Duquesne Light Co.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1042 (N.L.R.B. 1992)

1042
306 NLRB No. 211
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The green sheets contain a synopsis of the duties of the posted
position. Full job descriptions are available to employees at test
study libraries at 13 or 14 different locations in Respondent’s facili-
ties.
Duquesne Light Company and International Broth-
erhood of Electrical Workers, System Council
U-10 Representing Locals 140 and 149, AFL–
CIO. Case 6–CA–23291
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 31, 1991, Administrative Law Judge
David S. Davidson issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering 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, and con-
clusions 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, Duquesne Light Company,
Pittsburgh, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Patricia Scott, Esq., for the General Counsel.
Thomas S. Giotto, Esq. (Klett Lieber Rooney & Schorling),
of Pittsburgh, Pennsylvania, for the Respondent.
Neil McGowan, of Pittsburgh, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. This case
was tried in Pittsburgh, Pennsylvania, on July 19, 1991.
International Brotherhood of Electrical Workers, System
Council U-10, representing Locals 140 and 149, AFL–CIO
(the Union) filed the charge on January 17, 1991. The com-
plaint issued on February 22, 1991, alleging that Respondent
violated Section 8(a)(5) and (1) of the Act by failing and re-
fusing to furnish the Union information about certain nonunit
classifications on its request. The Respondent denies the
commission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed
by the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is a public utility with its
principal office located in Pittsburgh, Pennsylvania. During a
representative 12-month period Respondent had gross reve-
nues in excess of $250,000, and purchased goods and mate-
rials valued in excess of $50,000 from sources outside Penn-
sylvania. The Respondent admits, and I find, that it is an em-
ployer 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. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For a number of years the Union has been the exclusive
collective-bargaining representative of clerical employees in
a number of job classifications in eight certified bargaining
units. The Respondent and the Union have been parties to a
number of successive collective-bargaining agreements, the
most recent of which is effective from October 1, 1990, until
October 1, 1993. Stenographers are included in the bar-
gaining units, but secretary/stenographers are not.
Article I of the collective-bargaining agreement deals with
representation and recognition. In it Respondent recognizes
the Union as the representative of the employees in eight
bargaining units for which the local unions identified in the
agreement were certified as representatives. Article I, section
B states:
Employees referred to herein, together with the work
usually performed by them, are listed by job titles in
Exhibit A attached hereto and made a part hereof.
Article I, section D provides for inclusion by agreement of
certain classifications not included or named in the units as
originally certified and concludes:
In consideration thereof, it is further understood and
agreed that the Union does not at this time, nor will it
during the term of this Agreement, claim jurisdiction
over, or seek to represent, or represent any other classi-
fications now in existence.
In 1984 Respondent began an extensive internal reorga-
nization which was not completed at the time of the hearing
in this case. In the course of the reorganization the Respond-
ent has established a number of new departments and man-
ager positions. A number of the positions established to pro-
vide secretarial support for the new managers were classified
as secretary/stenographer positions outside the collective-bar-
gaining units.
In accordance with the Respondent’s practice for lower
level jobs outside the bargaining units, Respondent posted
notices of vacancies as the new secretary-stenographer posi-
tions were established and filled. The notices, referred to as
green sheets, were posted at 110 locations in Respondent’s
system, and at least for the last several years copies of the
notices were routinely sent to the Union when posted.1
The Union became increasingly concerned over the classi-
fication of these positions as exempt positions and at several
periodic communication meetings with the Respondent asked
about the increase in the number of secretary/stenographer
1043DUQUESNE LIGHT CO.
2 McGowan so testified. Edwards testified that he recalled telling
McGowan that he did not think that McGowan was entitled to the
information, but that he would get a formal answer because he was
having his legal people review it. He testified that he did not remem-
ber McGowan telling him why the Union wanted the information or
why he felt that the Union was entitled to it.
3 Edwards testified that he had no recollection of McGowan telling
him why the Union needed the information but that it could have
happened. I have credited McGowan as to both conversations with
Edwards about the reason the Union wanted the information.
positions and why they were considered to be nonunit posi-
tions. Respondent’s representatives replied that they were
confidential positions. Union representatives expressed the
view that the work the excluded secretary/stenographers were
performing was really bargaining unit work.
In two instances in 1989 and 1990 local union officials
raised questions about the duties of specific
secretary/stenographer positions, and management arranged
meetings between union officials and the department heads
to which the secretary/stenographers were assigned to permit
the union officials to question them further about the duties
of the secretary/stenographers. After these meetings the union
representatives remained dissatisfied, and a further meeting
was arranged at which a company legal representative spoke
about confidentiality matters and the decision to place the
secretary/stenographers in their job classifications for con-
fidentiality reasons.
On November 9, 1990, in response to requests from offi-
cers of Locals 140 and 149, Union Business Manager
McGowan wrote Respondent’s Director of Union Relations
Edwards as follows:
The Union requests the following information from the
Company in order for the Union to properly administer
the contract:
1. The names of the secretary/stenographers the
Company has designated as exempt employees.
2. Their duties.
3. The names of their direct supervisor and depart-
ment.
Thank you.
After sending the letter, McGowan asked Edwards several
times when he would receive the information, and Edwards
replied that he had no answer at that time. Before Christmas
McGowan again asked Edwards when he thought the Union
might receive the information, and Edwards replied that the
Union’s request was in the hands of his attorneys who would
reply. Edwards also said that McGowan should realize that
he could not organize the secretary/stenographers in any
event. McGowan stated that he had no intention of orga-
nizing them but that he thought that because of their duties
they might belong in the unit and that the Union wanted the
information to determine whether they fell within the defini-
tion of confidential employees. Edwards asked what defini-
tion, and he replied either Board law or the contract.2
On January 17 having received no further answer from Re-
spondent, the Union filed the charge in this case. On January
30, 1991, Edwards sent McGowan the following letter:
Please consider this letter Duquesne Light Company’s
response to your request for information concerning the
Company non-Union secretaries and stenographers.
It is not apparent from your letter dated November 9,
1990 as to how this information may be relevant to
‘‘properly administer the Contract’’ or any grievances
related in any way to this group of employees. As a re-
sult, without a more complete explanation of why or
how the requested information would be useful to the
Union, it is the Company’s position that these non-
Union positions are excluded from any claim of Union
jurisdiction by Article I, D of the Agreement.
On February 7 McGowan telephoned Edwards and re-
minded him of their pre-Christmas conversation. Edwards
said that he did not remember it, and McGowan repeated
what he had said at that time. Edwards said that he would
pass it onto upper management.3 The Union received no fur-
ther response from the Respondent, and the Union sent Re-
spondent no further reply to Respondent’s January 30 letter.
B. Concluding Findings
The principles which govern this case are set forth in Bo-
hemia, Inc., 272 NLRB 1128, 1129 (1984).
It is well established that an employer must provide
a union with requested information ‘‘if there is a prob-
ability that such data is relevant and will be of use to
the union in fulfilling its statutory duties and respon-
sibilities as the employees’ exclusive bargaining rep-
resentative.’’ Associated General Contractors of Cali-
fornia, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766
(9th Cir. 1980); NLRB v. Acme Industrial Co., 385 U.S.
432 (1967). The Board uses a liberal, discovery-type
standard to determine whether information is relevant,
or potentially relevant, to require its production. NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). Information
about terms and conditions of of employees actually
represented by a union is presumptively relevant and
necessary and is required to be produced. Ohio Power
Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th
Cir. 1976). Information necessary for processing griev-
ances under a collective-bargaining agreement, includ-
ing that necessary to decide whether to proceed with a
grievance or arbitration, must be provided as it falls
within the ambit of the parties’ duty to bargain. NLRB
v. Acme Industrial, supra; Bickerstaff Clay Products,
266 NLRB 983 (1983).
However, when a union’s request for information
concerns data about employees or operations other than
those represented by the union, or data on financial,
sales, and other information, there is no presumption
that the information is necessary and relevant to the
union’s representation of employees. Rather, the union
is under the burden to establish the relevance of such
information. Ohio Power, supra.
Here the information sought by the Union related to em-
ployees who were outside the bargaining unit. Therefore,
there is no presumption that the requested information is nec-
essary and relevant to the union’s representation of the em-
ployees in the bargaining units. However, while the Union
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Leland Stanford Junior University, 262 NLRB 136, 139 (1982),
enfd. 715 F.2d 473 (9th Cir. 1983).
5 Blue Diamond Co., 295 NLRB 1007 (1989).
6 Postal Service, 276 NLRB 1282, 1288 (1985). Unlike Leland
Stanford Junior University, supra, on which Respondent relies, here
Respondent had not previously furnished to the Union all the infor-
mation from which the requested information could be compiled. It
is not clear that all of the notices had been sent to the Union, and
none of the job descriptions had been furnished to it.
7 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.
has the burden of showing the relevance of the requested in-
formation, ‘‘that burden is not exceptionally heavy.’’4
Counsel for the General Counsel contends that the burden
was met here by the showing that the Union was concerned
that secretary/stenographers were performing bargaining unit
work, that the Union had expressed that concern in the past,
and that McGowan told Edwards that the reason it sought the
information about the secretary/stenographers was to deter-
mine whether they were confidential employees which the
Union believed was essential to their exclusion from the bar-
gaining unit.
Respondent contends that the burden of establishing rel-
evance has not been met because the Union’s request for in-
formation is based on no more than a mere suspicion that
secretary/stenographers are performing bargaining unit work
and lacks any objective basis. Respondent also contends that
it was not obligated to furnish the requested information be-
cause it was readily available to the Union through non-
burdensome procedures.
There is little question that the relevance of the requested
information is established if the Union had a sufficiently ob-
jective basis for believing that secretary/stenographers were
doing bargaining unit work. In Bohemia, Inc., supra, on
which Respondent relies, the Board found that there was no
obligation to furnish information relating to the possible
transfer of bargaining unit work to another location where
the request was based solely on the suspicion that some bar-
gaining unit work had been transferred.
Here, the Union not only suspected that Respondent had
created a number of new positions classified as
secretary/stenographers but it had direct knowledge of many
of them. It had discussed two of them at some length with
management and was not satisfied with the answers it had
been given. It was not a matter of mere suspicion that the
positions had been created. Knowledge as to the nature of
the duties of each of the positions was necessarily more lim-
ited, but sufficient to raise a question as to whether they
should have been classified as stenographers within the bar-
gaining unit pursuant to article I, section B, of the collective-
bargaining agreement.
An employer is obligated to furnish information among
other things to enable a union to decide whether there is suf-
ficient merit to a complaint to warrant filing a grievance or
taking a grievance to arbitration.5 The information sought by
the Union was necessary and relevant to that determination.
Respondent contends in the alternative that the information
was otherwise readily available to the Union because copies
of notices of vacancies were routinely sent to the Union and
full job descriptions were available in company libraries.
However, absent the information it requested from Respond-
ent, the Union had no way of knowing whether it had re-
ceived all the notices that were posted for secretary/stenog-
rapher positions, and the record indicates that the practice of
sending these notices to the Union started some time after
the reorganization began. The more complete job descriptions
were never in the Union’s possession. While they may have
been available for inspection and copying at company librar-
ies, the existence of that alternative means does not excuse
the Respondent of its obligation to furnish the information to
the Union.6
Accordingly, I find that by failing and refusing to furnish
the information requested in the Union’s November 9, 1990
letter, Respondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Duquesne Light Company, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, System
Council U-10, representing Locals 140 and 149, AFL–CIO is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material International Brotherhood of Elec-
trical Workers, System Council U-10, representing Locals
140 and 149, AFL–CIO has been the exclusive collective-
bargaining representative within the meaning of Section 9(a)
of the Act for units of Respondent’s clerical employees as
set forth more completely in the collective-bargaining agree-
ment between the Union and Respondent effective October
1, 1990.
4. By failing and refusing to furnish the Union with the
information requested by it by letter dated November 9,
1990, Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Sections 8(a)(5) and
(1) and 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Duquesne Light Company, Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, System Council U-10,
representing Locals 140 and 149, AFL–CIO as the exclusive
representative of Respondent’s clerical employees by refus-
ing to furnish the Union the information requested in the
Union’s letter to the Respondent dated November 9, 1990.
(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.
1045DUQUESNE LIGHT CO.
8 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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request furnish the Union in writing the information
requested in the Union’s letter to the Respondent dated No-
vember 9, 1990.
(b) Post at its facilities in Pittsburgh, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, 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.
WE WILL NOT refuse to bargain collectively with Inter-
national Brotherhood of Electrical Workers, System Council
U-10, representing Locals 140 and 149, AFL–CIO as the ex-
clusive representative of our clerical employees by refusing
to furnish the Union the information requested in the Union’s
letter to us dated November 9, 1990.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL on request furnish the Union in writing the infor-
mation requested in its letter to us dated November 9, 1990,
that is relevant and necessary to its role as the exclusive bar-
gaining representative of our employees in the bargaining
unit.
DUQUESNE LIGHT COMPANY