Company trucks are neces-
sary and have been so utilized throughout the In-
dustry for many years.
The Employer, in accordance with the above,
must, however, determine the number, type and lo-
cation of its working equipment in conformity with
its business requirements. The Employer further
must be able to determine, in keeping with sound
business practices, the extent to which it will re-
place equipment which is too costly to operate, ob-
solete or damaged.
Under these conditions, the Employer agrees that
sub-haulers and/or non-Company trucks will not be
utilized as a subterfuge to defeat the protection of
the bargaining unit work.
In keeping with the above, the Union recognizes
that the Employer will utilize such sub-haulers
and/or non-Company trucks as required by location
2 Consisting of a tractor, a semi-trailer, and a haul trailer.
3 IBT Locals 88, 235, 420, 495, 692, and 871
1296
CONROCK COMPANY
and classification only after all the available Compa-
ny trucks at such locations and in similar classifica-
tions have been initially dispatched.
On January 1, 1979, 72 bottom dump trucks and 59
tractor-trailers were included in Conrock's southern Cali-
fornia fleet; during 1979, Conrock retired 13 bottom
dump trucks and 16 tractor-trailers and purchased and
placed in service 7 new bottom dump trucks and 5 new
tractor-trailers, for a net reduction of 17 (6 bottom dump
trucks and 11 tractor-trailers). The January 1, 1980,
bottom dump truck and tractor-trailer fleet of 66 bottom
dump trucks and 48 tractor-trailers was further reduced
during 1980 by another 21 units (retiring 17 bottom
dump trucks and 14 tractor-trailers and purchasing and
placing into service 5 new bottom dump trucks and 5
tractor-trailers), for a bottom dump truck and tractor-
trailer fleet on January 1, 1981, of 43 bottom dump
trucks and 40 tractor-trailers, a total fleet reduction over
the 2-year period of 29 bottom dump trucks and 19 trac-
tor-trailers.
None of the IBT locals signatory to the 1979-82
agreement filed grievances over the 1979 reductions or
the first 1980 reduction (in May); 4 however, when a
number of trucks were retired in July and August, driv-
ers represented by Local 420 were laid off and they
complained to Local 420 Business Agent Ronald Kenne-
dy, who was assigned by Local 420 to service Conrock
employees covered by the Association's agreement. In
the course of Kennedy's investigation of the layoffs, one
of the laid-off drivers and one of Local 420's stewards
(Charles Vaughn) informed Kennedy that Conrock's dis-
patchers were assigning to subhaulers hauling work per-
formed by Conrock drivers with Conrock equipment
prior to the layoff of the former and the retirement of
the latter.
Kennedy promptly (on September 5) filed a contract
grievance alleging that Conrock violated article XIX by
taking units out of service, laying off drivers, and con-
tracting out the work they previously performed to sub-
haulers for performance by their employees with their
equipment. Kennedy demanded that the laid-off drivers
be recalled with backpay and all rights restored.
The grievance, along with other grievances, was dis-
cussed by representatives of Conrock and Local 4205 on
September 17, in accordance with the grievance proce-
dure established by the agreement. The discussion of the
grievance commenced with a demand from Kennedy for
an explanation why Conrock parked its trucks in July
and August and laid off drivers. Battle responded with a
reference to the fourth paragraph of article XIX, the
statement under that paragraph Conrock had the right to
4 No drivers were laid off in May when five units were removed from
service; the record does not show if any drivers were laid off when the
1979 reductions occurred.
I Arthur Battle, Conrock's manager of industrial relations; Grant Vin-
cent, Conrock's overall operations manager, transportation; and Henry
Lang, a Conrock transportation manager, represented Conrock during
the ensuing discussion Local 420 was represented by Oliver Traweek, its
secretary-treasurer. Horace Miranda, a business agent, and Kennedy. I
find at all pertinent times that Battle, Vincent, and Lang were supervisors
and agents of Conrock acting on its behalf and that Traweek, Miranda,
and Kennedy were agents of Local 420 acting on its behalf.
take whatever number of trucks it deemed necessary out
of service, and that it took the trucks in question out of
service because they were too costly to operate. Kenne-
dy asked what Battle meant by saying the trucks were
too costly to operate, demanding that Conrock produce
maintenance and repair records to substantiate its claim.
Vincent directed Kennedy's attention to the language of
article XI, section l(a), of the agreement stating:
On request of the Union Representative, the Em-
ployer shall produce the payroll records that bear
upon the grievance, for examination by the Union
Representative.
He took the position that payroll records were the only
documents Conrock was under any obligation to pro-
duce. The meeting ended on that note. 6
The grievance was taken to the next step of the con-
tract grievance procedure (step 2) on September 25 for
consideration by a joint panel consisting of an equal
number of panelists designated by the Association and
the six IBT locals which were signatory to the agree-
ment. Grievance disputes between a number of the Asso-
ciation's affiliates and various of the six IBT locals repre-
senting their employees were reviewed, including the
Local 420 grievance. Kennedy presented Local 420's po-
sition and Battle presented Conrock's position before the
panel. Kennedy stated that Conrock parked a number of
its trucks, laid off drivers, and assigned the work per-
formed by the parked trucks and Conrock drivers to sub-
haulers for performance by the subhaulers' vehicles and
drivers, thereby violating the fifth paragraph of article
XIX of the agreement. While Battle conceded that Con-
rock parked a number of its trucks and laid off drivers,
he contended under the fourth paragraph of article XIX
that Conrock was not required to maintain its fleet at a
constant level and it was within its complete discretion
to take trucks out of service and lay off drivers if, inter
alia, they were "too costly to operate." Asked by Ken-
nedy if he meant Conrock was free to take trucks out of
service, lay off drivers, and contract out the work per-
formed with those trucks to subhaulers for performance
with the subhaulers' vehicles and drivers, because it was
less costly to have the work in question performed by
subhaulers rather than by the trucks taken out of service
and Conrock's drivers, Battle replied affirmatively. 7 The
6 I credit Kennedy's testimony to the above and discredit any contrary
testimony. Battle and Vincent corroborated Kennedy's testimony that he
demanded records concerning the cost of operating the marked trucks
and Vincent refused to supply that information on the ground that the
agreement did not require it; there would not be a reason for that ex-
change if Battle had not previously asserted the trucks were parked be-
cause they were too costly to operate; in addition, Kennedy impressed
me as an honest, forthright witness. Also, it seems incredible Kennedy
would persist (as he did) in demanding such records if Conrock's repre-
sentatives had not previously stated that the parked trucks were "too
costly to operate."
7 Charles Vaughn, the Local 420 steward who informed Kennedy that
work performed by Conrock trucks and drivers had been assigned to sub-
haulers on the parking of those trucks and layoff of drivers. accompanied
Kennedy to the September 25 panel consideration of the Kennedy griev-
ance and testified that Battle so responded to Kennedy's question. Battle
did not refute Vaughn's testimony to that effect, pleading an absence of
recollection as to whether or not he so responded to Kennedy's ques-
tions. I credit Vaughn's testimony.
1297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panel went into executive session and deadlocked over
the merits of the grievance.
On September 26, Local 420 notified Conrock that it
was exercising its right under step 3 of the contract
grievance/arbitration procedure to take the grievance to
arbitration.
On October 9, Kennedy addressed a letter to Conrock
requesting Conrock to furnish Local 420 with:
A copy of all mechanical work performed on all
material bottom dump trucks starting August 1,
1979, to and including August 1, 1980, plus a com-
pany estimate for cost of repair.
On November 4, Conrock responded by stating that
after careful consideration of the request and securing
advice of counsel:
We respectfully decline your request. We believe
that the information requested is irrelevant to the
issues in the subject grievance and unnecessary
The union well knows that our well established
policy of removing trucks of an attained age in
service from our fleet at regular intervals is not
based on the relative cost of maintaining and repair-
ing any one or more trucks at any point in time, but
on our best judgment as to the most cost-effective
method of maintaining an economical and effective
fleet of trucks over the longpull.
The union also well knows that we have a well
established policy of purchasing new trucks in an
orderly fashion. The union also well knows that our
actions to date in this regard are entirely consistent
with our established position.
We have the right to determine the number, type
and location of our working equipment in conform-
ity with our business requirements. We have the
right to determine, in keeping with sound business
practices, which of our equipment is too costly to
operate, obsolete or damaged. We have the right to
determine also, in keeping with sound business prac-
tices, the extent to which we will remove from our
fleet any such equipment as to which we have made
such a determination. We have the right to deter-
mine, in keeping with sound business practices, the
extent to which we will replace any such equip-
ment.
The orderly removal from our fleet of all trucks
that reach a certain age in service is a sound busi-
ness practice. The orderly purchase of new trucks
at a programmed rate is a sound business practice. s
s In keeping with this statement, counsel for Conrock demonstrated by
valid evidence that Conrock retired 12 bottom dump trucks from its fleet
in July and August that had been in service for approximately 10 years
and that a number of drivers were laid off as a consequence and that
such retirement had been Conrock and industry practice for many years.
Counsel also represented on the record that Conrock would not. at the
pending arbitration, make any contention that the vehicles in question
were taken out of service because of their relative costs of repair and
maintenance. (Battle and Vincent also testified, without contradiction,
On November 28, Local 420 filed the charge which
led to this proceeding.
B. Analysis and Conclusions
It has been settled law since the issuance of the Acme
Industrial decision9 that either party to a collective-bar-
gaining agreement is entitled, upon request therefor ad-
dressed to the other party, to information which will
enable the requesting party to evaluate the merits of a
grievance it is investigating or to secure information for
use in processing that grievance on its merits, so long as
the requested information is necessary, relevant, and ma-
terial to the subject matter of the grievance. O
This grievance dispute arose over what effect shall be
given to various provisions of article XIX of the 1979-
1982 agreement between the Association and the six
southern California IBT locals, including Local 420.
It was and is Local 420's theory of the dispute that, by
article XIX, the parties intended to preserve the portion
of the hauling work performed by the Association's af-
filiates with their own drivers and equipment at the
levels which existed at the time the agreement was ex-
ecuted for the duration of the agreement, recognizing
that those affiliates were entitled to continue contracting
out to subhaulers over the contract period the same pro-
portion of hauling work they had previously contracted
out; that since the execution of the agreement Conrock
has diminished the portion of the hauling work done by
its vehicles and drivers and increased the portion of the
hauling work done by subhaulers, thereby violating arti-
cle XIX.
Since Conrock admittedly over the first 2 years of the
agreement substantially reduced the number of bottom
dump trucks and tractor-trailers it used in its hauling op-
erations by retiring vehicles and laying off drivers and
not replacing the retired vehicles and recalling drivers in
the number retired and laid off, the key information that
Local 420 needs to evaluate and present its case for arbi-
tration is evidence concerning the volume of Conrock's
hauling work over the 2-year period and the ratios main-
tained over that period between the portion performed
by its vehicles and drivers and the portion performed by
subhaulers. I 1
they were and are unaware of the cost of such repair and maintenance of
the vehicles in question or the balance of the bottom dump trucks in the
fleet, and such costs played no part in Conrock's decision to take the ve-
hicles in question out of service.) The Battle-Vincent testimony is cred-
ited and I accept counsel's representation. Counsel for Conrock also of-
fered to stipulate to the same effect as his representation; the proposed
stipulation was rejected by counsel for the Charging Party and counsel
for the General Counsel.
N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967).
'o N.L.R.B. v. Acme Industrial Co., supra; Standard Oil Company of
California v. NL.R.B., 399 F.2d 639 (9th Cir. 1968); N.L.R.B. v. Ra-
mona's Mexican Food Products, 531 F.2d 390 (9th Cir. 1975); San Diego
Newspaper Guild v. N.LR.B., 548 F.2d 863 (9th Cir. 1977); NL.R.B. v.
.Associated General Contractors of California, 633 F.2d 766 (9th Cir. 1980);
Columbus Products Company, etc., 259 NLRB 220 (1981).
"i The General Counsel sought that information by subpoena; I sus-
tained Conrock's motion to quash that subpoena on the ground, while
that information was essential for purposes of the arbitration, it was irrele-
vant to the issue before me; i.e., whether the maintenance records of Con-
rock's bottom dump trucks over a I-year period was necessary, relevant,
and material to the issues before the arbitrator.
1298
CONROCK COMPANY
With the grievance dispute in this posture, why then
did Kennedy seek the maintenance records of Conrock's
bottom dump trucks for a 1-year period, 1979-80? The
reason stems from the ambiguity of Battle's response to
Kennedy's demand for the reasons Conrock retired vehi-
cles and laid off drivers in July and August. When Ken-
nedy on September 17 asked why the vehicles were re-
tired and drivers laid off, Battle responded the vehicles
were retired because they were too costly to operate.
Kennedy interpreted that response as a possible assertion
that the retired trucks generated higher maintenance
costs than the average costs of trucks of the same type,
and demanded that Conrock produce records relating to
that issue. Instead of telling Kennedy that Conrock was
not claiming that the retired trucks were more costly to
maintain and operate than the balance of the fleet, Vin-
cent flatly refused to comply with the request on the
ground that the only records Conrock was obligated to
supply to Local 420 under the agreement were payroll
records, and the records he requested were not in that
category.
Battle did not lessen the ambiguity of Conrock's posi-
tion when, at the September 24 panel discussion, he
again asserted that Conrock had a right to take out of
service trucks which in Conrock's judgment were too
costly to operate.
In fact, not until the hearing before me did it become
clear that Conrock never ascertained or considered the
maintenance costs of the trucks it retired in July and
August vis-a-vis other trucks of the same type, and that
Conrock does not. and will not, assert such costs as a
reason for taking the vehicles in question out of service.
Thus, this entire proceeding arose due to a misappre-
hension by the Union of the Employer's position and the
failure of the Employer to clarify its position during the
employer-union discussions of the grievance.
What is apparent, however, is that, based on the cur-
rent status of the dispute, the requested information is
unnecessary, irrelevant, and immaterial to the issues
before the arbitrator.
I therefore recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. At all pertinent times Conrock and the Association
were employers engaged in commerce in a business af-
fecting commerce and IBT Locals 88, 235, 420, 495, 692,
and 871 were labor organizations within the meaning of
Section 2 of the Act.
2. At all pertinent times Local 420 has been the duly
designated collective-bargaining representative of an ap-
propriate unit of Conrock's employees, including drivers,
and the rates of pay, wages, hours, and working condi-
tions of the unit employees have been established by an
agreement between the Association and the six IBT
locals named above.
3. Conrock did not violate Section 8(a)(l) and (5) of
the Act by refusing to supply Local 420 with the mainte-
nance records Local 420 requested on October 9.
[Recommended Order for dismissal omitted from pub-
lication.]
1299