General Electric Co.

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 146 (N.L.R.B. 1989)

146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Electric Company and Local 571, Sheet
Metal Workers' International Association,
AFL-CIO. Case 13-CA-26698
May 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 22, 1988, Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The Charging Party and the General Counsel
filed answering briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, i and
conclusions as modified below and to adopt the
recommended Order as modified.
We agree with the judge in finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish the Union requested informa-
tion concerning the costs of maintenance work sub-
contracts, but we do so only on the ground that
the information was relevant to the negotiation of a
successor agreement to the 1985-1988 agreement.2
In this regard, we find that the Union had specifi-
cally referred to this use of the information in its
request, and that, at least by the time of the hearing
in this case, those negotiations were sufficiently
close at hand to require the Respondent to provide
the information. See Barnard Engineering Co., 282
NLRB 617 (1987), and cases cited there (finding
violation on the basis of a continuing refusal to
produce information under circumstances as they
existed at the time of the hearing).3 Finally, given
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings
2 Accordingly, we do not rely on the judge's finding that the requested
information was also relevant to the processing of grievances We will
modify the recommended Order and notice language to reflect this modi-
fied rationale for concluding that the Respondent violated Sec 8(a)(5)
3 Calmat Co, 283 NLRB 1103 (1987), is not to the contrary In that
case, a particular use for the information was noted for the first time at
the unfair labor practice hearing and this was found to be irrelevant to
the issues raised by the complaint In the present case, as noted above,
the Union had previously cited contract negotiations as one of the
grounds for its request
Member Cracraft finds it unnecessary to rely on Barnard Engineering
Co, supra, or Calmat Co, supra, in reaching the conclusion The judge
specifically found that during grievance discussions the Union communi-
cated to the Respondent that one of the bases for its request for the infor-
mation was that it needed to prepare for upcoming negotiations Based
the record evidence of the clear role that cost fac-
tors had played in the Respondent's subcontracting
decisions in the past, there is no merit to the Re-
spondent's contention, in reliance on Western Mas-
sachusetts Electric Co. v. NLRB, 573 F.2d 101, 107
(1st Cir. 1978), that the information would not
become relevant for contract negotiation purposes
until cost factors were expressly raised by the Re-
spondent in opposition to proposals by the Union
for subcontracting restrictions.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, General Electric Company, Cicero, Illi-
nois, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to bargain with Local 571, Sheet
Metal Workers' International Association, AFL-
CIO as the exclusive bargaining representative of
the employees in the following bargaining unit by
refusing to furnish that labor organization with in-
formation it requests that is relevant and reasonably
necessary to the negotiation of collective-bargain-
ing agreements'
All production and maintenance employees at
the Respondent's Chicago-Cicero operations,
including 'cafeteria employees, and garage and
print shop employees; but excluding all station-
ary engineers or class `A' firemen including
coal handlers in Plants 1 and 2, firemen and
equipment development specialists, office and
plant clerical employees including receiving
clerks, secretaries, shop clerks, statistical data
clerks, and mimeograph operator, all tool
room employees and truck drivers now repre-
sented by other labor organizations, section
leaders, guards, professional employees, and
supervisors as defined in the Act."
on the judge's reasoning set out in fn 25 of her decision, Member Cra-
craft believes that the request for information at that time was not prema-
ture In light of this finding, she finds it unnecessary to pass on the
judge's alternative analysis that the information was relevant and neces-
sary for the reasons clarified at the hearing
4 We find the instant case to be distinguishable from Southwestern Bell
Telephone Co, 173 NLRB 172 (1968), and Southwestern Bell Telephone
Co, 262 NLRB 928 (1982) Here, unlike in the Southwestern Bell cases,
(1) the Union requested the information for collective-bargaining pur-
poses, (2) the Respondent had indicated to the Union that cost was a
factor considered in determining whether work should be subcontracted,
(3) the Union informed the Respondent of the relevancy of the requested
information, (4) the subcontracted work was not shown to be nonrecur-
ring, and (5) the Union expressed a concern that the subcontracting could
cost unit employees jobs inasmuch as the Respondent had in the recent
past not replaced unit employees who had retired
294 NLRB No. 11
GENERAL ELECTRIC CO
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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Local 571,
Sheet Metal Workers' International Association,
AFL-CIO as the exclusive bargaining representa-
tive. of the employees in the following bargaining
unit by refusing to furnish that labor organization
with information it requests that is relevant and
reasonably necessary to the negotiation of collec-
tive-bargaining agreements. The apropriate unit is:
All production and maintenance employees at
the Respondent's Chicago-Cicero operations,
including cafeteria employees, and garage and
print shop employees; but excluding all station-
ary engineers or class "A" firemen including
coal handlers in Plants 1 and 2, firemen and
equipment development specialists, office and
plant clerical employees including receiving
clerks, secretaries, shop clerks, statistical data
clerks, and mimeograph operator, all tool
room employees and truck drivers now repre-
sented by other labor organizations, section
leaders, guards, professional employees, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL immediately furnish the Union with
the information that it requested in January and
February 1987 as to the cost of subcontracts during
the December 1986 to January 1987 shutdown.
GENERAL ELECTRIC COMPANY
Rick Hampton, Esq and Dawn Miller, Esq, for the Gen-
eral Counsel
Earl F. Jones, Esq and Scott R. Merrill, Esq, of Louis-
ville, Kentucky, for the Respondent
Irving M King, Esq, of Chicago, Illinois, for the Charg-
ing Party
DECISION
STATEMENT OF THE CASE
147
. NANCY M SHERMAN, Administrative Law Judge This
case was heard before me in Chicago, Illinois, on No-
vember 19 and 20, 1987, pursuant to a charge filed by
Local 571, Sheet Metal Workers' International Associa-
tion, AFL-CIO (the Union) on February 27, 1987, and a
complaint issued on July 29, 1987 The complaint alleges
that Respondent General Electric Company violated
Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by failing and refusing to give the Union
information concerning the dollar cost of contracts for
certain work performed by subcontractors
On the entire record, including the demeanor of the
witnesses, and after due consideration of the briefs filed
by counsel for the General Counsel (the General Coun-
sel) and Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a corporation that manufactures appli-
ances in Cicero, Illinois. During the calendar year pre-
ceding the issuance of the complaint, Respondent sold
and shipped, from its Cicero facilities, goods and materi-
als valued in excess of $50,000 to points outside Illinois I
find that, as Respondent admits, it is engaged in com-
merce within the meaning of the Act, and that assertion
of jurisdiction over its operation will effectuate the poli-
cies of the Act
The Union is a labor organization within the meaning
of the Act
lI THE ALLEGED UNFAIR LABOR PRACTICES
A Background
1 Allegedly relevant provisions of collective-
bargaining agreement and their bargaining history
Since 1962, the Union has been the exclusive bargain-
ing representative of an admittedly appropriate unit, spe-
cifically described infra in Conclusion of Law 3, which
includes most nonsupervisory production and mainte-
nance employees in Respondent's Cicero plant but ex-
cludes, inter alia, all electricians and electrical specialists.
The Union and Respondent have been parties to a series
of successive bargaining agreements The most recent of
these, as of the time of the hearing, was effective by its
terms between July 19, 1985, and June 26, 1988 This
1985-1988 bargaining agreement contains the following
provisions.
MANAGEMENT RIGHTS
The Union recognizes that the Company main-
tains the exclusive right to manage its business in
such manner as the Company shall determine, sub-
ject only to those provisions of this Agreement
which expressly qualify this right. The Company's
right to manage its business shall include, but not be
limited to, its rights to determine the methods and
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
means by which its operations are to be carried on,
to sub-contract, to discontinue or relocate all or any
portion of any such operations, to assign work, to
schedule hours of work including overtime, and to
establish the size, composition and qualifications of
the work force, to determine job classifications,
standards and rates of pay and to maintain safety,
efficiency and order in its plants and operations
The exercise or non-exercise of rights hereby re-
tained by the Company shall not be deemed to
waive any such rights or the right to exercise them
in some other way in the future.
The management-rights clauses in the collective-bar-
gaining agreements effective between 1963 and 1985
have all contained virtually the same language. During
the negotiations which led up to the 1982-1985 agree-
ment, the Union unsuccessfully proposed a different
management-rights clause whose language is not clear in
the record During the negotiations which led up to the
1985-1988 contract, the Union unsuccessfully proposed
that this language be changed to read, "The Union rec-
ognizes that the Company maintains the right to manage
its business in such manner as the Company shall deter-
mine, subject only to those provisions of this Agreement
and the Union" (sic) In addition, the Union submitted as
to maintenance employees the following unsuccessful
proposal- "[Eliminate] subcontracting All jobs must first
be presented to the group leader for his evaluation and it
shall be his sole discretion whether the employees can
and shall do the job rather than subcontracting the job
In the case where a job is contracted out the contractor
must supply all the equipment required to [perform] the
job " During the negotiations which led up to the 1985-
1988 contract, Respondent assured the Union that Re-
spondent would "try to somewhat curtail the subcontrac-
tors for the jobs and the work that [the unit employees]
normally perform."
The various bargaining agreements effective between
1979 and 1988 all include a three-step grievance proce-
dure with respect to "A grievance which involves the in-
terpretation or application of this Agreement or a disci-
plinary penalty (including discharge)." Further, all of
them provide for arbitration, as a matter of right, of
grievances involving a disciplinary penalty, "the inter-
pretation or application of Article XI, Upgrading" (de-
scribed infra fn 10), layoff due to lack of work, and "a
non-disciplinary termination which does not involve
matters otherwise excluded from arbitration " All other
grievances are arbitrable only on the parties' mutual
agreement In addition, all of these contracts include the
following provisions.
and qualifications of the work force, to determine
job classifications, standards and rates of pay, and to
maintain safety, efficiency and order in its plants
and operations, nor shall an arbitrator have the au-
thority to establish or modify any wage, salary or
piece rate, or job classification, or have authority to
decide the appropriate classification of any employ-
ee
[The Union's undertaking not to strike] shall not
prohibit a protected strike within the terms of the
National Labor Relations Act arising out of a griev-
ance after the respective provisions of the succes-
sive Steps of the Grievance Procedure shall
have been complied with, provided that the grei-
vance does not involve a matter subject to arbitra-
tion or a grievance which the Company has indicat-
ed in writing its willingness to arbitrate .
Any strike not prohibited hereunder may be com-
menced only after the Company's final decision on
such grievance has been provided and the
Union after receipt of such decision has given the
Company notice in writing of such strike not less
than five (5) working days in advance of such
strike
John G Agrela, the Union's president and business
agent since 1980, credibly testified, in 'November 1987,
that Respondent had told him that the Union had the
right to strike over grievances which are not arbitrable
Thomas Olander, who is Respondent's manager of em-
ployer and community relations, testified that if the
grievance directly involved in the instant case were
found to be not arbitrable due to the management-rights
clause, it was possible that the Union would have the
right to call a midterm strike with respect to that griev-
ance
In 1981, the Union went out on strike in support of
grievances including, inter alia, grievances which in-
volved subcontracting and may have proceeded from
Respondent's maintenance personnel In 1983 and 1986,
the Union went out on strike in support of grievances
which involved subcontracting and proceeded from Re-
spondent's maintenance personnel The Union did not re-
ceive cost information from Respondent before any of
these strikes In connection with at least the 1986 sub-
contracting grievance or grievances, the Union had been
taking the position that Respondent had improperly
failed to fill maintenance jobs from which employees had
been permanently separated The record fails to show
whether these strikes by the Union caused Respondent to
change its position with respect to any of the grievances
which led to the strike
It is specifically agreed that no arbitrator shall
have the authority to decide any matter involving
the exercise of a right reserved to management
under this Agreement, including but not limited to
management's right to determine the methods and
means by which its operations are to be carried on,
the right to subcontract, discontinue or relocate all
or any portion of any such operations, the right to
assign work and establish the size and composition
2 1981-1987 grievances involving subcontracting
In April 1981, the Union filed a grievance alleging that
an outside contractor had been performing machinery
maintenance work which in the past had been performed
by Respondent's own maintenace employees in plant 8
In the grievance form blank asking for the relief sought,
the Union stated, "Request management to recognize the
ability, expertness and knowledge of the Plt 8 Maint
GENERAL ELECTRIC CO 149
Dept by expelling contractors doing maint work" In
the grievance form blank asking for the "provision of
agreement involved," the Union specified a no-discrimi-
nation clause substantially the same as the one in the
1985-1988 contract in effect durng the instant dispute
(see infra part IIC), and a clause substantially the same
(for purposes relevant here) as the clause described infra
footnotes 10 and 21 The foreman's answer to this griev-
ance stated, "This is not a [maintenance] job and [exper-
tise] needed for this work is not a function of [mainte-
nance department] and [greivant] could not handle it "
At the second step of the grievance procedure, John
Mason, who is Respondent's manager of job operations
for refrigeration, stated'
We do respect the skills and abilities of our trades-
people, however, from time to time it is necessary
to seek out additional skills from outside the organi-
zation to effectively operate Supervision has been
requested to carefully review in-house skills before
contracting work out
The 'record fails to show whether this grievance was
pursued beyond the second step. Mason testified that the
cost of this project had no relevance to the decision to
contract it out.
In January 1982 the Union filed a grievance which al-
leged that management was having an outside contractor
perform maintenance work which had at one time been
performed and completed by Respondent's own mainte-
nance employees In the blank calling for the relief
sought, the Union stated, "Request management to rec-
ognize the ability and knowledge of the maint. dept and
stop discriminating against the maint employees " In the
blank calling for "Provision of Agreement Involved,"
the Union set forth the same clauses referred to in the
April 1981 grievance, and also clauses which dealt with
safe and healthful working conditions, working hours,
the grievance procedure, and incentive rates. In Febru-
ary 1982, Operations Manager Mason rejected the griev-
ance at the second step, on the ground that the job _in
question "involved one day only, was an emergency in
preparation for a factory mutual inspection, and the
maintenance employee who might have done the work
was engaged in the work at the time and had also been
working overtime " Later that month, on the Union's
appeal to the third-step, Respondent gave the following
third-step response.
the work in question is normally general facili-
ties mechanic type work However, a review of the
hours worked by the employee in that classification
showed that in a five-week period since January 4,
1982, this employee had worked an average of 52
hours per week
While we reserve the right to subcontract, oper-
ating management is aware that whenever suitable
conditions are present we attempt to use [our own]
maintenance employees
In this situation, where the work had to be per-
formed within a particular period of time and the
facilities mechanic was working overtime, it is the
position of the company that the subcontracting of
the work in question was not in violation of the
contract
In June 1982, the Union filed a grievance which al-
leged, "Management is continuously and deliberately de-
priving the maint tradesmen of time, wages and job as-
signments by contracting our work to outside contrac-
tors while aggrieved employees are laid off for lack of
work. Work being done by outsiders has been performed
and completed by [Respondent's] maint employees in
the past." In the blank calling for "Relief Sought," the
Union stated, "Management to recognize the ability and
knowledge of [aggrieved] tradesmen and stop depriving
employees of time and wages " As to the "Provision of
Agreement Involved," the Union cited most of the same
provisions referred to in the January 1982 subcontracting
grievance. Operations manager Mason's July 1982
second-step answer stated that the work in question in-
volved design as well as installation, that it "required the
[outside contractor's] skills and specialized knowledge,"
and that some assistance had been provided by "our
maintenance organization " Respondent's third-step
answer, in August 1982, reaffirmed the second-step
answer.
In November 1983, the Union filed a grievance which
alleged that Respondent was "continuously" using out-
side contractors to do jobs which pertained to the bar-
gaining unit in the maintenance department The griev-
ance specifically referred to a job involving conveyor
drives and another job involving heating oils. The
"Relief Sought" was "No outside contractor to perform
jobs that our [maintenance] department are capable to do
it Recall maintenance personnel on layoff " As to the
provision of agreement involved, the grievance specified
the clauses referred to in the April 1981 subcontracting
grievance, the clause setting forth the grievance proce-
dure, and a clause dealing with reduction in force and re-
calls Mason's second-step response stated that one of the
jobs specifically referred to in the grievance involved an
emergency heating unit leak in the stem line which had
to be removed immediately, and that the actual repair
work had been by Respondent's own maintenance
people As to the other job specifically mentioned in the
grievance, the second-step reply stated that the drives re-
quired cleaning before maintenance work could be done
and an outside contractor had to be used to "expedite"
the cleaning work The notes in Respondent's files state
that during the third-step grievance, Union President
Agrela stated that the Union had no objection to outside
contractors if Responent's own maintenance people were
all working or were not capable of perfoming the work,
and that he went on to ask whether Respondent was
planning to replace its own maintenance employees with
outside contractors At the November 1987 hearing
before me, Agrela denied saying that as long as people
were working, he was not concerned about subcontract-
ing, in view of the 4-year period between the meeting
and Agrela's testimony, I am inclined to accept Respond-
ent's apparently contemporaneous notes. In January
1984, Respondent reaffirmed the second-step answer
In August 1984, the Union filed a grievance alleging'
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This summer shutdown was no different than in
the past More and more contractors were allowed
to work while our maint. personnel were allowed
vacations and while some are still on layoff After
the S E. [?] contractors finish their job, our people
must go and straighten out mistakes
The "Relief Sought" was "That management refrain
from using so many contractors and to make certain they
finish their jobs before they leave " In the blank calling
for the provision of agreement involved, the Union re-
ferred to articles regarding safe and healthful working
conditions, the grievance procedure, and a clause sub-
stantially similar to the clause described infra fn. 21. Re-
spondent's second-step reply stated, "it is necessary to
have contractors when the volume of work, hours re-
quired and large projects during the shutdown exceed
our workforce capability." An internal company memo-
randum prepared in connection with the Union's appeal
of this second-step determination summarized the dispute
as follows-
Union Viewpoint
Maintenance is down to bare bones, there's no
apprentice program and the company continues to
use contractors to do bargaining unit work This
happens every shutdown Our people can do the
job, refrain from using contractors.
Company Viewpoint
Maintenance had many jobs to get done in a
short shutdown Many jobs performed by contrac-
tors are too large for maintenance In addition many
maintenance men wanted to be on vacation during
shutdown
In September 1984, Respondent reaffirmed its second-
step response
In August 1987, the Union filed a grievance which al-
leged as follows
During the 1987 summer shutdown in Bldg. 59,
the Company has scheduled many maintenance jobs
to be performed by outside contractors With more
[Union] maintenance employees, there would be no
need to have outside contractors In the past 10
years, [maintenance department] employees have
decreased by one-half while work load has in-
creased
In the blank calling for the relief sought, the Union
asked "That the Company increase its work forces in
line with its production output and its increasing shut-
down workload and curtail its use of outside contractors
to fill this gap." As the provision of agreement involved,
the grievance cited the contractual recognition article
and one or more additional articles.' In September 1987,
1 The grievance, which is handwritten, contains the entry "X VIII " It
is unclear whether this entry refers to one article (XVIII, the grievance
procedure article), two articles (X, the recall-from-layoff article, and
VIII, the service-credit article), or three articles (X, V, the management-
rights article, and III , the article calling for safe and healthful working
conditions)
management dented this grievance on the grounds that
the work in question was "beyond the scope, skill,
knowledge and experience of maintenance. There were
no maintenance employees on temporary lack of work "
In October 1987, Respondent denied this grievance at
the third step, on the ground that "outside contractors
were brought in during the summer shutdown to per-
form work which management felt was beyond the
scope, skill, knowledge and experience of maintenance
There were no maintenance employees on layoff during
shutdown "Z
A letter dated February 5, 1982, from Union President
Agrela to Edward J. Haley (Respondent's manager of
union relations in Chicago) reads as follows-
As per our requst at the third (3rd) step meeting
held January 28, 1982,3 requesting information con-
cerning sub-contracting, we need a list of all sub-
contractors who has or is [sic] currently [perform-
ing] work in our plant since the signing of our
present contract, dated July 13, 1979. This list shall
include all work The type of work [per-
formed] Plant work is or was [performed] in Cost
per man hour of work Janitorial work.
As you know, under Article V of the current col-
lective bargaining agreement [the management-
rights clause], the Company has the exclusive right
to subcontract work during the term of the current
agreement If, nonetheless, you contend that the
Company has in some respect violated a provision
of the collective bargaining agreement or that some
rights of bargaining unit members have been im-
paired, I will be happy to meet with you to discuss
your concerns
3 Contractual provisions for terminating collective-
bargaining agreement and negotiating new
agreement
Either party to the most recent collective-bargaining
agreement between Respondent and the Union could ter-
minate it by written notice to the other not more than 90
days and not less than 60 days prior to June 26, 1988
This agreement further provides that bargaining for a
new agreement is to commence not more than 15 days
following receipt of such notice, or following receipt of
notice from either party (within the timeframe specified
for notice of termination) of a desire to modify the exist-
ing agreement
2 The 1982-1987 grievances discussed under this heading consisted of
grievances which Respondent's counsel found in their files Counsel for
the General Counsel and for Respondent stated that they did not repre-
sent that these were the only grievances filed with respect to subcon-
tracting during the period, or that they constitute a representative sim-
pling of such grievances
2 The record fails to show what grievances were discussed at that
meeting
GENERAL ELECTRIC CO 151
B, The January 1987 Subcontracting Grievance and
Consequent Discussions
1 Nature of the grieved subcontracting
Respondent has an annual practice of shutting down
production operations for 2 or 3 weeks in late July and 1
to 3 weeks in late December. During these shutdowns,
most of the production employees are on vacation and
most of the maintenance employees are working The
shutdown in 1986 occurred during the weeks ending De-
cember 28, 1986, and January 4, 1987 At this time, about
21 of the employees in department K18 of plant 8, all of
which department consists of maintenance employees,
were in the bargaining unit represented by the Union. Of
these 21, 3 were on vacation during this entire period, 1
was on vacation during the first of these weeks and part
of the second, and about 3 took from one-half to 3 vaca-
tion days during this period Almost all the others
worked at least 24 hours at straight time during the first
of these weeks (which included the paid holidays of
Christmas Eve and Christmas Day) and at least 32 hours
at straight time during the second of these weeks (which
included the paid holiday of New Year's Day). Also,
about 17 of them worked some hours at time and a half
(that is, on Saturday, on a holiday, or hours worked
beyond 8 that day), and about 3 of them worked some
hours on Sunday at double time. In addition, all 11 of the
production employees who wanted to work during the
shutdown were assigned to perform maintenance jobs.
Before the December 1986 shutdown, Respondent de-
veloped a plan to perform 64 jobs during the shutdown.
The form on which these jobs were listed called for a
"priority" number for each job The form itself describes
a "Priority 1" as "Must do . . cannot do at another
time" Mason testified that "Priority 1" means that the
job could not be done during regular production and had
to be done during shutdown, and that cost was not rele-
vant All but about 12 of these jobs are designated on the
form as Priority I For reasons not shown by the record,
several Priority 1 jobs performed by Respondent's own
employees were left incomplete by 50 percent or more
The form describes a Priority 2 job as "Should do . .
can do another time/greater cost " Mason testified that
as to Priority 2 items, "If cost is a factor, I suppose we
could delay it or something." All three of the Priority 2
jobs were in fact performed, one of them was contracted
out, and the other two performed by Respondent's own
maintenance employees In addition, five of the jobs
which had no priority number were in fact performed by
Respondent's own employees Of the jobs on the 64-item
list, about 4 were not performed at all and their priority
numbers, if any, are not shown by the record 4 Of the
approximately 60 jobs on this form which were in fact
performed during the shutdown, about 46 were per-
formed by Respondent's own employees;5 about 11 were
contracted out, and 1 or 2 may have been performed by
both subcontractors and Respondent's own employees
The filled out form which Respondent put into evidence
is a sanitized photocopy which excludes most of the cost
figures entered on the original
Mason testified that of the contracted-out jobs, about
three (Nos 12, 19, and 30) were jobs where Respond-
ent's own employees do not have the skill and equipment
to do the work Agrela may have been referring to one
of these jobs (No. 30, replacing pan rails in a cure oven)
when he testified that Respondent's own employees
could have performed the work of "tearing down some
of these machineries " Mason testified that the rail-re-
placement job could not be performed during production
operations because everything had to be ripped out for at
least a week; his testimony suggests that the same was
true of another, related contracted-out job (No 32, fabri-
cating and installing a guardrail stop) As to another con-
tracted-out job (No 31, a vulcanizing job), Mason testi-
fied that Respondent does not have the equipment to do
the work As to still another (No. 45, a fumigation job),
he testified that it could not be done when people are
around and that the contractor specializes in this kind of
work. As to another contracted-out job (No 60, remov-
ing, regrinding, and replacing blades), Mason testified
that Respondent's own employees can remove and re-
place the blades, but that Respondent does not have the
equipment to regrind them. Agrela testified that at least
as to one machine, Respondent's own employees before
1980 "would take [the blades] out, get them sharpened,
and put them back " As to the contracted-out job of re-
building the gas burner assembly and pre-oven (No 28),
Mason testified that Respondent has tended to steer
away from working on gas burner controls; that so far as
he knew, Respondent's own employees had never done
this work, that much of it involved electrical work
(which is performed only by employees outside the
Union's bargaining unit), that this job was a very compli-
cated one whose improper performance could create a
safety hazard or result in the production of a poor prod-
uct; and that the subcontractor is expert in that kind of
work and does it all the time Agrela testified that the
work of "fixing heaters" could have been done by Re-
spondent's own employees
Mason testified that Respondent's own employees are
capable of performing the remaining three contracted-out
jobs 6 As to why they were contracted out, he testified
that performing two of them-No. 1 (a Priority 2 job)
and No. 58 (a Priority 1 job)-is difficult or impossible
while production work is being done and not enough of
Respondent's own employees were available to perform
them during the shutdown As to the third contracted-
out job (No. 16, a Priority 1 job), the cleaning of pro-
tected baskets that surround the overhead conveyors, the
" The form also describes a "Priority 3" job as "Like to do can do
another time/same cost " The entries on the form list no priorities other
than 1 and 2
'This includes one "Priority I" job which was only 10 percent per-
formed, one job performed by Respondent's production employees in the
unit represented by the Union, and several jobs performed solely by Re-
spondent's electricians (not represented by the Union here)
B One of these jobs (No 1) consisted of painting trucks, Agrela cor-
roborated Mason's testimony that Respondent's own employees could
have performed this work Agrela also testified that another subcontract-
ed job which was performed during the shutdown and could have been
done by Respondent's own employees consisted of or included "repairing
hangers", I cannot determine which (if any) job he was describing that
was described by Mason
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that this can be done during a weekend rather
than during a shutdown but that doing it on,a weekend
takes extra time because the conveyors have to be emp-
tied Mason testified that the tasks included in Nos 58
and 16 had in fact been performed by production em-
ployees, in the unit represented by the Union, during the
summer shutdown of 1987
2 Evidence regarding management's reasons for
contracting out work
Mason testified that the maintenance work to be per-
formed during a shutdown is usually planned several
weeks or months in advance of the shutdown According
to Mason, whether particular maintenance work is to be
performed during a shutdown rather than at other times
depends on the size of the job, whether it will disrupt
manufacturing, and whether the job will take more than
a weekend to complete Mason and Olander testified that
whether to have particular maintenance work performed
by Respondent's own maintenance employees or by sub-
contractors is determined by whether Respondent's
maintenance employees have the time available to do the
work when it is requested, whether they have the skill to
do it, whether Respondent has the equipment to do it,
and whether the work has to,be performed by the manu-
facturer of the product in order to be paid for it or for
other reasons. Also, Mason and Olander testified that in
determining how many people to hire for the mainte-
nance department, Respondent figures how many mainte-
nance people Respondent needs on an average (rather
than during peak periods, such as production shutdown
periods) Mason testified that Respondent does this be-
cause otherwise, on occasion Respondent would have
employees with no work to do, and that Respondent
would object to having employees with no work to do
because "That would be very inefficient and very de-
moralizing and very costly " He further testified that in
management's decision whether to subcontract work,
cost is "not really a factor . . Not a factor. I don't
believe it enters in " As to one job (No. 10) which Re-
spondent's own maintenance employees performed
during the December 1986 shutdown, he testified that
Respondent's foreman looked at the cost of doing it that
way. In addition, Mason testified that Respondent tries
to stay within the dollar amount of its budget for mainte-
nance costs, that such costs include costs for contracted-
out work as well as the wages and overtime paid to Re-
spondent's own maintenance employees, and that subcon-
tracts are bid competitively, to enable Respondent to get
the best job done at the best possible price, which price
includes labor.
At Respondent's instance and over the objections of
the General Counsel and union counsel, I received into
evidence a work sheet on which Mason had listed, in
May 1982, jobs which were to be subcontracted during
that year's summer shutdown and the reasons for con-
tracting them out Respondent's counsel contended,
"This document shows that as far back as 1982 cost was
not a consideration in subcontracting work and that has
historically been the pattern of the Company " As to cer-
tain janitorial work never performed by maintenance em-
ployees in the unit represented by the Union, this docu-
ment contains the notation, "Best accomplished after
hours. Cannot properly supervise and control Less
costly " Mason testified that this entry meant that con-
tracting it out was less costly than doing it with "inside
production people "
In February 1987, after the plant had resumed full pro-
duction, Respondent had a subcontractor perform on in-
jection machines certain maintenance work which Re-
spondent's own maintenance employees had the skills to
perform, but were too few in number to do while per-
forming the other work assigned to them Also, the job
of rebuilding a plant washroom was performed at least
partly after the plant had resumed full production in Jan-
uary 1987, and at least partly by a subcontractor, al-
though Respondent's own maintenance employees are
capable of performing at least part of that work Mason's
testimony varied as to whether any part of this wash-
room work was performed before the shutdown and as
to whether all of it was performed by the subcontractor.
3 The January 1987 subcontracting grievances, the
refusal to provide subcontracting cost information
On January 2, 1987, Area Steward Fred Petersen
drafted a grievance naming himself and the Union as
grievants. The grievance alleged, "This winter shut-
down, outside vendors are performing work in Plant #8
which we feel our maintenance crew could do If these
are engineering jobs, why can't our people do them [?]."
In the blank calling for the relief sought appears the lan-
guage, "That the Company furnish Union with list of
contractors, jobs they are doing, and cost of projects in-
dividually [, and] who is bidding on the projects." In the
blank calling for the provision of agreement involved,
the grievance named the management-rights article, the
grievance-procedure article, and an article captioned
"Wage Rates" whose contents are discussed infra
On January 16, 1987, Respondent and the Union held
a second-step meeting on the grievance Chief Steward
Lou Andrews said that Respondent could not have out-
side contractors doing bargaining unit work, and that the
Union might want to have Respondent's own mainte-
nance employees "bid on these contracts" Operations
Manager Mason said that during the shutdown, Respond-
ent had more maintenance jobs to do than it had mainte-
nance hours available, and asked whether all of Respond-
ent's maintenance employees were working during the
shutdown. Area Steward Peterson replied that all of
them had been working except for those on vacation
Mason then said, "Then where is the complaint? We
have projects that must be done during shutdown These
must be done when the plant is not working We hired
contractors to do these projects We have always done
this. During the last shutdown [all of Respondent's main-
tenance employees were] either on vacation or working
On some shutdown projects we may not have the skills,
knowledge or the tools to do the work " Mason further
said that during shutdowns, Respondent's need for main-
tenance employees peaked beyond the number in Re-
spondent's work force Andrews said, "Why not hire
more maintenance employees and have them all the
time9 Why not hire employees from Chicago [of which
GENERAL ELECTRIC CO 153
Cicero, where the instant plant is located, is a suburb]'
Outside contractors hire aliens to do the work " By
memorandum to Petersen dated January 23, 1987, Mason
stated, "The peaking conditions of shutdown type work
require that outside vendors be used for some types of
work All available maintenance people were working "
On February 5, 1987, Respondent and the Union held
a third-step meeting on the Petersen grievance Agrela
asked why Respondent had not replied to the "Relief
sought" portion of the grievance He said that the Union
wanted a list of all present and future subcontracted jobs
He said that the fact that all maintenance employees
were working was not good enough, that the subcon-
tracted work was bargaining unit work, that the subcon-
tracting was an unfair labor practice, and that subcon-
tractors walked into the plant every day. Olander said
that Respondent was putting in a new foam system and
this required subcontractors and their employees Agrela
said that he wanted to know who the subcontractors
were, wanted "copies" of the projects, and wanted the
dollar amount of the projects and the price of the jobs
He went on to say that he also wanted to know who else
had bid on their jobs, how many were minority vendors,
and how many employees each contractor used in the
plant Agrela said that he had the right to all this infor-
mation, that the subcontractors "are bargaining unit ven-
dors," and that he wanted Respondent to stop subcon-
tracting and to hire more maintenance employees.
Olander asked the relevance of the price of the jobs, and
further asked, inferentially as a rhetorical question, who
had not been working during the shutdown. Agrela said
that he believed Respondent was eliminating bargaining
unit workers and replacing them with subcontractors,
and that Respondent had not replaced maintenance
workers who had retired Olander asked Agrela the pur-
pose of this request, and showed Agrela a list of the con-
tractors who worked during the shutdown and the jobs
they worked on Agrela said that he wanted the name of
the subcontractor, the project, the cost of the job, and
who else bid Olander asked why Agrela wanted to
know the cost of the job Agrela said that the Union had
previously been having problems with subcontractors'
coming into the plant, that numerous stewards had filed
numerous grievances, and that the Union felt that Re-
spondent's own maintenance employees could perform
some of the subcontracted work themselves He further
said, "I want to know the cost of the contract How
many employees Is Maintenance qualified to do this
work? I want to know the reason why Maintenance was
not given the work" Olander replied that "Mainte-
nance" had had no time during the shutdown and that all
the maintenance employees who were not on vacation
had in fact worked. Further, he said that Respondent
had not replaced bargaining unit employees with subcon-
tractors, that all the maintenance workers were working
overtime, that he saw no relevancy to the requested in-
formation regarding costs, and that the contractual man-
agement-rights clause gave Respondent the right to sub-
contract. Agrela said that Respondent was replacing re-
tired employees with outside contractors, that Respond-
ent had been cutting maintenance employees and using
outside contractors, and that the outside contractors
were charging Respondent more than it would have to
pay if it were using its own employees He went on to
say that he wanted to know what future jobs and
projects there would be for outside contractors, how
many subcontractors were presently in the plant, who
they were, which jobs they were doing, and which other
contractors bid on these jobs. Then, Agrela said, "We
want to stop subcontracting " Olander said that the
grievance which was the subject of the second-step
meeting concerned the shutdown period. Agrela replied,
"You have not replaced employees who retired You use
subcontractors Every day of the week, contractors
come into the plant They are all over the place Enough
is enough."
The third-step meeting on the grievance was continued
on February 12, 1987. Agrela asked Olander if he had
any of the information which the Union had requested at
the last meeting Olander said yes, and showed him some
handwritten notes which gave the names of subcontrac-
tors and the jobs they were performing. Agrela asked
about the costs of these projects Olander asked the rel-
evance of the costs, stated that under the bargaining
agreement, Respondent had the right to subcontract,
stated that Respondent had been subcontracting since the
beginning of "these contracts", and further stated that
the requested information was irrelevant to the Union
Agrela said that he wanted to put a stop to subcontract-
ing and that the Union had the right to get this informa-
tion and needed it because subcontractors had replaced
bargaining unit workers in the past and the Union was
now seeing more outside contractors performing jobs
that bargaining unit workers normally did Olander asked
what Agrela needed this information for Agrela said
that the Union needed it to evaluate whether "we" could
compete with these subcontractors and that he wanted to
prepare himself for the upcoming negotiations. He al-
leged that the unit was "losing" maintenance employees,
and asked whether alleged loss was due to a failure by
Respondent to replace those who retired and action by
Respondent in using subcontractors to do the work He
said that he wanted to know who the bidding subcon-
tractors were, how they bid, whether their bidding was
competitive, and how much the contracts cost. He said
that he did not see "minority vendors," and that the con-
tractors were performing jobs which employees in the
Union's bargaining unit had done in the past. Olander
said that it was Respondent which determines the size
and the composition of the work force Agrela said that
he felt Respondent's own employees could do the job for
less than the subcontractors, and asked why Respondent
was bringing them in Agrela said that he needed the
cost information in order to continue with the third step,
and that he would put the grievance "on hold" until he
heard from Olander, or would file a charge with the
Board
My findings as to the meetings on January 26 and February 5 and 12
are based on a composite of credible parts of Agrela's and Olander's testi-
mony and the contemporaneous notes of Robert Michel, who attended
these three meetings on Respondent's behalf His notes regarding the
February meetings were offered and received without objection or limita-
Continued
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On February 23, 1987, Agrela telephoned Olander and
asked if he had spoken to his attorneys . Olander said yes,
and that on counsel 's advice, he was not going to supply
this information because it was irrelevant to the Union.
He stated that Respondent had not replaced bargaining
unit employees with subcontractors , and that Respondent
had the right to subcontract under the current bargaining
agreement . Agrela said that he was going to file charges
with the NLRB because he felt the Union had the right
to this information . The charge here was filed on Febru-
ary 27, 1987, and alleged that Respondent had unlawful-
ly refused to provide "information concerning certain
subcontracting . . . which is necessary to enable the
[Union] to carry out its functions under the current col-
lective bargaining agreement and the Act." As of the
November 1987 hearing , the Union had not received the
requested cost information and the January 1987 griev-
ance was still "on hold."
4. Number and working hours of plant 8 employees
in unit
Number of plant 8 employees represented by the
Union consisted of 21 at the end of 1983, 24 at the end of
1984, 22 or 23 at the end of 1985, 21 at the end of 1986,
and 19 as of November 1987, the time of the hearing.
Mason testified in November 1987 that employees who
were in the unit represented by the Union had retired
since 1980 and had not been replaced by employees in
that unit .8 In November 1987, Agrela testified that 10
plant 8 maintenance employees (4 of whom he named)
who were in the unit represented by the Union had quit,
died , or retired since the beginning of 1983 and, in his
opinion , had not been replaced by other plant 8 mainte-
nance employees represented by the Union. The plant 8
maintenance employees who in 1986 were in the unit
represented by the Union worked between 2075 and
2649 straight -time hours in 1986. In addition , all but one
of them worked at least some overtime in 1986, ranging
between 52 and 651 hours.9
tion Over union counsel 's objection on hearsay grounds , Michel's notes
regarding the January meeting were received to establish the truth of
their contents after union counsel had conceded that they constitute busi-
ness records, see Rule 803 (6) of the Federal Rules of Evidence . Olander
testified that he did not hear Agrela say on February 12 that he would
need this information for contract talks However , I agree with the Gen-
eral Counsel that Agrela's credited testimony that he so stated is at least
partly corroborated by Michel 's notes stating that Agrela said, "I need
this information on contractors for bargaining ." Not only is this the most
natural reading of the notes , but Respondent failed to call Michel as a
witness, even though the General Counsel advanced this interpretation of
the notes before Respondent began to put on its case , and even though
Michal was present in the hearing room until a sequestration order was
issued.
8 However , he testified that during this period , Respondent had in-
creased the number of plant 8 electricians , who are not represented by
the Union
9 My findings in the last two sentences are based on the records of the
unit employees other than Spangler . Most of his time records are not in
evidence
5. Testimony as to Union 's reasons for requesting
subcontracting cost information
Agrela testified that he requested the cost of projects
done by subcontractors in plant 8 during the winter shut-
down,
. .. first of all . . . because we continuously hear-
for example , at third step grievance meetings, when-
ever the Company eliminates jobs or even subcon-
tracts work to other, through other grievances, we
hear the rhetoric that the Company has to be com-
petitive . That is how we can create jobs and remain
competitive in this business . And I felt that maybe
these subcontractors were somewhat eroding the
bargaining unit which we represent , and I wanted
to know whether or not that these subcontractors
were directly competitive with my wages and our
salaries that we get from [Respondent ], and there-
fore, I wanted to evaluate and maybe negotiate with
the Company for future agreements because we felt
that there had been some employees retired , and the
Company had not replaced these particular employ-
ees.
He went on to testify that he wanted this cost informa-
tion for the further reason that a November 1986 "co-
ordinating and bargaining" meeting of 13 International
unions which bargain with Respondent had concluded
that since 1980, Respondent had eliminated over 100,000
jobs and had subcontracted an "enormous amount" of
jobs . Also, he testified that he requested this information
because the maintenance personnel in the bargaining unit
had been asking the Union whether a strike should be
called over the "amount of contractors" in the plant. In
connection with the fact that during the shutdown, no
unit member was on layoff, nor (as far as Agrela knew)
was denied overtime work during this period, and after
testifying that he did not know whether any unit mem-
bers declined further overtime opportunities during this
period, Agrela testified that the Union's objective was to
increase the number of minority and other production
unit employees already in the unit who had an opportu-
nity to transfer into maintenance jobs which paid more
than their present jobs,10 and , because production jobs
vacated by such transfer would have to be filled by new
hires, to enlarge the size of the unit . ' i Agrela also testi-
fied that information as to the cost of subcontracting was
relevant to the issue of whether the Union should exer-
cise its right to strike over a subcontracting grievance
which remained unsettled after the exhaustion of the
10 Art . XI of the 1985- 1988 agreement contains an undertaking by Re-
spondent , "to the extent practical," to "give first consideration for job
openings and promotions or transfers to higher rated jobs to present em-
ployees when employees with the necessary qualifications are available "
To be considered eligible for an available upgrading , an employees must
usually have his application already on file, and must have filed it no ear-
lier than the preceding February.
I i Between 1983 and 1986 , although the number of maintenance em-
ployees in the plant remained almost constant at 108 to 110 , the total
number of hourly employees increased from 1247 in 1983 to 1443 in 1986,
an increase of about 15 percent . (It should be noted that the figure for
the maintenance employees includes those represented by threee labor or-
ganizations in addition to those in the Union 's unit ; cf infra fn 26 )
GENERAL ELECTRIC CO
grievance procedure, because if the subcontractor's em-
ployees were being paid about the same as Respondent's
own maintenance employees, he might conclude, and
advise the membership, that the subcontracting was a
"union-busting tactic" which might justify a strike, and if
the subcontractor's employees were being paid signifi-
cantly more than Respondent's own maintenance em-
ployees "it would be a definitely strike issue " Agrela
testified that he never articulated to Respondent why
cost was important for him to know in deciding to excer-
cise the Union's right to strike
C. Analysis and Conclusions
The duty to bargain imposed by Section 8(a)(5) and
Section 8(d) of the Act includes the duty to provide in-
formation that is relevant and will be of use to the union
in carrying out its statutory duties with respect to negoti-
ating contract provisions which cover mandatory bar-
gaining subjects and with respect to processing griev-
ances regarding mandatory bargaining subjects.12 In the
instant case, the Union advised Respondent that the
Union wanted the cost information here in question in
order to assist the Union in preparing for negotiations
with respect to a bargaining agreement to succeed the
then-current 1985-1988 agreement and for the purpose of
assisting the Union in processing the January 1987 sub-
contracting grievance. Respondent does not appear to
question that a union effort to include subcontracting re-
strictions in a successor agreement would likely deal
with a mandatory subject of collective bargammg. i 3
Further, Respondent does not appear to contend that fa-
vorable action with respect to any part of all the Union's
January 1987 subcontracting grievance would affect the
scope, direction, or nature of Respondent's business
within the meaning of Otis Elevator Co, 269 NLRB 891,
893 (1984); I agree with Respondent's tacit admission
that no such consequences would follow. However, Re-
spondent seem to be contending that it was under no
duty to supply information relevant to the January 1987
grievance on the ground that Respondent's decision to
subcontract these jobs was not based on a desire to
reduce labor costs within the meaning of the plurality
opinion in Otis and, therefore, no portion of the griev-
ance constitutes a mandatory subject of collective bar-
gaining
Initially, I do not accept Respondent's position that
labor costs played no part in its decision to subcontract
any of the maintenance jobs during the shutdown Thus,
management testified that Respondent tries to stay within
its dollar maintenance budget and includes contracted-
out work (as well as in-house work) in determining
whether the budget has been conformed to; and that sub-
contracts are bid competively to enable Respondent to
get the best job done at the best possible price, which
12 NLRB v Truitt Mfg Co, 351 U S 149 (1956), NLRB v Pfizer, 763
F 2d 887, 889 (7th Cir 1985), and cases cited, P R Mallory & Co v
NLRB, 411 F 2d 948, 952-956 (7th Cir 1969), Crittenden Construction
Co, 287 NLRB 110 (1987), Service Employees Local (North Bay Center),
287 NLRB 1223 (1988)
13 Fibreboard Corp v NLRB, 379 U S 203 (1964), First National Main-
tenance Corp v NLRB, 452 U S 666, 679-680 (1981), Collateral Control
Corp, 288 NLRB 308 (1988)
155
price includes labor Further, when asked to explain cer-
tain dollar entries made by Foreman Urbanski on the
1986 work sheet, Mason testified, "It is dust a note that
[Urbanski] must of put down to get an idea of the cost
because everything on here has a cost" (referring to a
notation describing the hourly rate of the employees em-
ployed by the subcontractor who did job No 1); "I
assume the cost of an oiler to do" job No 7, performed
by Respondent's own maintenance employees, "could
be" material as well as labor costs; and "I can only
assume that the foreman was looking at [the] cost . . .
of doing" job No. 10, also performed by Respondent's
own maintenance employees 14 Moreover, in discussing
the 1986 work sheet generally, Mason testified that
"when you hire out [some of the work], you would
tend to indicate [on the worksheet], what will it cost me
so that you could determine the whole program" of
maintenance jobs during the shutdown. Furthermore, al-
though Respondent's counsel represented, in effect, that
Respondent has used similar standards since 1982 for de-
ciding when to contract work out, Mason testified that in
1982 a janitorial job was contracted out at least partly
because doing it that way was less costly than doing it
with Respondent's own production employees Although
this janitorial work was never performed by maintenance
employees, janitors were in the bargaining unit represent-
ed by the Union (see Appendix D of the 1982-1985 and
1979-1982 bargaining agreements), and I regard it as in-
herently unlikely that while admittedly basing the janito-
rial subcontracting on costs, Respondent disregarded this
consideration when deciding to subcontract maintenance
jobs which it also performed during the shutdown
Moreover, as to the contracted-out job (No. 16) of
cleaning protected baskets, the contention that Respond-
ent's decision was not based on labor costs is contrary to
the evidence; management testified, in substance, that
Respondent decided not to perform this work with its
own maintenance employees because performing it over
a weekend would require more man hours than perform-
ing it during one of the semiannual production shut-
downs
Further, as to two more subcontracted jobs (Nos 1
and 58), I conclude that the contracting-out decision was
largely based on labor costs within the meaning of Wes-
tinghouse Broadcasting, 285 NLRB 205 (1987), enfd 849
F.2d 15 (1st Cir 1988), and Collateral Control, supra
Mason testified, in substance, that these two jobs were
contracted out largely because Respondent has a policy
of employing only the number of maintenance employees
whom Respondent needs on an average, rather than
during peak periods, in order to obviate the "very ineffi-
cient" and "very costly" situation of having during cer-
tain periods more maintenance employees than were
needed 15 However, in finding in Westinghouse that an
14 Urbanski had never explained to Mason any of the notations on this
document Although at the time of the hearing Urbanski was still em-
ployed by Respondent in a supervisory capacity, he did not testify
15 Mason's specific testimony as to what constitutes "peak periods" for
maintenance was focused on production shutdowns However, that "peak
periods" occur at other times also is shown by the evidence (see supra
part II, B,2) that after (and perhaps before) the December 1986-January
Continued
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer's decision to contract out courier work consti-
tuted a mandatory subject of collective bargaining, the
Board found that this decision was based on labor costs,
within the meaning of Otis Elevator, when the decision
was motivated by the employer's efforts to conform to a
specified "body count" and the body count" was de-
signed to represent a point at which the employer could
produce its desired product for the least cost in terms of
personnel. Westinghouse, supra. Moreover, in enforcing
the Board's order in Westinghouse, the court of appeals
agreed that "The control of the `body count' was .
simply a method of maintaining the lowest personnel
costs necessary to produce the desired product," and that
the "decision to reduce the body count" was a decision
to "reduce costs " Westinghouse, supra 849 F 2d at 23. As
to whether particular policies are based on labor costs, I
perceive no valid distinction between the "body count"
policy in Westinghouse and Respondent's policy of limit-
ing its maintenance employees to a number insufficient to
perform the maintenance work during "peak periods," in
order to limit wage costs Moreover, in finding in Collat-
eral Control that an employer's decision to contract out
guard work constituted a mandatory subject of collective
bargaining, the Board noted that the respondent employ-
er's claim that fewer guards were needed under the sub-
contract "indicates that the economies of a reduced work
force, emphasized as contributing to bargaining amena-
bility by the court in Fibreboard [supra, 379 U.S at 213-
214], enured to the Respondent " As to whether a bar-
gaining subject is mandatory or not, I see no difference
between a situation where (as in Fibreboard and Collater-
al Control) the union wishes to keep in the unit at least
some of the employees whose work the employer pro-
poses to contract out, and a situation where (as here) the
Union wishes to return to a somewhat earlier level of
maintenance jobs in a particular building in order to
make retirement created vacancies available to nonmain-
tenance employees in the unit who might prefer mainte-
nance jobs in the unit Cf. cases cited infra, footnote 17.
In Western Massachusetts Electric Co v NLRB, 573 F 2d
101, 104-105, 108-110 (1st Cir. 1978), cited by Respond-
ent, the contracted-out work as to which information
was sought was not work of a kind which had ever been
performed by unit employees In the instant case, the
subcontracted work discussed in this paragraph was
maintenance work which would have been performed by
unit employees if Respondent had chosen to include
more maintenance employees in its work force. See also
United Technologies Corp., 274 NLRB 504, 506 fn. 12
(1985). 16
1987 shutdown , Respondent performed through subcontractors some
work within the skills of plant 8 maintenance employees who were in the
Union ' s bargaining unit , and whose numbers had decreased 12 percent
since the end of 1984
is But see Southwestern Bell Telephone Co, 262 NLRB 928 (1982) (here
"Southwestern Bell II '), both relied on by Respondent Southwestern Bell
II, held , and read Southwestern Bell I as holding , that an "economic de-
fense" was not advanced by an employer which rejected a grievance on
the ground that the grieved subcontracting was effected because the em-
ployer had no employees available to do the work , at least partly because
the subcontracting took place during "peak periods" or involved work
not to be repeated
Moreover, as to these three jobs (Nos 1, 16, and 58), I
conclude that the grievance was amenable to resolution
through the bargaining process, within the meaning of
the concurring opinions in Otis, supra, 269 NLRB at 897,
900-901. After hearing Respondent's explanation for de-
ciding to contract out these three jobs, the Union said
that it wanted Respondent to limit its contracting out of
maintenance work and to have some of such work per-
formed, instead, by employees who chose to make intra-
unit transfers from production jobs to better paying
maintenance jobs (action which the Union hoped would
require the hiring of replacement production employees
and thereby enlarge the unit), the Union contended that
this method of performing such work would save Re-
spondent money, and Respondent contracted out these
jobs because it believed that this method of performing
them would be cheaper than increasing the number of its
own maintenance employees or having such jobs per-
formed by its own maintenance employees on weekends
not encompassed by a semiannual shutdown Such differ-
ences involve matters which are traditional mandatory
subjects of collective bargaining. 17 Moreover, Mason's
testimony shows that Respondent's decision to have this
work performed during the shutdown was likely made
several weeks or months in advance of the shutdown,
and in connection with the decision to subcontract these
jobs, management considered whether Respondent had
the necessary equipment and whether Respondent's em-
ployees had the necessary skills, and estimated the
number of hours which unit employees and subcontrac-
Southwestern Bell II includes the statement that "the [employer] would
have been required to hire new employees if it did not subcontract, and
this the Board or an arbitrator would not force it to do" (262 NLRB at
933) If this statement is directed to what the Board would include in an
order which would remedy an employer ' s unlawful refusal to provide a
union with information in connection with the grievance process, or even
an employer 's unlawful refusal to negotiate with respect to a grievance, I
am unable to perceive the relevance of this statement to the merits of the
case at bar Nor do I regard this statement as relevant thereto if it was
directed at the remedial order which would have been issued if the re-
spondent employer's subcontracting had been found unlawful because it
constituted unilateral action with respect to a mandatory subject of col-
lective bargaining The instant complaint contains no allegation of unlaw-
ful unilateral action , nor, for that matter, did the Southwestern Bell com-
plaints Indeed , Southwestern Bell II, stated at one point that "there is no
allegation or suggestion that [the respondent employer] had a duty to
bargain about the contracting out over which the grievances were filed
the General Counsel [made] a prior concession that the subcontract-
ing involved herein was not any item requiring bargaining " (262 NLRB
at 932 ) However, the contex of these remarks , and of a subsequent state-
ment that "there is no contention that the contracting out itself was a
violation of the Act" (262 NLRB at 933), suggests that the Board was
referring to the absence of any allegation that the subcontracting itself
was unlawful because unilateral
II See Mack Trucks, Inc Y NLRB, 582 F 2d 720, 726 (3d Cir 1978),
Ohio Power Co, 216 NLRB 987, 992 (1975), enfd 531 F 2d 1381 (6th Cir
1976), Beacon Piece Dyeing & Finishing Co, 121 NLRB 953, 956-957
(1958), Kendall College, 228 NLRB 1083, 1088-1089 (1977), enfd 570
F 2d 216 (7th Cir 1978), Firemen & Enginemen, 168 NLRB 677, 680-681
(1967), enfd and affd 419 F 2d 314 (D C Cir 1969), Pan American Grain
Co, 281 NLRB 95 (1986), Auto Workers v NLRB, 381 F 2d 265, 266
(D C Cir 1966), cert denied 389 US 857 (1967), cited with approval,
Western Massachusetts Electric, supra, 573 F 2d at 106, Pay 'N Save Corp,
210 NLRB 311, 322-323 (1974), see also, Scofield (Wisconsin Motors) v
NLRB, 394 U S 423, 431-435 (1969), affg 393 F 2d 49, 52-54 (7th Cir
1968), NLRB v Longshoremen, 473 U S 61, 74-86 (1985), NLRB v
Gamble Enterprises, Inc, 345 U S 117 (1953)
GENERAL ELECTRIC CO 157
tors' employees would need to perform such jobs and the
cost of subcontracting the work . I conclude that requir-
ing management (on the Union 's request ) to add to these
considerations a union proposal to have the work per-
formed by unit maintenance employees promoted from
production jobs in the unit would impose on Respondent
a relatively small burden which is outweighed by the
benefit to labor-management relations of encouraging an
at least partial resolution , through the collective -bargain-
ing process , of the parties ' chronic dispute about subcon-
tracting See Otis, supra , 269 NLRB at 897 (concurring
opinion of then member Dennis).
However, as to the contracted -out jobs where it is un-
disputed that Respondent 's employees do not have skills
to perform them , and/or for which Respondent does not
possess the necessary equipment , the grievance did not
constitute a mandatory subject of collective bargain-
ing 18
Respondent further contends that the Union ' s agree-
ment to the contractual management -rights clause consti-
tuted an effective waiver of any statutory right the
Union may have had to engage in midterm bargaining
about subcontracting and, accordingly , the Union has no
right to information about the subcontracting grievance.
I disagree To be effective , any waiver of this right must
be expressed clearly and unmistakably 19 However, the
bargaining agreement does not limit the grievance proce-
dure to claims that the agreement has been breached,
but, instead , extends that entire three -step procedure to
"A" grievance which involves the interpretation or ap-
plication of this agreement " Moreover , although the
bargaining agreement provides , in effect, that no arbitra-
tor has the authority to decide any matter involving the
exercise of a right reserved to management under the
management-rights clause , the agreement does expressly
permit employees to engage in "a protected strike within
the terms of the National Labor Relations Act arising
out of a grievance after the respect provisions of the suc-
cessive steps of the Grievance Procedure . shall have
been complied with, provided that the grievance does
not involve a matter subject to arbitration or a grievance
which the Company has indicated in writing its agree-
ment to arbitrate " Indeed, Respondent ' s posthearing
brief states , at page 17, that the bargaining agreement
preserves to the Union the right to strike on all exhaust-
ed grievances other than those which are arbitrable as a
matter of right Moreover , the Union has in fact engaged
in midterm strikes in support of subcontracting griev-
ances , Respondent has advised the Union that nonarbitra-
ble grievances are strikable , and Respondent ' s manager
of employee and community relations testified that if the
January 1987 subcontracting grievance is not arbitrable
18 As to two or three of the subcontracted jobs , the ex post facto testi-
mony of employer and union representatives shows a difference of opin-
ion as to whether Respondent was correct in its conclusion that Respond-
ent did not have the equipment , or that Respondent 's own employees did
not have the skill, to perform the work Although probably rendering
bargaining the portions of the grievance directed to these jobs , this differ-
ence of opinion did not afford relevance to the requested subcontracting
cost information
9 Metropolitan Edison Co v NLRB, 460 U S 693, 707-708 (1983),
Auto Workers v NLRB, 802 F 2d 969, 973 (7th Cir 1986), Blue Cross Blue
Shield, 286 NLRB 564 (1987)
due to the management -rights clause , the Union might
have the right to call a midterm strike with respect to
that grievance This evidence that subcontracting griev-
ances (including the instant January 1987 grievance) may
be grievable and strikable renders less than clear and un-
mistakable any waiver which might be inferred from the
management -rights clause and the arbitration clause
standing alone.
Moreover , the management -rights clause is by its own
terms "subject only to those provisions of this Agree-
ment which expressly qualify [Respondent 's exclusive]
right [to manage its business in such manner as the Com-
pany shall determine] " In view of this qualifying lan-
guage, I reject any contention that the management-
rights clause necessarily permits Respondent to engage in
subcontracting without regard to its motive , its effect, or
any other limitation 20 Thus, at the hearing Agrela testi-
fied that his concerns about the subcontracting included
concern that it had the effect of depriving production
employees of the opportunity to increase their wages by
moving into maintenance jobs, a union concern directed
toward a mandatory collective -bargaining subject Mack
Trucks, supra , 582 F 2d at 726, Ohio Power, supra, 216
NLRB at 992 ). It is at least arguable that where subcon-
tracting had that motive or even that effect, the manage-
ment-rights clause is "expressly qualif [ied]" by the provi-
sion in the bargaining agreement that Respondent "will,
to the extent practical , give first consideration for job
openings and promotions or transfer to higher rated jobs
to present employees when employees with the necessry
qualifications are available " 21 Further , at the hearing
Agrela expressed the concern that Respondent was sub-
contracting work for the specific purpose of causing it to
be done by nonunion employees , and that Respondent's
subcontracting had had the effect of causing the work to
be performed by nonminority employees Evidence sup-
porting such concerns would at least arguably render the
subcontracting a breach of Respondent 's contractual un-
dertaking not to "discriminate against any employee be-
cause of . . . race, color . . national origin or Union
membership ," a provision with respect to a mandatory
bargaining subject Emporium Capwell Co. v . Western Ad-
dition Community Organization , 420 U . S. 50 (1975),
NLRB v General Motors Corp, 373 U S 734 ( 1963), Wes-
tinghouse Electric Corp , 239 NLRB 106, 107- 108 (1978),
modified 648 F . 2d 18 (D C Cir. 1980) Accordingly, the
subcontracting provisions of the management -rights
clause do not constitute a waiver of the Union 's statutory
right to obtain subcontracting information for the pur-
20 Cf Bethlehem Steel Co, 30 LA 678 , 682-683 (1958), Steelworkers
Local 4264 v New Park Mining Co, 273 F 2d 352, 356-357 (10th Cir
1959), American Bosch Arma Corp, 56 LRRM 2941, 2943 (N Y Sup Ct
1964), City of Detroit , 79 LA 1273, 1276-1278 (1982)
21 This language is included in "Article XI-Upgrading ," a grievance
involving the interpretation or application of this article is arbitrable as a
matter of right Although this article is not expressly referred to in the
January 1987 subcontracting grievance , an article which is expressly re-
ferred to-"Article XXII Wage Rates"-provides that if "an employee is
transferred in accordance with Article IX-Upgrading , and fails to satis-
factorily perform he shall be returned to his former job classification
and unit in accordance with his seniority " Other portions of art XXII
are directed toward , inter alia, progression wage schedules , and rates to
be paid to permanent and temporary transferees
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pose of determining whether Respondent was complying
with other provisions of the bargaining agreement. W-L
Molding Co., 272 NLRB 1239 (1984), Trustees of Boston
University, 210 NLRB 330, 333 (1974), Blue Cross & Blue
Shield of New Jersey, 288 NLRB 434 (1988), NLRB v.
Davol, Inc, 597 F.2d 782, 789 (1st Cir 1979)
Of course, whether the January 1987 grievances is ar-
bitrable does not affect the Union's right to receive infor-
mation relevant to the grievance Thus, in United Tech-
nologies, supra, 274 NLRB at 506, the Board said
Included in [the bargaining representative's] respon-
sibilities is the processing and evaluating of employ-
ee grievances The Board has held that an employer
is obligated to furnish information requested for the
purpose of handling grievances. United-Carr Tennes-
see, 202 NLRB 729 (1973); Safeway Stores, 236
NLRB 1126 (1978) [enfd 622 F 2d 425 (9th Cir
1980), cert denied 450 U.S 913 (1981)]. An actual
grievance need not be pending at the time of the in-
formation request, nor must the information request-
ed clearly dispose of the grievance Ohio Power Co,
216 NLRB 987-991 (1975) [enfd. 531 F 2d 1381 (6th
Cir 1976)]; Los Angeles Chapter, Sheet Metal Con-
tractors, 264 NLRB 886, 888 (1979) The standard
for the union's entitlement to the information re-
quested is a liberal, discovery-type test as to wheth-
er the information bears upon the union's determi-
nation to file a grievance or is helpful in evaluating
the merits of the grievance and the propriety of
pursuing the grievance to arbitration. Los Angeles
Chapter, Sheet Metal Contractors, supra
. Respondent has defended its refusals [to pro-
vide relevant information] on the basis that the
grievances . . . were not arbitrable under the appli-
cable contract, citing Otis Elevator Co., 269 NLRB
891 (1984), in support
The Respondent's arbitrability defense is without
merit, and its reliance on Otis Elevator is mis-
placed 12 The Board consistently has rejected simi-
lar arbitrability arguments United-Carr Tennessee,
supra, Worcester Polytechnic Institute, 213 NLRB 306
(1974); Safeway Stores, supra, PPG Industries, 255
NLRB 296 (1981) [enf denied 111 LRRM 2698 (4th
Cir. 1982)] The Board's reasoning in this area is
best expressed as follows-
It is the teaching of United-Carr Tennessee and
Worcester Polytechnic that, before a union is put to
the effort of arbitrating even the question of arbi-
trability, it has a statutory right to potentially rel-
evant information necessary to allow it to decide
if the underlying grievances have, merit and
whether they should be pursued at all [Safeway
Stores, 236 NLRB 1126 at fn. 1 ]
Requiring the information to be supplied when the
employer contends the underlying grievance is not
arbitrable does not place the employer at a disad-
vantage The employer need not recede from its
contract interpretation nor is it bound to any par-
ticular construction of the contractual provisions at
issue when it must furnish the requested information
for a grievance which may not be arbitrable
United-Carr Tennessee, supra at 731.
12 In Otis Elevator, the Board (Member Dennis concurring) re-
cently held an employer lawfully refused to bargain with a union
over its decision to consolidate and transfer its research and devel-
opment functions from one facility to another In view of this
holding , the Board concluded that the employer was not obligated
to provide certain information requested by the union for the pur-
pose of the union 's bargaining over the employer's relocation deci-
sion With the need for the information gone , the employer was
not required to furnish the data
Accord: Safeway, supra, 622 F.2d at 429; Western Mas-
sachusetts Electric Co v NLRB, 589 F 2d 42, 48 (1st Cir
1978), Ground Breakers, Inc, 280 NLRB (146, 147)
(1986), enfd mem 814 F 2d 655 (4th Cir. 1987); Frank
Chervan, Inc, 283 NLRB 752, 754 (1987), enfd 126
LRRM 3111 (4th Cir. 1987).
Further, the General Counsel has shown, by a prepon-
derance of the evidence, that all the requested cost infor-
mation is relevant to forthcoming contract negotiations,
and that at least some of it is also relevant to at least part
of bargainable portions of the subcontracting griev-
ance 22 Agrela credibly testified that during third-step
meetings regarding subcontracting grievances, Respond-
ent had repeatedly argued that "the Company has to be
competitive. That is how we can create jobs and remain
competitive in this business "23 Moreover, as previously
noted, operations Manager Mason testified that it was
cost considerations (more specifically, a desire to save
man-hours) that led Respondent to contract out the
basket-cleaning job during the December 1986 shutdown
rather than performing it with Respondent's own unit
employees on a weekend not encompassed by a shut-
down. Further, in view of Agrela's belief that Respond-
ent's contracting out of maintenance work to other firms
(which did not look to him like "minority vendors") was
depriving Respondent's production employees (including
"minorities") of the opportunity to obtain better-paying
maintenance jobs, and his concern that this contracting
out may have been a "union-busting tactic," cost infor-
mation was relevant to a determination by the Union
whether Respondent's subcontracting was nonetheless
based on or justified by legitimate cost considerations,
and whether Mason was correct in his view that to in-
crease Respondent 's maintenance force in order to take
into at least some account the need to perform the jobs
scheduled during the shutdown would be "very ineffi-
cient" and "very costly "24
22 Because my finding as to contract negotiations calls for an order re-
quiring Respondent to produce all the cost information , I need not and
do not determine how much of this information would be required for
grievance purposes alone My finding that at least some of it would be
required for grievance purposes is material only to the scope of the
cease -and-desist order
23 In view of this testimony by Agrela, I reject as contrary to the evi-
dence Respondent 's contention that it never raised cost as a defense to
the Union's complaints about subcontracting Accordingly , I need not
and do not consider whether such a claim is essential to the existence of a
statutory obligation to provide cost information
24 Southwestern Bell II, supra , found immaterial the truth of the em-
ployer ' s contention that cost had nothing to do with the grieved con-
Continued
GENERAL ELECTRIC CO 159
In addition, I find the Respondent was placed on
notice of the relevance of the requested information
Thus, Agrela told Respondent that the Union wanted to
put an end to subcontracting and that he wanted the sub-
contracting cost information in order to prepare for ne-
gotiations with respect to a new bargaining agreement to
succeed the current agreement, and during meetings re-
garding subcontracting grievances, Respondent had been
arguing that Respondent had to be and remain "competi-
tive."25 Further, Agrela told Respondent that he wanted
the informative for the additional purpose of processing
the January 1987 subcontracting grievance, expressed the
belief that Respondent had failed to replace maintenance
employees who had retired and Respondent's own main-
tenance employees could perform some of the subcon-
tracted work, and referred to the alleged absence of "mi-
nority contractors " I conclude that Agrela's remarks
were sufficient to put Respondent on notice that Agrela
wanted the subcontracting cost information for the pur-
pose of preparing to respond during contract negotia-
tions to Respondent's claim that it had to subcontract in
order to remain competitive, and of evaluating the sub-
contracting grievance to determine whether Respondent
was economically justified in subcontracting which possi-
ble had the purpose or effect of depriving Respondent's
production employees (including "minorities") of the op-
portunity to obtain maintenance jobs .26 See Brazos Elec-
tracting out However, in that case cost information was sought to assist
in a pending arbitration case, and the Board observed that the arbitrator
would find a contract violation if the employer failed to establish the
"noneconomic" reason which it did assert for the subcontracting In the
instant case, the grievance was still in the grievance procedure proper,
and the merits were being submitted to the employer, which be made
more receptive to the grievance if the Union could show that the subcon-
tracting lost money
25 Respondent contended at the hearing that because the current con-
tract was not to expire by its terms until about 16 months after Agrela
advised Respondent, in February 1987, that the Union wanted the cost
information for purpose of negotiating the succeeding contract, Agrela
was untruthful in advising Respondent that his request had this purpose
However, in November 1986 Agrela had attended a multiunion coordi-
nating and bargaining meeting" which discussed Respondent ' s subcon-
tracting practices since 1980 Nor is there any evidence that management
ever told the Union, or even entertained the belief, that Agrela was to
this extent misrepresenting his purpose Moreover , during bargaining ne-
gotiations which led up to the 1985-1988 contract, the Union had unsu-
cessfully sought to limit Respondent's right to subcontract I find that
preparation for contract negotiations was among the purposes for which
the Union in fact wanted this information I note that if either party
wanted to modify the current contract, that contract called for the com-
mencement of bargaining negotiations as early as mid-April 1988 and no
later than mid-May 1988 Moreover, if Respondent had provided the in-
formation when it was first requested in January 1987, the Union would
likely have been able to obtain from Respondent more accurate and com-
plete explanations of it than Respondent would have been able to give if
the Union had waited until the spring of 1988 Thus, after testifying
before me in November 1987 that Mason did not remember whether a
particular job was done during the December 1986-January 1987 shut-
down, he added, "if you asked me these questions back in January, I
would probably know more about it This was all that December "
26 Respondent ' s brief seems to suggest that a grievance generated by
the failure to fill vacancies created by retirement in building 8 would be
nonbarginable because no change had been effected in the number of
maintenance employees in the unit as a whole This contention assumes
that all maintenance jobs are fungible , an assumption refuted by the fact
that the contractual hourly wage rates for at least some maintenance em-
ployees vary by about $2 64 and the hourly "incremental adders" vary by
54 cents In any event, the number of maintenance employees in the unit
represented by the Union fell from 77 at the end of 1985 to 73 at the end
tric Power Cooperative, 241 NLRB 1016, 1018-1019
(1979), enfd. 615 F 2d 1100 (5th Cir. 1980), Ohio Power,
supra, 216 NLRB at 994-995
The Board has held in a number of cases that even as-
suming the basis for a union's request for information
was not conveyed to the employer until the unfair labor
practice hearing, the employer's continuing refusal to
furnish that information after notice of the reason for the
union's obtaining it warranted a finding that the employ-
er violated Section 8(a)(5) and (1) and that a remedial
order should issue 27 These cases call for such a conclu-
sion as to the situations where (I have found) Respond-
ent told the Union during grievance discussions that Re-
spondent's subcontracting decisions where based on
cost 28 However, these cases, standing alone, may be in-
sufficient to impose the duty to provide any subcontract-
ing-cost information with respect to the January 1987
grievance if the only bargainable aspect of that grievance
were the basket-cleaning job. In the cited cases, if the
complaint had been dismissed, the union could have enti-
tled itself to the information in question by merely asking
for it again and setting forth the relevancy reasons which
the employer had learned about during the unfair labor
practice hearing. In the instant case, if the complaint
were dismissed as to the basket-cleaning job, the Union
might not be entitled to cost information as to that job
unless Mason's testimony that it was contracted out for
cost reasons is afforded the same effect as a similar state-
ment during the discussion of the grievance-that is, a
waiver of the confidentiality to which that information is
to some extent entitled. In the absence of any further
considerations than such testimony compelled by a party
adverse to Respondent, I would hesitate to equate these
two situations However, Mason's testimony that the
basket-cleaning job was contracted out for cost reasons
was brought out by Respondent's counsel on direct ex-
amination; indeed, the General Counsel's and the Union's
case in chief included no testimony from management
about what its reasons for the contracting out really
were Moreover, during grievance negotiations with the
Union Respondent did not explain any of the challenged
subcontracting decisions on the ground that doing the
jobs with subcontractors during the production shut-
down consumed fewer man-hours than doing them with
Respondent's own maintenance employees during a pro-
duction-period weekend In addition, as to neither this
nor any other job has Respondent made any specific
showing of a need for confidentially as to costs, such as
showing that such confidentially was requested by the
subcontractors or that revealing such information would
aid competitors In view of the foregoing, I find that
after being apprised at the hearing of the reasons why
of 1986 There were 74 such employees at the end of 1983, and 76 at the
end of 1984
zs See , e g , Blue Cross & Blue Shield, supra at fn 1, Hawkins Construc-
tion Co, 285 NLRB 1313, 1322 (1987), Barnard Engineering Co, 282
NLRB 617, 621 (1987), Brazos , supra , 241 NLRB at 1018-1019
28 That is, by telling the Union that Respondent needed to contract
work out in order to remain competitive and (in view of Respondent's
cost reasons for limiting the size of its own maintenance force ) because
that maintenance force was too small to perform all the work which was
performed during "peak" periods
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the subcontracting-cost information was relevant for
grievance-processing purposes. Respondent's continuing
refusal to supply it for such purposes violated Section
8(a)(5) even assuming that Respondent had not previous-
ly had sufficient notice of the relevance of the informa-
tion
The General Counsel and the Union further contend
that the Union was entitled to the subcontracting-cost in-
formation because it would be of use to the Union in de-
ciding whether to engage in a contractually permitted
strike with respect to the January 1987 grievance if it re-
mains unresolved after the exhaustion of the grievance
procedure and if Respondent thereupon refuses to arbi-
trate it, and because Agrela testified that he' wanted such
information for that purpose. Even if the Union did have
a statutory right to obtain subcontracting-cost informa-
tion for this purpose, what (if any) information it was en-
titled to could be determined only after the issuance of
an at least partly adverse third-step disposition which
was not arbitrable as a matter of contract right and
which Respondent had refused to agree to arbitrate In
any event, I agree with Respondent that this reason
cannot serve as an independent basis for creating a union
right to subcontracting-cost information It is true that a
principal purpose of the Act is promoting industrial
peace However, as to labor-management disputes over
matters (such as the subcontracting herein) that are not
alleged to constitute unfair labor practices, the Act seeks
to achieve this purpose by encouraging the parties to
settle such disputes through collective bargaining with
respect to mandatory subjects The statutory duty to
provide information is imposed for the purpose of facili-
tating such agreements and, therefore, is coextensive
with the statutory duty of bargain concerning mandatory
subjects North Bay supra When bargaining in conformi-
ty with the statute has not yet produced an agreement,
the decision to resort to economic pressure does not fall
within the strictures of Section 8(a)(5), including its in-
formation-production requirments. See NLRB v. Insur-
ance Agents, 361 U.S. 477, 488-499 (1960).
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All production and maintenance employees at the
Respondent's Chicago -Cicero operations , including
cafeteria employees , and garage and print shop em-
ployees ; but excluding all stationary engineers or
class "A" firemen including coal handlers in Plants
1 and 2, firemen and helpers at Plant 3 and 7, all
electricians and electrical specialists, equipment de-
velopment specialists , office and plant clerical em-
ployees including receiving clerks, secretaries, shop
clerks, statistical data clerks , and mimeograph oper-
ator, all toolroom employees and truck drivers now
represented by other labor organizations, section
leaders guards, professional employees, and supervi-
sors as defined in the Act
4 At all material times, the Union by virtue of Section
9(a) of the Act, has been, and is, the exclusive represent-
ative of Respondent's employees in the unit (described in
Conclusion of Law 3) for the purpose of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to furnish the Union with
information necessary for, and relevant to, the Union's
performance of its function as the exclusive collective-
bargaining representative of the unit described in 'Con-
clusion of Law 3. -
6. The unfair labor practice described in Conclusion of
Law 5 affects commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has violated the Act by
failing and refusing to provide certain information, I
shall recommend that Respondent be required to cease
and desist from such conduct, and like or related con-
duct, to provide such information, and to post appropri-
ate notices In the absence of any specific showing of
any need for a visitatorial clause, the General Counsel's
request for such a clause is denied Cherokee Marine Ter-
minal, 287 NLRB 1080 (1988)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed29
ORDER
The Respondent, General Electric Company, Cicero,
Illinois its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Local 571, Sheet Metal
Workers' International Association, AFL-CIO, as the ex-
clusive bargaining representative of the employees in the
following bargaining unit by refusing to furnish that
labor organization with information it requests that is rel-
evant and reasonably necessary to the negotiation of col-
lective-bargaining agreements or the processing of griev-
ances.
All production and maintenance employees at
Respondent's Chicago-Cicero operations, including
cafeteria employees, and garage and print shop em-
ployees, but excluding all stationary engineers or
class "A" firemen including coal handlers in Plants
1 and 2, firemen and helpers at Plant 3 and 7, all
electricians and electrical specialists, equipment de-
velopment specialists, office and plant clerical em-
29 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 objections to them shall be deemed waived for all pur-
poses
GENERAL ELECTRIC CO 161
ployees including receiving clerks, secretaries, shop
clerks, statistical data clerks, and mimeograph oper-
ator, all tool room employees and truck drivers
now represented by other labor organizations, sec-
tion leaders guards, professional employees, and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Immediately give the Union the information re-
quested by it in January and February 1987, as to the
cost of the jobs subcontracted during the December
1986-January 1987 shutdown
(b) Post at its facilities in Cicero, Illinois, copies of the
attached notice marked "Appendix "30 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable 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 Re-
spondent has taken to comply
so 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 Nation-
al 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 "