Gulf States Asphalt Co.

National Labor Relations Board - Board Decisions

Sep 12, 1969

178 N.L.R.B. 405 (N.L.R.B. 1969)

GULF STATES ASPHALT CO.
Gulf States Asphalt Company and Teamsters Freight
and Tank Line Employees Local 988, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 23-CA-3200
September 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On April 2, 1969, Trial Examiner Anne F.
Schlezinger issued her Decision in the above-entitled
proceeding. finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision, the exceptions and the brief,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Respondent is engaged in the manufacture of
asphalt and asphalt products in Beaumont, Texas,
the only portion of its operations involved in this
proceeding. Teamsters Freight and Tank Line
Employees Local 988, hereinafter called the Union,
has represented the Respondent's plant employees
and truckdrivers since 1960, and at the time of the
events material herein a collective-bargaining
agreement existed between the parties containing
grievance and arbitration provisions. The
Respondent utilizes the services of employees of a
subcontractor, Staff Employees, Incorporated,
(hereinafter called Staff), who are not included in
the bargaining unit or represented by the Union.'
On July 3, 1968, the parties met to discuss a
number of grievances which had been presented by
the steward at the first step of the grievance
procedure. The parties successfully resolved all but
two of the grievances, these being (1) three
The parties stipulated at the hearing that at times material to the
complaint employees of Staff performed unit work . Counsel for the
Respondent stated at the hearing that he did not know if a contract existed
which governed the use of the subcontractor's employees, but that Staff
employees were used "when needed " Counsel for the Charging Party
agreed with this description of the arrangement.
405
individual complaints by employees in the
bargaining unit that they had been deprived of
overtime work on Saturday, June 15, 1968, that
such work had been assigned to Staff employees,
and that the grievants were entitled to overtime pay
for the overtime work by Staff employees on that
date. and (2) that Staff employees were not being
paid the wage rates specified in the
collective-bargaining agreement.' Having obtained
no satisfaction from the Respondent with respect to
these grievances, the Union, by letter dated July 19,
1968, informed the Respondent of its intent to
proceed to arbitration under specified provisions of
the collective-bargaining agreement.
Later in July the Respondent advised the Union's
representative that the three individual grievants had
worked an enormous amount of overtime during the
week ending June 14, 1968, and that the grievants
were not entitled to pay for June 15. The
Respondent, accordingly, denied that grievance, and
denied the second grievance on grounds that the
Respondent paid Staff, Inc., more than the contract
rate, but would not require Staff to pay its
employees the rates specified in the contract. On
September 6, 1968, the Respondent, in writing,
advised the Union that the grievance on overtime
was denied, without reciting the reasons therefor. A
few days later the Respondent advised the Union's
representative that the grievance had been denied
because the grievants had worked so many overtime
hours during the week ending June 14 as to render
them physically unable to perform the Saturday
work. Thereafter, on September 13, 1968, the Union
requested that the two grievances be arbitrated.'
On October 4. 1968, the Union directed a letter to
the Respondent in which it referred to the two
pending grievances and requested that the
Respondent accord the Union the privilege of
examining the Respondent's records for the
preceding 5 months with regard to (1) all overtime
of employees in the bargaining unit, (2) all overtime
of Staff employees on the dates and classifications
worked, and (3) the amounts paid Staff for all
employees in each classification. The Union
requested that access to this data be granted during
the week beginning October 7, 1968. At some time
prior to November 19, 1968, the Respondent
advised the Union that it had no obligation to
furnish the 5 months' data, and no obligation to
open its books for the Union's inspection. On
November 19, 1968, the Union advised the
Respondent by letter that it had filed a charge
relating to the Respondent's refusal to comply with
the Union's October 4 request to furnish certain
The General Counsel did not allege , and makes no contention , that the
Respondent was obligated to furnish data to the Union on the rates of pay
according to Staff employees
The record reveals that , following the designation of an arbitrator on
October 25 , 1968, by the Federal Mediation and Conciliation Service, an
arbitration hearing was scheduled for January 19, 1969, but was postponed
by agreement of the parties
178 NLRB No. 63
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material data which the Union needed to carry out
its statutory function as bargaining representative in
connection with a current grievance, as well as to
police the contract and to evaluate the overtime
situation for purposes of future bargaining." The
letter also advised the Respondent that the Union's
request was a continuing one. At no time has the
Respondent supplied the data requested by the
Union, nor has the Respondent at any time allowed
the Union access to its records for the purpose of
obtaining the data requested.
The Trial Examiner found that at some point
after July 3, 1968, probably about July 30, the
Respondent furnished the Union with the number of
hours worked by the three grievants during the week
ending June 14, 1968, and with the number of hours
worked during the same week by three employees of
Staff who were given the overtime assignment on
June 15, 1968.5 Although the record is not clear on
what date prior to October 4, 1968. the Respondent
furnished this limited information to the Union, the
record does reflect that it was again made available
to the Union on or about October 16, 1968, in
conjunction with the Respondent's oral denial of the
Union's October 4 request.
The Trial Examiner found that the Union's letter
of October 4 expressly limited the purpose for which
the information was sought to the handling of the
two grievances filed against the Respondent, and
that the Union's letter of November 19, 1968, was
an attempt, in conjunction with the charge to
broaden the request made by the Union since it
asserted for the first time the Union's need for
intormation "for policing the contract" as well as
"for purposes of tuture bargaining." The Trial
Examiner concluded that the Union's request for
data was in fact limited to data pertaining to the
two grievances, and that the Respondent had
satisfied its obligation as to both by furnishing the
Union with the hours worked by the 3 unit
employees and the 3 employees of Staff during the
week ending June 14, 1968. Finding additionally
that the Respondent has asserted its willingness to
supply the Union with any information relevant to
the administration of the existing agreement or the
negotiation of a new one, the Trial Examiner
recommended that the complaint be dismissed We
do not agree.
In denying the overtime grievance, the
Respondent asserted that the griev ants, having
worked an excessive number of hours during the
week, were physically unable to work overtime on
the weekend. It then became appropriate for the
Union, in deciding whether to pursue the matter
through additional steps of the grievance machinery,
to weigh the merits of the reason asserted in the
denial, and to determine the frequency with which
the problem had occurred in the past. This
assessment was difficult for the Union to make.
Although the grievances as written indicated that
unit employees had priority over Staff employees as
to overtime, and although the Company had
conceded that the "contention of the contract was
correct," the contract itself says nothing about
maximum numbers of hours that an employee may
work," the circumstances under which the Company
may select Staff employees to perform unit work.
nor the basis on which overtime assignments are to
be made.' In evaluating these grievances, and
preparing a response to the Company's claim, it
became necessary for the Union to consider past
practice, and to determine whether physical
incapability due to excessive hours. as asserted by
Respondent, was not belied by workloads performed
by employees in the past. Similarly, any inquiry into
established practices regarding physical incapability
of unit employees for the particular jobs in question
would logically take into consideration the
restrictions, if any. as to hours, under which Staff
employees had worked, since they were to perform
the same jobs as unit personnel.
The Respondent did not refuse to grant access to
its records on the grounds that the information
sought covered too great a period of time or that it
would impose too great a burden. Instead, it merely
questioned the relevance of the information, and
maintained that it had satisfied its obligation.
Having asserted physical incapacity in denying the
grievances, the Respondent was obligated to supply
all relevant data in support of that assertion.' Even
within the limited scope of the issues posted by the
particular overtime grievances before it, the Union's
request for access to overtime records of both Staff
and unit employees for the 5 months previous was
for information relevant, material, and necessary to
enable it to decide whether, on the one hand, past
overtime assignment practices cast sufficient doubt
on the Respondent's asserted justification and the
problem presented by the grievances was sufficiently
recurrent to warrant proceeding to arbitration, or
whether, on the other hand, it should drop the
grievances.' Accordingly, we find that by failing to
furnish or allow access to data pertaining to the
overtime hours worked by unit and Staff employees
during the 5-month period preceding October 4,
1968, such information being relevant to the pending
overtime grievances, the Respondent violated
Section 8(a)(5) and (1) of the Act.'"
'The complaint states merely that the information was requested ' in
connection with the processing of grievances and the proper administration
of [the Union ' s] collective bargaining agreement
'The grievants worked, respectively , 63 1/2. 87 1/4, and 63 3/ 4 hours
during the week ending June 14, 1968 , and the three employees of Staff
worked, respectively , 44 1/2, 47 3/ 4, and 46 1 / 2, including the hours
worked on Saturday
'Although ICC regulations were apparently mentioned in an earlier
conversation between representatives of the parties, the Respondent did not
mention such regulations in its later denials of the Union's request
'rhe contract contains only a general provision regarding the
"equitable" distribution of overtime among unit employees
'See 15 L R B v Truitt Manufacturing Co. 351 U S 149
'N L R B v Acme Industrial Co., 385 L S 432
"in view of our disposiuon of this issue, a majority of the panel finds it
GULF STATES ASPHALT CO. 407
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(5)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent refused the
Union's request for disclosure of overtime data
regarding unit and Staff employees which was
sought for the purpose of processing a grievance
under the provisions of the collective bargaining
agreement, including the pursuance of said
grievances to arbitration, we shall also order that
the Respondent furnish the Union with information
as to overtime relevant and necessary to assist the
Union in appraising the merits of grievances to
which the overtime information relates.
ADDITIONAL CONCLUSIONS OF LAW
1. By failing and refusing on or about October 4
and at all times thereafter to furnish the Union with
overtime data regarding unit employees and the
employees of Staff Employees, incorporated, for its
use in processing a pending grievance, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
2. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Gulf States Asphalt Company, Houston, Texas, its
officers, agents. successors, and assigns, shall:
1. Cease and desist from.
(a) Refusing to bargain collectively with
Teamsters Freight and Tank Line Employees Local
Union 988, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as exclusive bargaining
representative of all employees in an appropriate
collective bargaining unit by failing and refusing to
furnish the Union with relevant overtime data
regarding unit employees and employees of Staff
Employees, Incorporated, for its use in evaluating
unnecessary to decide whether the Respondent's letter of November 19,
1968. was restricted by previous communications between the parties, or
whether the Respondent was obligated to furnish the information requested
in connection with the broader purposes therein stated Chairman
McCulloch believes that the November 19 letter lays a new and proper
foundation for the Union's right to the requested information, in that n
asserts that the date was needed for the purpose, inter alia , of policing iu
collective-bargaining agreement with Respondent lie thus finds that the
Respondent's continued refusal to supply the information after receipt of
the November 19 letter lends additional support to the conclusion that
Respondent violated Sec 8(a)(5)
and processing grievances.
(b) In any like or related manner interfering with
the efforts of the Union to bargain collectively with
it on behalf of the employees in the appropriate
unit.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish to the Union, as exclusive collective
bargaining representative of all employees in the
appropriate collective-bargaining unit, overtime data
regarding unit employees and employees of Staff
Employees, incorporated, heretofore requested by
the Union, for its use in evaluating and processing
grievances.
(b) Post at its Beaumont, Texas, plant where
notices pertaining to plant employees are
customarily posted, copies of the attached notice
marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region
23, shall, after being duly signed by a representative
of the Respondent, be posted by the Respondent
immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this
Decision and Order what steps the Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be. and
it hereby is, dismissed insofar as it alleges violations
of the Act not herein found.
APPENDIX
NolicF '10 ALI, EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that-
WE WILL furnish to Teamsters Freight and Tank
Lines Employees Local 988, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of our employees in an appropriate unit,
overtime data relating to unit employees and employees
of Staff Employees, Inc , heretofore requested by the
Union for the purpose of assisting it in processing and
evaluating grievances contesting the assignment of
overtime work to the employees of a subcontractor
rather than unit employees
WE WILL NOT in any like or related manner interfere
with the efforts of the Union to bargain collectively in
behalf of the employees in the appropraite unit.
GULF S'iATFS ASPHALT
COMPANY
(Employer)
Dated By
(Representative) (Title)
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-226-4296.
TRIAL EXAMINER'S DECISION
,STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Trial Examiner: Based upon a
charge filed on November 20, 1968, by Teamsters Freight
and Tank Line Employees Local 988, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, referred to herein
as the Charging Party or the Union, the Regional
Director of the National Labor Relations Board for
Region 23 (Houston, Texas) issued a complaint and notice
of hearing dated December 24, 1968. The complaint
alleges that Gulf States Asphalt Company, herein called
the Respondent, has violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by refusing to
furnish information requested by the Union. In its answer,
duly filed, the Respondent admits certain facts set forth in
the complaint, but denies that it has committed any unfair
labor practice.
Pursuant to notice, a hearing was held before me at
Beaumont , Texas, on February 5, 1969. All parties
appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Subsequent
to the hearing, the General Counsel and the Charging
Party each filed a memorandum and the Respondent filed
a brief, all of which I have fully considered.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation duly organized under
and existing by virtue of the laws of the State of Texas,
maintains its principal place of business at Houston,
Texas. The Respondent is engaged at its place of business
in Beaumont, Texas, the only plant involved in this
proceeding, in the manufacture of asphalt and asphalt
products. During the past year, which period is
representative of all times material herein, the Respondent
manufactured and sold products valued in excess of
$50,000 which were shipped from the Beaumont plant
directly to points outside the State of Texas. The
Respondent in its answer admits, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Respondent in its answer admits, and I find, that
Teamsters Freight and Tank Line Employees Local Union
988, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The only issue in this proceeding is whether the
Respondent's refusal to furnish certain information to the
Union was violative of Section 8(a)(5) and (1) of the Act.
The Union, which was certified in 1960 as the
representative of the Respondent's employees in a unit
including plant employees and truckdrivers, has been the
contractual representative of such unit since then. It was
stipulated at the hearing that the Respondent at all times
material has obtained additional employees as needed to
perform unit work from Staff Employees, Incorporated, a
subcontractor, referred to herein as Staff.
The Union's collective-bargaining agreement with the
Respondent in effect at the time of the hearing' contained
grievance and arbitration provisions. In accord with these
provisions, a meeting was held at the plant on July 3,
1968, at which the Respondent's principal representative
was Ford, vice president for production, and the Union
was represented by Null, president of the Union, whose
office is in Houston; Peveto, the Union's business
representative for the Beaumont area; and Beloney, the
shop steward. Those at the meeting discussed a number of
grievances which had been presented by the steward at the
first-step level, and reached agreement on all but two
issues.
The first of these two issues related to three individual
grievances. The written Grievance Reports, signed by
employees Beloney, Donald, and Lovett, and each also
signed by Beloney as steward, assert that overtime work
was performed on Saturday, June 15, 1968, by Staff
employees Green, Synett, and Berry, which should have
been offered to the grievants. Beloney in his Grievance
Report asks to be paid overtime for the number of hours
Green worked on that day, Donald for the hours Synett
worked, and Lovett for the hours Berry worked.'
The second issue involved the question of Staff
employees being paid less than the contract rate when
performing unit work for the Respondent. Null, the only
witness called by the General Counsel, testified that he
learned at the July 3 conference that Beloney had
previously discussed this matter with the Respondent, but
no written grievance had been prepared. Null also testified
that there was a lengthy discussion of both issues at the
July 3 meeting; that, as to the first issue , "The question
during this meeting was in regard to a violation of the
contract"; that, as to the second issue, "I asked the
Company to pay all of the employees as per the
contract"; and that Ford finally stated that he would,
after consulting Company counsel, give the Union an
answer on both issues.
On July 19 Peveto sent the following letter to the
Respondent:
This is to inform you that Local Union 988 is filing an
arbitration against your company under Article 1
(Recognition), also Article 4 (Classification and Wage
Rates), Section 2, and Appendix A of the existing
agreement.
As you recall in our meeting the 3rd. of July, 1968, Mr.
Tom Null and myself with the committee met with you
and discussed with you about your company using Staff
employees to do the work covered by this agreement at
'The agreement was effective by its terms until April 1, 1969. The
Respondent at the time of the hearing herein had received notice from the
Union of the reopening of the agreement.
'The record does not show the basis on which each grievant determined
his Staff counterpart
GULF STATES ASPHALT CO.
a lower rate than the contract calls for.
If there is any other information concerning this matter,
please contact me at my office in Beaumont ...
Null, who did not know of Peveto's letter until some
time after it was sent, testified about a conversation with
Clinton, the Respondent's counsel, which Null thought
took place possibly in the latter part of July. According to
Null, Clinton stated, with reference to the work week
ending Friday, June 14, that "there had been an enormous
amount of overtime worked, hours worked, there was
some in excess of ICC regulations"; Clinton expressed
surprise about the grievances in view of the "excessive
hours" the grievants worked that week and denied the
grievances on that basis;' and he, Null, told Clinton that
,,at all times the complaint was that Staff people had
worked on Saturday, the regular people had not been
called for this work," and that he wanted the Respondent
to pay the three grievants for the hours worked that
Saturday by the Staff men. They also discussed the second
issue, as to which Clinton told Null that although the
Respondent paid Staff more than the contract rate, the
Respondent would not require Staff to pay its men the
contract rate.
Clinton sent a letter on September 6 to Peveto, with a
copy to Null, which stated as follows
We wish to advise your Local Union that our client.
Gulf States Asphalt Company, does not agree in view
of the circumstances and the provisions of the current
Agreement between the Company and your Local
Union to pay the Truck Drivers any additional
compensation for Saturday, June 15, 1968, nor does
our client agree to require Staff (overload) to pay their
employees the same wage rates as are being paid by the
Company to employees working under the terms of the
current Agreement.
In view of the above both of the grievances of your
Local Union are denied.
A few days after September 6, Null testified, he had a
conversation with Clinton in which Clinton, while agreeing
that Null's "contention of the contract" was correct,
maintained that the three grievants were not physically
able to perform the work on Saturday because of the
excessive number of hours they had already worked that
week, that this was his reason for denying the grievances,
and that an arbitrator would agree with this position.
There was also discussion of the second issue, which
Clinton likewise denied.
Null wrote to Clinton on September 13 as follows:
Pursuant to your letter of September 6, 1968 . this
will advise you that we are at this time requesting that
these issues be settled by arbitration in accordance with
Article 13 of the current agreement.
1. A violation of Article 1.
Company is working employees under our agreement,
who receive less than the wages set out in our
agreement. We are Requesting that all employees be
paid in accordance with our agreement
2. Violation of Seniority
On June 15, 1968 the Company worked three (3) men
from staff and should have worked Lesly W. Beloney,
Leroy Donald and Henry Lovett. Our claim is for time
worked by the three men from staff at time and
'Each of the three written Grievance Reports bears the Respondent's
undated typewritten notation that, "In checking our contract we see no
violation of agreement , therefore , we see no justification for this
grievance."
409
one-half.
I shall be in contact with you to work out arbitration
procedure.
On October 4, 1968, Null sent the following letter to
the Respondent.
Reference to the two (2) grievances tiled against your
company by Local Union 988. 1 am requesting the
privilege for Mr. J. O. Peveto to examine your records
for the past five ( 5) months in regard to all overtime of
employees in the bargaining unit at Beaumont, all
overtime of staff employees on the dates and
classifications worked, and the amounts paid staff for
all employees in each classification.
We would like for this opportunity to be during the
week of October 7, 1968.. .
Null testified that the reason for this letter "primarily was
to evaluate these grievances to determine the cause of the
statement Mr. Clinton made to me, because of them not
being physically able, to determine whether or not this
particular week was a rare and unusual week, or whether
it was something that they did habitually week after
week ." This reason, however, was not conveyed to the
Respondent.
It is clear that at some point Clinton gave Null the
information as to the number of hours worked by each of
the three grievants during the week in question , and also
the hours worked by the three named Staff employees that
week , including the hours they worked on Saturday. Null
testified that he received this information at some
unspecified date considerably after October 4. When asked
if the Respondent ' s representatives at the July 3 meeting
might have mentioned the hours worked , Null replied, "I
don't recall of them giving me that information"; and
when asked if Clinton might have given him the
information at an earlier date than long after October 4,
Null replied , "I don't believe he did as I recall."
Clinton made notes at the time of some of his
conversations with Null, but these notes were apparently
rather cryptic. Clinton testified , on the basis of his notes
and his recollection , that he gave Null the information
about the hours in a conversation on July 30. and that in
another conversation, which Clinton thought was on
October 16 . he was "almost positive" he restated the
information about the hours. I found both Null and
Clinton credible witnesses. Null's memory as to dates,
however , was shown to be, as he admitted , very vague.
whereas Clinton ' s memory for dates, although apparently
also vague, was assisted somewhat by his notes On the
basis of all the evidence. I find that the information as to
the hours worked was furnished to Null on or about July
30.'
There is no dispute as to the content of the information
that Clinton gave Null, which showed , as to the grievants,
that through Friday of the week in question Beloney
worked 63 1/2 hours , Donald 87 1/4, and Lovett 63 3/4,
and, as to the Staff" employees , that Green worked 44 1/2
hours that week including 6 on Saturday , Synett 47 3/4
hours including 11 1 /2 on Saturday, and Berry 46 1 /2
hours including 6 on Saturday.'
'I he General Counsels memorandum asserts that "the proffered
information , whenever given, was at most a partial ofler " and that
"The date on which it was given becomes immaterial "
'The collective bargaining agreement provides for a 40-hour week for
plant employees and a 58-hour week for drivers , but it expressly does not
guarantee this many hours for either category It also provides for
payment of time-and-a-half for drivers after 58 hours a week, but Clinton
stated that overtime is in fact paid by the Respondent on a daily basis in
accord with applicable Federal law
410 DECISIONS OF NATION AL LABOR RELATIONS BOARD
Null admitted that when this information was given to
him, he agreed with Clinton that the number of hours
worked by the grievants that week was "rather high." He
testified further that, when Clinton asserted that the
Respondent had no obligation to furnish the 5-month data
requested to the October 4 letter or to open its books to
make this information available, he, Null. merely made
reference to what Clinton had said about the physical
condition of the grievants.' He admitted that he did not
offer any reason for wanting the broader information, and
that, "Following that conversation there was no further
oral or written requests."
Thereafter Null discussed the matter with the Union's
attorney. who. based on this discussion, drafted for Null's
signature the charge herein alleging a refusal to bargain
since on or about October 4, 1968, and a letter to the
Respondent dated November t9, 1968, enclosing a copy of
the charge, and stating as follows.
. The charge relates to your refusal to furnish
certain material data which this Union needs to carry
out its statutory function as bargaining representative in
connection with a current grievance, as well as for
policing the contract and evaluating the overtime
situation for purposes of future bargaining.
You will recall that 1 wrote you on October 4, 1968,
requesting that Mr. Peveto he allowed to examine your
records for the prior five months on overtime. Our
request was to check overtime worked by all employees
in the bargaining unit and by Staff Employees for the
said period. We also requested access to data that
would show the overtime every Staff Employee worked
in each bargaining unit classification for the period.
. Clinton . . . subsequently orally refused to allow
this Union access to the records requested. His position
was that the Company was not obligated to furnish this
material to the Union or grant the Union access to its
records In the conversation he did give me information
concerning overtime of the three grievants and three
Staff Employees However, in addition to limiting this
oral information to the six people, he also limited the
information to one week's time
We disagree with your attorney's refusal to make the
requested data available to the Union and his stated
reasons for the refusal. We believe that the
Labor-Management Relations Act requires you to grant
the Union access to material data which is wholly in
your custody and control. when it is needed in
connection with the Union's policing of its contract,
processing a grievance, or preparing for intelligent and
informed bargaining. We think our request falls into all
of these catagories [sic] and you should understand that
it is a continuing request... .
Clinton, in a reply dated November 27. stated that all
the data pertinent to the two grievances had been
furnished, and that the additional information sought was
not relevant thereto.
At some point in their discussion, Null and Clinton
agreed to submit the issues in dispute to an arbitrator.
They also agreed that Null should obtain a list of
arbitrators from the Federal Mediation and Conciliation
Service. Null wrote a letter on September 27 requesting
'Null, questioned by both the General Counsel and the Charging Party
about this conversation , maintained that his part in the conversation was
limited to reminding Clinton of the latter 's arguments that "the people
were not physically able on this particular week to do this work on
this particular Saturday ," and that the Respondent "would not agree to
pay these claims which was in regard to their physical ability for this one
week."
such a list, which was submitted, and Null and Clinton
agreed on one of the arbitrators on the list. Null thought
this was in November, but the letter from the Mediation
Service designating the arbitrator on whom they had
agreed is dated October 25. The arbitration hearing was
scheduled for January 1969 but was postponed by
agreement of the parties.
The complaint alleges that. "Since on or about October
4, 1968 and November 19, 1968, and at all times
thereafter, the Union has requested Respondent to furnish
to it in connection with processing of grievances and the
proper administration of its collective bargaining
agreement with Respondent, data relating to the amount
of overtime worked by all employees in the unit . and
by the employees of a subcontractor of Respondent
engaged in work similar to that of the employees in the
above described unit for the five month period
immediately preceding the date of the request,"' and that
the Respondent' s refusal since October 4 to furnish such
data constituted an unlawful refusal to bargain.
The Respondent maintains that the Union's letter of
November 19 was a sell-serving document that sought to
enlarge the scope of the Union's October 4 request, which
was to examine the Respondent's records for information
related only to the two grievances, that the Respondent
furnished all the data relevant to these grievances; and
that the Respondent, as it asserted at the hearing and to
the General Counsel prior to the hearing, stood ready at
all times to furnish any data relevant to the administration
or renegotiation of the contract whenever the Union made
a proper request therefor.
Concluding Findings
As noted above, the complaint alleges that the Union,
on October 4 and November 19, sought certain
information "in connection with processing of grievances
and the proper administration of its collective bargaining
agreement." The October 4 letter, however, expressly
limited the purpose for which the information was sought
to "Reference to the two (2) grievances filed against your
company ... " If the Union was seeking the information
for a broader purpose, there was ample time between July
3 and October 4 to formulate and express such purpose,
but this was not done Moreover, the basis for the Union's
request was not broadened in any of the discussions with
the Respondent. In fact, as Null testified, there was no
further request, orally or in writing, after October 4. The
letter of November 19, which for the first time asserted
the Union's need for the information "for policing the
contract" as well as "for purposes of future bargaining,"
was not itself a request for information It was rather an
attempt, in stating the issues raised by the enclosed
charge. to broaden the request made by the Union on
October 4 on which the charge was expressly based. I
find, on the entire record, that the Union's request was in
fact limited to data pertaining to the processing of the two
grievances.
'The General Counsel states in his memorandum "It should be noted at
the outset that the General Counsel does not allege that Respondent has an
obligation to furnish data as to rates being paid subcontractor employees
The Complaint alleges only that Respondent violated the Act by refusing
to provide the Union with information as to overtime hours for the
five-month period previously referred to. The complaint also does not
allege the Union's need for this information "for purposes at future
bargaining; one of the needs asserted in the Union 's lettci of
November 19
GULF STATES ASPHALT CO.
The first grievance , involving the three individual
grievants , did not attack the Respondent ' s use of Staff
employees , a long-standing practice, nor complain of the
use of Staff employees during the week in question The
only dispute raised by these grievants pertained to the
assignment of three Staff drivers on Saturday , June 15,
and the only remedy requested was that the three
grievants be paid overtime for the number of hours Staff
men worked that Saturday . The Respondent rejected these
grievances on the basis that the grievants , after working
63 1/2, 87 1/4, and 63 3/4 hours respectively through
Friday of that week , were not in physical condition safely
to drive a truck an additional 6 to ll 1/2 hours on
Saturday , and that the Staff employees who drove the
trucks on Saturday had worked a total of considerably
fewer hours that week even after the inclusion of the
Saturday hours. In view of the narrow issue drawn by the
nature of these individual grievances and the basis on
which they were rejected, I find that the Respondent has
satisfied its obligation to furnish the Union with
information that was relevant and "necessary in order to
enable the Union to evaluate intelligently the grievances
filed."'
The Union requested the same data -hours worked by
unit and Staff employees over a period of 5 months-in
regard to the second grievance, in which the Union was
demanding that Staff employees be paid the contract wage
rate. The Respondent informed the Union that it paid
Staff more than the contract wage rate, but it refused to
furnish the 5-months data requested by the Union or to
open its books to the Union for this purpose. The Staff
employees were employees of a subcontractor, not of the
Respondent; they were not represented by the Union nor
covered by the collective bargaining agreement; the
Respondent paid Staff, as it told the Union, more than
the contract rate; there is no evidence that the subcontract
with Staff, which was in effect for a considerable period,
ever resulted in unit employees working less than a full
week, which for the drivers was 58 hours; and the Union
was seeking the information not for its bearing on the
wage rates of unit employees but in order to compel the
application of the contract wage rate to the employees of
a subcontractor. In the particular circumstances of this
case, I find that the Respondent's obligation to furnish the
additional information requested by the Union in
connection with the second grievance has not been
established!
411
Furthermore, both the Union and the Respondent
referred to the grievances as questions of contract
violation; they agreed to submit these questions to
arbitration, and, at the time of the instant hearing, they
had taken steps to accomplish this purpose. Finally.
pursuant to the Union's reopening notification, the parties
were scheduled to renegotiate their collective bargaining
agreement. The Respondent has asserted at all times that
it would furnish any relevant information in its control
which is requested by the Union in connection with the
administration of the existing agreement or the
negotiation of a new one.10
Accordingly. on the basis of the entire record, I find
and conclude that the General Counsel has failed to
establish by a 'preponderance of the evidence that the
Respondent's refusal to furnish information requested by
the Union constituted a refusal to bargain in violation of
Section 8(a)(I) and (5) of the Act." I shall therefore
recommend dismissal of the complaint.
Upon the foregoing findings and conclusions and the
entire record in this case, I make the following:
CONCLUSIONS OF Low
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent
engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint
herein be dismissed in its entirety.
'See N L R.B v. Acme Industrial Co, 385 U S 432
'See Southwestern Bell Telephone Company, 173 NLRB No 29, The
American Oil Companv: l63 NLRB No. 7
"I find unwarranted , in the circumstances of this case, the General
Counsel's reference to this assertion as a "resort to scmantical
technicalities "
"See, e g , Southwestern Bell Telephone Company. 173 NLRB No 29,
The American Oil Company, 164 NLRB No 7, Sinclair Refining
Company, 145 NLRB 732, International Telephone and Telegraph Corp
v N L R B, 382 F 2d 366 (C A 3 ) (section entitled "Failure to Disclose
Blanket Seniority Information as to Non-Unit Employees")