New York Telephone Co.

National Labor Relations Board - Board Decisions

Jul 31, 1990

299 N.L.R.B. 351 (N.L.R.B. 1990)

NEW YORK TELEPHONE CO 351
New York Telephone Company and Communications
Workers of America, Local 1122. Cases 3-CA-
14228, 3-CA-14280 and 3-CA-15166
July 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 31, 1989, Administrative Law Judge
Steven Davis issued the attached decision 1 The
Respondent filed exceptions and a supporting brief
and the General Counsel filed cross-exceptions and
a brief answering the Respondent's exceptions 2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 3 and
conclusions and to adopt the recommended Order,
as modified and set forth in full below 4
'On Apnl 6, 1990, the Respondent, the Charging Party, and counsel
for the General Counsel filed a motion in Case 3-CA-15166 requesting
the Board to accept the parties' stipulation of facts and to consolidate
that case with Case 3-CA-14280 On Apnl 26, 1990, we granted the
motion and accepted the stipulation
The only Issue in Case 3-CA-15166 is whether, under art 35 of the
parties' collective-bargaining agreement, the Union waived its nght to re-
ceive tardiness control records for employees at the Respondent's Tona-
wanda, New York garage, without the written consent of the employees
This issue—whether the Union waived its right to certain documents
contained in employee files without the employees' written consent—is
the same as that presented in Case 3-CA-14280, and the parties agree
that all the findings in that case are applicable to Case 3-CA-15166 The
parties have agreed to rely on their briefs and the record as developed in
Case 3-CA-14280
2 The Respondent's request for special leave to file a reply to the Gen-
eral Counsel's answering brief is denied
"The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In addition to making the waiver arguments, discussed Infra, the Re-
spondent also excepted to the judge's decision on the ground that the in-
formation sought by the Union is irrelevant to the Union's performance
of its duties as collective-bargaining representative We find no merit in
this exception The Respondent has justified its demotion of two drafters
on the ground that they had 5 years of unsatisfactory ratings on their per-
formance appraisals The Union is certainly entitled to evaluate the merits
of the Respondent's actions by comparing the grievants' performance ap-
praisals with those of similarly classified employees See Pfizer Inc , 268
NLRB 916, 918-919 (1984)
No exceptions were filed with respect to the judge's findings in Case
3-CA-14228
4 The General Counsel excepted to the judge's recommended Order on
the ground that It required the Respondent to post the attached notice
only at the Respondent's Lancaster facility as opposed to all the Re-
spondent's facilities in western New York We correct this apparent over-
sight on the part of the judge and order that the notice be posted at all
the Respondent's western New York facilities
A Factual Background
The Respondent provides telephone communica-
tion services throughout the State of New York
The Union represents the Respondent's employees
in the western area of New York
1 Case 3-CA-14280
In November 1986, the Respondent demoted two
unit employees from their positions as drafters in
the engineering department to engineer study
clerks because they had 5 consecutive years of un-
satisfactory performance appraisals The Union
filed grievances protesting the demotions
In preparation for the second-step grievance
meeting, 5 the Union sent the Respondent a request
for the performance appraisals of all drafters in
western New York for the years 1981 through
1986 6 The Respondent did not provide the re-
quested documents
At the second-step meeting on April 20, 1987,
the Union's executive vice president, Donald Lor-
etto, renewed the Union's request for the appraisals
of all drafters for the previous 5 years The Re-
spondent's district manager of engineering, Edward
Bushway, denied the request, informing Loretto
that he would have to furnish releases from the
employees whose appraisals the Union sought
before the Respondent would provide the request-
ed appraisals At the conclusion of the meeting,
Loretto telephoned Henry Loskorn, the Respond-
ent's associate director of labor relations, request-
ing the appraisals After some discussion, Loretto
agreed to accept "sanitized" appraisals (from which
all identifying information had been removed) of
drafters with an unsatisfactory rating within the 5-
year period
By letter dated Apnl 24, 1987, the Respondent
denied the grievances at the second step and also
denied the Union's request for all appraisals as un-
reasonable and irrelevant Thereafter, by letter
dated April 28, 1987, the Respondent sent the
Union copies of 14 sanitized appraisals with unsatis-
factory ratings, in addition to the appraisals of the
2 gnevants When Loretto received the unsatisfac-
tory appraisals from the Respondent, he consulted
his grievance files and discovered that he had ap-
proximately 22 or 23 grievances from drafters pro-
testing unsatisfactory performance appraisals In
early May 1987, Loretto called Loskorn and in-
formed him that he believed he had not received
all the appraisals he had been promised During the
conversation, Loretto named 2 employees whose
appraisals he believed had been omitted from the
'The parties agreed to waive the first step of the grievance procedure
6 There are 40 drafters in the Respondent's western New York area
299 NLRB No 44
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 he had received In both instances, the Respond-
ent's official, William Donaldson, 7 replied that the
appraisals had not been sent to the Union because
the employees had not been or were not currently
drafters Loretto did not give Loskorn and Donald-
son the names of all the employees on his griev-
ance list nor were they requested by the Respond-
ent 8 Thereafter, Loretto renewed his original re-
quest for the performance appraisals of all drafters
for the 5-year period 9
2 Case 3-CA-15166
According to the parties' stipulation, the follow-
ing facts have been established Since about July 3,
1989, the Union, by letter, has requested the tardi-
ness control records of bargaining unit employees
employed at the Respondent's Tonawanda, New
York garage This information is necessary and rel-
evant to the Union's processing of a grievance
Since about July 11, 1989, the Respondent, by
letter from John Richardson, the Respondent's
acting director of labor relations, has failed and re-
fused to furnish the requested information The Re-
spondent's position is that the tardiness records
may only be provided with the written consent of
the employees
B Discussion
The judge found that the Respondent violated
Section 8(a)(5) and (1) by refusing to furnish the
Union with the performance appraisals of all draft-
ers in the western area of New York for the years
1981 through 1986 The Respondent first excepts to
the judge's decision on the ground that, under arti-
cle 35 of the parties' collective-bargaining agree-
ment, the Union waived its right to receive the
performance appraisals without the consent of the
affected employees 10
7 Loskom brought Donaldson Into the conversation because he had
compiled the unsatisfactory appraisals and forwarded them to the Union
at Loskorn's request
8 Loretto testified, however, that, after his conversation with Loskom
and Donaldson, he gave the list of grievants to Jan Borman, the Union's
area vice president and chief steward, who venfied that the employees on
the list were drafters and that, of the two individuals named by Loretto
to Loskorn and Donaldson, one was not a drafter and the other had been
demoted but had not filed a grievance concerning the demotion
° Loretto testified that he renewed his original request during the May
1987 telephone conversation with Loskorn and Donaldson and again at a
third-step meeting on July 16, 1987, and the request was refused Loskorn
denied that Loretto requested all the appraisals then or at the subsequent
third-step meeting The Respondent's officials also deny that the Union
made a request for the appraisals at that meeting There is no dispute,
however, that the Union, by letter dated December 22, 1987, requested
the appraisals of all drafters in western New York for the years 1981
through 1986
10 Similarly, in Case 3-CA-15166, the Respondent has refused to fur-
nish tardiness records of employees, on the ground that the Union has
failed to provide releases from the affected employees as required by art
35
As set forth in the judge's decision, article 35
provides that an employee may inspect the per-
formance appraisals and absence and tardiness
records contained in his or her employee file once
each year and that the Union may inspect those
records on reasonable notice and at reasonable
times with the employee's written consent The Re-
spondent contends that, by this provision, the
Union waived its right to inspect the employees'
performance appraisals without their written con-
sent and that, when the consents were not forth-
coming, the Respondent was justified in refusmg to
provide the drafters' appraisals
The General Counsel argues that article 35 is not
a clear and unmistakable waiver of the Union's
right to the appraisals for use in the processing of
grievances to which they are relevant He notes
that article 35 does not, on its face, speak to gnev-
ance processing, and it thus expands the Union's
right to information by permitting the Union to in-
spect the documents without regard to any poten-
tial relevance to the Union's duty as collective-bar-
gaining representative Furthermore, the General
Counsel argues, if article 35 could be construed as
a waiver of the Union's right to employee records,
such a waiver was inadvertent and, thus, could not
clearly and unmistakably manifest an intention on
the Union's part to waive its statutory right to in-
formation In addition, the General Counsel argues
that the past practice of the parties demonstrates
that article 35 has not been understood by the par-
ties to require releases before the Union could
obtain employee records
As both parties recognize, we will find a waiver
of a statutory right 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) We find that article 35 does not
meet this standard
As the judge noted, the parties' collective-bar-
gaining agreement, including the grievance proce-
dure set forth m article 11, is silent on the Union's
statutory right to obtain information necessary to
the performance of its duties as collective-bargain-
ing representative of the Respondent's employees
The record discloses that the Union originally pro-
posed article 35 in 1968, in order to guarantee em-
ployees the right to inspect their records, and to
permit the Union to do so on the employees' behalf
with their consent The record further discloses
that the Union proposed article 35 in part to meet
the Respondent's complaint that the Union filed
too many grievances, this provision permitted the
Union to inspect an employee's records to deter-
mine, in advance of filing, whether a potential
grievance had merit Thus, although article 35 re-
NEW YORK TELEPHONE CO 353
quires the Union to obtain an employee's consent
to inspect his or her records when no grievance is
pending, we cannot say that the Union intended
clearly and unmistakably to waive its statutory
nght to information that may be relevant to the
processing of grievances after the grievances have
been filed with the Respondent
The Respondent's belated assertion of article 35
as a basis for its refusal to furnish the performance
appraisals is also inconsistent with its own actions
earlier in this case Although the Respondent's offi-
cial, Edward Bushway, informed Loretto that the
Respondent would not produce the requested ap-
praisals without employee releases, neither he nor
any official asserted article 35 or any other con-
tract provision as the foundation for this require-
ment until after the Union renewed its original re-
quest For example, in its Apnl 24, 1987 letter, the
Respondent denied the Union's request on the
grounds that it was, "unreasonable and not relevant
to the grievance," and not on the ground that the
Union failed to provide the employees' written
consent as required by article 35 Indeed, the Re-
spondent subsequently provided the unsatisfactory
appraisals to the Union without the drafters' con-
sent Thus, not only can we not say that the Union
clearly and unmistakably intended to waive its stat-
utory right to information under article 35, but it is
equally clear that the Respondent itself did not in-
terpret the provision to operate in the manner it
now suggests
Accordingly, we find that the Union did not
waive its nght under article 35 to receive the ap-
praisals of all drafters in western New York for the
years 1981 through 1986
The Respondent next contends that the Union
waived its right to receive the performance ap-
praisals of all drafters by subsequently agreeing to
accept only those appraisals with unsatisfactory no-
tations We disagree
To determine whether the Union waived its
right to the performance appraisals it now seeks by
agreeing to accept less than it was legally entitled
to, we apply the clear and unmistakable standard,
set forth above, to the circumstances surrounding
the compromise We find no such clear and unmis-
takable waiver
The record discloses that, after Bushway denied
the Union's request for the appraisals of all drafters
at the second-step grievance meeting, Loretto
called Loskorn to pursue the matter When Loi-
korn also denied Loretto's request as "too burden-
" In addition, we find that the Union is entitled to receive the tardi-
ness control records of employees at the Respondent's Tonawanda, New
York garage, without first obtaining the employees' wntten consent See
fn 1, above
some," Loretto made some initial offers of compro-
mise, which were also rejected," and ultimately
agreed to accept the unsatisfactory appraisals
There is no evidence, however, that the Union
clearly and unmistakably intended this compromise
to operate as an unconditional abandonment of its
original request In the absence of any evidence to
the contrary, it is just as likely that the Union
hoped the compromise would render its original re-
quest unnecessary When it appeared to the Union
that there were possibly eight or nine more drafters
who had received unsatisfactory appraisals than the
Respondent claimed, its hope that the compromise
would suffice disappeared We cannot equate the
Union's initial optimism with a clear and unmistak-
able intent to abandon unconditionally its original
request
We also reject the Respondent's contention that
the Union was obligated to consult its files to at-
tempt to determine which appraisals had been
omitted from the group furnished by the Respond-
ent 13 It is sufficient that, after verifying that the
employees on its grievance list were drafters, the
Union renewed its original request in the good-
faith belief that some appraisals were missing
Accordingly, we find that the Respondent's fail-
ure to provide the requested information violated
Section 8(a)(5) and (1)
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5
"5 By failing and refusing to provide the Union
with the performance appraisals of all of its em-
ployees in western New York in the title of drafter
for the years 1981 through 1986, and the tardiness
control records for employees at the Tonawanda,
New York garage, the Respondent unlawfully re-
fused to bargain in violation of Section 8(a)(5) and
(1) of the Act"
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent, New York Telephone
Company, Buffalo, New York, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
" According to Loretto's uncontradicted testimony, he offered to
share the cost of copying the appraisals or to inspect the documents with-
out copying them Loskorn did not testify regarding the substance of this
conversation with Loretto
" We note that the 14 appraisals produced by the Respondent had
been furnished without names, addresses, or social secunty numbers It
would have been, at best, guesswork for the Union to compare the sani-
tized appraisals with those, if any, in its possession
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with Com-
munications Workers of America, Local 1122, by
refusing to furnish it with the performance apprais-
als, with the names, addresses, and social security
numbers deleted, of all its employees in western
New York in the title of drafter, for the years 1981
through 1986, and by refusing to furnish the tardi-
ness control records for employees at the Tona-
wanda, New York garage
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Furnish, on request, to the Communications
Workers of Amenca, Local 1122, the performance
appraisals, with the names, addresses, and social se-
cunty numbers deleted, of all its employees in
western New York in the title of drafter, for the
years 1981 through 1986, and the tardiness control
records for employees at the Tonawanda, New
York garage
(b) Post at its western New York facilities copies
of the attached notice marked "Appendix "14
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(c) Notify the Regional Director in wnting
within 20 days from the date of this Order what
steps the Respondent has taken to comply
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively with
Communications Workers of America, Local 1122,
by refusing to furnish it with performance apprais-
als, with the names, addresses, and social security
numbers deleted, of all our employees in western
New York in the title of drafter, for the years 1981
through 1986, or by refusing to furnish it with the
tardiness control records of our employees at the
Tonawanda, New York garage
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
WE WILL furnish, on request, to the Communica-
tions Workers of America, Local 1122, the per-
formance appraisals, with the names, addresses, and
social security numbers deleted, of all our employ-
ees in western New York in the title of drafter, for
the years 1981 through 1986, and the tardiness con-
trol records for our employees at the Tonawanda,
New York garage
NEW YORK TELEPHONE COMPANY
Michael Cooperman, Esq , for the General Counsel
Michael Hertzberg, Esq , of New York, New York, for
the Respondent
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge Pursuant
to charges filed in Cases 3-CA-14228 and 3-CA-14280
on February 29 and March 23, 1988, respectively, by
Communications Workers of America, Local 1122
(Union), an amended consolidated complaint was issued
against New York Telephone Company (Respondent) on
Apnl 29, 1988
The complaint, as amended before and at the hearing,
alleges that Respondent failed to furnish the Union with
certain mformation which is necessary for and relevant
to the Union's performance of its function as the exclu-
sive collective-bargaining representative of the employ-
ees in the unit
Specifically, the complaint alleges that the Union re-
quested and the Respondent failed to furnish it with
(a) information relating to the maintenance of the
cosmic frame equipment at Respondent's Lancaster,
New York central office and the subcontracting ar-
rangement pertaining to the cosmic frame, and
(b) performance appraisals from 1981 through
1986 for individuals employed by Respondent in the
unit as drafters in Western New York
Respondent's answer denied the material allegations of
the complaint and set forth certain affirmative defenses
On January 25 and 26, 1989, a hearing was held before
me in Buffalo, New York On the entire case, including
my observation of the demeanor of the witnesses and
after consideration of the briefs filed by the parties, I
make the following
NEW YORK TELEPHONE CO 355
,
FINDINGS OF FACT
I JURISDICTION
Respondent, a corporation, having an office and place
of business in Buffalo, New York, has been engaged in
the furnishing of telephone communication services
During the past 12 months, Respondent, in the course
and conduct of its business operations, derived gross rev-
enues in excess of $100,000, and purchased and received
at its Buffalo, New York facility, products, goods, and
materials valued in excess of $5000 directly from points
outside New York State Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Request for Performance Appraisals
1 The Facts
The complaint alleges that since about December 22,
1987, the Union, by letter, has requested Respondent to
furnish the Union with performance appraisals from 1981
through 1986 for drafters in western New York State
Respondent raises several defenses, including that arti-
cle 35 of the parties' contract requires the Union to
obtain the consent of employees in order to obtain their
appraisals
In November 1986, two employees, Deborah Hender-
son and Phyllis Tracy, were downgraded—demoted
from their positions as drafters, to engineer study clerks
The Union filed grievances protesting the "unjust
downgrades" The grievance was denied by the Re-
spondent The Union and Respondent agreed to waive
step 1 of the grievance procedure
In early 1987, the Union notified the Respondent in
writing that it would appeal the denials of the griev-
ances Attached to this notification was a request for in-
formation which the Union sought for its use at the
second-step grievance meeting, as follows
Appraisals for all other drafters, for [sic] last 5
years
Inasmuch as there are about 40 drafters in the unit,
such a request involved about 200 appraisals
A second-step grievance meeting was held on April
20, 1987 Not having received the requested information
prior to the meeting, Union Executive Vice President
Donald Loretto asked at the meeting for that informa-
tion According to Loretto, Edward Bushway, Respond-
ent's district manager of engineering, denied that re-
quest 1 Loretto asked him why the two workers were
demoted Bushway replied that they had 5 consecutive
years of unsatisfactory performance appraisals and were
unsatisfactory employees Loretto further stated that he
I William Donaldson, Respondent's official, was also present at that
meeting
told Bushway that Respondent's standards were being
unfairly applied in that the standards for performance ap-
plied to employees in the Buffalo area were different
than those in effect for drafters in other parts of New
York State
Accordingly, Loretto stated that he asked for the pro-
ductivity and quality standards used in appraising em-
ployees in the engineering department from 1980
through 1987 for all of Respondent's districts Loretto
wanted those records in order to compare the standards
for performance in the various districts of the Company's
operations Bushway denied that request
Loretto further stated that at that meeting Bushway
told him that he (Loretto) needed employees' consent or
releases to obtain information relating to grievances
Loretto replied that he did not need releases to obtain
this information 2
, When the meeting ended, Loretto called Henry Los-
korn, Respondent's associate director of labor relations
and requested the information An agreement was
reached whereby Loretto agreed to accept "sanitized"
appraisals—appraisals in which the names, addresses, and
social security numbers of the employees involved were
removed from the documents—of all drafters having an
unsatisfactory rating in any rating category in the past 5
years Loretto agreed to accept this information in lieu
of his previous request for the appraisals of all drafters
for the past 5 years
On April 24, 1987, Respondent sent the Union a letter
denying the grievance and stating that "the information
requested by the Union is unreasonable and not relevant
to the gnevance "
On April 28, 1987, William Donaldson, Respondent's
official, sent Loretto the following letter, in relevant
part
As you agreed to with Mr Loskorn, attached are
all the Western Area Drafter appraisals for the last
five years which contain unsatisfactory ratings and
a matrix indicating same
I have also included P Tracy and M Hender-
son's 1986 appraisals which you requested They
represent ten months as drafters and two months in
the Engineering Studies Clerk position
Included in the April 28 letter were 14 appraisals of
employees other than the 2 grievants
Loretto testified that on receiving the 14 appraisals he
checked the nuthber of grievances on file in his office
and came to the conclusion that there must have been
more than 14 unsatisfactory appraisals Loretto had
about 22 or 23 grievances of drafters on file He did not
check to see whether he had appraisals for any of those
drafters nor did he compare the appraisals he received
with those he may have had in his files Nevertheless,
Loretto believed that eight or nine other employees must
have had unsatisfactory appraisals, and that those were
not forwarded to him as promised by Loskorn
2 This contradicts Loretto's testimony that the first time he heard of
the requirment of employee consent to release if was in the Re-
spondent's answer to the complaint Issued in this case
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, in May 1987, Loretto called Loskom
and told him that not all of the appraisals were sent to
him because of the greater number of grievances he had
on file Loskorn told him that all the appraisals turned
over to the Union constituted all the unsatisfactory ap-
praisals in the Respondent's possession Loskorn asked
him for the names of the employees he believed were
missing Loretto stated that he did not tell Loskom all
the names, nor did Respondent ask for all the names of
the allegedly missing appraisals Loretto stated that he
asked for all the appraisals, and Loskorn refused
On July 16, 1987, a third-step meeting was held
Present were Loretto and Respondent officials Loskorn,
John Finnegan, and Robert Tait Loretto testified that at
that meeting he asked again for all the appraisals and
standards that had been previously requested The re-
quest was refused Loretto further stated that at the
meeting there was no discussion concerning his need to
obtain written permission from employees in order to re-
ceive their appraisals Loretto further stated that at that
meeting Respondent did not rely on the confidentiality
of the documents in refusing to release them
Respondent's officials Finnegan, Loskom, and Tait all
denied that the Union made any request for appraisals at
that meeting
Loretto testified that following that meeting, he of-
fered to accept sanitized copies of all the appraisals and
offered to help pay for their production Respondent re-
fused to produce them
On December 22, 1987, Loretto sent the following
letter to Loskorn
To further prepare and make a final decision on
whether to arbitrate the [grievances relating to the
demotions] please make available to me the follow-
ing information
1 The written guidelines, for the W N Y Engi-
neering Department, that affix the productivity and
quality standards for the years 1981 through 1986
2 The appraisals of all employees in WNY in the
title of Drafter for the years 1981 through 1986
According to Loskorn, following his receipt of the
letter, he told Loretto that, pursuant to article 35 of the
contract, he would have to obtain the releases of all the
employees in order to obtain the rest of the appraisals
Loretto denied that Loskom made such a comment
When the information was not forthcoming, Loretto
filed a charge
Article 35 of the contract states as follows
Inspection of Employee Records
Once each year an employee may inspect the ap-
praisals of his performance as an employee, or en-
tries in his personnel record with respect to absence
or tardiness Also on reasonable notice and at rea-
sonable intervals, a Local Union Officer or Interna-
tional Union Representative may inspect the items
in an employee's record referred to above if such
Local Union Officer or International Union Repre-
sentative has the employee's written consent to do
so
As set forth above, Respondent relies on article 35 in
its refusal to deliver the requested documents to the
Union
Donald Sanchez, a former union official, testified as to
the origin of article 35 He stated that in 1968, the Union
proposed what later became article 35 It was proposed
in order to require Respondent to make available to the
employees their personnel file Sanchez stated that pnor
to 1968, the Union was given appraisals where they were
relevant to a grievance There was no requirement, at
that time, to obtain the consent of the employee whose
appraisal the Union sought He further stated that the
employees represented by the Union wanted the Union
to be able to see their records The requirement that the
Union have the consent of the employee before looking
at a record was addressed to the situation where the file
contained very personal information Sanchez noted that,
faced with an accusation by Respondent that the Union
filed too many grievances, the Union sought access to
employee records, through article 35, in order to exam-
ine personnel files and if necessary tell the employee that
his grievance had no merit
Loretto stated that after the inclusion of article 35, he
has received appraisals of employees, for comparison
purposes, in connection with grievances filed by other
employees As to those nongnevant appraisals, and the
14 appraisals given to him in April 1987, Loretto was not
asked by Respondent to obtain releases from the employ-
ees involved
2 Analysis and discussion
An employer has a duty to provide on request mfor-
mation relevant "to the union in carrying out its statuto-
ry duties and responsibilities" NLRB v Acme Industrial
Co, 385 U S 432, 437 (1967)
The standard for determining whether the information
is relevant to a grievance is a "liberal, discovery-type
standard " Acme Industrial, supra at 437 The information
requested need not necessarily be dispositive of the issue
between the parties, it need only have some bearing on
it
Respondent first argues that the information requested
by the Union, "the appraisals of all employees in West-
ern New York in the title of Drafter for the years 1981
through 1986" is irrelevant to the grievances relating to
the two demoted employees However, the Umon con-
tends that it needed the appraisals of all the drafters in
order to compare them with those of the grievants As
set forth above, the two grievants were demoted because
they had 5 consecutive years of unsatisfactory appraisals
and were therefore unsatisfactory employees As related
by Union Official Loretto to Respondent's official Bush-
way, the Union posed the question whether other em-
ployees also had 5 consecutive years of unsatisfactory
appraisals and were not disciplined
In Safeway Stores, 270 NLRB 193, 196 (1984), and
Pease Co, 251 NLRB 540, 550 (1980), the Board found
that the unions' requests for performance evaluations of
all employees was relevant and necessary to their respon-
sibility as bargaining agents
NEW YORK TELEPHONE CO 357
In Pfizer, Inc , 268 NLRB 916, 918 (1984), the union
requested any documents which related to employees
being disciplined under a certain rule by the employer
The purpose of this request was to determine whether
the grievant was properly punished for engaging in a
fight with a coworker The Board stated
In order to determine whether rules have been ap-
plied evenhandedly it is necessary to compare the
employment history of employees disciplined for
the same rule violations [T]he documents re-
lating to the other employees disciplined under
rules 5 and 8 are relevant to a determination as to
whether the Respondent, in taking into account past
work performance, has treated like cases in a like
manner, or whether there has been disparate treat-
ment This information may therefore be of use to
the Union either in deciding whether to proceed to
arbitration, or in the arbitration proceeding Cer-
tainly, we find that there is a "probability that the
information [is] relevant, and that it would be
of use to the union in carrying out its statutory
duties and responsibilities" 268 NLRB at 919
Clearly, pursuant to the above principles, the Union's
request for the performance appraisals of all western
New York drafters from 1981 through 1986 is relevant to
a determination of whether the demotions of the two
grievants for having 5 consecutive years of unsatisfac-
tory appraisals was consistent with the manner in which
other employees in the unit were treated Such a com-
parison could only be made if the Union was in posses-
sion of the performance appraisals of the other employ-
ees in the unit
Respondent also argues that the Union is not entitled
to the documents it requested because the Union (a)
waived any right it may have had to the documents by
agreeing to accept unsatisfactory appraisals in lieu of all
the appraisals and (b) exhibited bad faith by repudiating
its agreement with Respondent to accept the sanitized
unsatisfactory appraisals in lieu of its pnor request for all
the appraisals
As set forth above, Loretto first requested all the ap-
praisals of all drafters for the past 5 years He agreed,
however, to accept sanitized unsatisfactory appraisals in
lieu of the documents originally requested Respondent
contends that the actions of the Union in compromising
its demand and later repudiating its agreement to accept
fewer appraisals precludes it from now, again, demand-
ing all the appraisals Although the Union did agree to
accept fewer appraisals than it originally sought, once it
obtained those appraisals, it had a good-faith belief, based
on its review of the grievances in its files, that not all the
unsatisfactory appraisals had been provided it, and there-
fore properly demanded what it had originally sought—
all the appraisals Respondent claims that the Union did
not in good faith seek the additional records because it
only superficially questioned Respondent concernmg the
allegedly missing unsatisfactory appraisals Thus, Loretto
conceded that he only asked about a couple of names of
persons whose gnevances he had and for whom he re-
ceived no unsatisfactory appraisal However, in viewing
this type of case, considenng the broad "discovery"
standard applied in such cases, I do not believe that the
Union should properly be limited to its original demand
because it could not articulate which unsatisfactory ap-
praisals were missing Thus, notwithstanding Loskorn's
admitted statement to Loretto that the appraisals provid-
ed constituted all those agreed to be given to the Union,
the Union was entitled to see, for itself, the appraisals in-
volved Thus, the Union did not have to take the Re-
spondent's word that it provided all the appraisals agreed
to Nor should the Union be put in a position where it
was incumbent on it to provide the Respondent with the
names of those it believed were withheld The facts that
certain information may be known by a union, or it
could obtain it from employees does not relieve an em-
ployer from providing the "official version" of such in-
formation from its files New York Times Go, 265 NLRB
353 (1982), .1 P Stevens Go, 239 NLRB 738, 746 (1978)
See West Point Pepperell, 290 NLRB 1242 (1988), where
the Board rejected the employer's argument that the
union, in bad faith, sought information relating employ-
ees' production in order to harass or embarrass the high
producing employees
Respondent further argues that the Union waived, by
specific contract language, its right to the information re-
quested The burden is on the Respondent to establish a
"clear and unmistakable" waiver on the part of the
Union NLRB v Perkins Machine Co, 326 F 2d 488 (1st
Cif 1968), Timken Roller Bearing Co, 325 F 2d 746 (6th
Cir 1963)
A union may waive its statutory right to receive infor-
mation from the employer Such a waiver may be by
contract However, as the Supreme Court stated in Met-
ropolitan Edison Co v NLRB, 460 U S 705, 708 (1983)
We will not infer from a general contractual provi-
sion that the parties intended to waive a statutorily
protected right unless the undertaking is "explicitly
stated" More succinctly, the waiver must be clear
and unmistakable
The Second Circuit Court of Appeals stated as fol-
lows
National labor policy disfavors waivers of statutory
rights by unions and thus a union's intention to
waive a right must be clear before a claim of
waiver can succeed Waivers can occur by ex-
press provision in the collective bargaining agree-
ment The language of a collective bargaining
agreement will effectuate a waiver only if it is
"clear and unmistakable" in waiving the statutory
right Chesapeake & Potomac Telephone Co v
NLRB, 687 F 2d 633, 636 (1982)
The contractual provision relied on by Respondent in
support of its argument that the Union contractually
waived its right to receive the appraisals sought is as fol-
lows
Article 35 Inspection of Employee Records
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Once each year an employee may inspect the ap-
praisals of his performance as an employee, or en-
tries in his personnel record with respect to absence
or tardiness Also on reasonable notice and at rea-
sonable intervals, a Local Union Officer or Interna-
tional Union Representative may inspect the items
in an employee's record referred to above if such
Local Union Officer or International Union Repre-
sentative has the employee's written consent to do
so
There was much testimony, set forth above, concern-
ing the fact that this provision was proposed by the
Union, and the Union's intent in obtaining this clause
However, I believe that the clause unambiguously sets
forth the context in which this clause is to be applied
Where contractual provisions are unambiguous, extrinsic
evidence need not be considered Kal Kan Foods, 288
NLRB 590 (1988), NLRB v Electrical Workers Local 11,
772 F 2d 571, 575 (9th Cir 1985) The provision appears
in a section entitled "Inspection of Employee Records"
Its primary purpose is to establish a right in behalf of the
employee to view his personnel record Apparently, no
such right existed prior to this clause
In addition, the provision permits a union official to
view certain documents in an employee's personnel file if
he has the written consent of the employee to do so
General Counsel argues that this requirement is not ap-
plicable to situations where the Union requests such doc-
uments from Respondent for the purpose of processing
grievances Respondent contends that this clause covers
all situations in which the Union wishes to examine doc-
uments in an employee's file, mcludmg the processing of
grievances
Article 35, on its face, clearly refers and is applicable
to the situation where an employee wishes to view the
documents in his personnel file, and the related circum-
stance where the Union wishes to view such papers in
that particular employee's file Article 35 has no refer-
ence to the Union's statutory right to obtain information
necessary to the performance of its duties as the bargain-
ing representative of the employees The clause refers to
the Union's ability to obtain documents "at reasonable in-
tervals" This has some reference to the 1-year interval
at which employees may view their files, and is related
to the employee's request to inspect documents Thus, if
the employee wishes the Union to inspect his records,
the Union may do so on reasonable notice and at reason-
able intervals with the employee's written consent The
Union would not be so limited to looking at such docu-
ments "at reasonable intervals" where it wished to do so
for the purpose of processing grievances or prospective
grievances, where such grievances might be filed with
some regularity In fact, when the 14 appraisal forms
were turned over to the Union after an agreement was
reached with it, no consent forms were obtained by the
Union from the employees whose appraisals were pro-
duced
The grievance procedure, set forth in article 11 of the
contract prescribes an elaborate method for the process-
ing of grievances That provision is silent on the Union's
right to obtain information In order to find that article
35 applied to the processing of grievances and precluded
the Union from obtaining appraisals for such purposes
without the written consent of the appraisees, I would
have to find that the Union clearly and unmistakably
waived its statutory right to obtain such information
without the consent of the workers whose appraisals it
sought As found above, the documents sought, the ap-
praisals of other workers, are unquestionably relevant
and reasonably necessary to the Union in the perform-
ance of its role as the employees' collective-bargaining
representative Article 35 is limited to the inspection of
employee records—not the Umon's use of them for the
processing of grievances Article 35 provides a proce-
dure for the Union's inspection of worker personnel files
"at regular intervals" which is directly at odds with a
union's right to obtain them promptly for its use in the
timely processing of grievances Moreover, the parties'
actual practice has not been to require the Union to
obtain such releases in order to obtain the documents at
issue General Dynamics, 270 NLRB 829, 830 (1984)
Under these circumstances, and given the national policy
disfavoring waivers of statutory rights, I cannot find that
the Union clearly and unmistakably waived its right to
obtain employee appraisals, on request, without first ob-
taining the written consent of the employees involved
I accordingly find and conclude that the Union was
entitled to receive the appraisals it requested Inasmuch
as the Union accepted copies of the 14 appraisals without
the names, addresses, or social security numbers of the
employees involved, and Loretto testified that after step
3 of the gnevance procedure he offered to accept such
"sanitized" copies of all the appraisals, I will recommend
in my Order that Respondent be required to produce
copies of such appraisals without the names, addresses,
or social security numbers of the employees involved
B The Request for Subcontracting Information
1 The facts
The complaint alleges that smce on about December
15, 1987, the Union has requested Respondent to furnish
the Union with information relating to the maintenance
of the cosmic frame equipment at the Respondent's Lan-
caster, New York central office and the subcontracting
arrangement pertaining to the cosmic frame
In early 1987, a new frame was installed at the Lancas-
ter facility Basically, the frame houses the cross connec-
tions between the telephone cable entering the Respond-
ent's facility and the telephone wires leaving the building
which go to customers Respondent contracted with
Northern Telecom to build the new frame Northern Te-
lecom contracted with McClain Communications for the
actual installation of the frame
During its installation, the old frame continued in op-
eration, providing service to Respondent's customers
Once the new frame was installed, "board to board"
tests were run to ensure that the connections made were
correct, and matched the connections on the old frame
Following installation of the new frame, if a customer
had a service change—a new telephone number or can-
cellation of service—such change was done by the con-
•••■
NEW YORK TELEPHONE CO 359
tractor's employees on the new frame Such change in
service work was ordinarily done by Respondent's em-
ployees, and they continued to do such work on the old
frame prior to the "cut-over" to the new frame
The Union does not now claim that it was entitled to
do the work of the installation of the new frame, nor
that the work was improperly subcontracted Rather, it
argues that employees represented by it were entitled to
perform the repair or service change work on the new
frame The Union filed charges in August and September
1987, in Case 3-CA-13920 which alleged the Respond-
ent's alleged unlawful unilateral subcontracting of the
maintenance work of the newly installed frame 3 On
September 28, 1987, the Regional Director deferred
processing of the charge because the matter was gneva-
ble under the parties' collective-bargaining contract
On October 16, 1987, the Union filed the instant griev-
ance which states in relevant part
Violation of Article 1—McClain employees
used to complete service orders on cosmic frame
after initial cross connections were completed
8/10/87 non-bargaining unit employees maintaining
new frame 4
As set forth on the grievance form, the Respondent's
position was that the contractor was hired for the com-
plete cosmic frame job, until the cutover was made
A second-step grievance meeting was held on October
30, 1987 According to Michael Ferrentino, the Union's
president, he argued that the bargaining unit employees,
those represented by the Union, and not the contractor's
employees, should be doing the corrections work on the
new frame He further argued that such unit employees
currently performed that work on the old frame and
should therefore be entitled to perform such work on the
new frame Ferrentmo stated that he asked for a copy of
the contract [between Respondent and Northern Tele-
com] Respondent's official Roy Jordan refused to supply
it, but said he would check with the labor relations de-
partment
In November and December 1987, the Union filed a
charge in Case 3-CA-14062 which alleged Respondent's
failure to supply it with a copy of the subcontract
On November 16, 1987, the Union notified the Re-
spondent in writing that it was appealing the grievance
to the third step, and requested the following informa-
tion
Request engineer in charge of bids and contract for
Lancaster D M S job [to] be at third step grievance
meeting
Documents showing
When frame purchased
How frame purchased
3 The collective-bargaining agreement's provision relating to subcon-
tracting is as follows
Article I3—The Company will not contract out work if such con-
tracting out will cause, currently and directly, layoffs from employ-
ment with the Company or part-timing of present employees
4 Article I of the contract is the recognition clause by which Respond-
ent recognizes the Union as the sole and exclusive representative for its
bargaining unit employees
From who purchased
When frame was accepted by NY Telephone
Copy of orders delivered to C 0 from L A C
On December 14, 1987, Respondent's official Henry
Loskorn gave Ferrentmo two letters between Respond-
ent and Northern Telecom which, according to Loskorn,
constituted the contract for the installation and mainte-
nance of the new cosmic frame The letters constituted
the offer and the acceptance of the work set forth Es-
sentially, it called for Northern Telecom to run the initial
cross connections and additional cross-connections gen-
erated by service orders, install protector units, run
board to board tests, and clear board to board errors
The letters had the cost figures deleted Ferrentmo tes-
tified that he agreed with Loskorn that he would accept
the two letters with the cost figures delete and would
withdraw the charge in Case 3rCA-14062 Ferrentmo
further stated that on receiving the two letters he called
the Board agent and told the agent that the two letters
he received satisfied his request for a copy of the con-
tract made at the second grievance step, and that he
would withdraw the charge On December 15, Ferren-
tmo sent the Board a letter requesting withdrawal of its
charge The letter stated that "Mr Loskorn has sup-
plied us with all the information available concerning
contractual arrangements" The request for withdrawal
was approved by the Regional Director
On December 15, the day Ferrentmo sent his letter re-
questing withdrawal of the Union's charge, he and Union
Representatives Don Hoak and Donald Loretto met at a
third-step grievance meeting regarding this grievance,
with Respondent's officials John Finnegan, Henry Los-
korn, and Robert Tait
Loretto testified that the basis of the grievance was
that Respondent violated article 1—the recognition
clause of the contract—in that the work performed by
McClam's employees was bargaining unit work It was
his position that Respondent violated the contract by
contracting with Northern Telecom instead of bargaining
with the Union for such work
Loretto and Ferrentmo testified that they went
through each item on the two letters supplied by Re-
spondent and asked questions concerning them in order
to support their case that the Respondent was improper-
ly contracting for bargaining unit employees
Ferrentmo stated that it was the Respondent's position
at the grievance meetings that the job was a contract
pursuant to which the contractor was paid a set price to
install and fix the errors made by the contractor's em-
ployees However, according to Ferrentmo, the letters
stated that the contract was based on a time and expense
basis, with hourly rates provided for Thus, Ferrentmo
believed that this was not a legitimate subcontract, but a
means by which employees outside the bargaining unit
were utilized to perform unit work and paid an hourly
rate which differed from the collective-bargaining agree-
ment's wage rate
According to the Union, Respondent's officials did not
know the answers to many of the questions asked, or
said that the questions were irrelevant
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 20, 1988, John Finnegan, Respondent's di-
rector of labor relations sent a letter to Union Represent-
ative Hoak, in which he denied the grievance, saying
that the "Company has the right to contract work and
no violation of Article 1 was committed." Finnegan fur-
ther stated:
The series of questions asked at third step are being
researched and in some cases additional clarification
has been requested from the Union. The Company
is responding as the individual issues are clarified, if
necessary and answers are developed.
On February 1, Loretto wrote to Respondent's official
Loskorn and told him that he had not received a re-
sponse to his December 22 letter requesting informa-
tion.5
When no answer from Respondent was forthcoming,
the Union filed the instant charge on February 29, 1988,
which alleged the failure to provide certain information.
On April 6, 1988, Union Official Loretto sent a letter
to Board Agent Revs Betha' which set forth the infor-
mation requested by the Union at the December 15 meet-
ing.
On April 14, Board Agent Betha' sent the list to Re-
spondent, and inquired whether it would provide the re-
quested information.
On April 26, Beverly Gross, Respondent's attorney,
sent a letter to Betha' in which she responded to each
alleged request, and attached a copy of the minutes taken
by its officials at the December 15 meeting in support of
her response.
Based on the testimony of the witnesses for the Union
and Respondent, and the documentary evidence, includ-
ing the minutes of the December 15 meeting taken by
Respondent and the Union, and the letters of agent
Betha' and Respondent's attorney Gross, I find that the
following questions were asked at the December 15
meeting and the following answers given, either at that
time, or in Gross' letter of April 6.
Q. The name of the McClain supervisor who ad-
ministered the work.6
A. Raymond Pugh.
Q. Were work assignments were given to the
contractor on a daily basis .
A. Yes.
5 The letter stated that on January 14, 1988, Loretto, Loskorn, and
Finnegan had a conversation regarding his December 22 request for in-
formation. Loretto testified that in that conversation he asked Finnegan
and Loskorn whether they received his letter and if they would provide
the information requested. Finnegan allegedly replied that he would con-
sider it. Loskorn testified that in that conversation he provided certain
information to Loretto as to the name of the McClain supervisor, and the
fact that the maintenance administrators did not work with the contrac-
tor. According to Loskorn, Loretto said he would call Loskorn if he had
any more questions, and did not do so.
6. 1t should be noted that Respondent's official Loskorn testified at the
hearing that much of the information allegedly requested at the meeting
was not in fact requested. Nevertheless, the minutes of that meeting, as
provided by Gross to the Board agent, contains answers given at that
meeting to certain questions which Loskorn claims were not asked. Such
questions include the name of the McClain supervisor who administered
the work; whether the work assignments were given on a daily basis; and
how the contractor accomplished the board-to-board test.
Q. What is the meaning of install protector
units?7
A. Heat coils.
Q. Has Respondent ever contracted the board to
board test, and where?
A. Loskorn testified that Respondent gave no re-
sponse at the meeting, but Gross' letter stated that
such work has only been done by Respondent.
Q. What tools were used to perform the board to
board test? Who owned the tools?
A. Punch-on tool or possible dial set. Respondent
did the testing.
Q. Who decided whether or not the cross con-
nections which had been run were correct?
A. Respondent denies that this question was
asked.
Q. Who decided what physical arrangement of
Central Office equipment was correct?
A. Respondent states that it does not understand
this question.
Q. How was the contractor paid for performing
the original and maintenance work on the frame?
A. Respondent states that such information was
not relevant.
Q. Did the contractor work with and under the
direction of a Maintenance Administrator (a Union
represented employee of Respondent?)
A. No.
Q. The Union requested an explanation of the fol-
lowing sentence of the contract dated February 4,
1987: "Switched services will still be responsible for
all COSMIC II frame related jobs as in the past."
A. Respondent denied that question was asked.
Q. The Union asked for an explanation of the
term "all expenses" in the following section of the
contract between Respondent and Northern Tele-
com: "The prices of $ . . . regular time and $. . .
overtime will include the installer and all expenses."
A. Respondent states that such information is not
relevant.
Q. The Union requested the cost figures that
were omitted from Respondent's contracts, includ-
ing the rates per hour for regular and overtime
work; the estimated cost of the job; the estimated
number of hours needed to complete the job; the
total cost of the job; and the total number of hours
that the job required.
A. Respondent states that such information is not
relevant.
2. Analysis and discussion
The main issue is the Union's request for the cost in-
formation which was deleted from the two letters which
Respondent supplied.
General Counsel argues that the Union is entitled to
the information requested because it needed such infor-
mation in order to determine whether its grievance
7 The Union claims that it asked Respondent who installed the protec-
tor units, but Ferrentino conceded at the hearing that he could not recall
that question being asked.
NEW YORK TELEPHONE CO 361
should be pursued The Union asserted that the work
performed was not done by a contractor, but rather that
Respondent had improperly hired temporary employees,
in violation of the collective-bargaining agreement Thus,
the Union sought to learn how they were compensated
and supervised
Respondent argues that the Union is not entitled to
any information concerning its subcontracting arrange-
ments because (a) the collective-bargaining agreement
expressly permitted subcontracting and therefore since
Respondent was not required to bargain about subcon-
tracting it was not required to provide any information
concerning any matter relating to subcontracting (b) the
cost information requested by the Union is not relevant
to the Union's grievance (c) the Union waived its right
to the cost figures by specific agreement in which it ac-
cepted the two letters with the cost information deleted
in exchange for its withdrawal of a previous charge and
the Union exhibited bad faith in repudiating that settle-
ment agreement and (d) as to the noncost information re-
quested, some items were not asked for, some were an-
swered and the Union already knew the answers to
many
As set forth above, the cost information requested by
the Union related to the number of hours and wage rates
paid by Respondent to the contractor, Northern Tele-
com, for its performance of the subcontract
In NLRB v Acme Industrial, 385 U S 432, 438 (1967),
the Supreme Court stated that a union should not be
forced to process a grievance without the "opportunity
to evaluate the merits of the claim" However, "the bare
assertion that information is needed to process a griev-
ance does not obligate the party from whom it is request-
ed to turn it over" Detroit Edison Co v NLRB, 4.40 U S
301, 318 (1979) Thus, the union must show some rel-
evance, or probability of relevance, for the requested in-
formation Southwestern Bell Telephone, 173 NLRB 172
(1968) I do not believe that the Union has satisfied its
burden with regard to the cost information it sought
Here, the parties' contract expressly permitted Re-
spondent to subcontract unit work except if such subcon-
tracting would directly cause layoffs or part-timing of
unit employees The Union has not made any assertion
that the subcontracting has caused such displacement of
unit employees It thus had no suspicion that the subcon-
tracting is improper Indeed, it argues that subcontract-
ing is not the issue However, its grievance, although la-
beled as a violation of article 1—the recognition clause—
in fact, is a grievance over subcontracting The griev-
ance states that the subcontractor's employees were used
to complete service orders on the frame after the initial
cross connections were completed, and that nonbargam-
mg unit employees were maintaining the new frame This
grievance is clearly an attack on the subcontracting per-
formed by Northern Telecom and its subcontractor
McClain
The Board's decision in Southwestern Bell, supra, clear-
ly covers the issue here The Board, in dismissing a re-
quest for subcontracting cost information, stated 8
[T]he Union requested cost information solely for
the purpose of processing specific grievances alleg-
ing that the subcontracting violated certain specified
Articles of the collective-bargaining agreement be-
tween the parties These pertained to recognition of
the Union as bargaining representative of unit em-
ployees, wages to be paid such employees for unit
work, and a prohibition against strikes protesting
the subcontracting At no time during the
grievance discussions did the Respondent claim that
cost was a factor, nor did the Union explain how
cost was relevant to its preparation or presentation
of the grievances in question Nor do we see any
probability of relevance, as none of the Articles on
which the grievances were based refer to cost Cost
was not asserted as a reason for subcontracting, and
it would thus appear that the detailed information
requested by the Union would not have made the
subcontracting any more or less permissible
General Counsel asserts that Southwestern Bell is inap-
posite because the employer there stated that cost was
not a factor in its decision to subcontract the work be-
cause its employees were too busy and could not per-
form the work, whereas here Respondent's decision to
use nonbargammg unit employees to perform the work
must have been related to cost since bargaining unit em-
ployees were available to do the work Such a distinction
is too tenuous First, it must be observed that Respond-
ent gave no reasons for subcontracting the work, and al-
though there was evidence that Respondent's workers
were capable of performing the work, there was no
showing that they were available, at that time, to do it
See Calmat Co, 283 NLRB 1103, 1105 (1987), where the
Board dismissed a complaint which alleged the respond-
ent's failure to provide information concemmg the wages
paid to a subcontractor's employee
W-L Molding Co, 272 NLRB 1239 (1984), cited by
General Counsel is inapposite In that case, the Board
found that the respondent unlawfully refused to furnish
information concerning subcontracting notwithstanding a
contract clause which gave broad authority to the em-
ployer to subcontract, and which stated that subcontract-
ing was not subject to the grievance and arbitration pro-
visions of the contract In that case, the union had re-
ceived reports that the employer was violating the con-
tract by permitting management to perform unit work,
transfernng ineligible employees into available unit jobs
and fading to post job vacancies, moving machinery out
of the plant and transferring them to another plant, and
denying access to the plant to the union Accordingly,
the Board found that the union had a good-faith concern
that the employer might be evading its obligation to
recall strikers to available jobs consistent with the con-
8 Southwestern Bell was recently cited by the Board and distinguished
from the facts in the case in which It was cited General Electric Co, 294
NLRB 146 fn 4 (1989)
362

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tractual recall procedure, and on that basis held that the
requested information on subcontracting was relevant
and reasonably necessary to the union's function of polic-
ing compliance with the contract. Here, no such :good-
faith concern or relevance has been shown by the Union.
As set forth above, no contention has been made by the
Union that the subcontracting clause has been violated
by virtue of layoffs or part-timing of unit employees.
Accordingly, no relevance exists for the Union's re-
quest for such cost information. Ferrentino's reason,
stated at the hearing, as to why he requested the cost fig-
ures, does not establish the relevancy of the request. He
testified that he wanted the figures because he believed
that the subcontractor's employees were being paid on
an hourly basis and that therefore they should have been
unit employees. However, inasmuch as the parties' con-
tract permits subcontracting of unit work, it is irrelevant
as to how they are paid, and even assuming that they are
paid on an hourly basis, the collective-bargaining agree-
ment does not prohibit that.
Inasmuch as I have found that the Union's request for
the cost information in the subcontract is not relevant to
its grievance, I find that I need not reach the Respond-
ent's other reasons for refusing to provide such informa-
tion.
Concerning the questions, set forth above, which- I
find were asked by the Union, I find that questions 1, 2,
4, and 9 were answered by Respondent.
I further find that questions 3, 5, 6, 7, 8, 10, 11, and 12
request information directly concerning the language of
the subcontract or the work performed under it, and
therefore Respondent was not required to provide such
information. Southwestern Bell, supra.
CONCLUSIONS OF LAW
1. Respondent New York Telephone Company is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Communications Workers of America, Local 1122 is
a labor organization within the meaning of Section 2(5)
of the Act.
3. The unit described in article 1 of the collective-bar-
gaining agreement in effect between Respondent and the
Union constitutes an appropriate collective-bargaining
unit.
4. By failing and refusing to provide the Union with
information it requested relating to the maintenance of
the cosmic frame equipment at the Respondent's Lancas-
ter, New York central office and the subcontracting ar-
rangement pertaining to the cosmic frame, Respondent
has not violated Section 8(a)(5) and (1) as alleged in the
complaint.
5. By failing and refusing to provide the Union with
the performance appraisals of 'all of its employees in
western New York in the title of drafter for the years
1981 through 1986, Respondent unlawfully refused to
bargain in violation of Section 8(a)(5) and (1) of the Act.
6. The above unfair labor practices affect commerce
Within the meaning of the Act.
THE REMEDY
• Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
• Inasmuch as the Union has offered to receive "sani-
tized" copies of the performance appraisals requested, I
shall recommend that the Respondent be ordered to fur-
nish the Union with copies of the performance appraisals
with the names, addresses, and social security numbers of
. the employees involved deleted.
[Recommended Order omitted from publication.]
•