Parsons Electric Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 890 (N.L.R.B. 1991)

890
304 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We note that the Respondent did not contend that its refusal to provide
information was justified due to any lack of written documentation.
Parsons Electric Co. and International Brotherhood
of Electrical Workers, Local 292, AFL–CIO.
Case 18–CA–11463
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 27, 1991, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The pertinent facts are as follows. The Union and
the Respondent had an exclusive hiring hall arrange-
ment through the contract negotiated between the
Union and the National Electrical Contractors Associa-
tion (NECA), the multiemployer association of which
the Respondent is a member. On August 16, 1990, the
Union referred its member, VonRuden, to the Re-
spondent. The Respondent rejected this applicant.
When the union business representative asked for a
reason, the Respondent refused to give one, except to
indicate that there had been ‘‘past problems.’’ The
union representative then checked VonRuden’s work
history and discovered he was licensed and trained,
had twice previously worked for the Respondent, and
had served as union steward during his latter period of
employment with the Respondent. Later that month,
the Union again referred the applicant, who was again
rejected.
The Union then sent letters to both NECA and the
Respondent, respectively, grieving VonRuden’s rejec-
tion and alleging that it was ‘‘because of union
involement [sic]’’ and requesting information as to
why the applicant was rejected. NECA responded that
the Respondent had not violated the collective-bargain-
ing agreement by rejecting VonRuden. NECA further
directed the Union to cease requesting reasons for the
rejection of hiring hall-referred applicants. The Re-
spondent replied that it had no written information
concerning its rejection of VonRuden.
The current collective-bargaining agreement between
NECA and the Union contains article IV, which gov-
erns hiring procedure. Section 4.03 of that article gives
the Employer the right to reject any hiring hall appli-
cant for employment. That same article contains a
union nondiscrimination clause (sec. 4.04) and an ap-
peals procedure, but does not specifically make section
4.03 subject to the appeals procedure. In the most re-
cent collective-bargaining negotiations, the Union
sought unsuccessfully to eliminate section 4.03 from
the contract. Another contract provision in article 3
setting forth employer and union rights, section 3.18
which is not mentioned in the judge’s decision, pro-
vides that no steward shall be discriminated against by
any employer because of his performance of his stew-
ard duties. The agreement also contains an arbitration
clause and a management-rights clause.
The judge essentially accepted the Respondent’s
contention that it had the unfettered right under the
parties’ collective-bargaining agreement, including the
management-rights clause, to reject any applicant for
employment.1 He therefore concluded that the re-
quested information was neither necessary nor relevant
under the terms of the parties’ agreement. He also
found that the Union had waived any right to informa-
tion concerning the Respondent’s reasons for rejecting
an applicant by agreeing to section 4.03 of the collec-
tive-bargaining agreement. The General Counsel has
excepted to the judge’s findings and conclusions. We
find merit in these exceptions.
As the judge noted, the law is well-settled that an
employer, on request, must provide a union with infor-
mation that is relevant to its carrying out its statutory
duties and responsibilities in representing employees.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
See also Public Service Co. of Colorado, 301 NLRB
238 (1991); Island Creek Coal Co., 292 NLRB 480
(1989); and W. B. Skinner, Inc., 283 NLRB 989
(1987). It is further clear that the Board uses a broad,
discovery-type standard in determining relevance, and
that potential or probable relevance is sufficient to give
rise to an employer’s obligation to provide informa-
tion. H. J. Scheirich Co., 300 NLRB 687 (1990); and
Pfizer, 268 NLRB 916 (1984), enfd. 763 F.2d 887 (7th
Cir. 1985). In this regard, the Board need not make a
determination as to the merits of a union’s claim of
breach of a collective-bargaining agreement in order to
determine that information related to the processing of
a grievance is relevant. Island Creek Coal, supra; and
Postal Service, 289 NLRB 942 (1988).
Under these principles, we find, contrary to the
judge, that the requested information was relevant to
the Union’s grievance processing and contract adminis-
tration functions. Information as to the reasons for
VonRuden’s rejection is clearly related to the Union’s
grievance over the Respondent’s refusal to select
VonRuden, a former union steward of the Respond-
ent’s employees, for employment. Contrary to the
judge’s analysis, whether the Union ultimately prevails
at arbitration in proving that the Respondent’s refusal
to select VonRuden for employment is a violation of
891PARSONS ELECTRIC CO.
2 Contrary to the judge, we do not consider the contents of the instant man-
agement-rights clause to be crucial in determining the necessity or relevance
of the requested information, especially in view of the agreement’s sec. 3.18
specifically providing that the Respondent will not discriminate against stew-
ards, discussed infra.
3 We do not find that East Dayton Tool Co., 239 NLRB 141 (1978), cited
in the judge’s decision, requires a different result. That case, unlike the one
at issue, involves a request for general reasons as to why an employer had
not in the past hired certain broad classes of individuals, rather than as here
a request for the specific reasons why the Respondent did not hire a single
individual in the context of a specific grievance. Moreover as the Board noted
in East Dayton, the employer’s disclosure of the statistical data regarding its
hiring practices might well have supplied the general reasons the union was
seeking there.
4 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
the nondiscrimination or other provision of the collec-
tive-bargaining agreement is not dispositive of the rel-
evance of the information to the Union in processing
the grievance. Moreover, information as to why the
Respondent did not select the applicant referred out of
the Union’s hiring hall is relevant to the Union’s gen-
eral responsibility for administering the hiring hall pro-
visions of its agreement.2
As to the judge’s finding that the Union waived its
right to the information, waiver of the Union’s statu-
tory right to relevant information must be dem-
onstrated under a clear and unmistakable standard.
E.g., New York Telephone Co., 299 NLRB 351 (1990).
Contrary to the judge, we find no clear and unmistak-
able waiver demonstrated here under the terms of the
parties’ collective-bargaining agreement. Section 4.03
of the parties’ agreement pertains to the Employer’s
right to reject applicants for employment but in no
manner addresses the Union’s right to information con-
cerning such employment decisions. Waiver cannot be
established by such contractual silence. H. J.
Scheirich, supra. See also Wilson & Sons Heating &
Plumbing, 302 NLRB 802 (1991).
Further, as alluded to earlier, the fact that the Re-
spondent’s right to reject applicants is not absolute is
demonstrated by its agreement to section 3.18, which
specifically provides that the Respondent will not dis-
criminate against union stewards. Thus, it cannot be
concluded that the parties’ contract gives the Respond-
ent the unqualified right to take action against
VonRuden without regard to whether its action dis-
criminates against the applicant because of his pre-
vious exercise of his union steward duties. Under these
circumstances, it likewise cannot be concluded that the
Union waived its right to information concerning the
reasons the Respondent rejected VonRuden for em-
ployment, particularly in the face of a grievance alle-
gation that the Respondent’s action in refusing to em-
ploy the applicant constituted a violation of the collec-
tive-bargaining agreement.
Therefore, in light of the above, we find the Re-
spondent’s conduct in refusing to furnish the Union
with the requested information violative of Section
8(a)(5) and (1) of the Act.3
ORDER
The National Labor Relations Board orders that the
Respondent, Parsons Electric Co., Minneapolis, Min-
nesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union,
International Brotherhood of Electrical Workers, Local
292, AFL–CIO by refusing to furnish it with informa-
tion that it requests which is relevant and necessary to
the Union’s performance of its function as the exclu-
sive bargaining representative of employees of the fol-
lowing appropriate unit:
All journeymen and apprentice electricians em-
ployed at and out of its Minneapolis, Minnesota
facility; excluding office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act, and all other employees.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with information requested by
it related to the Respondent’s reasons for its nonselec-
tion of applicant VonRuden following his referral for
employment by the Union pursuant to our exclusive
hiring hall agreement with the Union.
(b) Post at its Minneapolis, Minnesota facility copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Sign and return to the Regional Director suffi-
cient copies of the attached notice marked ‘‘Appen-
dix’’ for posting by the Union, if willing, in conspicu-
ous places where notices to employees and members
are customarily posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would adopt the
judge’s decision and dismiss the complaint. In my
view, the judge correctly concluded that this case is
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
properly decided on the basis of the contract. In 1989,
the Union sought to eliminate section 4.03 in negotiat-
ing a successor agreement. That effort was unsuccess-
ful and the clause continued unchanged in the parties’
current bargaining agreement. Now the Union seeks to
obtain what it was unable to achieve through collective
bargaining, by using this Board to force the Respond-
ent to acquiesce in the Union’s objective. I would dis-
miss the complaint.
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 with International
Brotherhood of Electrical Workers, Local 292, AFL–
CIO by refusing to furnish the Union with information
relevant and necessary to its performance of its func-
tions as the exclusive bargaining representative in the
following appropriate bargaining unit:
All journeymen and apprentice electricians em-
ployed at and out of its Minneapolis, Minnesota
facility; excluding office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act, and all other employees.
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 Union with the information re-
quested relating to our reasons for our nonselection of
applicant VonRuden following his referral for employ-
ment by the Union pursuant to our exclusive hiring
hall agreement with the Union.
PARSONS ELECTRIC CO.
Joseph H. Bornong, for the General Counsel.
David R. Hols, of Minneapolis, Minnesota, for the Respond-
ent.
Stephen D. Gordon, of Minneapolis, Minnesota, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried at Minneapolis, Minnesota, on November 16, 1990.
The charge was filed by International Brotherhood of Elec-
trical Workers, Local 292, AFL–CIO (the Union), on Sep-
tember 10, 1990, and the complaint was issued October 10,
1990. The primary issue is whether Parsons Electric Co. (Re-
spondent) unlawfully refused to furnish information to the
Union necessary and relevant to its administration of a col-
lective-bargaining agreement, in violation of Section 8(a)(1)
and (5) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by the General Counsel and Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Minnesota corporation with an office and
place of business in Minneapolis, Minnesota, where it is en-
gaged as an electrical contractor. In the course and conduct
of such business operations it annually purchases and re-
ceives at its Minneapolis facility products, goods and mate-
rials valued in excess of $50,000 directly from points outside
the State of Minnesota. On these admitted facts I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and, as also
admitted, that the Union is a labor organization within the
meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Respondent is one of 73 employer-members of the Min-
neapolis Chapter, National Electrical Contractors Association
(NECA). This organization maintains a collective-bargaining
relationship with the Union on behalf of its constituent mem-
bers, as well as those nonmember employers who assent to
be contractually bound in the same way as members. The
Union and NECA have been parties to a series of collective-
bargaining agreements over many past years, the latest and
current one of which is effective from May 1, 1989, to May
1, 1992.
The Union’s highest official is currently Business Manager
Dave Hannan. It operates an exclusive hiring hall pursuant
to the contract with NECA, the day-to-day administration of
which is handled principally by Business Representative
Richard Larsen. Contract article IV sets forth this subject,
heading it ‘‘HIRING PROCEDURE’’ in which numerous de-
tails as to basis of the program, eligibility of persons for reg-
istration, referral procedures, and concluding language on
particular points are contained. The first three sections of ar-
ticle IV read as follows:
Section 4.01. ORDERLY—EFFICIENT REFERRAL
PROCEDURE—In the interest of maintaining an effi-
cient system of production in the industry, providing for
an orderly procedure of referral of applicants for em-
ployment, preserving the legitimate interests of the em-
ployees in their employment status within the area and
of eliminating discrimination in employment because of
membership or non-membership in the Union, the par-
ties hereto agree to the following system of referal [sic]
of applicants for employment.
Section 4.02. UNION EXCLUSIVE SOURCE OF
EMPLOYEES—The Union shall be the sole and exclu-
sive source of referral of applicants for employment.
893PARSONS ELECTRIC CO.
1 All dates hereafter are in 1990, unless otherwise indicated.
2 Sec. 4.04, headed ‘‘NON-DISCRIMINATION CLAUSE,’’ reads as fol-
lows:
The Union shall select and refer applicants for employment without dis-
crimination against such applicants by reason of membership or non-
membership in the Union and such selection and referral shall not be af-
fected in any way by rules, regulations, bylaws, constitutional provisions
or requirements. All such selection and referral shall be in accord with
following procedure.
Section 4.03. EMPLOYER RIGHT TO REJECT—
The Employer shall have the right to reject any appli-
cant for employment.
Larsen testified that in his role of administering the hiring
hall, he refers qualified applicants from one of several prior-
ity registration groups upon an employer’s request. Larsen
estimated that on a year-round basis the weekly number of
job calls range seasonally from 35 to 125. In his experience
Respondent causes about 15 percent of all referrals made,
and, along with another employer of comparable size, rep-
resents a significant use of, and effect upon, the Union’s hir-
ing hall.
On August 16, 1990, member Chuck VonRuden was re-
ferred to a job call from Respondent, but was rejected for
employment by its Superintendent Leslie Croswell.
VonRuden complained to the Union about his rejection, and
on this impetus Business Representative Jerry Westerholm,
himself an occasional administrator of the hiring hall, tele-
phoned Croswell to ascertain the reason. Croswell refused to
state a reason, other than saying it was for ‘‘past problems.’’
He would not confirm that any of certain suspected reasons
mentioned by Westerholm had been a factor.
Following this Westerholm made a check of hiring hall
records and of VonRuden’s background at the trade. He testi-
fied that VonRuden had a superior apprenticeship record,
was well-licensed by the State of Minnesota, and had com-
pleted useful advanced training for his occupation. Addition-
ally, Westerholm found that VonRuden had previously twice
been referred to, and worked for, Respondent. The first occa-
sion was in 1982 when he was still an apprentice, and the
second occasion covered a period of employment during
1985–1986 when VonRuden was a journeyman electrician
and served as job steward while so employed at Respondent.
Satisfied that no good reason was suggested by the turn-
down, Westerholm again referred VonRuden on August 30
and 31, 1990, along with several other applicants on a re-
quest from Respondent for electricians. VonRuden was again
rejected, although the other applicants so referred were
hired.1
Westerholm then drafted, and Hannan signed, a pair of let-
ters sent simultaneously on September 5 to Jeff Ohman,
NECA’s chapter manager, and to Donald Dolan, Respond-
ent’s owner and president. The letter to NECA constituted
initiation of a formal grievance against Respondent, and spe-
cifically cited contract sections 4.01 and 4.04.2 The actual
grievance statement contained in Ohman’s letter recited the
dates of Respondent having rejected VonRuden, and con-
cluded with Hannan’s belief that this conduct was ‘‘because
of union involement [sic].’’ The letter to Dolan advised of
this grievance filing, and explicitly requested ‘‘all memos
and written documents’’ in regard to VonRuden having been
rejected for employment.
Both letters were promptly answered. Ohman wrote back
to Hannan on September 7. In its entirety this letter read:
This letter is in response to the grievance filed by
Local 292 against Parsons Electric for alleged viola-
tions of Article IV, Sections 4.01 and 4.04, and your
letter dated September 5, 1990 requesting written infor-
mation relevant to the Employer’s rejection of Chuck
VonRuden.
No written information will be provided. The Em-
ployer did not violate the Labor Agreement by rejecting
him.
In addition, it is the Chapter’s request that you and
your Business Representatives immediately cease the
practice of calling the Employer and requesting reasons
for rejection of applicants referred by the hiring hall.
In the situation relevant to the grievance filed, you,
Jerry Westerholm, and Jim Marrold contacted Les
Crowell [sic] and attempted to pressure him into giving
a reason for the rejections of Mr. VonRuden, in addi-
tion to a request by you to have the Employer pay Mr.
VonRuden an additional twelve (12) hours pay because
of the rejections.
Previous activity of this same nature has been dis-
cussed by myself and Greg Shafranski with respect to
his call to E.R.C. over the original rejection by that
firm of Hector DeJesus.
We will be prepared to discuss the grievance as filed
at the Labor-Management Meeting scheduled for Sep-
tember 20, 1990.
It was my desire to discuss this with you previously,
but you were not in the office on the date of this letter,
and I will be out of town the week of September 10–
14th.
Dolan’s reply to Hannan, dated September 13 and showing
copies furnished to Ohman and a staff attorney for NLRB
Region 18, stated flatly that there were no memos or written
documents regarding VonRuden having been rejected. As a
grievance arising from the parties’ contract, the status of the
matter is now that of being ‘‘tabled.’’
Larsen testified to a past referral incident involving mem-
ber Ray Ranello. He recalled that in this instance Ranello’s
rejection for employment was explained by the contractor as
being because this person generated customer complaints.
Larsen also had knowledge of another problem case, arising
when member Hector DeJesus was rejected by Electrical Re-
pair & Construction (E.R.C.). In this instance Larsen’s col-
league, Business Representative Greg Shafranski, had also
investigated the rejection, and the employer later accepted
DeJesus for employment. Larsen testified that hiring hall ob-
jectives would be seriously disturbed if a major employer
like Respondent was successful in punishing effective job
stewards by rejecting such persons in the future.
Dolan has chaired NECA’s labor-management committee
for about 6 or 7 years, and served on its labor negotiating
committee for an even longer time. He testified that a collec-
tive-bargaining proposal made in 1989 by the Union during
renewal negotiations was that section 4.03 of article IV be
deleted. He recalled that this proposal was ultimately
dropped, and the section continued unchanged as from the
past. Dolan had instructed Croswell, and superintendents be-
fore him, never to divulge reasons when the rare rejection of
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This procedure of opening the system to examination by the employer as-
sociation is in harmony with a recent court decision wherein an employer
sought names and addresses of those individuals using the hiring hall there
involved. On the basis that industry concern for competent workers was at
stake, and no constitutional or other compelling interest required a contrary
view, the court agreed it would be an unfair labor practice for the Union to
resist such a request for information. NLRB v. Electrical Workers IBEW Local
497, 795 F.2d 836 (9th Cir. 1986).
a union-referred applicant occurred. He adhered to this posi-
tion, believing there is no section of the contract which per-
mits the Union to learn of any subjective basis for rejecting
an applicant at a particular time.
B. Analysis
The issue is whether an unfair labor practice occurs from
this Employer’s continuing refusal to explain why VonRuden
is disqualified from again becoming its employee. The Gen-
eral Counsel and the Union contend this is established from
appropriate reasoning grounded in the essential rationale for
having construction industry hiring halls. Respondent
counters by arguing that it has an unfettered right to deter-
mine competence and suitability of those referred to it.
The law is clear and well settled that an employer, upon
request, must provide a labor organization representing its
employees with information that is relevant to ‘‘carrying out
its statutory duties and responsibilities.’’ NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 437 (1967). The particular focus
here is whether this principle applies to the narrower ques-
tion of a union seeking to process a grievance rooted in
workings of its contractually established exclusive hiring
hall. Plainly the hiring hall process itself is a significant
function of labor organization, and a traditional subject
present in this area of labor-management relations. As legiti-
mized in Teamsters Local v. Labor Board, 365 U.S. 667
(1961), the exclusive hiring hall becomes a bridge between
a labor organization’s interest in perpetuating craft standards,
and the seasonal, intermittent, and unpredictable nature of
construction industry need for a competent and available
pool of workers.
The General Counsel relies on Acme Industrial, supra, in
which the court, 384 U.S. at 437–438, wrote more fully on
the above-quoted passage as follows:
. . . when it ordered the employer to furnish the re-
quested information to the union, the Board was not
making a binding construction of the labor contract. It
was only acting upon the probability that the desired in-
formation was relevant, and that it would be of use to
the union in carrying out its statutory duties and re-
sponsibilities. This discovery-type standard decided
nothing about the merits of the union’s contractual
claims. When the respondent furnishes the requested in-
formation, it may appear that no subcontracting or work
transfer has occurred, and, accordingly, that the griev-
ances filed are without merit. . . . Thus, the assertion
of jurisdiction by the Board in this case in no way
threatens the power which the parties have given the ar-
bitrator to make binding interpretations of the labor
agreement.
The General Counsel contends that Island Creek Coal Co.,
292 NLRB 480 (1989), and W. B. Skinner, Inc., 283 NLRB
989 (1987), also support its position. Relevance in specific
terms of grievance processing is also pointed out as arguably
present in Safeway Stores, 268 NLRB 284, 284–285 (1983),
and W-L Molding Co., 272 NLRB 1239 (1984).
The Board in Ohio Power Co., 216 NLRB 987, 991
(1975), formulated the following test for evaluating the rel-
evance of broad categories of requested information:
Where the information sought covers the terms and
conditions of employment within the bargaining unit,
thus involving the core of the employer-employee rela-
tionship, the standard of relevance is very broad, and no
specific showing is normally required; but where the re-
quest is for information with respect to matters occur-
ring outside the unit, the standard is somewhat narrower
(as where the precipitating issue or conduct is the sub-
contracting of work performable by employees within
the appropriate unit) and relevance is required to be
somewhat more precise. . . . The obligation is not un-
limited. Thus where the information is plainly irrelevant
to any dispute there is no duty to provide it.
Respondent relies initially on East Dayton Tool & Die
Co., 239 NLRB 141 (1978), in which an employer’s refusal
to provide information was not found to be unlawful, even
when the union asserted that unlawful discrimination against
employees was taking place. Since the Union’s suspicions
here relate to VonRuden’s past functioning as a job steward,
Respondent argues that East Dayton is sufficient in itself to
show nonrelevance of what has been requested. Further Re-
spondent argues that on the basis of principles established in
Abbott-Northwestern Hospital, 274 NLRB 1063 (1985), the
Union here has waived its entitlement to reasons for this em-
ployer rejecting referred individuals without explanation. Fi-
nally, Respondent contends that no sufficient showing of rel-
evance has been made out. Here Detroit Edison Co. v.
NLRB, 440 U.S. 301, 314 (1979), is cited, where the Court
wrote as follows:
A union’s bare assertion that it needs information
. . . does not automatically oblige the employer to sup-
ply all the information in the manner requested. The
duty to supply information under Section 8(a)(5) turns
upon the ‘‘circumstances of the particular case.’’
I believe this case may be decided strictly on the basis of
the contract as written and now in effect. I contrast this from
an extended or liberally viewed analysis in which speculative
or institutional interests of the Union might be brought into
the picture. It is plain that a studied effort was made to once
create, and continually maintain, the hiring hall now in place
between these parties. Introductory portions of contract lan-
guage are crisply stated, the priority group distinctions care-
fully drawn, the mechanics of referral clearly stated, and spe-
cial subjects such as geographical coverage and direct hiring
(‘‘temporary employees’’), appeals consideration and rights
of the parties are set forth without apparent ambiguity. Spe-
cial note should be made of section 4.07 giving the NECA
chapter manager an express right to inspect ‘‘referral proce-
dure records,’’ and decidedly so when this section is con-
trasted with the Union’s unsuccessful attempt at the last ne-
gotiations to eliminate language of the employer’s unre-
stricted right to reject.3
895PARSONS ELECTRIC CO.
4 The recitation of Management Rights as contained in this section includes
the right of ‘‘deciding the number and kind of Employees to properly perform
the work, in hiring and laying off . . . .’’
Given these factors, and one not to be overlooked as sec-
tion 3.03 listing ‘‘Management Rights,’’ I do not see either
necessity nor relevance in the desired information.4 The
Union’s entitlement to fulfill its role as collective-bargaining
representative with respect to the hiring hall being a benefit
to its members and the industry as a whole is without ques-
tion. However, that entitlement is not unlimited. In General
Electric Co. v. NLRB, 916 F.2d 1163 (7th Cir. 1990), the
court held that an employer’s general statements ‘‘cannot be
transmogrified into an explicit evocation’’ triggering an obli-
gation to turn over information desired by a union. Notably,
this case was one in which a strong management-rights
clause existed in the contract.
In choosing between these conflicting contentions, it is
noteworthy that in a prior instance involving the parties, and
potential application of the Age Discrimination in Employ-
ment Act of 1967 (ADEA), 29 U.S.C.A. § 621, the resolution
of that dispute was not done on the basis that information
from the NECA employer need be revealed. This past resolu-
tion of the labor-management committee is in evidence, that
of 1983 when rejection of an applicant led to a mutual dec-
laration by the parties that age discrimination is not to be
practiced. I must observe that this evidence amounts to noth-
ing more than a gentle recognition only of what federal law
does require, and for over 20 years has required. As such it
provides no support for the allegation of this complaint, in
which principles founded in the duty to disclose must be es-
tablished. When requested information is not within the main
purview of bargaining unit dynamics, as the case, illustra-
tively, with disciplinary matters or subcontracting, a greater
burden of justifying the claim of relevance is imposed.
Pfizer, Inc., 268 NLRB 916 (1984). Cf. Remington Arms Co.,
298 NLRB 266 (1990).
Essentially, however, it is a union’s entitlement to ‘‘po-
lice’’ its collective-bargaining agreement that is at stake.
Here it is not a matter of policing, but a matter of abstractly
complaining that the labor contract is what it is and says
what it says. This is not a sufficient rationale, and Respond-
ent’s obstinacy has validity beyond ‘‘a bare claim of con-
fidentiality or privacy.’’ Cf. Public Service Co. of Colorado,
301 NLRB 238 (1991).
I also believe Respondent’s claim of waiver has been es-
tablished. The law requires that waiver of a statutory right
be found only when there is ‘‘a clear and unmistakable mani-
festation of an intent to waive the right.’’ Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693 (1983); see New York Tele-
phone, 299 NLRB 351 (1990); cf. Emery Industries, 268
NLRB 824 (1984). In sum, I believe the matter is a pure
question of contract interpretation, and, to the extent used,
the resolution of grievance procedure consideration between
the parties. Neither does Croswell’s rather surprising trucu-
lence at shedding any light on the question affect this conclu-
sion. While his performance as a witness may have shown
some discomfort at complying with higher authority’s in-
structions, it does not relate to the principle involved.
CONCLUSIONS OF LAW
1. Parsons Electric Co. is an employer engaged in com-
merce or an industry affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
292, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Parsons Electric Co. did not commit the unfair labor
practices alleged in this complaint.
[Recommended Order for dismissal omitted from publica-
tion.]