Leland Stanford Junior University

National Labor Relations Board - Board Decisions

Apr 15, 1992

307 N.L.R.B. 75 (N.L.R.B. 1992)

75
307 NLRB No. 8
LELAND STANFORD JUNIOR UNIVERSITY
Leland Stanford Junior University and United Stan-
ford Workers, Service Employees International
Union, Local 680, AFL–CIO. Case 32–CA–
11592
April 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 24, 1991, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified below and to adopt the rec-
ommended Order as modified.
The Respondent contends in its exceptions that the
judge erred by finding that it violated the Act by con-
duct which was not specifically alleged in the com-
plaint to be unlawful or fully litigated at trial. We
agree.
The complaint alleges at paragraph 10(b) that the
Respondent violated Section 8(a)(5) and (1) of the Act
by failing to provide the Union with the following re-
quested information: (1) all special requests for the last
5 years in the Department of Laboratory Animal Medi-
cine (DLAM) which lists animals that were improperly
destroyed; (2) all discipline within the last 5 years of
animal health technicians (AHT) at DLAM for work-
related incidents; and (3) the complete personnel file of
Roger Parker while he worked in the bargaining unit
as an animal health technician. The judge found, and
we agree, that the Respondent unlawfully failed to
comply with these three requests.
The judge additionally found that the Respondent
unlawfully failed to provide the Union with three addi-
tional groups of requested information: (1) the sick
leave records of all AHTs and animal caretakers who
have taken disability in the past 5 years; (2) copies of
all euthanasia requests and all special request forms for
procedures at the DLAM in the past year in which the
planned result was a death for the animals; and (3)
copies of all disciplinary letters issued to Tom
Boukaka. We do not agree.
A failure to satisfy the last three requests for infor-
mation was not alleged in the complaint to be an un-
fair labor practice. Nor was the Respondent’s failure to
satisfy those three requests, though briefly referred to
at the trial, fully litigated. Moreover, the arguments in
the parties’ posttrial briefs referred specifically only to
the items alleged in the complaint, and the Respond-
ent’s brief noted its understanding that the other items
were ‘‘not the subject of the instant Complaint.’’ Ac-
cordingly, we do not adopt the judge’s findings as to
the last three items, and shall modify the judge’s Con-
clusions of Law and recommended Order accordingly.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 5.
‘‘5. The Respondent has failed and refused to bar-
gain with the Union in good faith in violation of Sec-
tion 8(a)(5) and (1) of the Act by refusing to furnish
the Union with the following requested information:
‘‘(a) All special requests for the last 5 years in the
Department of Laboratory Animal Medicine which
lists animals that were improperly destroyed.
‘‘(b) All discipline within the last 5 years at the De-
partment of Laboratory Animal Medicine for work-re-
lated incidents.
‘‘(c) The complete personnel file of Roger Parker of
the Department of Laboratory Animal Medicine while
he worked in the bargaining unit as an animal health
technician.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Leland
Stanford Junior University, Palo Alto, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete subparagraphs 2(a)(1), (4), and (5) and re-
number the remaining subparagraphs of paragraph 2(a)
accordingly.
2. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
United Stanford Workers, Service Employees Inter-
national Union, Local 680, AFL–CIO by refusing to
furnish, or to timely furnish, the Union, on request,
with information necessary and relevant to the per-
formance of its functions as the exclusive collective-
bargaining representative of our employees. The appro-
priate unit is:
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Pars. 338 and 339 provide:
ARTICLE IX: SEPARATION FROM THE JOB
A. Layoffs
. . . .
B. Discipline, Suspension and Separation
. . . .
5. Records
338 a. Each administrative unit shall maintain for each worker
employed with the unit a file which shall contain copies of all
written warnings, notices of suspension or demotion, written
evaluations and other official records indicating changes in sta-
tus or levels of pay. The worker or a Union representative, au-
thorized by the worker in writing, shall be entitled to review
said file during regular business hours in the presence of a Uni-
versity representative and obtain copies. In any disciplinary ac-
tion the University may not rely upon any previous written
warnings, notice of suspension or demotion or written evaluation
not contained in said file as justification for any personnel action
which adversely affects the worker in question but may rely on
oral warnings not made a part of the file and issued within the
preceding six (6) months.
339 b. When workers who have received written warnings or
reprimand complete eighteen (18) months of work without fur-
ther disciplinary action, their prior disciplinary record shall no
longer be relied upon in any determination which in any manner
affects their employment status.
All full-time and regular part-time regular staff
maintenance employees, laboratory support per-
sonnel, custodians, food service employees audio-
visual operators, nonexempt computer operations
personnel, production control clerks and tape li-
brarians employed by the Department of Informa-
tional Technology Services and the SLAC com-
puting Services (ITS and SCS), book preservers
and all regular staff book warehouse assistants
and proofreaders of the Stanford University Press
all employed by the University in Northern Cali-
fornia; EXCLUDING: All other employees, office
clerical employees; all employees of Stanford
University Hospital; patient care employees;
shelvers; computer production control clerks other
than in ITS and SCS, computer production control
coordinators and operations specialists; program-
mers, scientific and engineering associates; all
currently represented employees; guards, profes-
sional and confidential 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 exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish the above-named Union with all
special requests for the last 5 years in the Department
of Laboratory Animal Medicine (DLAM) which lists
animals that were improperly destroyed, all discipline
within the last 5 years of animal health technicians at
DLAM for work-related incidents, and the personnel
file of Roger Parker while he worked in the bargaining
unit as an animal health technician.
LELAND STANFORD JUNIOR UNIVERSITY
Daniel F. Altemus, Jr., for the General Counsel.
Susan K. Hoerger, of Stanford, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was heard before me in Oakland, California, on July 15,
1991. The charge was filed by United Stanford Workers,
Service Employees International Union, Local 680, AFL–
CIO (the Union), and served on Leland Stanford Junior Uni-
versity (Respondent) on January 7, 1991. The complaint,
which issued on March 21, 1991, alleges that Respondent
violated Section 8(a)(1) and (5) of the Act by delaying or re-
fusing to provide the Union with certain requested informa-
tion necessary for, and relevant to, the Union’s performance
of its function as the exclusive collective-bargaining rep-
resentative of certain of Respondent’s employees. The prin-
cipal issues are (1) whether the requested information has po-
tential relevance to the Union’s processing of certain pending
grievances and (2) whether the Union has waived its statu-
tory right to certain of the requested information.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
posthearing briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a private, non-
profit institution of higher learning at Palo Alto, California.
During the 12-month period preceding the issuance of the
complaint, Respondent received gross revenues, available for
operating expenses, in excess of $l million. During that same
period, Respondent, in the course and conduct of its business
operations, purchased and received goods or services valued
in excess of $5000 which originated outside the State of
California.
The complaint alleges, Respondent admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is now, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. DEFERRAL
Respondent argues that this matter should be deferred to
arbitration under the principles articulated in Collyer Insu-
lated Wire, 192 NLRB 837 (1971). Specifically, Respondent
asserts that since the basic issue here is the refusal to furnish
personnel file information, the interpretation of paragraph
338 of the collective-bargaining agreement1 is at the heart of
the dispute and thus deferral is appropriate.
I find no merit in this argument. It is well established that
the Board will not defer to arbitration issues that would re-
sult in a two-tiered arbitration process requiring a union to
77LELAND STANFORD JUNIOR UNIVERSITY
2 Art. I, sec. C.
3 All dates herein for November and December are in 1990 and
for January, February, and March are in 1991.
file a grievance to obtain information potentially relevant to
the pursuit of a second underlying grievance. General Dy-
namics Corp., 268 NLRB 1432 fn. 2 (1984); Clinchfield
Coal Co., 275 NLRB 1384, 1385 fn. 4 (1985); American Na-
tional Can Co., 293 NLRB 901, 902–903 (1989). Accord-
ingly, I find that deferral to arbitration is not appropriate.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union has represented certain employees in various
departments of the University for more than 16 years. During
this period, Respondent and the Union have been parties to
several collective-bargaining agreements covering these em-
ployees. The request for information involved herein con-
cerns material allegedly relevant to grievances filed on behalf
of Deborah Britt pursuant to the grievances and arbitration
provisions of the collective-bargaining agreement effective
by its terms from September 1, 1988, to August 31, 1991.2
Britt, an animal health technician (AHT) employed by Re-
spondent in its Department of Laboratory Animal Medicine
(DLAM), is also president of the Union.
On November 29, 1990,3 Britt was notified by memo from
the AHT Supervisor John Wittry that she was being sus-
pended for 1 day, November 30. The body of the memo,
which was placed in her personnel file, reads:
On September 14, 1990 you received a disciplinary
memo as a result of serious errors you made in carrying
out instructions on Special Request Forms. You were
warned that your repeated errors have resulted in sig-
nificant expense to DLAM, delays in research projects,
and jeopardized the credibility of our technical services
and the working relationship between DLAM and the
investigators who contract with us to provide services.
Additionally, you were warned in that memo, ‘‘should
you demonstrate this type of negligence again, you will
be subject to further disciplinary action, up to and in-
cluding termination.’’
On November 6, 1990 you were assigned at our
morning meeting to perform special requests. One of
the special request forms indicated that you were to ob-
tain the maximum allowable amount of blood from two
rabbits, but specifically stated not to exsanguinate the
rabbits. You withdrew approximately 100 mls of blood
via a nonsterile cardiac puncture before realizing that
the request was for a survival bleed, not ex-
sanguination. You then admitted the rabbit to ICU and
contacted the investigator, but did not inform me or Dr.
Blum of the error. I asked you on November 6, 1990
why the rabbit had been admitted to ICU and you stat-
ed that you had mistakenly started to exsanguinate the
rabbit based on a statement I had made during the AHT
morning meeting; however, you did not read the written
instructions on the special request form regarding the
procedure to be performed.
This error is very serious. Intensive emergency treat-
ment was necessary to prevent the death of the rabbit,
the research protocol has been delayed to allow recov-
ery of the animal, and the overall impact of this med-
ical crisis on the research project is still unknown. This
negligence, and specifically your failure to read the spe-
cial request forms is unacceptable and cannot continue.
Although I said in the morning meeting ‘‘there are two
rabbit exsanguinations and rat radiographs this morn-
ing’’ it is nonetheless your responsibility to carefully
read the special requests and follow instructions. If
there is a conflict in instructions, or if you have any
questions, you have been instructed to bring it to my
attention, or to Dr. Blum.
Your continued errors are very serious. Except for
the confusion that may have been caused by my state-
ment in the morning meeting, this incident would have
resulted in termination of your employment. As a result
of this error, and after careful consideration, we have
decided to suspend you for one working day, effective
November 30, 1990. You are expected to return to
work on December 3, 1990. Effective December 3,
1990 you will be on a probationary period until January
3, 1991. During this probationary period, I will monitor
your work and meet with you regularly to review rep-
resentative work assignments. Whether or not we re-
view a particular work assignment you are expected to
read all instructions carefully including special requests,
medical records, treatment charts, and other written in-
structions used by DLAM. If during or after the proba-
tionary period, you do not follow instructions on the
special requests or any other written instructions and do
not report to me or Dr. Blum any conflicts in instruc-
tions or questions related to handling of an animal
and/or if you do not report to me when you have per-
formed the wrong procedure you will be terminated.
Please let me know if you have any questions.
On December 10, the Union filed a step 2 formal griev-
ance (U–88–458) protesting this suspension. The grievance
form sets forth the following description of grievance and re-
quested action:
1. Brief description of grievance and date the action oc-
curred (or should have occurred):
On November 29, 1990 I was issued a disciplinary
letter, and a one-day suspension by supervisor John
Wittry. Such discipline was without just cause and was
done to cover up for the gross incompetence of the su-
pervisor, John Wittry. I was also discriminated against
because of my Union activities.
2. Action required to settle the grievance:
Remove the letter from my personnel file and never
refer to it again. Pay me for the suspension and make
me whole in all other ways. Cease and desist from
blaming me for the incompetency of Mr. Wittry. Cease
and desist from discriminating against me because of
my Union activities.
On that same day, another step 2 grievance (U–88–452)
was filed on Britt’s behalf which describes the grievance and
requested action as follows:
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Brief description of grievance and date the action oc-
curred (or should have occurred):
On December 3, 1990 I received unilateral notice
from my supervisor that I would be placed on disability
leave despite there being work that I could do under the
limitations of the doctor’s note and despite that such ac-
commodations have been made for other workers. I am
being discriminated against because of Union activities
and so that the department can hide the incompetance
[sic] of my supervisor as Stanford tries to construc-
tively discharge me.
2. Action required to settle the grievance:
Make reasonable accomodations [sic] for me at work
as have been done for other workers. Pay me for all
lost pay and make me whole in all other ways. Cease
and desist from discriminating against me and trying to
constructively discharge me.
On December 19 Union Field Representative Mike Tatham
sent a letter requesting information to Keith Smith, Respond-
ent’s acting manager of employee relations, the body of
which reads:
This is a formal informational request for informa-
tion that is necessary and relevant for the Union to have
in order to consider whether to process through arbitra-
tion the recent grievances concerning the discrimination
against USW President Debbie Britt. Please supply me
with the following:
1. The sick leave records of all Animal Health Tech-
nicians and Animal Caretakers who have taken dis-
ability within the last 5 years. This is necessary and rel-
evant because one of the grievances we cited discrimi-
nation against Ms. Britt for her disability.
2. A copy of the tape of 11/06/90 in which Ms. Britt
was instructed by supervisor John Wittry to kill the ani-
mals for which she was disciplined for.
3. All special requests for the last 5 years in the De-
partment of Laboratory Animal Medicine (DLAM)
which lists animals that were improperly destroyed.
4. All discipline within the last 5 years of Animal
Health Technicians at DLAM for work related inci-
dents.
5. Complete copies of the personnel files of Wendy
Baumgardner and Kathy Kane. This is necessary and
relevant because the Union feels that these two have
committed actions as Ms. Britt has and have not been
disciplined for them like Ms. Britt has.
6. Copies of all Euthanasia requests and all special
request forms for procedures for which the planned re-
sult was a death result for the animals in DLAM for
the past year.
7. Copies of all disciplinary letters to Tom Boukaka.
This is necessary and relevant because the Union be-
lieves that [sic] Mr. Boukaka was never disciplined for
doing the same things as Ms. Britt.
8. A copy of all notes and written correspondence
concerning workplace accomodations [sic] made for
Beth Emert and Annette Ludtke concerning any disabil-
ities they had concerning limited duty at work.
All correspondence in this matter should be ad-
dressed to me. Please respond within ten (10) days so
we do not have to doubt your good faith in this matter.
These grievances were denied by letter, dated December
21, and signed by Douglas Dupen, the body of which reads:
This is in response to your grievances U–88–452, U–
88–453, and U–88–458 filed on December 10, Decem-
ber 10, and December 12, 1990, respectively.
Grievance U–88–452 complains about your being
‘‘placed on disability leave despite there being work
that I could do under the limitations of the doctor’s
note. . . .’’
Late in the evening of November 29, 1990, you de-
livered a note from your physician announcing physical
restrictions on work assignments for you. On December
3, 1990, you were informed that your department did
not have a job for you which could fall within your
medical restrictions. Thus you were granted disability
leave.
. . . .
Grievance U–88–458 complains that a disciplinary
letter and suspension were without just cause.
On November 29, 1990, you were issued a discipli-
nary warning letter and suspension for repeated inatten-
tion to procedures and for gross errors on the job.
There has been no violation of the Agreement. All
these grievances are denied.
By letter dated December 26, Tatham notified Smith that
the Union was referring these, and certain other, grievances
to arbitration.
By letter dated January 17 from Tatham to Smith, the
Union made an additional request for information. The body
of the letter reads:
This is an addition to the formal informational re-
quest of December 19, 1990 for information that is nec-
essary and relevant for the Union to consider proc-
essing grievances through arbitration.
Please supply us with the following:
The complete personnel file of Roger Parker of De-
partment of Lab Animal Medicine while he worked in
the bargaining unit as an Animal Health Technician.
This is necessary and relevant because we feel that rea-
sonable accommodations were made available for Mr.
Parker as a male, which are being denied to Ms. Britt
because of her sex.
Please respond in a reasonable period of time. How-
ever, we are not expecting that because your depart-
ment’s practice is to ignore all requests until you waste
taxpayers’ money by having the National Labor Rela-
tions Board get involved.
By letter dated February 5 addressed to Britt, as union
president, Smith responded to the December 19 and January
17 request for information as follows:
This is in response to Michael Tatham’s letters of
December 19, 1990, and January 17, 1991, requesting
information. I will respond to each request in turn.
79LELAND STANFORD JUNIOR UNIVERSITY
1. I don’t understand the relevance of the informa-
tion requested. As you know, the grievance alleging
discrimination in granting disability leave (U–88–452)
was responded to in Mr. Dupen’s letter of December
21, 1990. That response provided all the information
we have relevant to the grievance.
2. As you may be aware, the tape recording referred
to has disappeared from the custody of Mr. Wittry. If
the Union has any information concerning its where-
abouts, please let me know.
3. I do not understand the relevance of the informa-
tion requested to the issue being raised. Perhaps you
could provide clarifying information.
4. I do not understand the appropriateness of the
five-year period. As you know, Paragraph 339 of the
Agreement provides that written warnings or rep-
rimands of workers who have completed eighteen (18)
months of work without further disciplinary action shall
no longer be relied upon in any determination which in
any manner affects their employment status. As pro-
vided in Paragraph 338 of the Agreement the Union,
when authorized by a worker in writing, is entitled to
review that worker’s file and obtain copies.
5. As provided in Paragraph 338 of the Agreement
the Union, when authorized by a worker in writing, is
entitled to review that worker’s file and obtain copies.
If you will transmit written authorizations by the named
workers, I will see to it that you have the provided for
access to those workers’ files.
6. I do not understand the relevance of the informa-
tion requested to the issues raised and responded to.
Perhaps you can provide additional clarification.
7. The matter referenced here was the subject of an
arbitration held in 1987. At that time, all relevant docu-
ments were made part of the record and the Union has
a copy of that record. If the request is to review Mr.
Boukakas’ personnel file, upon receipt of his written
authorization per Paragraph 338 of the Agreement, I
will see that the file is made available for union review.
8. I do not understand the basis of this request. The
University has no Obligation to apply light duty assign-
ments upon request.The department has looked at the
record and has found no instance of application of light
duty assignments to the workers named.
With respect to the request of January 17: again, I
do not understand the basis for this request. The depart-
ment has found no instance of a light duty assignment
to this worker. As provided by Paragraph 338, however,
if you will provide us with written authorization by
Roger Parker, I will see that his file is made available
for union review.
By letter dated February 6 from Tatham to Smith, the
Union made an additional request for information related to
Respondent’s response to the December 19 request. The
body of the letter reads:
This is an addition to our informational request of
December 19, 1990 for information that is necessary
and relevant for the Union to consider whether to proc-
ess grievances for Deborah Britt through arbitration.
In your February 5, 1991 response you stated that
the tape we are requesting ‘‘has disappeared.’’ Please
furnish us with the police report of such incident. If no
such report was filed please furnish us with the reason
why none was filed as well as all correspondence,
notes, and memoes [sic] concerning the ‘‘disappear-
ance’’ of this tape.
Also please furnish us with what date the ‘‘dis-
appearance’’ was discovered, as well as a list of any
other tapes or property that was missing along with it.
The former is necessary and relevant so that the Union
can determine if a nother [sic] grievance needs to be
filed on the matter.
Please respond within five (5) days so we don’t have
to doubt your good faith in this matter.
By letter dated February 8 from Tatham to Smith, the
Union modified its December 19 request for information.
The body of the letter reads:
This is a revision of our informational request of De-
cember 19, 1990, for information that is necessary and
relevant for us to process grievances. For items 5 and
7, without waiving our position, we withdrew our re-
quests for personnel files. We will expect you to
produce any and all records or disciplinary letters in the
personnel files of any bargaining unit workers in the
Department Lab Animal Medicine for incidents con-
cerning the destruction of animals. We will expect you
to delete the names of any workers from the copies you
will provide us.
Note that this does not exclude you from providing
the personnel file of Roger Parker as we have pre-
viously demanded, since he is no longer a bargaining
unit worker.
Please respond within two (2) days.
By letter dated February 12, from Smith to Britt as union
president, Respondent responded to the February 6 request.
The body of the letter reads:
This is in response to Michael Tatham’s letter of
February 6, 1991, requesting information about the tape
recording that disappeared from the custody of Mr.
Wittry.
The tape in question was the regular Tuesday tape.
It was discovered missing on Wednesday morning, No-
vember 7, 1990. No other tapes were noticed to be
missing. No police report was filed. The tapes are often
borrowed by persons who were not able to attend the
meeting. These tapes are generally not retained but
rather are recorded over each week. No correspondence,
notes, or memos were written concerning the disappear-
ance of this tape.
By letter dated February 26 and addressed to Britt as
Union president, Smith made the following response to the
Union’s February 8 request:
This is in response to the letter of February 8, 1991,
from Michael Tatham revising his informational request
of December 19, 1990.
There are no records or disciplinary letters in the
personnel files of any bargaining unit workers in the
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Department of Lab Animal Medicine for incidents con-
cerning the destruction of animals.
As I stated in my letter of February 5, 1991, we have
found no instance of a light duty assignment to former
animal health technician Roger Parker, nor to any other
animal health technician in the work group. And, again,
if you will provide us with written authorization by Mr.
Parker, I will see that his file is made available for
union review.
By letter dated March 4 from Tatham to Smith, the Union
set forth a further explanation as to the necessity for the Jan-
uary 17 request for the personnel file of Roger Parker. The
body of the letter reads:
This is a follow up letter to my informational request
of January 17, 1991. The Union feels that it is nec-
essary and relevant to review the complete personnel
file of Roger Parker because we believe that there will
be various items that will indicate that he has been
treated differently than Ms. Britt has.
Furthermore, we found in the past that information
that you have supplied us has not been accurate. On
2/15/91 you supplied us with the payroll hours worked
by seven terminated Food Service workers at Stanford.
On one worker we found that you supplied us with her
payroll records of hours worked until 5/13/90, having
ommitted [sic] all time she has worked since 9/90 until
present. Your responses of 2/5/91 and 2/26/91 where
you claim their [sic] is ‘‘no instance’’ of light duty as-
signments for Mr. Parker needs verification, which only
a review of his personnel file can do.
It is undisputed that the only information furnished by Re-
spondent in response to the December 19 and January 17 re-
quest, as modified and/or explained by the February 6 and
8 request, is contained in Smith’s letters of February 5, 12,
and 26. It is further undisputed that no clarification was fur-
nished by the Union of its request except as set forth in the
letters above. Tatham’s testimony as to the relevance of the
information requested is undisputed.
Conclusions
Section 8(a)(5) and (1) of the Act imposes on an employer
the obligation to furnish information requested by a union
which is necessary for, and relevant to, the union’s perform-
ance as the exclusive bargaining representative of its employ-
ees. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979);
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149, 151–154 (1956); San Diego
Newspaper Guild Local 95 v. NLRB, 548 F.2d 863, 866–867
(9th Cir. 1977). Those sections further obligate an employer
to respond to the Union’s request in a timely manner. Thus,
an unreasonable delay in providing such information is also
a violation of Section 8(a)(5) and (1) of the Act. Valley In-
ventory Service, 295 NLRB 140 (1989); Bundy Corp., 292
NLRB 671 (1987); California Nevada Golden Tours, 283
NLRB 58 (1987).
In determining whether an employer is obligated to furnish
particular requested information, the sole question is whether
there is a ‘‘probability that the desired information [is] rel-
evant, and that it would be of use to the union in carrying
out its statutory duties and responsibilities.’’ NLRB v. Acme
Industrial Co., supra at 437. The standard for assessing rel-
evancy is a liberal discovery-type standard requiring only a
probability that the requested information is relevant and will
be of use to the union in carrying out its statutory duties and
responsibilities as the employees’ bargaining representative.
Consequently, the Board and the courts have consistently
held that information relating to the terms and conditions of
employment of unit employees is presumptively relevant be-
cause it goes to the core of the employer-employee relation-
ship and no specific showing of relevance is required. The
burden falls upon the employer to prove a lack of relevance.
However, where the information sought relates to matters
outside the unit, the union has the burden of showing rel-
evancy. NLRB v. Acme Industrial Co., supra; Graphic Com-
munications Local 13 v. NLRB, 598 F.2d 267, 271 (D.C. Cir.
1979); San Diego Newspaper Guild Local 95, supra.
Applying these principles, the Board has long held that
Section 8(a)(5) of the Act obligates an employer to furnish
requested information which is potentially relevant to the
processing of grievances. An actual grievance need not be
pending nor must the requested information clearly dispose
of the grievance. It is sufficient if the requested information
is potentially relevant to a determination as to the merits of
a grievance or an evaluation as to whether a grievance
should be pursued. United Technologies Corp., 274 NLRB
504 (1985); TRW, Inc., 202 NLRB 729, 731.
Here, Respondent argues that it has fully responded to the
Union’s information request. Specifically, Respondent con-
tends that by such request, the Union sought to determine:
(1) whether any AHT had been disciplined for the destruc-
tion of animals; and (2) whether Parker or any other AHT
had been granted a light-duty assignment. In each case, Re-
spondent argues it provided the necessary and relevant infor-
mation by informing the Union that (1) there were no records
or disciplinary letters in the personnel files of any bargaining
unit workers in DLAM concerning the destruction of ani-
mals, and (2) there was no instance of a light-duty assign-
ment to Parker or any other AHT. Consequently, according
to Respondent, the request for Parker’s personnel file was
unrelated to the grievances. Respondent further argues that
the requested special request forms are not relevant or nec-
essary to the Britt grievance because they do not contain in-
formation regarding the improper destruction of animals; and
that the Union’s failure to respond to Respondent’s request
for clarification relieves Respondent of any possible obliga-
tion in this regard.
I find that this argument is supported neither by the facts
nor the law. Of the nine items sought by the Union, Re-
spondent furnished information only as to two—items 2 and
perhaps item 8 of the December 19 request. By Smith’s Feb-
ruary 5 letter, Respondent notified the Union that the re-
quested November 6, 1990 Wittry-Britt tape had disappeared.
Smith’s February 12 letter answered subsequent questions re-
garding the circumstances of the disappearance and whether
the disappearance had been reported to the police. Smith’s
February 5 letter also states that a review of its records indi-
cated no light-duty assignments to Beth Emert and Annette
Ludtke. Although this response does not precisely state that
there are no notes and written correspondence concerning
limited-duty workplace accommodations for Emert and
Ludtke because of their disabilities, it is arguable that the re-
81LELAND STANFORD JUNIOR UNIVERSITY
sponse was intended to convey the nonexistence of such doc-
uments. Because the Union raised no further issue as to this
item, I conclude that it considered the response to be suffi-
cient.
Respondent did not furnish the requested sick leave
records, euthanasia request, special request forms, discipli-
nary letters for Tom Boukaka, or the personnel file of Roger
Parker. The request set forth a brief explanation of the rel-
evance of each item which indicated that it related to bar-
gaining unit work or bargaining unit employees and had po-
tential relevance to one or both of the grievances involved
herein.
As to the special request forms sought in item 3, Respond-
ent argues that (1) these forms do not contain information re-
garding the destruction of animals and (2) the Union did not
respond to its request for clarification as to their relevance.
Thus, Respondent asserts, it was unable to give any meaning-
ful response. Respondent’s argument is not persuasive. On its
face, the information request seeks special request forms
which list animals that were improperly destroyed. This
clearly has potential relevance to the consideration, and proc-
essing, of a grievance alleging disparate discipline for almost
destroying animals contrary to instructions. Respondent’s re-
sponse did not assert that special requests do not list animals
improperly destroyed. Nor was such evidence adduced at the
trial. Contrary to Respondent’s urging, I cannot conclude that
affirmative answers to questions regarding whether the forms
contain certain specific information is tantamount to testi-
mony that certain other relevant information is not listed on
the forms.
As to the request for disciplinary letters for Tom Boukaka,
Respondent responded only that all ‘‘relevant documents’’
are part of an arbitration record in the Union’s possession.
There is no indication in the response that these ‘‘relevant
documents’’ include all disciplinary letters for Tom Boukaka
as requested by the Union. In fact, the tenor of the response
to this and other items, in not addressing the specific request,
seems to indicate an attitude that a determination of rel-
evance is in the sole province of Respondent. Such is clearly
not the law. As noted above, if it relates to the terms and
conditions of employment of bargaining unit employees,
there is a presumption of potential relevance.
As to the personnel files, Respondent refused to furnish ei-
ther of the three requested files on the basis that paragraph
338 of the collective-bargaining agreement permits union ac-
cess to those files only upon written authorization of the em-
ployee. However, a waiver of a statutory right will be found
only when there is a clear and unmistakable manifestation of
an intent to waive the right. Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983); Timken Roller Bearing Co., 138
NLRB 15, 16 (1962). A clear and unmistakable waiver may
be found in the express language and structure of the collec-
tive-bargaining agreement or by the course of conduct of the
parties. The burden is on the party asserting waiver to estab-
lish that such a waiver was intended. NLRB v. New York
Telephone Co., 930 F.2d 1009 (2d Cir. 1991), enfg. 299
NLRB 44 (1990); United Technologies Corp., supra.
Respondent has not met that burden. Paragraph 338 is in
a section of the collective-bargaining agreement relating to
discipline, suspension, and separation. On its face, the lan-
guage of the paragraph appears to be concerned with requir-
ing (1) that the employer maintain a file for each employee
to contain copies of certain specified personnel actions and
(2) that disciplinary action be based only on documentation
in the file. There is nothing in paragraph 338 or elsewhere
in the agreement to indicate that the provision in that para-
graph for employee or union review of such files has any re-
lationship to the grievance process or the statutory rights of
the union with reference thereto. To the contrary, the rep-
resentation article of the collective-bargaining agreement,
which contains grievance procedure provisions, also requires
that Respondent provide the Union with certain enumerated
data and, on request, any additional data relevant and nec-
essary to the Union’s representation responsibilities. There is
no reference in this section to requiring the Union to obtain
written authorization of employees to review personnel files.
Thus, it seems the intent of the agreement is to affirm,
rather than waive, the Union’s statutory right to information.
When the agreement is viewed as a whole, it seems clear
that the language of paragraph 338 is intended not to restrict
the statutory right of the Union to information but rather to
clearly provide that an employee or a union representative
authorized by the employee has the right to review the em-
ployee’s personnel file regardless of any relevance to the
Union’s representation responsibilities.
Respondent has offered no evidence of bargaining history
practice or other course of conduct to refute this conclusion.
The only basis Respondent offers for its interpretation of
paragraph 338 is the Union’s withdrawal of its request for
the Emert and Ludtke files while reaffirming its request for
the Parker file ‘‘since he is no longer in the bargaining
unit.’’ I conclude that Respondent’s reliance on this modi-
fication, as supporting a waiver, is misplaced. The Union
specifically stated that the withdrawal was without waiver of
its position.
In these circumstances, I find that the Union did not waive
its statutory right to obtain personnel files relevant and nec-
essary to its performance as exclusive collective-bargaining
representative of Respondent’s employees in the appropriate
unit herein. As to Parker’s personnel file, the Union limited
its request to that portion of his file maintained while he
worked in the bargaining unit. The request also states that
the file is relevant because of alleged work accommodations
made for Parker which were denied to Britt. This has clear
potential relevance to the grievance alleging disparate treat-
ment of Britt as to work accommodations; and the Union is
not required to accept Respondent’s representation as to what
the file does or does not contain.
Based on the above, I find that the information requested
by the Union was relevant and necessary to its performance
of its responsibilities as the collective-bargaining representa-
tive of the employees in the appropriate unit. Accordingly,
I find that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to furnish the Union the following requested
information:
1. The sick leave records of all animal health technicians
and animal caretakers who have taken disability within the
last 5 years.
2. All special requests for the last 5 years in the Depart-
ment of Laboratory Animal Medicine (DLAM) which list
animals that were improperly destroyed.
3. All discipline within the last 5 years of animal health
technicians at DLAM for work-related incidents.
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4. Copies of all euthanasia requests and all special request
forms in DLAM for the past year for procedures for which
the planned result was death of an animal.
5. Copies of all disciplinary letters for Tom Boukaka.
6. The complete personnel file of Roger Parker of Depart-
ment of Laboratory Animal Medicine while he worked in the
bargaining unit as an animal health technician.
Because the request for the Baumgardner and Kane per-
sonnel files was withdrawn and because the Union accepted
Respondent’s representation that no light-duty assignments
were given to Emert and Ludtke, I find that Respondent did
not violate Section 8(a)(5) and (1) of the Act by failing to
comply with the Union request for the Baumgardner and
Kane personnel files and for copies of any notes and written
correspondence concerning workplace accommodations in the
nature of limited-duty work granted Emert and Ludtke be-
cause of disabilities.
I further find that by a 48-day delay in responding to the
Union’s request for information relevant to a grievance pend-
ing under a grievance provision which contains various
timelines, none of which exceeds 35 days, Respondent has
violated Section 8(a)(5) and (1) of the Act. Valley Inventory
Service, supra; Bundy Corp., supra.
CONCLUSIONS OF LAW
1. The Respondent, Leland Stanford Junior University, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, United Stanford Workers, Service Employ-
ees International Union, Local 680, AFL–CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The following described employees of Respondent con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time staff maintenance
employees, laboratory support personnel, custodians,
food service employees, audiovisual operators, non-
exempt computer operations personnel, production con-
trol clerks and tape librarians employed by the Depart-
ment of Informational Technology Services and the
SLAC Computing Services (ITS and SCS), book pre-
servers and all regular staff book warehouse assistants
and proofreaders of the Stanford University Press all
employed by the University in Northern California; EX-
CLUDING: All other employees, office clerical em-
ployees; all employees of Stanford University Hospital;
patient care employees; shelvers; computer production
control clerks other than in ITS and SCS, computer
production control coordinators and operations special-
ists; programmers, scientific and engineering associates;
all currently represented employees; guards, profes-
sional and confidential employees, and supervisors as
defined in the Act.
4. At all times material, the Union has been, and is now,
the exclusive collective-bargaining representative of Re-
spondent’s employees in the above-described unit.
5. Respondent has failed and refused to bargain with the
Union in good faith, in violation of Section 8(a)(5) and (1)
of the Act by refusing to furnish the Union with the fol-
lowing requested information:
(a) The sick leave records of all animal health technicians
and animal caretakers who have taken disability within the
last 5 years.
(b) All special requests for the last 5 years in the Depart-
ment of Laboratory Animal Medicine (DLAM) which list
animals that were improperly destroyed.
(c) All discipline within the last 5 years of animal health
technicians at DLAM for work-related incidents.
(d) Copies of all euthanasia requests and all special request
forms in DLAM for the past year for procedures for which
the planned result was death of the animal.
(e) Copies of all disciplinary letters for Tom Boukaka.
(f) The complete personnel file of Roger Parker of Depart-
ment of Laboratory Animal Medicine while he worked in the
bargaining unit as an animal health technician.
6. By delaying until February 5, 1991, its response to the
Union’s December 19, 1991 request for information, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
7. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in certain unfair labor practices affecting commerce,
I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the purposes
of the Act. Having found that Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by its refusal to furnish cer-
tain information requested by the Union, I shall recommend
that Respondent be directed forthwith to turn over to the
Union the information set forth in the Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Leland Stanford Junior University, Palo
Alto, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Stanford
Workers, Service Employees International Union, Local 680,
AFL–CIO by refusing to furnish, or to timely furnish, said
union, on request, with information necessary and relevant to
the performance of its function as the exclusive collective-
bargaining representative of the employees in the following
appropriate unit:
All full-time and regular part-time regular staff mainte-
nance employees, laboratory support personnel,
custodians, food service employees, audiovisual opera-
tors, nonexempt computer operations personnel, produc-
tion control clerks and tape librarians employed by the
Department of Informational Technology Services and
the SLAC Computing Services (ITS and SCS), book
preservers and all regular staff book warehouse assist-
83LELAND STANFORD JUNIOR UNIVERSITY
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ants and proofreaders of the Stanford University Press
all employed by the University in Northern California;
EXCLUDING: All other employees, office clerical em-
ployees; all employees of Stanford University Hospital;
patient care employees; shelvers; computer production
control clerks other than in ITS and SCS, computer
production control coordinators and operations special-
ists; programmers, scientific and engineering associates;
all currently represented employees; guards, profes-
sional and confidential employees, and supervisors as
defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish forthwith to the Union the following informa-
tion:
(1) The sick leave records of all animal health technicians
and animal caretakers who have taken disability within the
last 5 years.
(2) All special requests for the last 5 years in the Depart-
ment of Laboratory Animal Medicine (DLAM) which list
animals that were improperly destroyed.
(3) All discipline within the last 5 years of animal health
technicians at DLAM for work-related incidents.
(4) Copies of all euthanasia requests and all special request
forms in DLAM for the past year for procedures for which
the planned result was death of the animal.
(5) Copies of all disciplinary letters for Tom Boukaka.
(6) The complete personnel file of Roger Parker of Depart-
ment of Laborabory Animal Medicine while he worked in
the bargaining unit as an animal health technician.
(b) Post at its office and place of business, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be, dis-
missed insofar as it alleges that Respondent violated the Act
other than as found herein.