Equitable Gas Company

National Labor Relations Board - Board Decisions

Sep 24, 1979

245 N.L.R.B. 260 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Gas Company and International Brother-
hood of Electrical Workers, Local Union 1956,
AFL-CIO. Case 6-CA 11654
September 24, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRULtS)ALI
On May 15, 1979, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order. as modified below.
We agree with the Administrative Law Judge, for
the reasons fully stated by him, that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
subcontracting unit work of remittance clerks in its
treasury department without affording to the Union,
as the exclusive representative of those employees,
advance notice and an opportunity to bargain with
respect to its decision and by refusing, upon request,
to provide the Union with a copy of its subcontract-
ing agreement with the Mellon Bank and any rel-
evant cost data with respect thereto. In order to rem-
edy these violations the Administrative Law Judge
recommended that Respondent be ordered to bargain
collectively with the Union concerning its decision to
subcontract unit work to the Mellon Bank and to pro-
vide the Union with the requested information. How-
ever, he did not require Respondent to rescind its
agreement with the Mellon Bank and to restore the
status quo ante in the Respondent's treasury depart-
ment by reinstating the conditions existing prior to
the elimination of the bargaining-unit work therein
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. The Administrative Law
Judge inadvertently erred in finding that Respondent's contract with Mellon
Bank became effective on September 21. 1978. the date the contract was
executed. The uncontradicted record evidence establishes that the arrange-
ment was not put into operation until January I. 1979, and by its terms
would not be fully implemented until March 1979. This error does not affect
any conclusion or other finding of the Administrative I.aw Judge or the
results of his Decision.
and offering the affected remittance employees their
former positions without prejudice to their seniority
or other rights and privileges.
The General Counsel filed limited cross-exceptions
to the Administrative Law Judge's failure to include
such an order as part of his remedy. We find merit to
the General Counsel's exceptions for the reasons
stated below.
In fashioning remedies the Board bears in mind
that the remedy should be adapted to the situation
that calls for redress, with a view toward restoring
"the situation, as nearly as possible. to that which
would have obtained but for [the unfair labor prac-
tice]."2 In cases of this type the normal remedy would
be to order the return of the status quo ante.3 The
Administrative Law Judge impliedly acknowledged
as much in his Decision, but nonetheless he con-
cluded that requiring Respondent to return to the sta-
tus quo ante would impose a disproportionate burden
upon it in relation to the redress necessary to effect
statutory policies. We disagree with his analysis in the
circumstances of this case. Absent evidence of undue
hardship we will apply our normal remedy.4 Here we
perceive no undue hardship to the Employer by re-
quiring it to reinstate the remittance clerk operation
in its treasury department because the Pittsburgh fa-
cility is still in existence, necessary machinery has not
been sold, and the affected employees are still em-
ployed by Respondent in other positions. Therefore.
in order that the Union may have a meaningful op-
portunity to bargain about the subcontracting of the
remittance work we shall order Respondent to restore
the status qylo ante by abrogating its subcontract with
Mellon Bank and offer to restore its employees to the
positions which they held prior to this unlawful ac-
tion. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent,
Equitable Gas Company, Pittsburgh. Pennsylvania,
its officers, agents, successors, and assigns, shall take
2Phelpi Dodge (Corporruion . .L RB., 313 U.S 177. 194 (1941).
American Needle & Novelti Co (mpony. et al.. 206 NLRB 534, 535 1973):
Townhouse T V & Appliance. 213 N .RB 716, 717 (1974).
4 Iid
'See Town & (ountrv tanufacturing (Co. Inc.. et-., 136 NL.RB 1022.
1030 31 (1962).
Member Truesdale would adopt without change he Remred provided by
the Administrative Law Judge for the reasons he sets forth. Thus. Member
Truesdale would not require In the particular circumstances of this case that
Respondent rescind its contract A ith Mellon Bank, reinstate the remittance
clerk operation, and otherwise restore the slatus quo ante i ts treasury
department.
245 NLRB No. 38
260
EQUITABLE GAS COMPANY
the actions set forth in the said recommended Order,
as so modified:
I. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Reinstate the remittance clerk operation in its
treasury department at its main office in Pittsburgh,
Pennsylvania, and offer those employees, who were
displaced by the subcontracting of that operation, im-
mediate and full reinstatement to their former posi-
tions wihtout prejudice to their seniority or other
rights and privileges."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally, and without prior
notice and bargaining with the Union, subcon-
tract work historically performed by employees
covered in the collective-bargaining unit repre-
sented by International Brotherhood of Electri-
cal Workers, Local Union No. 1956, AFL-CIO.
WE WILL NOT fail or refuse to supply the
Union requested information which is necessary
to the performance of its obligations in adminis-
tering the collective-bargaining contract or in ne-
gotiating a new agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of your rights under Section 7 of the Na-
tional Labor Relations Act.
WE WILL bargain with the Union concerning
our decision to subcontract the work of remit-
tance clerks to the Mellon Bank and in the future
WE WILL afford the Union notice and an oppor-
tunity to consult with respect to any decision
that we make resulting in a change in terms and
conditions of work in said unit.
WE WILL reinstate the remittance clerk opera-
tion in our treasury department at our main of-
fice in Pittsburgh, Pennsylvania, and WE WILL
offer our employees, who were displaced by the
subcontracting of that operation, immediate and
full reinstatement to their former positions with-
out prejudice to their seniority or other rights
and privileges.
WE WILL provide the Union with a copy of
our agreement with the Mellon Bank pertaining
to remittance work performed in our behalf, as
well as any other pertinent cost data.
EQUITABLE GAS COMPANY
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This pro-
ceeding was heard in Pittsburgh. Pennsylvania, on Febru-
ary 9, 1979, upon an original unfair labor practice charge
filed on September 26, 1978. and a complaint issued on
November 28. 1978, alleging that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to provide, upon
specific request, information relevant and necessary to the
Union's performance of its representative functions and by
unilaterally and without prior notice and consultation with
the Union subcontracting certain work previously per-
formed by employees in the appropriate unit. In its duly
filed answer Respondent denied that any unfair labor prac-
tices were committed, asserting affirmatively, by way of de-
fense. that the requested information is neither relevant nor
necessary to any legitimate collective-bargaining objective.
and that as a matter of contract, past practice, and negotiat-
ing history between the parties the Charging Party has
waived all right to the information and data requested, that
the subcontracting has had no affect upon the employees
represented by the Union, and further, that any such affect
resulting from the subcontracting arrangement has been ne-
gotiated by the parties. At the close of the hearing briefs
were filed on behalf of the General Counsel and Respon-
dent.
Upon the entire record in this proceeding, including con-
sideration of the post-hearing briefs, it is hereby found as
follows:
I. JURISDICTION
Respondent is a Pennsylvania corporation, located in
Pittsburgh, Pennsylvania, where it is engaged as a public
utility. In the course and conduct of such operation Re-
spondent, during the calendar year preceding issuance of
the complaint, derived revenues exceeding $250.000 and
purchased goods and materials from sources directly out-
side the Commonwealth of Pennsylvania valued in excess
of $50.000.
The complaint alleges, the answer admits, and I find that
Respondent is now and has been at all times material
herein an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
International Brotherhood of Electrical Workers. Local
Union No. 1956. AFL-CIO, is now and has been at all
times material herein a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE Al.l.E(GED UNFAIR LABOR PRACTIC('ES
A. The Issues
This case involves alleged violations of the duty to bar-
gain in good faith which emerged from Respondent's con-
tracting out to the Mellon Bank of Pittsburgh certain cash
261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt functions formally performed by unit employees
represented by the Charging Party. Thus, it is alleged that
Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally, without prior consultation, notification, or bar-
gaining, awarding said contract and by thereafter, upon re-
quest, refusing to provide the Union with a copy of the said
subcontracting agreement and any pertinent cost data.
B. Concluding Findings
I. Background
As a public utility Respondent is engaged in the sale and
distribution of natural gas to consumers in the Pittsburgh
area. Since 1954 the Union has represented some 320
hourly employees, whose work is essentially clerical in na-
ture. The bargaining unit has been covered by successive
collective-bargaining agreements, the most recent of which
had an effective date of March 16, 1977, with a scheduled
expiration of May 15, 1980. Employees in the represented
unit are deployed in a number of departments of small size,
including the treasury department which is the focal point
of the instant controversy.
Historically, the treasury department was responsible for
the initial processing of bill payments mailed directly to
Respondent's main offices by consumers. Prior to Septem-
ber 1978 that department consisted of seven unit employ-
ees; namely, four remittance clerks, one miscellaneous re-
mittance clerk, one stenographer, and one general clerk.
On September 21, 1978, Respondent entered an arrange-
ment with the Mellon Bank, wherein certain work formerly
performed by remittance clerks would be performed by the
bank through an automated process. This arrangement lead
to the immediate elimination of two of the four remittance
clerk classifications, with a third scheduled to be eliminated
by March 1979. Despite the elimination of these classifica-
tions, as of the date of the hearing no layoffs had resulted
and according to Respondent none was foreseen.
Prior to the new arrangement with the bank Respon-
dent's remittance clerks physically opened mail containing
bill coupons and payments, forwarded checks to the com-
puter room for tallying, and retained payment coupons
which they themselves processed into a final tally. Any en-
closures in said envelopes collateral to payment were for-
warded by the remittance clerks to the customer service
departments. Ultimately, toward the end of the day, the
computer room returned to the remittance clerk a tally of
the checks processed that day, whereupon the latter com-
pared that tally against the tally of the coupons, reconciled
any imbalance, and then forwarded the balanced tally to
the cashier for preparation of the daily deposit. Upon com-
pletion thereof the deposit would be forwarded to the Mel-
lon Bank through an independent delivery service for de-
posit in Respondent's account.
Under the system effective as of September 21, 1978,'
customer remittances are forwarded directly to a "lock
box" maintained by Mellon Bank, where employees of the
latter, on a 24-hour basis, pick up the mail which is pro-
' Unless otherwise indicated all dates refer to 1978.
cessed through an almost entirely automated system. Thus,
the letters are opened on a mechanized basis, after which
the only employee involved in the process separates the
checks from coupons and miscellaneous customer corre-
spondence for further processing. Beyond that no manual
work is performed, and the recording and correlation of
payments and coupons is handled through a computerized
system, enabling immediate crediting of Respondent's ac-
count at the bank. A daily tally or printout is returned to
Respondent which both evidences the amount of the de-
posit and contains the data enabling Respondent's employ-
ees to post customer accounts.
Union representatives were first informed of the arrange-
ment with Mellon Bank on September 21, the same day
that a contract was executed between the bank and Re-
spondent. At that meeting the Union was infbrmed that the
Mellon arrangement resulted in a gain of 2 to 2-1/2 day's
time getting payments processed and deposits credited to
Respondent's bank account. Thus, according to the expla-
nation afforded the Union, the arrangement with Mellon
would result in more efficient remittance services and an
acceleration of cash flow. while affording more current up-
dating of customer's files. As it was estimated that the ac-
celeration in the handling of these payments would provide
an additional $700,000 in available cash on deposit for Re-
spondent, considerable savings in interest would result to
the Company. As for the impact upon unit personnel, the
Union was informed that the number of remittance clerks
would ultimately be reduced from four to one, with all af-
fected employees permitted to exercise bumping rights in
accordance with the terms of the subsisting collective-bar-
gaining agreement. The meeting closed with the Union
being informed that the Company would be willing to fur-
ther discuss the matter if the Union wished to do so.
On September 25 a second meeting was held. At that
time inquiries addressed to the Company by the Union pro-
duced disclosures that the Company had commenced nego-
tiations with Mellon Bank in August, and the contract had
been signed on September 21.'
On September 26 the unfair labor practice charge giving
rise to this proceeding was filed.
On October 16 union representatives again met with
company officials with respect to the issue. The Company
was informed that the Union needed certain questions an-
swered in order to bargain. In response to such inquiries the
Company again advised that negotiations had commenced
with Mellon on August I or 2, and that the contract had
been signed on September 21. The Union then asked for the
2 John Mosco, Jr., the Union's chief steward, testified that in late August
he had been apprised of an unposted job vacancy in the treasury depart-
ment. Mosco brought this to the attention of Respondent's chief cashier,
Testa. inquiring as to why the Company had not taken steps to fill the
vacancy. Testa indicated "I cannot tell you." When Mosco inquired as to the
reason for Testa's refusal Testa indicated, "I just can't tell you." Mosco
attended the September 21 meeting wherein the Mellon arrangement was
first disclosed. He testified that union representatives were taken aback by
that announcement, and that he associated Testa's position in late August
with respect to the vacancy as having been derived from the Mellon agree-
ment. At a subsequent meeting on September 26, according to the testimony
of Mosco, John Wallace. Respondent's assistant treasurer, admitted that the
pending negotiations with the Mellon Bank had foreclosed posting the ear-
lier vacancy.
262
EQUITABLE GAS COMPANY
unit coupon cost for Mellon's services.' In addition to "cou-
pon cost" the Union requested a copy of the contract be-
tween Respondent and Mellon. The Union was questioned
as to how such information would be used, whereupon it
was explained that the Union intended to make an appro-
priate bid for the work, and that the information was neces-
sary to negotiate the matter fully. The Company, through
James Curran, responded that there was no interest in ob-
taining the Union's bid, that the information sought was
not pertinent, and that it would not be provided. At this
juncture the Union refused to discuss the matter further
and walked out of the meeting.
2. Analysis
There can be little question that Respondent was willing,
albeit on its terms, to discuss the effects of the Mellon Bank
arrangement upon bargaining-unit employees. It is also
clear, however, that Respondent committed itself to and
implemented the arrangement while refusing to engage in
any discussions with the Union concerning its decision to
do so. Further, it declined at all times to furnish a copy of
the underlying agreement with Mellon as well as other cost
data enabling the Union to test the accuracy of interpreta-
tions and conclusions made by management and articulated
on an after-the-fact basis.
Section 8(d) of the Act makes it "the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of
employment...." As a general proposition, those principles
are offended where an employer, even during the term of a
collective-bargaining agreement, displaces employees in the
appropriate unit by contracting out their work without af-
fording to their designated representative advance notice
and an opportunity to consult with respect to any such de-
cision. See, e.g., Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203, 210 (1964). On the other hand, the
Board was quick to recognize that the reach of this doc-
trine, if applied intemperately, could in certain circum-
stances produce untoward results. It stated that "condem-
nation of... unilateral subcontracting of unit work was not
intended as laying down a hard and fast new rule to be
mechanically applied regardless of the situation involved."
See Westinghouse Electric Corporation (Mansfield Plant),
150 NLRB 1574, 1576 (1965).
In the above Westinghouse case (at 1577) the Board dis-
missed 8(aX)(5) and (I) violations, creating exceptions to the
broad reach of the Fibreboard doctrine in circumstances
where the unilateral action possessed the following charac-
teristics:
[T]he recurrent contracting out of work . . . was moti-
vated solely by economic considerations . . . it com-
ported with the traditional methods by which the Re-
spondent conducted its business operations . . . it did
not during the period here in question vary signifi-
Baned upon the credited testimony of Mosco. Although James Curran.
Respondent's assistant personnel director, denied that the Union requested
coupon cost data. The testimony of Mosco seemed the more probable.
cantly in kind or degree from what had been custom-
ary under past established practice . . . it had no de-
monstrable adverse impact on employees in the unit;
and . . . the Union had the opportunity to bargain
about changes in existing subcontracting practices at
general negotiating meetings ....
As I construe the defense, Respondent seeks to fit its
overall pattern of subcontracting. including that in issue
here, as falling within the Westinghouse mold. It is also con-
tended that the Union had waived its interest in subcon-
tracting including its statutory right to notice and advance
consultation.
With respect to the question of significant detrimental
impact. as of the date of the hearing no layoffs had resulted
from the Mellon arrangement. Nonetheless, two job classifi-
cations were immediately eliminated. with a third to be
eliminated in 6 months. Of the four remittance clerks in the
unit prior to September 21, those whose jobs were elimi-
nated sustained no perceptible loss of employment or earn-
ings. Thus, remittance clerk Eunice Bates bid into a record
service clerk position in the customer service department. a
job in a wage level class equal to that of a remittance clerk.
Remittance clerk Jay Barcini bid into a stockman position,
a higher rated job. Finally, an employee by the name of
Ludwig was expected to be on leave of absence until March
1979, at which time her former remittance clerk position
was to be eliminated. Should she return, Ludwig will be
required to exercise her seniority rights and bump into an-
other position in accordance with article IV of the collec-
tive-bargaining agreement, as did Bates and Barcini.'
It is not unreasonable to assume that unilateral subcon-
tracting which fails to produce layoffs might well be
deemed as lacking in "significant impairment of job tenure,
employment security, or reasonably anticipated work op-
portunities for those in the bargaining unit."5 This, if cou-
pled with a background disclosing a high volume of subcon-
tracting, may produce tension between the burden to be
placed on management were it suddenly required to bar-
gain with respect to each of a number of subcontracts, none
of which exceeds that which had historically been let, on
the one hand, and the right of employees. on the other, to
rely upon their representative to mitigate threatened job
security. The accommodation turns upon the nature of past
subcontracting experience. For a denial to employees of the
services of their designated agent with respect to matters
within the framework of their legitimate concern should not
be condoned where the employer's action, even if layoff
free, radiates against established employment interests in an
unprecedented and fear inspiring fashion.
4It is noted that while art. iv, sec. N, I. afforded the opportunity for
displaced employees to exercise their senionlty to bump parallel and down-
ward, that section contemplates layoff for employees who are displaced or
whose jobs have been eliminated under conditions in which there are no
further bumping opportunities. Accordingly, under the contractual provi-
sions which cushion the impact of job dislocation it is entirely possible that
upon Ludwig's return a bumping process might ensue which could result in
a layoff or loss of work for a unit employee, It also appears that under art.
IV. sec. M. 2. employees who change jobs may dunng their initial 4-month
probation period in the new job, at their option. return to their former clas-
sifcation. This option was lost to ay Barcini. since his former position of
remittance clerk had been eliminated.
5 Westinghouse (Mansfield Plant), supra at 1576.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consistent therewith, the results reached and standards
enunciated in such cases as Westinghouse (Mansfield Plant),
supra; Westinghouse Electric Corp., Bettis Atomic Power
Laboratory, 153 NLRB 443 (1965); Allied Chemical Corpo-
ration (National Aniline Division), 151 NLRB 718 (1965):
and American Oil Company, 155 NLRB 639 (1965), were
not intended to enlarge management perogatives beyond
those derived from a clearly defined and extensive plant
practice. In affording primacy to management interests,
those decisions proceed narrowly under stated criteria to
remove from ad hoc bargaining only that which is so clearly
in consonance with plant practice as to itself be etched into
the terms and conditions under which employees knowingly
work. In such circumstances, absent significant detrimental
impact the precedent sanctions a withholding of Board
remedies, deferring employee recourse as against continued
adverse influence of an established pattern of unilateral
subcontracting to the usual process of contract renewal ne-
gotiations.
Contrary to Respondent, the instant record does not dis-
close that the contracting out of remittance work was just
another example of management operational procedure so
imbedded in practice as to itself constitute a term and con-
dition of employment. Unquestionably, the appropriate
bargaining unit herein had not over the years been insu-
lated from the subcontracting of work performed by its
members. However, Respondent's practices in this respect
related essentially to the closedown of branch offices and
the contracting out of temporary work above that custom-
arily performed in the unit.
The branch offices had been maintained by Respondent
in various communities, in which consumers could deal di-
rectly with Respondent directly in purchasing merchandise,
paying their bills, and communicating generally as to ser-
vices provided by Respondent. Beginning in 1963 Respon-
dent began to eliminate certain of these branch offices. Ar-
rangements were made with various banks and retail outlets
in the community served by the branch office to provide
direct consumer payment facilities. Between 1960 and 1973
seven branch offices were closed under these conditions. No
layoffs ensued, but as was true of the Mellon Bank arrange-
ment job classifications were reduced.
As for the balance of subcontracting in the unit, with a
single exception each instance involved the utilization of
outside contractors to cover peak load situations or addi-
tional work forseeably lacking in continuity and of a spo-
radic nonrecurrent nature.6
The Union, with respect to each of the above instances,
was notified after the decision was made in that respect;
Respondent bargained as to the effects thereof, and insofar
as this record discloses furnished all economic data which
would enable the Union to evaluate the appropriate course
to be taken in response.
The foregoing hardly substantes the assertion that the
Mellon arrangement involved a type of subcontracting in
"kind or degree . .. customary under past established prac-
tice." It posed a new unprecedented threat to unit employ-
ees insofar as it represented the first instance where unit
'The exception involved the contracting out of two messenger jobs in
August 1971. Although the positions were eliminated there were not layoffs.
work was removed and classifications elminated due to
technological advance. Notwithstanding a history of bar-
gaining dating back some 25 years, the subcontract in issue,
subject to a single occurrence in 1971, marked the only
occasion for elimination of unit positions under circum-
stances dissociated from closures or fullfilling work de-
mands beyond that customarily discharged by unit person-
nel. On the facts, it is fair to conclude that the overall
practice of contracting out work in the instant bargaining
unit was sporadic. compartmentalized, and something less
than the frequently repeated readily anticipated means of
operation contemplated by the line of decisions following
Westinghouse (Mansfield Plant), supra.7 It is concluded that
those cases are distinguishable and hence failed to exuse
Respondent's breach of its statutory obligations concerning
the contracting out of remittance work.
Also lacking in merit is Respondent's claim that the
Union waived its intent in bargaining with respect to sub-
contracting. As stated by Administrative Law Judge Paul
Bisgyer in Hilton Hotels Corporation dbla Statler Hilton
Hotel, 191 NLRB 283, 288:
As a general rule, a labor organization may waive its
statutory right to be notified and consulted concerning
a contemplated change in working conditions. Such a
waiver, however cannot be lightly inferred but must be
clearly and unmistakably evidenced either in terms of
the parties' bargaining contract or in the nature of the
prior contract negotiations. Silence in the consum-
mated agreement following discussions of a controver-
sial subject does not necessarily meet the waiver test.
And as the Board stated in The Press Company. Incorpo-
rated, 121 NLRB 976, 977 978 (1958):
It is well established Board precedent that, although a
subject has been discussed in precontract negotiations
and has not been specifically covered in the resulting
contract, the employer violates Section 8(a)(5) . . . if
during the contract term he refuses to bargain. or takes
unilateral action with respect to the particular subject,
unless it can be said from an evaluation of the prior
negotiations that the matter was "fully discussed" or
"consciously explored" and the union "consciously
yielded" or clearly and unmistakably waived its inter-
est in the matter.
The governing collective-bargaining agreement contains
no provisions which explicitly restrict or attempt to regulate
the conditions under which the Employer may contract out
covered work. Nor is there language contained therein
which nullifies the Union's statutory right to notice and
advance consultation, "a provision . . . normally implied in
an agreement by operation of the Act itself."8 As for the
negotiating history, the record merely discloses that during
contract renewal sessions in 1969, 1971, and 1977 the
Union proposed bans on the subcontracting of' unit work.
The proposals were discussed, though opposed9 by Respon-
dent, and later dropped by the Union prior to entry of each
successive collective-bargaining agreement. Contrary to Re-
'See AMCAR Division, ACF Industries, 231 NLRB 83, 89 (1977).
I N.L.R.B. v. Perkins Machine Company, 326 F.2d 488.
489 (Ist Cir. 1964).
'The nature of the discussions is not clearly delimited b the record.
264
EQUITABLE GAS COMPANY
spondent's view, a union's unsuccessful effort to obtain con-
tract revisions imposing restrictions upon subcontracting
greater than the duty of notification and consultation em-
bodied in the Act is not tantamount to a "conscious yield-
ing." The more likely interpretation is that in receding from
a demand for more comprehensive restrictions and joining
an ultimate settlement of negotiations, the Union elected to
rest upon its lesser statutory rights.' ° In sum, the Union's
demands in past negotiations did not supplant the employ-
ees' right to the services of their representative with respect
to Respondent's removal of unit work by sudden, unprece-
dented, unilateral action.
Accordingly. I find that Respondent violated Section
8(a)(5) and (I) of the Act by unilaterally contracting out the
work of its remittance clerks without affording the Union
prior notification and an opportunity to bargain with re-
spect to its decision in that regard.
Next arises the question of whether Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to provide to
the Union, upon request, both a copy of its agreement with
the Mellon Bank cost data pertinent thereto. In this connec-
tion, under established policy. "an employer violates Sec-
tion 8(a)(5) of the Act by refusing, during the term of a
collective-bargaining agreement, to furnish information re-
quested by the Union if such information is relevant to a
grievance or to the administration or policing of the agree-
ment." See Puerto Rico Telephone Company v. N.L.R.B.,
359 F.2d 983, 986 (Ist Cir. 1966). By way of defense to its
admitted refusal to furnish such information. Respondent
contends that the requested information was not relevant to
the performance of the Union's obligations as bargaining
representative. Having concluded that the contracting out
of remittance work was subject to a duty to bargain in good
faith, it follows that the information sought by the Union
was relevant to an assessment of alternatives in the context
of such negotiations and indeed to determine the degree to
which future contract protection might be necessary to
avert further similar incursions." The fact that the Com-
pany did not inform the Union that the work was awarded
to the bank on the basis of cost considerations is immate-
rial. Whatever the Company relied upon in taking this step
it is difficult to imagine that cost and its interrelationship
with savings was a totally alien factor. In any event, any
such claim by the Employer is worthy of appraisal through
good-faith discussions with the Union after disclosure of all
facts permitting fair evaluation. An unconfirmed self-saving
stance that cost was not a factor is no substitute for disclo-
10 The fact that the Union was afforded an opportunity during contract
negotiations to bargain with respect to subcontracting. though relevant to an
assessment of whether the Wesinghouse (Mansfield Plant) decision is control-
ling, does not independently satisfy Board requirements for a "waiver" of
statutory rights. Here, that decision has been deemed inapposite on other
grounds.
' It is noted that although the Mellon Bank had only partial capacity at
the time to perform other clerical functions such as keypunch and posting.
other banks have this capability, and is not beyond possibility that the Mel-
lon Bank may broaden its technology to handle such matters and that this
was within contemplation The fact that the Company disavows an intention
under its arrangement with the bank to make further inroads on the unit
does not oblige the Union to accept such representation without opportunity
to evaluate it in the light of withheld relevant information.
sure absent convincing collateral evidence that this was in
fact the case.'
In sum, the Union's request for a copy of the Mellon
contract and any relevant cost data wth respect thereto car-
ried a "probability that desired information was relevant,
and it would be of use to the Union in carrying out its
statutory duties and responsibilities." See N.L.R.B. v. Acme
Industrial C(o. 385 U.S. 432. 437 (1967). Accordingly, I find
that Respondent violated Section 8(a)(5) and ( 1) of the Act
by refusing to furnish the requested information.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (I) of the Act
by unilaterally subcontracting unit work without affording
to the Union as the exclusive representative of employees in
the appropriate unit advance notice and an opportunity to
consult and by refusing, upon request, to provide the Union
with a copy of its agreement with the Mellon Bank and
other pertinent cost data.
4. The unfair labor practices found above are unfair la-
bor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THI REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent shall be ordered to bargain collectively with
the Union concerning its decision to contract unit work for
performance by the Mellon Bank and to provide Respon-
dent with a copy of its agreement with said bank as well as
any related cost data pertaining thereto. Counsel for the
General Counsel also urges that Respondent be ordered to
rescind its agreement with the Mellon Bank and to restore
the status quo in the treasury department to conditions ex-
isting prior to Respondent's elimination of said work and to
offer the employees displaced thereby their former positions
as remittance clerks, without prejudice to their seniority
and/or other rights and privileges. In the circumstances, it
is considered that such a remedy would impose a dispropor-
tionate burden upon Respondent in relation to the redress
necessary to effectuate statutory policies. In this connection
it is first noted that the refusal to bargain herein produced
neither layoffs nor loss of earnings. It occurred against a
bargaining history, which though lengthy, was apparently
': Such evidence was available in Southwestern Bell Telephone Companv.
173 NLRB 172 (1968), where an 8(aX) allegation based on the failure to
supply cost information pertaining to subcontracting was dismissed. In that
case the subcontracting itself was not challenged. it was restricted to "peak
loads," and had been resorted to only "because its employees were too busy
and could not handle the work." Furthermore. while the information re-
quested was in aid of union efforts to grieve the subcontracting. the Board
viewed the provisions of the contract to which the gnevances related as
failing to reveal that cost data was enshrouded with a "probability of rel-
evance.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free of discord. Indeed, the Union's posture with respect to
the variant forms of subcontracting engaged in by Respon-
dent over the years was manifested as no more than a sin-
cere interest in being afforded the opportunity to compete
against outside contractors on the basis of the economic
merits. On balance it would seem both fair and more com-
patible with continued harmony to assure the Union the
opportunity to develop its position on the Mellon arrange-
ment on the basis of facts supplied by Respondent, enabling
it to assess whether it is in a position to compete for this
work and, if so, to propose an economically feasible alter-
native. Beyond that, to require as a precondition to good-
faith bargaining recission of Respondent's subcontract is
viewed as an inappropriate exercise of remedial authority.
Upon the foregoing findings of fact, conclusions of law.
and pursuant to Section 10(c) of the Act I hereby issue the
following recommended:
ORDERS
The Respondent, Equitable Gas Company, Pittsburgh.
Pennsylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Failing or refusing to bargain collectively by unilater-
ally and without prior notice and affording an opportunity
to consult to the exclusive representative of employees in
the appropriate unit subcontracting the work of said em-
ployees.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(b) Failing or refusing, upon request, to supply the exclu-
sive representative of' employees in the appropriate unit in-
formation relevant and necessary to the performance of its
obligations as employee representative.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action found necessary
to effectuate the policies of the Act:
(a) Furnish to the Union a copy of its contract with the
Mellon Bank pertaining to remittance work and any related
cost data and afford the Union an opportunity to bargain
with respect thereto.
(b) Give notice to the Union and afford the latter an
opportunity to bargain collectively with respect to any deci-
sion to subcontract work historically performed by employ-
ees in the appropriate bargaining unit.
(c) Post at its facilities in Pittsburgh, Pennsylvania. cop-
ies of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's autho-
rized representative, shall be posted by it immediately upon
receipt thereof and be maintained for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"In the event that this Order is enforced b 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
266