Depository Trust Co.

National Labor Relations Board - Board Decisions

Nov 7, 1990

300 N.L.R.B. 700 (N.L.R.B. 1990)

700
300 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 In agreeing with the judge that the Respondent violated Sec. 8(a)(5) by
failing to provide the Union with requested information, we do not rely on
the judge’s statements that the Union is entitled to periodic information to
monitor the Respondent’s use of temporary and part-time employees. The only
issue litigated and decided in this case concerns the Respondent’s one-time ob-
ligation to provide information requested by the Union in its March 1, 1988
letter to the Respondent.
We agree with the judge that the Respondent violated Sec. 8(a)(5) by refus-
ing to provide all the information requested by the Union on March 1, 1988,
including wage and fringe benefit information for employees in nonunit classi-
fications who were performing the same work as bargaining unit employees.
The Board has held in similar circumstances that such information is relevant
to the Union’s role in policing the parties’ collective-bargaining agreement.
See United Graphics, 281 NLRB 463, 465 (1986); Globe Stores, 227 NLRB
1251, 1253–1254 (1977). For example, the degree of disparity between con-
tractual wages and benefits and the wages and benefits paid those nonunit em-
ployees performing unit work could be a significant factor in the Union’s as-
sessment of whether the Respondent had breached the contract and whether
to file a grievance about the matter.
Member Oviatt agrees with the majority that most of the information re-
quested by the Union in this case is relevant and must be supplied. He would
not, however, require the Respondent to comply with the request for wage and
fringe benefit information for certain classifications outside the bargaining
unit. Member Oviatt acknowledges that the wage and fringe benefit informa-
tion might be pertinent to contract negotiations. That is not the issue here,
however. The parties were operating under a contract that was in midterm and
was not about to expire. Thus, the parties apparently were not involved in or
preparing for contract negotiations. Rather the question here is whether the
contract has been violated by a diversion of unit work out of the bargaining
unit. It is Member Oviatt’s view the wage and benefit information would not
be of any help to the Union in determining whether there has been a breach
of the agreement. No doubt a disparity in wages and fringe benefits between
unit and nonunit employees performing bargaining unit work would provide
the Respondent with a possible motive to divert work out of the bargaining
unit. However, the Respondent’s possible motive is irrelevant in determining
whether unit work is actually being diverted out of the bargaining unit. It is
the actual diversion of unit work—not the Respondent’s possible motive to di-
vert work—that is allegedly involved here. Thus, in Member Oviatt’s opinion
there is no basis for requiring Respondent to provide the requested wage and
benefit information. 1 Errors in the transcript have been noted and corrected.
Depository Trust Company and The Office & Pro-
fessional Employees International Union, Local
153, AFL–CIO. Case 2–CA–23034
November 7, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 6, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a response to the excep-
tions and a brief in support of the judge’s decision.
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.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Depository Trust Com-
pany, New York, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Ruth Weinreb Esq., for the General Counsel.
Peter D. Conrad, Esq. (Proskauer Rose Goetz & Mendel-
sohn), for the Respondent.
Thomas J. Lilly. Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on October 16 and 17,
1989. The charge was filed on September 8, 1988, and the
complaint was issued on December 28, 1988. In essence, the
complaint alleged that the Respondent refused to furnish cer-
tain information that the Union requested by letter dated
March 1, 1988.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent is engaged in the business of providing
depository and clearing services for various financial institu-
tions including banks.
For at least 30 years the Respondent has had a collective-
bargaining relationship with either the present union or an-
other union which merged into Local 153. The most recent
contract was executed on January 15, 1988 and runs from
November 1, 1987, to November 3, 1990. In accordance with
a ‘‘zipper’’ clause at article 19, this contract is not subject
to midterm negotiations.
The Union is the bargaining representative of the employ-
er’s clerks. Excluded from the unit have been various cat-
egories of employees who have historically done the same
work as bargaining unit employees. Thus, for some time, the
contracts between the Company and the Union have explic-
itly excluded assistant supervisors, account coordinators,
part-time employees and persons employed on a temporary
basis. Additionally, the evidence shows that for some period
of time the employer has also used people employed by out-
side agencies on either a temporary or part-time basis to do
work that is done by bargaining unit employees. (These latter
701DEPOSITORY TRUST CO.
2 I note here that part-time employees and temporary employees have been
hired to perform only bargaining unit work. Also, I note that people hired on
a part-time or temporary basis to do this type of work have either been hired
directly as employees of the Respondent or have been hired through outside
agencies. When employed through agencies, part-time or temporary people
have been categorized by the parties herein as contract or consulting employ-
ees. The record shows that assistant supervisors and account coordinators have
other functions and perform bargaining unit only on occasion. In the case of
account coordinators, the evidence establishes that they spend about 20 percent
of their time doing work that otherwise would be performed by bargaining unit
personnel.
people have been described interchangeably as contract em-
ployees or consultants.)
With respect to the recognized bargaining unit and the fact
that there have been other persons who have been engaged
by the Company to perform bargaining unit work, the fol-
lowing provisions of the present and preceding collective-
bargaining agreements are set forth below:
1. The fact the jobs listed above have been excluded
from the unit does not preclude the Union from seeking
to have them added to the unit through NLRB certifi-
cation or by mutual agreement: it being understood that
means proscribed by Article 13 of this contract will not
be employed to obtain such recognition. [Article 13 is
a no strike-no lockout clause.]
2. Persons whose services may from time to time be
contracted for by DTC [Depository Trust Corporation],
from outside organizations are not employees of DTC
and such persons are not covered by any other the
terms of this Agreement even though they may perform
the same services in a department of DTC as those per-
formed by Employees covered by this Agreement.
3. Temporary employees will not be obtained for the
purpose of causing the dismissal of any member of the
bargaining unit. Nothing in this Paragraph, however,
shall be deemed to restrict the employment of tem-
porary employees for any other reason. DTC will use
its best efforts to limit the use of temporaries.
I also note that the contract contains grievance and arbitra-
tion provisions. Additionally, there is a broad management-
rights clause at article 18. The management-rights clause
reads:
Except as herein clearly and explicitly limited by an
express specific provision of this Agreement, DTC shall
continue to have the exclusive right to take any action
it deems appropriate in the management of its business
and the direction of the work force in accordance with
its judgment. All inherent and common law manage-
ment functions and prerogatives which DTC would
have had in there were no bargaining representative and
which has not been expressly modified or restricted by
a clear and specific provision of this Agreement are re-
tained and vested exclusively in DTC and are not sub-
ject to collective bargaining or arbitration under this
Agreement.
DTC may from time to time make such rules or reg-
ulations as it may deem necessary and proper of the
conduct of its Employees, provided that such rules and
regulations shall not be inconsistent with the express
written provisions of this Agreement. . . . (The agree-
ment provides that the union, if it thinks a new rule or
regulation is unreasonable, may take such matter to ar-
bitration.)
In addition to the specific provisions of the relevant con-
tracts, my attention also has been drawn to what the con-
tracts do not say. There is, for example no definition of what
constitutes a part-time employee. Also there are no defini-
tions of what constitute temporary employees or contract em-
ployees. By the same token, except for the language limiting
the use of temporary employees (described above), there is
no contract language which purports to limit the Company’s
use of part-time or contract employees.
The contract preceding the present one was scheduled to
expire in November 1987. At some point prior to that time,
John Dunn took over as the union business agent to represent
the employees of the Respondent. He was informed by var-
ious shop stewards that nonunit employees were doing unit
work, a fact which is not in dispute.
In June 1987 the Union in preparation for the upcoming
negotiations, sent to the Company a demand for wage and
benefit information for the bargaining unit employees. Also
the Union supplemented this, by requesting statistics regard-
ing the racial and ethnic composition of the unit. This infor-
mation was supplied to the Union in July.
In September 1987 the Union presented its initial contract
proposals to the Company. As part of its demands, and no
doubt in response to the fact that nonunit employees were
performing bargaining unit work, the Union proposed to
modify the recognition clause in certain respects. It proposed
that assistant supervisors and account coordinators be in-
cluded in the unit as well as part-time employees who
worked more than 15 hours per week. Also the Union pro-
posed that the Company be limited to using a temporary em-
ployee for more than 60 days absent the Union’s consent.2
The company opposed the Union’s demands and contended
that the Union was trying to expand the bargaining unit and
therefore was seeking to negotiate a nonmandatory subject of
bargaining. At several points during the negotiations, the
Company’s negotiators (which included outside labor coun-
sel), suggested that if the Union felt that the Company was
violating the agreement by employing nonunit people, the
Union should file a grievance under the contract.
According to the credited testimony of John Dunn, on Oc-
tober 30,1987, at a negotiation session, he requested that the
Company provide certain information regarding account co-
ordinators, temporary employees, part-time employees, and
assistant supervisors. The information requested was for their
hours of work, their salaries and benefits, their dates of hire,
and their department and work locations. Dunn testified that
he told company negotiator Jack Crowley that he had been
told by shop stewards that an inordinate amount of unit work
was being done by these categories of people. He also testi-
fied that he told Crowley that he (Dunn) had been informed
by his shop stewards that part-timers were working full-time
hours; that temporary workers had been employed for many
years; and that assistant supervisors as well as account coor-
dinators were doing the same work as senior clerks, thereby
depriving bargaining unit employees of promotional opportu-
nities.
On December 2, 1987, the Union withdrew its request for
information regarding assistant supervisors and there is no
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claim here that the Company has unlawfully refused to fur-
nish information insofar as that category of employee.
Dunn states that he repeated his request for the informa-
tion in November 1987 and was told that there was some dif-
ficulty in getting the information.
On January 12, 1988, the Company supplied some infor-
mation to the Union. This was a list purporting to be the
names of management personnel and guards that, as of Janu-
ary 6, 1988, were working more than 15 hours per week.
The list also set forth the division that the employees worked
and their respective dates of hire. After receipt of this list,
Dunn complained that this was not the information that he
had requested. (It does not contain the benefits, salaries, job
categories, or job locations of the employees. It also does not
contain the actual hours worked by the employees.)
On January 15, 1988, the parties reached agreement on a
new collective-bargaining agreement which was retroactive
to November 1, 1987. As noted above, the Union in the face
of company opposition, had dropped its demands to alter the
recognition clause of the contract.
On March 1, 1988, Dunn sent a letter to Crowley. This
read:
Supplementing our prior request made orally in the
course of recent contract negotiations, Local 153, in
connection with its collective bargaining responsibil-
ities, requests the following information and/or produc-
tion of documents;
1—Set forth identification, employment location (by
department/section), and dates of employment of all:
Account coordinator
Part-time employees (15 hours or more per week)
Consultants
Contract employees
Temporary employees
Assistant Supervisors
2—Set forth the weekly hours worked and wages
earned for calendar year 1987, by each of the employ-
ees set forth in paragraph ‘‘l’’ above.
3—Provide copies of any written memoranda, cor-
respondence, side letters, formal or informal agree-
ments, etc. by or between Local 153 and DTC relevant
to the status, representation, wages, hours, working con-
ditions or bargaining unit placement of the employees
set forth in paragraph ‘‘l’’ above.
4—Provide copies of any written letters, memoranda,
reports, and documents of any nature in the custody of
control of DTC relevant to the hiring criteria, work as-
signments, wage and hours of employees in the job cat-
egories set forth in paragraph ‘‘l’’ above.
On March 10 John Hann, the employer’s director of labor
relations sent a reply letter to Dunn. This read:
I have received a copy your letter to Mr. John Crowley
dated March 1, 1988. Due to the additional information
you are requesting, we will require more time to com-
ply with your request. We will forward the relevant in-
formation to you as soon as possible.
On March 17 Dunn sent another letter to Crowley reading:
In our letter of March 1, 1988, the Union requested
that you provide certain employee information relevant
to the Union’s performance of its collective bargaining
responsibility.
To date, we have not received your response to our
request. The need for this information continues with
some urgency. Your failure to comply with this second
request by April 1, 1988 will leave us no choice but
to pursue other lawful recourse to obtain this informa-
tion.
On March 24 Hahn sent a letter to Dunn stating in part:
Although we will consider responding to your re-
quest for date reasonably required for the performance
of the union’s responsibilities as collective bargaining
agent, I would appreciate your advising us of the rel-
evance of the various categories of information re-
quested.
In other words, before we do a lot of work, we
would like to know for what purpose you need the in-
formation so that we can be sure you are entitled to it.
If your are entitled to it, we will be pleased to give it
to you.
On March 31 Dunn replied:
In response to your letter dated March 24, 1988, re-
garding the Union’s request for information, the infor-
mation is required, among other reasons, to make a
comparative analysis of the wage hours and working
conditions for the employees in the excluded classifica-
tions (items ‘‘l’’ and ‘‘2’’ of our request) with the
working conditions of those employees included in the
bargaining unit represented by Local 153, since em-
ployees in the excluded categories regularly perform
work similar or the same as work assignable to bar-
gaining unit personnel; further to investigate compli-
ance with the limitation of work transfers to supervisors
and temporary employees.
The requested production of documented, (items ‘‘3’’
and ‘‘4’’) is also sought on similar grounds.
It is submitted that the relevance of the requested in-
formation is self-evident, and the reasons set-forth
above in support of its relevance should not be re-
garded as the exclusive grounds in support of the re-
quested information .
Thereafter, by letters dated April 11, 1988, and May 26,
1988, the Company advised the Union that there were prob-
lems with the computer programs and that more time would
be needed.
On August 5, 1988, the Company sent the Union the fol-
lowing letter:
By letter dated March 1, 1988 . . . you requested
certain data concerning employees of DTC who are not
represented by the Union. You characterized your re-
quest as supplementing a request made during collec-
tive bargaining and ‘‘in connection with’’ your collec-
tive bargaining responsibilities. As the data you re-
quested was voluminous and burdensome to gather and
we knew there was no outstanding request of the data
703DEPOSITORY TRUST CO.
in any way relating to the by then concluded negotia-
tions for a successor agreement, by letter dated March
24, 1988, we requested further explanation and jus-
tification for your request.
Your response to that request, dated March 31, 1988
provides, with one exception, a generalized explanation
which does not satisfy the burden of proof imposed on
the Union to justify a request for the work location,
wages, hours, working conditions and internal company
documents related thereto, for non-union employees and
other workers. Instead your request is a needless and
expensive exploration of DTC records—the classifica-
tions in your letter are excluded from the bargaining
unit without limitation and the terns and conditions of
these classifications are irrelevant to your statutory du-
ties.
. . . .
With regard to the request concerning work transfers
to temporary employees, we have attached a list of tem-
porary employees currently working at DTC, however,
as the only CBA limitations are that the company use
its ‘‘best efforts’’ to limit the number of these employ-
ees and that they will not be used to cause the dismissal
of any member of the bargaining unit, we have ex-
cluded irrelevant and confidential information such as
wages from the list.
As you will recall, in response to your request during
collective bargaining, we provided you with the names
and work locations of all non-bargaining unit employ-
ees working more that 15 hours per week. We do not
believe you have provided any legal justification requir-
ing us to supplement that data, except as noted above
concerning supervisory and temporary work transfers.
Should the circumstances change, we will, of course, be
willing to fulfill our legal obligations.
Enclosed with the above letter was a list of 23 currently
active temporary employees setting forth their names, their
dates of hire, their weekly hours, and their locations of em-
ployment. I note parenthetically that this list contains ‘‘tem-
porary’’ employees who have worked on a full-time basis,
many in excess of 1 year and 5 for over 2 years.
In November 1988, there was a meeting of the cross train-
ing committee, a joint union-management committee set up
as a result of the contract. At this meeting, the Union con-
tended that the Company should be training bargaining unit
employees to do work that consultants were being assigned
to do. In this regard, the Union has taken the position that
the use of consultants to do certain higher levels of clerk
work has deprived the more junior bargaining unit clerks
from learning certain skills and therefore has limited their
promotional possibilities. According to Dunn, there also have
been assertions by some unit employees, many of whom are
black that the use of these outside consultants or contract
employees, most of whom are white, has had a discrimina-
tory impact on promotional opportunities.
III. ANALYSIS
The General Counsel contends that the information re-
quested by the Union in its March 1, 1988 letter (exclusive
of information relating to assistant supervisors), was relevant
for two purposes. First, the postulates that it was needed to
determine if the Company was breaching the labor contract
and for the purpose of policing the existing collective-bar-
gaining agreement in that it could be used to determine if
work was being diverted out of the bargaining unit to the
detriment of the work and promotional opportunities of the
bargaining unit employees. Secondly, she asserts that the in-
formation was relevant to the Union’s need to prepare for fu-
ture contract negotiations.
The Respondent counters that even if the information re-
quested would be relevant for purposes of contract negotia-
tions, the complaint does not allege that the employer unlaw-
fully refused to furnish this information in connection with
the negotiations that led up to the contract that was agreed
to on January 15, 1988. The Respondent points out that the
March 1, 1988 request was made less than 2 months after
the new contract was reached and about 2-1/2 years before
negotiations would reasonably have begun for a new con-
tract. In this regard the Respondent notes that the existing
agreement would allow it (by virtue of the zipper clause) to
refuse to reopen the contract during its life. The Respondent
also points out that the Union never asserted prior to this
hearing that the information was requested so as to formulate
new contract proposals.
The Respondent also contends that to the extent that it has
refused to furnish the information requested by the Union’s
March 1 request, the Union has not demonstrated or even ex-
pressed why the information would be relevant to administer
the existing collective-bargaining agreement. In this regard,
the Respondent asserts that the contract gives it the unre-
stricted right to use part-time and contract employees (a/k/a
consultants). It also contends that pursuant to the manage-
ment-rights clause, it has the unrestricted right to assign
whatever work it wishes to account coordinators. Accord-
ingly, the Respondent contends that because of these contrac-
tual provisions, no conceivable grievance could have merit
and therefore the information requested would not be rel-
evant for purposes of policing the contract. As to temporary
employees, the Respondent asserts that the contract gives it
broad discretion to hire such persons and that it met its statu-
tory obligation by furnishing information regarding tem-
porary employees on August 5, 1988.
In NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), the
Court held that the employer was obligated to furnish infor-
mation in relation to both pending and potential grievances,
so as to enable the Union to assess the merits of a grievance.
Accordingly, information which would tend to disprove the
validity of a grievance would be just as relevant as informa-
tion which would tend to establish the merits of a grievance.
The Court stated:
When the respondent furnishes the requested infor-
mation, it may appear that no subcontracting or work
transfer has occurred, and accordingly, that the griev-
ances filed are without merit. . . .
Far from intruding upon the preserve of the arbi-
trator, the Board’s action was in aid of the arbitration
process. Arbitration can function properly only if the
grievance procedures leading to it can sift out nonmeri-
torious claims. For if all claims originated as grievances
had to be processed through to arbitration, the system
would be woefully overburdened.
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See also Sheraton Hartford Hotel, 289 NLRB 463 (1988), where the Board
stated that a union needs to do more than express some ‘‘hypothetical theory
explaining how the information might be useful in determining whether the
Respondent has violated the parties’ contract.’’
In Ohio Power Co., 216 NLRB 987, 991 (1975), the
Board formulated a test for evaluating the relevance of broad
categories of requested information as follows:
Where the information sought covers the terms and
conditions of employment within the bargaining unit,
thus involving the core of the employer-employee rela-
tionship, the standard of relevance is very broad, and no
specific showing is normally required; but where the re-
quest is for information with respect to matters occur-
ring outside the unit, the standard is somewhat narrower
(as where the precipitating issue or conduct is the sub-
contracting of work performable by employees within
the appropriate unit) and relevance is required to be
somewhat more precise. . . . The obligation is not un-
limited. Thus, where the information is plainly irrele-
vant to any dispute there is no duty to provide. it.
. . . .
It is not required that there be grievances or that the
information be such as would clearly dispose of them.
The union is entitled to the information in order to de-
termine whether it should exercise its representative
function in the pending matter, that is, whether the in-
formation will warrant further processing of the griev-
ance or bargaining about the disputed matter.
As noted above, although a Union is presumptively enti-
tled to information regarding bargaining unit employees, that
presumption does not follow when the information requested
concerns nonunit employees. Further, where such nonunit in-
formation is requested, the Union must demonstrate some ob-
jective basis and not mere suspicion, to support the request’s
alleged relevance. Thus, in the Brooklyn Union Gas Co., 296
NLRB 591 (1989), the Union based on reports that nonbar-
gaining unit employees were being assigned to do bargaining
unit work, requested a listing of all management job classi-
fications in each department, job descriptions for such classi-
fication, the number of persons in those jobs and their
names. The administrative law judge noted:
The second category of information requested by the
Union concerns work performed by employees outside
the bargaining unit. The company is under no statutory
obligation to furnish such information unless the infor-
mation is shown to be relevant to bargainable issues
and it can be determined from all the surrounding cir-
cumstances, that the Company was informed, or other-
wise was aware, of the relevance of the information re-
quested. . . . Furthermore, in assessing the Union’s le-
gitimate need for nonunit information, the Union must
have more than a mere suspicion that the Company has
diverted unit work. It must have an objective and rea-
sonable basis upon which to conclude that the informa-
tion is necessary.3
In United Graphics, 281 NLRB 463 (1986), the employer
utilized, from time to time, a temporary agency to furnish
temporary employees to do bargaining unit work. When the
Union discovered this, it requested information concerning
the names, addresses, wages, and fringe benefits of those
temporary employees. The Respondent contended that it was
not obligated to give this information, asserting among other
reasons that these people were nonunit employees and were
not in fact, employed by the Respondent. The Board stated:
Furthermore, even assuming that the temporary
workers are nonunit employees, it is clear that informa-
tion regarding individuals who are engaged in per-
forming the same tasks as rank-and-file employees
within the bargaining unit ‘‘relates directly to the polic-
ing of contract terms.’’
. . . .
We further find that the Respondent’s other defense
based on non-possession of the requested information is
without merit. The Respondent has stipulated that Per-
sonnel Pool provides it with the names of the temporary
workers. As for the other information requested, there
is no evidence that the Respondent has requested Per-
sonnel Pool to provide it with the information that the
Union has sought. The Respondent thus has failed to
demonstrate that such information is unavailable. Ac-
cordingly, we conclude that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to supply the information requested about the
temporary workers’ names, addresses, wages and fringe
benefits.
Similarly, in Jaggers-Chiles-Stovall, 249 NLRB 697, 700–
701 (1980), the employer refused to turn over earnings infor-
mation for individuals who were nonunit supervisors and
where pursuant to the contract, foremen and assistant fore-
men could perform unit work. The administrative law judge
stated:
Even though the Union may not have advised Re-
spondent of the reasons for requesting the earnings in-
formation until the hearing, Respondent was called
upon to furnish it because of its presumed relevance.
. . . .
The Union is entitled to earnings information on as-
sistant foremen and even foremen as they may, under
the contract, perform unit work, which of course, would
result in the loss of unit work for other employees.
Such information is essential to the Union in policing
of the collective-bargaining agreement.
In the present case, it seems to me that the information re-
quested was relevant to the Union’s role in policing the con-
tract.
The Company contends that information regarding the
wages and benefits of temporary employees would not be
relevant because the contract gives it virtually free rein to
utilize such persons who would not be part of the bargaining
unit. Nevertheless, the contract does not give the Company
complete freedom on this score as it provides, inter alia, that
the Company will use its best efforts to limit the use of tem-
poraries. Given the fact that the Union was in possession of
objective information that temporary employees were being
used to do unit work, it seems to me that it should be enti-
tled to utilize information, in the form of records, to deter-
mine whether the use of such persons was becoming unrea-
sonable. Further, there comes a point in time when a person
705DEPOSITORY TRUST CO.
4 The evidence shows that there are no documents which would fit the de-
scription of the information requested in par. 3 of the Union’s March 1 re-
quest. In fact the union made this particular request to establish the nonexist-
ence of any documents such as side letters between the Union and the Com-
pany which would modify the terms of the collective-bargaining agreement.
As such, I shall not order the Company to produce that which does not exist.
who is hired on a temporary basis no longer is a temporary
employee. The evidence shows that some of these temporary
employees have been employed from 1 to 2 years. As such,
the Union would certainly be in a position of arguing to an
arbitrator that persons who were claimed to be temporary
employees were in fact permanent employees who should be
covered by the labor contract’s wage and benefit provisions.
Similarly where as here, temporary employees are used to
do unit work, it seems to me that the Union should be enti-
tled to periodic information so as to monitor whether such
persons are really temporary employees or whether they are
in reality, permanent employees.
In the case of part-time employees the employer asserts
that anyone who is employed less than 35 hours per week
is a part-time employee. Yet there is nothing in the contract
that indicates that this is a definition that was agreed to by
the Union. I do not know what an arbitrator might decide if
he or she was asked to define a part-time employee under
this contract. It cannot be said, however, that the outcome
would be cut and dried or that the Union would have no rea-
sonable basis for arguing that persons who work less than 35
hours per week on a regular basis should be considered full-
time employees entitled to the wages and benefits of the col-
lective-bargaining agreement. Further, as in the case of tem-
porary employees, it seems to me that the Union is entitled
to monitor, from time to time, company records to ascertain
whether people have been correctly classified as part-time
employees, even under the Company’s definition of that
term. (For example, it is hypothetically conceivable that the
records might show that a ‘‘part-time’’ employee worked 3
weeks at 34 hours per week and worked another 3-week pe-
riod at 36 hours per week.)
As to contract employees, the Company takes the position
that these people are not its employees and that it is entitled,
under the contract to use such persons to do bargaining unit
work from time to time. Here again, it seems to me that the
contract does not purport to give the Company absolute dis-
cretion as it limits the use of contract employees for the pe-
riod of ‘‘time to time.’’ In my opinion, the Union could
argue to an arbitrator, if the appropriate records so indicated,
that the Company has been using contract employees on a
steady and extended basis rather than from time to time.
Moreover, despite the contention by the Company that these
persons are not its employees, if the records coupled with
other evidence showed that persons within this category were
employed for extended periods of time and were under the
Respondent’s direction and control, the Union might reason-
ably assert that these persons were in fact employees of the
Respondent and subject to the terms and conditions of the
collective-bargaining agreement.
With respect to account coordinators, the evidence shows
that these people spend at least 20 percent of their time
doing bargaining unit work. The labor agreement simply ex-
cludes this category of employees from the bargaining unit
and does not either expressly prohibit or permit them from
doing bargaining unit work. As such, it seems to me that the
Union would be entitled to the information requested as it
might contend in a grievance or before an arbitrator that the
contract should be interpreted to impose a limit of reason-
ableness insofar as their use in doing bargaining unit work.
In all the categories described above, I have indicated how
the Union might use the information in the context of the
contract’s grievance and arbitration procedure. Equally im-
portant, however, is the fact that the receipt of this informa-
tion might demonstrate to the Union that certain employee
fears were groundless and that invocation of the grievance
procedure with the concomitant expenditure of time and
money, would not be warranted.
The company contends that even if the information re-
quested is relevant, the Union failed to adequately explain
such relevancy when it made the requests. Although it is true
that the Union’s explanations as to why it needed the infor-
mation left a good deal to the imagination, it is sufficient if
under all the circumstances, the relevancy of the requested
data is evident to the Respondent. Island Creek Coal Co.,
292 NLRB 480 (1989).
Clearly the Company was aware from the 1987 contract
negotiations that the Union was concerned by the extent to
which the Company was having nonunit people perform bar-
gaining unit work. When the Union sought to change the
contract to include some of these persons within the bar-
gaining unit, the Company resisted and contended that this
was not an appropriate subject of collective bargaining. In-
deed, the Company suggested during negotiations that if the
Union believed that the contract was being violated by its
use of nonbargaining unit people to do unit work, that the
Union invoke the contract’s grievance-arbitration procedure.
As such, it ill behooves the Company to argue that it could
not fathom why the Union was asking for the information
after the contract was executed. It is obvious to me, as it
must have been obvious to the Company’s experienced labor
counsel that the Union intended to use this information to
evaluate whether the facts would show a breach of the con-
tract and whether, as suggested by the Company, the Union
should invoke the grievance-arbitration provisions of the col-
lective-bargaining agreement. Thus, it is my opinion that the
relevance of the requested data was self-evident given the
circumstances and in light of the entire pattern of facts lead-
ing up to the Union’s request. To the extent that the em-
ployer sought to require the Union to further explain its rea-
sons for the desired information it seems to me that the em-
ployer, in effect, was seeking to have the Union divulge not
simply its reasons for relevancy but also seeking to have the
Union state its legal theory as to why it believed that the
contract might be breached. In all the circumstances, it is my
opinion that the Union sufficiently explicated the relevancy
of the information requested.
Having concluded that the Union was entitled to the re-
quested information for the purpose of administering the ex-
isting collective-bargaining agreement, it therefore is not nec-
essary for me to decide whether the Union was also entitled
to the same information for the purpose of attempting to re-
open this contract or negotiating a new contract 2-1/2 years
after the request was made.4
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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 objec-
tions to them shall be deemed waived for all purposes.
6 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Depository Trust Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Office & Professional Employees International
Union, Local 153, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times material, the Union has been the exclusive
representative of certain employees of the Respondent in an
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By refusing to supply certain information regarding ac-
count coordinators, part-time employees, temporary employ-
ees, and consultants/contract employees, the Respondent has
violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices I shall recommend that it cease and desist there-
from and take affirmative action designed to effectuate the
policies of the Act including an order that it furnish the re-
quested information to the Union, exclusive of documents
which do not exist or which after due diligence, cannot be
obtained.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Depository Trust Company, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to supply The Office & Profes-
sional Employees International Union, Local 153, AFL–CIO
with information relevant and necessary to the performance
by it of its obligations as bargaining representative of em-
ployees of the Respondent.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request furnish the Union the following informa-
tion:
(1) The names, employment locations and dates of hire of
all account coordinators, part-time employees who work
more than 15 hours per week, temporary employees, and
consultants/contract employees.
(2) The weekly hours worked and the wages earned by the
persons named above in subparagraph 1 for the calendar year
1987 and/or any other appropriate period of time prior to
entry of a final order in this case.
(3) Copies of any letters, memoranda, reports or other doc-
uments in the custody or control of the Respondent which set
forth the criteria for hiring the persons described in subpara-
graph 1 or which describe the criteria by which their hours
of work are determined, their rates of pay are determined, or
by which their work assignments are made.
(b) Post at its facilities in New York, New York, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable 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 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to supply the Office & Pro-
fessional Employees International Union, Local 153, AFL–
CIO with information relevant and necessary to the perform-
ance of its obligations as bargaining representative of our
employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
WE WILL on request furnish to the Union the following in-
formation:
(a) The names, employstment locations and dates of hire
of all account coordinators, part-time employees who work
more than 15 hours per week, temporary employees, and
consultants/contract employees.
(b) The weekly hours worked and the wages earned by the
persons named above in subparagraph (a) for the calendar
year 1987 and/or any other appropriate period of time prior
to entry of a final order in this case.
707DEPOSITORY TRUST CO.
(c) Copies of any letters, memoranda, reports, or other
documents in the custody or control of the Respondent which
set forth the criteria for hiring the persons described in sub-
paragraph (a) or which describe the criteria by which their
hours of work are determined, their rates of pay are deter-
mined, or by which their work assignments are made.
DEPOSITORY TRUST COMPANY