Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Jan 14, 1993

310 N.L.R.B. 109 (N.L.R.B. 1993)

109
310 NLRB No. 21
CONSOLIDATION COAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent has not
met its burden of proving that the information sought was confiden-
tial, we find it unnecessary to rely on his finding that telephone
records are not private.
3 In agreement with the judge, we conclude that a narrow cease-
and-desist order is appropriate at this time.
1 All dates are in 1991 unless stated otherwise.
2 The phone bills do not indicate which of the approximately 15
phones at the mine was used. Rather, they indicate the date, time,
the number dialed, whether the call was made on the Ducomm sys-
tem, the length of the call, and the charge. The Ducomm system is
part of the Dupont system which allows telephoning throughout the
United States on a discount basis. The telephones are used primarily
by management, which includes those who work at the mine and
those who are visiting.
Consolidation Coal Company and United Mine
Workers of America, AFL–CIO. Case 6–CA–
23857
January 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 13, 1992, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, an answering
brief, and a reply brief. The General Counsel filed a
limited exception and a supporting brief, and an an-
swering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Consolidation Coal Com-
pany, Rice’s Landing, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Dalia Belinkoff, Esq., for the General Counsel.
David J. Laurent, Esq. (Polito & Smock), of Pittsburgh,
Pennsylvania, for the Respondent.
Ed Yankovich, of Pittsburgh, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed August 28, 1991,1 by United Mine Workers of Amer-
ica, AFL–CIO (Union), a complaint was issued on October
7 alleging that Consolidation Coal Company, Respondent,
violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (Act), by refusing to furnish the Union with a com-
plete list of telephone bills for Respondent’s Dilworth Mine
for the months of April, May, and June 1991, which infor-
mation is assertedly necessary for, and relevant to, the
Union’s performance of its function as the exclusive collec-
tive-bargaining representative of the involved unit. Respond-
ent denies violating the Act.
A hearing was held in Pittsburgh, Pennsylvania, on Feb-
ruary 28, 1992. On the entire record in this case, including
my observation of the demeanor of the witnesses and consid-
eration of the briefs filed by General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with an office and
place of business in Pennsylvania, has been engaged in the
mining and nonretail sale of coal. The complaint alleges, the
Respondent admits, and I find that at all times material here-
in, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Facts
For a number of years, Respondent has participated in col-
lective-bargaining agreements with the Union covering Re-
spondent’s employees at the Dilworth Mine, with the most
recent being the National Bituminous Coal Wage Agreement
of 1988. (G.C. Exh. 2.) That agreement contains a grievance
and arbitration procedure.
On July 25 Renee Smith telephoned Gregory Dixon, Re-
spondent’s eastern region human resources manager, and told
him that Respondent’s employee William Buehner had taken
some tools and supplies from Respondent’s Dilworth Mine
and left them at her residence. She requested that the Re-
spondent remove the tools from her residence. Also, she told
Dixon that Buehner made a number of telephone calls to her
in Florida.
Respondent’s manager of industrial relations for the east-
ern region, Ronald Likar, then spent about 3 hours reviewing
Respondent’s telephone bills for the prior year to see whether
any Florida telephone number appeared consistently on the
bills.2
On August 2 Likar and another of Respondent’s super-
visors obtained an affidavit from Smith regarding the tools
and she gave them the telephone numbers that Buehner had
allegedly telephoned in Florida and Oklahoma from the
mine.
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The meeting gets its name from the fact that the parties are re-
quired by the involved collective-bargaining agreement to meet be-
tween 24 and 48 hours after the suspension unless the period is ex-
tended by mutual agreement of the parties. The union representatives
included Ed Yankovich, who is the president of the Union’s district
4; James Pocratsky, who is the chairman of the mine committee;
Marlon Whoorley, who is a mine committeeman; and Mike Dulick,
who is vice president of the local. The Respondent’s representatives
included Likar, Mine Superintendent Louis Barletta, and Hudson.
4 Whoorley testified herein that he could not recall Yankovich giv-
ing a reason other than that the Union needed the complete phone
bills to give Buehner a complete defense.
5 Likar testified that all the bills (R. Exh. 1) were given to the
Union; and that there were two recesses and after the first his offer
of one page of the bills which has two of Buehner’s telephone calls
on it was rejected by Yankovich who stated that he needed copies.
Hudson, answering a leading question, corroborated Likar regarding
the fact that R. Exh. 1 was tendered to Yankovich.
7 No mention of this alleged conversation appears in Yankovich’s
affidavit to the Board.
8 It is noted that immediately after testifying about his August 12
letter, described infra, Likar gave the following testimony:
Q. Did you speak to Mr. Yankovich by phone that day at any
point.
A. Yes, he called me.
Q. I’m talking about the 12th, the day you sent this letter.
A. No, I didn’t hear from him on the 12th. I heard from him
on the 13th, he called me.
Likar and a supervisor of human resources, Tom Hudson,
then reviewed the telephone records again for about 45 min-
utes and Hudson telephoned the numbers to make sure that
they were Smith’s brother’s in Florida and Buehner’s son’s
roommate in Oklahoma. Likar testified that Respondent’s
need to verify the accuracy of Smith’s allegations out-
weighed the privacy rights of the people who were tele-
phoned.
By letter dated August 5, Buehner was advised by Re-
spondent that he was suspended with intent to discharge for
taking tools, etc. from mine property and for making numer-
ous long distance telephone calls ‘‘where you spent substan-
tial periods of time away from your job.’’ (G.C. Exh. 10.)
On August 7, Buehner and the Union and Respondent’s
representatives met for what is termed a 24/48-hour meet-
ing.3 Likar provided Yankovich with a one-page document
which listed Buehner’s telephone calls. (G.C. Exh. 3.)
Buehner admitted that he made the telephone calls. When
Likar showed the bills for the 3 months to Yankovich to
demonstrate the basis for the one-page listing, Yankovich
told Likar that he, Yankovich, wanted copies of the original
bills. Yankovich testified that he stated that the Union need-
ed to see the bills in order to verify the calls and to check
whether other employees had been making similar calls from
the mine.4 Likar testified that Yankovich only said that he
had a right to the bills and he, Likar, refused indicating that
the information was confidential in that management used
the phones and management did not want the Union to know
who management was telephoning. After a recess, Likar gave
the Union either some (the approximately 14 pages con-
taining the Buehner calls) or all of the involved bills, de-
pending on whether the testimony of Yankovich and
Whoorley is credited.5 Also there is a conflict as to how
much time Likar gave the Union representatives to review
the bills. Likar testified that he told Yankovich that he could
take as much time as he wanted. And Hudson testified that
when Likar handed Yankovich what was received herein as
Respondent’s Exhibit 1, he, Likar, did not impose any time
limit on Yankovich’s opportunity to review the document.
On the other hand, Whoorley testified that he was given 5
minutes to look at the approximately 14 pages of bills and
that he copied two telephone numbers. Likar testified that
Whoorley looked at all of the bills (R. Exh. 1) for 15 min-
utes and that he copied 10 or 12 numbers. While the Re-
spondent and the Union agree that the Union offered to pay
for the cost of copying the records, Likar and Hudson do not
agree with Yankovich and Whoorley that the Union offered
to sign a confidentiality agreement protecting whatever the
Respondent deemed necessary. Yankovich testified that after
this meeting he spoke with Likar in the hall telling him that
the Union needed the records to substantiate regarding
Buehner and also to prove ‘‘that there’s other things in
here’’; and that he again offered to enter into a confiden-
tiality agreement and pay costs. Likar testified that during
this conversation Yankovich said that he was going to sub-
poena the bills; and that Yankovich did not mention a con-
fidentiality agreement.
By letter to Likar dated August 8 (G.C. Exh. 4)
Yankovich, as pertinent, indicated as follows:
As you were so advised at the 24/48 hour meeting
on August 7th, 1991, concerning the [d]ischarge of
William P. Buehner, it is the Union’s position that the
verbally requested, complete list of telephone bills for
the Dilworth mine for the months of April, May and
June, 1991, are of extreme importance to the Union to
prepare for the defense of your . . . charges against
Mr. Buehner.
I certainly hope that you will graciously honor this
request, taking into consideration, I need time to review
these documents at least forty-eight (48) hours prior to
the hearing. If the cost of reproduction is a factor in
this request, the Union will certainly be willing to reim-
burse you this cost at a reasonably fair market value.
On August 9 the Union served a subpoena it obtained
from an arbitrator (G.C. Exh. 9) on the Company requiring
that it provide the information sought in the Union’s above-
described August 8 letter to Likar.
Yankovich testified that he spoke with Likar by telephone
on August 12 telling him that the Union needed the records
to verify that Buehner ‘‘had made those calls at a certain
time and . . . there were other people who made calls’’ and
that after this conversation Likar faxed a letter to him.7 Likar
denied that he spoke with Yankovich on August 12.8
By letter to Yankovich dated August 12, (G.C. Exh. 5)
Likar indicated as follows:
You have requested information relating to telephone
bills. Please note that I have already given you much
of this information to review at the 24/48 hour meeting
on August 7, 1991. You looked at it and gave it back
to me. You did not provide any reasons why any fur-
ther review of this material would be necessary or did
you indicate how such further review would relate to
the instant case.
If you would let me know why it is necessary for
you to review this information again, I could make it
111CONSOLIDATION COAL COMPANY
9 General Counsel then elicited the following testimony from
Yankovich:
Q. So Mr. Likar offered the Union to look at the records for
approximately an hour or two?
A. At the most, an hour or two. He said we could take a break
and let the Union look at the records for an hour or two, and
then we would resume the hearing. That was the offer that was
made.
Q. Mr. Yankovich, you testified earlier the Company said they
would give you an hour or two, or as much time as you needed,
to review the documents.
A. Yes.
And subsequently during cross-examination Yankovich testified that
the company representatives said that ‘‘they would make available
the records for approximately an hour or two at the most.’’ Finally,
on direct Yankovich testified that he believed that he was only of-
fered an hour or two.
available to you prior to or during the [arbitration] hear-
ing on August 14, 1991. [Emphasis added.]
Likar testified that he spoke with Yankovich by telephone
on August 13 after Yankovich received the above-described
faxed letter; that Yankovich told him that he had a right to
the documents; and that Yankovich did not offer a confiden-
tiality agreement at this point.
On August 14 the arbitration hearing was held regarding
Buehner’s discharge. At the beginning of the hearing
Yankovich requested the telephone records indicating that he
wanted them to substantiate that Buehner had spent a certain
amount of time on the telephone and to show that other em-
ployees had made telephone calls at the Dilworth Mine dur-
ing working hours. Likar offered to stipulate that other em-
ployees had made telephone calls from the mine but he
pointed out that the issue was not whether the calls were
made but whether the employees had permission to make the
calls. When they testified herein, Yankovich and Likar dis-
agreed as to whether a confidentiality agreement was men-
tioned during the arbitration hearing. Likar offered, at the ar-
bitration hearing, to give the Union either a copy of the bills
with the telephone numbers, except those telephoned by
Buehner, blackened out (R. Exh. 2) or a full copy to review
in the hearing room. The parties disagree with respect to how
much time the Union would have had to review the docu-
ments, with Yankovich testifying that the Union was given
‘‘an hour or two, whatever it takes, and then we could re-
sume the hearing’’9 and Likar testifying that the Union was
told that it was for as long as was necessary. The Union in-
dicated that it was not enough time and it declined the arbi-
trator’s offer to recess the hearing so that the Union could
seek to enforce the subpoena through the court. Likar testi-
fied that the arbitrator then concluded that the documents
were confidential and that the Company had gone further
than was necessary for it to go. The arbitrator upheld
Buehner’s discharge.
By letter to Likar dated September 10 (G.C. Exh. 6)
Yankovich renewed his request for the documents, indicating
that the Union would be willing to reimburse the Company
for reasonable reproduction costs.
By letter to Yankovich dated September 18 (G.C. Exh. 7)
Likar denied the request and summarized his, Likar’s, under-
standing of what had occurred.
Contentions
On brief, General Counsel contends that it is well estab-
lished that as part of its duty to bargain in good faith an em-
ployer must comply with a union’s request for information
that will assist the union in fulfilling its responsibilities as
the employees’ statutory representative; that disclosure of in-
formation necessary to evaluate grievances filed or con-
templated allows a union to evaluate nonmeritorious claims
and facilitates the arbitral process; that the Union’s request
for the telephone bills was based on its knowledge that other
hourly employees were using the telephone in the same man-
ner; that Respondent has not adequately shown a legitimate
confidently concern beyond its mere assertion of same; that
the Union gave repeated assurances of protection of these
concerns; that the fact that the bills are the necessary source
of information was made clear by Respondent’s witnesses
who testified that they used the bills in their own investiga-
tion of the situation; that Respondent’s offer of at most 1 or
2 hours prior to the arbitration hearing, was insufficient time
to allow the Union to study and evaluate the documents; and
that a broad remedial order is warranted herein since Re-
spondent is both a repeat offender and an egregious violator
of the Act in the same context as the instant case as well
as in other unfair labor practice circumstances.
Respondent, on brief, argues that General Counsel failed
to establish the relevance of and the Union’s need for the
copies of the telephone records; that it was not until the arbi-
tration hearing that Yankovich stated that he wanted the
records to show that other employees had made similar calls;
that verification that Buehner made the telephone calls was
not an issue since at the 24/48 hour meeting Buehner admit-
ted that he made the calls; that regarding whether other em-
ployees had made long distance telephone calls from the
mine during working hours, the circumstances under which
such calls may have been made could be proven only
through testimony and Yankovich appreciated this fact; that
General Counsel failed to prove that only providing copies
of the documents would have satisfied Respondent’s obliga-
tion under the Act; that the Board has recognized that an em-
ployer lawfully can limit a union’s access to confidential in-
formation to an on-site review of the records so long as that
provides reasonable access under the circumstances; that
Yankovich was unable to specify a use for the documents
which would have required more than 2 hours of review; that
at the arbitration hearing the Respondent offered to make the
original records available for as long as the Union needed to
review them; that Respondent’s undisputed confidentiality
concerns clearly outweighed the Union’s amorphous interest
in obtaining copies of the telephone records; and that even
if it did violate the Act, a broad remedy is not warranted
under the facts of this case.
Analysis
In my opinion, General Counsel has demonstrated that Re-
spondent violated the Act as alleged.
The Board in Pennsylvania Power Co., 301 NLRB 1104
(1991), concluded as follows:
An employer has a statutory obligation to supply in-
formation that is potentially relevant and will be of use
to the union in fulfilling its responsibilities as the em-
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Since Respondent did not give the Union access to all of the
involved bills at that time, it is not necessary to resolve the conflict
in testimony regarding how long the Union had to review the bills.
11 While the Union may have belatedly wished that it had offered
to sign a confidentiality agreement, with the exception of the testi-
mony of two of the Union’s witnesses, all of the evidence seemingly
points in the other direction, namely, the absence of any mention of
such an agreement in Yankovich’s affidavit and in the Union’s let-
ters of August 8 and September 10 while all mention the Union’s
willingness to pay for the cost of copying. Also there is not mention
of such an agreement in the arbitrator’s decision (R. Exh. 4) even
though he mentioned the matter of confidentiality. And finally, un-
doubtedly there was some kind of a record made at the arbitration
hearing. If it contained any mention of a confidentiality agreement,
undoubtedly General Counsel would have attempted to have such
mention noted in this record.
ployees’ exclusive bargaining representative. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967). In-
formation concerning wage rates, job descriptions, and
other information pertaining to employees within the
bargaining unit is presumptively relevant, Curtis-Wright
Corp. 145 NLRB 152 (1963), enfd 347 F.2d 61 (3d
Cir. 1965), whereas the relevancy of requested informa-
tion pertaining to employees outside the bargaining unit
must be demonstrated by the union. Adams Insulation
Co., 219 NLRB 211 (1975); Curtis-Wright Corp.,
supra. The standard for relevancy in either situation is
the same: a liberal ‘‘discovery-type standard.’’ Acme
Industrial, supra at 437 and fn. 6. Thus, the information
need not be dispositive of the issue between the parties
but must merely have some bearing on it.
In general, the Board and the courts have held that
information that aids the arbitral process is relevant and
should be provided. Acme Industrial, supra, at 438. In
this regard, the relevancy of the information and the
concomitant duty to furnish it are not affected by
whether the request for information is made at the
grievance stage or after the parties have agreed to arbi-
tration. Fawcett Printing Corp., 201 NLRB 964, 972
(1973); Chesapeake & Potomac Telephone Co., 259
NLRB 225, 227 (1981). This is so because the goal of
the process of exchanging information is to encourage
resolution of disputes, short of arbitration hearings,
briefs, and decision so that the arbitration system is not
‘‘woefully overburdened.’’ Acme Industrial, supra, at
438.
Moreover, information of ‘‘probable relevance’’ is
not rendered irrelevant by an employer’s claims that it
will neither raise a certain defense nor make certain
factual contentions, because ‘‘a union has the right and
the responsibility to frame the issues and advance what-
ever contentions it believes may lead to the successful
resolution of a grievance.’’ Conrock Co., 263 NLRB
1293, 1294 (1982). Further, because the Board, in pass-
ing on an information request, is not concerned with the
merits of the grievance, it is also not ‘‘willing to specu-
late regarding what defense or defenses an employer
will raise in an arbitration proceeding.’’ Id. at 1294.
A union’s interest in information, however, will not
always predominate over other legitimate interests. As
stated by the Supreme Court in Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979), ‘‘a union’s bare assertion
that it needs information to process a grievance does
not automatically oblige the employer to supply all the
information in the manner requested.’’ Id. at 314. . . .
It is clear from the foregoing that in dealing with
union requests for relevant, but assertedly confidential
information, the Board is required to balance a union’s
need for the information against any ‘‘legitimate and
substantial’’ confidentiality interests established by the
employer. The appropriate accommodation necessarily
depends on the particular circumstances of each case.
The party asserting confidentiality has the burden of
proof. Legitimate and substantial confidentiality and
privacy claims will be upheld, but blanket claims of
confidentiality will not. Further, a party refusing to sup-
ply information on confidentiality grounds has a duty to
seek an accommodation. Thus, when a union is entitled
to information concerning which an employer can le-
gitimately claim a partial confidentiality interest, the
employer must bargain toward an accommodation be-
tween the union’s information needs and the employer’s
justified interests. [Footnotes omitted.]
From the outset, the Union sought a copy of all of the in-
volved bills. Contrary to the assertions of Respondent’s wit-
nesses, Respondent did not show all of the involved bills to
the Union on August 7.10 If it had, there would have been
no reason for Likar to indicate in his August 12 letter ‘‘I
have already given you much of this information to review
at the 24/48 hour meeting on August 7.’’ The Union’s wit-
nesses are credited on this point. While the Union may not
have explicitly stated on August 7 why it wanted the tele-
phone numbers other than those called by Buehner, its re-
quest was clearly specific enough to apprise the Respondent
of what information was sought. Respondent had reviewed
the very same bills and had them in the meeting room albeit
they were not, at that time, given to the Union.
But Respondent took the position that the information was
confidential in that management used the phones and man-
agement did not want the Union to know who management
was telephoning. As noted above, the party asserting con-
fidentiality has the burden of proof and blanket claims of
confidentiality will not be upheld. It does not matter, in my
opinion, that the Union did not offer to sign a confidentiality
agreement.11 As noted above, the party refusing to supply the
information on confidentiality grounds has the duty to seek
an accommodation. There is nothing in the record indicating
that on August 7 Respondent requested the Union to sign a
confidentiality agreement and the Union refused. On August
7 Respondent did not seek or offer an accommodation. It re-
fused to comply with the Union’s request stating that the ma-
terial sought is confidential. Is it? As noted above, blanket
claims of confidentiality will not be upheld. A list a of em-
ployees’ unlisted telephone numbers is one thing. A tele-
phone bill is quite something else. Respondent cannot suc-
cessfully assert a privacy claim regarding the latter. Tele-
phone records are not private. They are the property of the
phone company. Cf. Reporters Com v. American Telephone
& Telegraph, 593 F.2d 1030 (D.C. Cir. 1978), wherein the
court stated at 1045 as follows:
A telephone subscriber is fully aware when he places
a long distance call that the telephone company will
113CONSOLIDATION COAL COMPANY
12 Telephone records were described by the court as containing the
number called, the date, the time, and the duration of the call. The
court went on to indicate that such records are maintained by the
telephone company for 6 months.
13 The policy statement also required that subscribers whose toll-
billing records have been subpoenaed in civil suits be notified imme-
diately on receipt of the subpoena.
14 Likar’s August 12 letter, as here pertinent, stated ‘‘If you would
let me know why it is necessary for you to review this information
again, I could make it available to you prior to or during the hearing
on August 14, 1991.’’ In other words, Likar was qualifying his offer
of access. Moreover, since the only information the Union was given
on August 7 was the 14 or so pages with Buehner’s telephone calls,
the ‘‘again’’ would mean that the Respondent was only offering ac-
cess to those same 14 or so pages.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
16 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
National 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.’’
make a record of the call . . . [and] that the record is
the company’s property . . . .
While that case dealt with a criminal investigation and with
the obtaining of the records from the telephone company, as
pointed out by the court therein, in 1974 AT&T instituted a
policy under which it, as here pertinent, would only release
toll billing records12 pursuant to a subpoena, valid on its
face, issued under the authority of a statute, court, or legisla-
tive body.13 In other words, the Union could have subpoe-
naed the records from the telephone company and if Re-
spondent had opposed such action on the grounds of con-
fidentiality, its argument would have been deemed to be
without merit. Respondent’s Exhibit 1 is a copy of an AT&T
bill which was forwarded by AT&T to the Respondent. It
would appear that if the telephone record is not considered
confidential while it is in the possession of AT&T, then a
copy of it would not be considered confidential when it is
in the possession of the subscriber. So, in addition to the fact
that Respondent advanced a blanket claim which cannot be
upheld, Respondent’s privacy or confidentiality claim has no
merit.
In Detroit Edison Co., supra, the employer administered
the tests specifically promising that the test scores would re-
main confidential. Here, Respondent did not specifically
promise each person who used the involved telephones that
the number they were calling would remain confidential. In-
deed, it could not practically make such a promise. And it
did not and could not promise those employees who have un-
listed telephone numbers that if such telephone numbers
were used, the records of such usage would be confidential.
In the circumstances existing here, there should be no rea-
sonable expectation of privacy regarding telephone records.
Obviously the Union wanted all of the involved records
before the arbitration hearing so that it would have had
enough time to review them and determine what approach it
would take in defending Buehner regarding this aspect of the
charge. The records are relevant. The Respondent did not
offer the Union access to the records sought for a sufficient
time and sufficiently in advance of the arbitration hearing.14
Its belated offer, made at the arbitration hearing, did not
change the situation.
In my opinion the Union’s need for the involved records
clearly outweigh the reason given by the Respondent for re-
fusing to supply them. Respondent violated the Act as al-
leged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
when it refused to furnish the Union with a complete list of
telephone bills for Respondent’s Dilworth Mine for the
months of April, May, and June 1991.
THE REMEDY
Having found that Respondent has engaged in this unfair
labor practice in violation of the Act, it shall be rec-
ommended that Respondent cease and desist therefrom and
take certain affirmative action.
Respondent will be ordered to furnish the Union with a
complete list of telephone bills for Respondent’s Dilworth
Mine for the months of April, May, and June 1991.
While General Counsel seeks a broad remedial order,
while Respondent has been found to have violated the Act
in a number of recent cases, and albeit Administrative Law
Judges in at least three cases have recommended broad cease
and desist language, the Board has concluded that the narrow
cease-and-desist language is appropriate. Accordingly, the
narrow language will be utilized herein.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Consolidation Coal Company, Rice’s
Landing, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to furnish the United Mine Workers of Amer-
ica, AFL–CIO with a complete list of telephone bills for Re-
spondent’s Dilworth Mine for the months of April, May and
June 1991.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Supply the United Mine Workers of America, AFL–
CIO with a complete list of telephone bills for Respondent’s
Dilworth Mine for the months of April, May, and June 1991.
(b) Post at its facility in Rice’s Landing, Pennsylvania,
(and at the Dilworth Mine if it is not at this location) copies
of the attached notice marked ‘‘Appendix.’’16 Copies of the
notice, on form provided by the Regional Director for Re-
gion 6, after being signed by Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on receipt and be maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director within 20 days from the
date of this Order what steps the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National Labor
Relations Board found that we have violated the National
Labor Relations Act, and has ordered us to post this notice.
WE WILL NOT refuse to furnish the United Mine Workers
of America, AFL–CIO with a complete list of telephone bills
for Respondent’s Dilworth Mine for the months of April,
May, and June 1991.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL supply the United Mine Workers of America,
AFL–CIO with a complete list of telephone bills for Re-
spondent’s Dilworth Mine for the months of April, May, and
June 1991.
CONSOLIDATION COAL COMPANY