Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1985

275 N.L.R.B. 1107 (N.L.R.B. 1985)

ROADWAY EXPRESS 1107
Roadway Express, Inc. and Teamsters , Chauffeurs,
Warehousemen and Helpers Local No. 542 of
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 21-CA-22958
17 July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 June 1984 Administrative Law Judge
Earldean V. S. Robbins issued the attached deci-
sion.' The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings , findings, and
conclusions only to the extent consistent with- this
Decision and Order.
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) by refusing to. furnish to
the Union a photocopy of a customer's letter that
was the basis for employee Jack Thacker's dis-
charge and was relevant to the processing of the
grievance filed by Thacker over his discharge. In
its exceptions the Respondent contends, inter alia,
that its offers to permit the Union to examine the
letter in lieu of providing a photocopy were suffi-
cient under the Act and that it thus did not impede
the grievance process. For the reasons set forth
below, we agree with the Respondent.
The essential facts are as follows. On 9 January
19842 the Respondent, based on complaints in a
customer's letter, discharged Thacker for being dis-
courteous and. abusive to customers. The next day
Thacker filed a grievance with the Union protest-
ing his discharge. After the Respondent' s terminal
manager, Lynn Reheard, refused the oral request
of Union Business Agent Robert Harris to reinstate
Thacker, Harris filed a formal discharge grievance
on 16 January. In a telephone conversation on 25
January, Reheard confirmed to Harris the existence
of the customer's letter but denied Harris' request
for a photocopy of it. Harris raised the issue of the
Respondent's refusal to furnish a photocopy of the
customer's letter at the second-step grievance hear-
ing before the Joint State Committee on 9 Febru-
ary. The Respondent's representative, Ed Soder-
blom, stated that Harris could examine Thacker's
personnel file, which contained the letter, but that
no photocopy would be made. Harris admitted that
i The judge issued an Erratum 18 July 1984 correcting the date of issu-
ance of the decision
2 Unless otherwise noted , all dates are in 1984
he had not requested to examine the letter nor` had
he examined it pursuant to the Respondent's offer.
It is well settled that an employer is not obligat-
ed to furnish relevant information in the exact form
requested by the employees' representative. Rather,
"[i]t is sufficient if the information is made avail-
able in a manner not so burdensome or time-con-
suming as to impede the process of bargaining."
Cincinnati Steel Castings Co., 86 NLRB 592, 593
(1949). In this case, the information requested con-
sists of a single-page letter which could be easily'
read and understood in a matter of minutes. It is
undisputed that the Respondent offered to allow-
examination of the customer 's letter.3 It is also un-
disputed that the Union did not avail itself of'this
offer, or even ask to see the letter, but instead at all
times demanded a photocopy. Under-these circum-
stances, the Respondent has demonstrated its will-
ingness to supply the information to the Union in a'
reasonable manner.
This case is readily distinguished from American
Telephone & Telegraph Co., 250 NLRB 47 (1980),
on which the judge relied. In that case the Board
found. the employer violated the Act by refusing to
provide the union with photocopies of certain doc-
uments which, unlike that here, were voluminous
and complex. We believe the instant case is more
comparable to Abercrombie & Fitch Co., 206 NLRB
464 (1973), where the Board summarily affirmed
the judge's decision that a single failure to provide
copies of 3-1/2 pages of uncomplicated records did
not violate the Act. There, as here, the employer
permitted on-premise examination and note-taking.4
We find that in these circumstances the Re-
spondent's offer to make the letter available to the
8 While it is true that the offer was made at the 9 February grievance
hearing, there is nothing in the record to indicate that prior to the hear-
ing the Respondent refused the Union access to the requested informa-
tion In fact, the Union never asked to see the letter , a point our d issent-
ing colleague ignores Thus, it cannot be said that the Union was denied
the opportunity to investigate and evaluate the merits of Thacker's griev-
ance.
4 Contrary to the opinion of our dissenting colleague, Abercrombie &
Fitch still retains its vitality and is not inconsistent with American Tele-
phone & Telegraph In ordering AT&T to provide the union with photo-
copies of over 90 pages of documents from four employees ' files, the
Board found particularly important such factors as the volume and the
nature of the information sought and the union 's need for accurate and
complete information Those factors clearly are not applicable here The
information sought in the instant case consists of a one-page letter and is
even briefer and less complicated than that sought in Abercrombie &
Fitch Our colleague would create a per se rule requiring an employer to
provide the union photocopies of requested information without any con-
sideration of the circumstances The majority opinion in American Tele-
phone & Telegraph disavowed such a rule and expressly noted that in
other cases photocopying would be inappropriate While there may be
nothing "exceptional " in this case, we believe that on these facts the Re-
spondent was not required to provide a photocopy of the letter
275 NLRB No. 156
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union for inspection satisfied its-bargaining.obliga-
tion.5 We shall therefore dismiss the complaint.
' ORDER
The complaint is dismissed.
MEMBER DENNIS, dissenting.
Contrary to the majority, I would adopt the
judge's- finding that the Respondent violated Sec-
tion 8(a)(5) by refusing to provide the Union a
photocopy of a customer' complaint letter relevant
to the, processing of a grievance protesting an em-
ployee's discharge. American Telephone & -Telegraph
Co., 250 NLRB 47 (1980), enfd. 644 F.2d 923 (1st
Cir. 1981). The majority's decision reversing the
judge-suffers from two basic defects:-It is wrong
on the facts, and wrong on the law.
First, in finding sufficient the Respondent's 9
February 1984 offer to permit the Union to exam-
ine the letter, the majority accords no weight to
the fact that the offer was made during the griev-
ance hearing on the employee's discharge. One of
the chief reasons the Union requested the informa-
tion was to investigate the discharge in preparation
for the grievance hearing. The 9 February offer
was simply too late to save the Respondent from a
meritorious charge of impeding the grievance 'pro-
cedure.i See NLRB v. Acme Industrial Co.,- 385
U.S. 432, 438 (1967) (union should not be forced to
process a grievance without "the opportunity' to
evaluate the merits of the claim").
Second, the Respondent's offer was deficient be-
cause, as the judge correctly recognized, . under
American Telephone the union was. entitled to pho-
tocopy the letter, not merely examine it.2 As the
American Telephone Board stated, in "exceptional
cases," involving questions of confidentiality, lack
of photocopying equipment, or undue inconven-
ience, photocopying may not be required, but
"sound policy dictates that required documentary
information should' be generally furnished by pho-
tocopy . . . ." 250 NLRB at 47. Similarly, in en.
forcing the Board's remedial -Order requiring that
future documentary material be photocopied, the
First Circuit stated:
In no reasonably foreseeable set of circum-
stances could it be said that handcopying is su-
perior to photocopying in terms of efficiency
5 In light of this finding we find it unnecessary to pass on the judge's
finding that the Union did not contractually waive its right to photocop-
ies of documents relevant to grievances -
I The majority is splitting hairs when it claims that the Union "never -
asked to see the letter " It is undisputed that on 25 January the Union
requested a photocopy of the letter Implicit in the Union's request to
photocopy the document was a request to examine it
2 The cases on which my colleagues rely were also relied on in the
American Telephone dissent, and the majority opinion in that case sapped
them of much of.their vitality
and reliability of duplication. . . . In sum, we
cannot say that the Board exceeded its broad
discretion to formulate remedies by concluding
that in every situation that might arise between
this company and union, a refusal' to permit
photocopying of information otherwise avail-
able to the union would unjustifiably impede
the grievance process.
An alternative ground supporting the
Board's remedy is what it described as the
now nearly universal use of photocopies in
business. affairs by , this employer and other
companies. . . . Where only the bare mechan-
ics of collective bargaining are involved, it is
reasonable to expect of the company a stand- _
and of conduct comparable, to that which it
brings to other important business affairs. [644
F.2d at 929.] - , -
There is nothing "exceptional" about this case,
and, as in American Telephone, the Respondent has
offered no explanation "for putting the Union
`through the hoops' . . . in seeking information
necessary to process [a grievance] . . ." 250
NLRB at 56. Accordingly, I agree with the judge
that the Respondent's refusal to provide the Union
with a photocopy of the relevant information it re-
quested violated Section 8(a)(5), and I would adopt
her decision in all respects.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S ROBBINS, Administrative Law Judge.
This matter was heard before me in San Diego, Califor-
nia, on May 1. 1984. The charge was filed by Teamsters,
Chauffeurs, Warehousemen and Helpers Local No. 542
of the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (the
Union) and.served on Roadway Express, Inc. (Respond-
ent) on February 2, 1984 The complaint, which issued
on March 13, 1984, alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act,
(the Act). The basic issue herein is whether Respondent
violated Section 8(a)(5) of the Act by refusing to furnish
the Union photocopies of a document relevant to the
Union's processing of a grievance. '
On 'the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, Respondent, a Delaware
corporation with a facility located in Santee, California,
has been engaged in the trucking industry as a common
carrier hauling freight in interstate commerce Respond-
ent, in the course and conduct of its business operations,
ROADWAY EXPRESS
annually performs services valued in excess of $50,000 in
States other than the State of California.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
If. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES-
Many of the facts herein are undisputed Respondent
and the Union have been parties to successive collective-
bargaining agreements covering all truckdrivers, helpers,
dockmen, warehousemen, checkers, power-lift operators,
hostlers, and other employees engaged in local pick-up,
delivery and assembling of freight employed by the` Re-
spondent within the geographical jurisdiction of the
Union. The most recent of these agreements is the Team-
sters National Master Freight Agreement effective by its
terms for the period March 1, 1982, to April 1, 1985.
This matter involves Respondent's terminal located in
Santee, California, herein referred to as the Santee Ter-
minal.
On January 9, 1984,1 Respondent discharged employee
Jack Thacker for reasons set forth in a discharge notice
issued to him, the body of which reads:
By reason of your conduct as described below, it
is necessary to issue this notice of- Discharge
On 01/09/84 at San Diego, CA you violated our
policy (or contract) by. being discourteous and abu-
sive to customers; the latest occurrence [sic] being
.1-06-84 After being instructed to return to the ter-
minal from SEWCO in National City, you swore at
a customer and were so rude and abusive that the
customer threatened to never use Roadway Express
again This discharge is issued under the provisions
of Article 46 of the western States Area P&D Sup-
plemental Agreement.
On January 10, Thacker filed a grievance with the
Union protesting his discharge On that same date, Union
Business Agent Robert Harris orally requested that
Thacker's termination be reduced to a suspension, Termi-
nal Manager Lynn Reheard refused On January 16 the
Union filed a formal grievance regarding Thacker's dis-
charge. On January 25, in a telephone conversation,
Harris asked Reheard if, in fact, Respondent had re-
ceived a letter of complaint from Sewco regarding the
January 6 incident. Reheard confirmed the existence of
such a letter. Harris requested a copy' of the letter. Ac-
cording to Harris, Reheard responded that he would
have to check with his boss before he could do so. Ac-
cording to Reheard, he answered no -
On January 30, Harris again requested that Reheard
furnish him a copy of the Sewco letter. Reheard said no
' Unless otherwise indicated, all dates will be in 1984
1109
However, according to Reheard, he did advise Harris-"
that Harris could look at Thacker's files. Harris denies
that Reheard told him he could look at the Sewco letter.
On January 30, Harris sent Reheard a letter, the body
of which reads
Pursuant to our conversations on January 25, 1984
and January 30, 1984 concerning the alleged letter;.
from a customer saying Jack Thacker was abusive
acid the subsequent demand by the Local Union on
the above,dates for a copy of the alleged letter and
the denial by Roadway Express to furnish the Local..
Union a copy, consider this a -formal protest to that
action or inaction as the case may be...
Obviously, the Local Union cannot properly idvesti-
gate this discharge if the Company will not follow
'the-steps of the grievance procedure under Article 7
of the.National Master Freight Agreement. and Ar- -
ticle 44, Section 1(a) and Section 7 of the P -& D.
Supplement.
On February 9, there was- a grievance hearing before
the Joint State Committee on the Thacker discharge.2
During the course of this grievance hearing, Harris
raised the issue that Respondent had refused to furnish a-
photocopy of the Sewco letter. Although Respondent
continued to refuse to furnish a -photocopy, it is - undis-
puted that at the hearing Ed Soderblom, Respondent's
representative, stated that Harris could see the letter.
Harris testified that this was the first time Respondent in-
formed him that. he could see the letter. The Joint State
Committee was unable.to reach•a decision and the griev-
ance was scheduled.to be heard before the Joint Western
Area Committee on May 14.
Thereafter, on February 11, Reheard sent a letter to
Harris, the body of which reads:
At the hearing on January 9, 1984,3 regarding
the ,above case I discovered for the first time that
you alledged [sic] you have not been given access
to documents pertaining to the above case, and
grievance.
My labor log shows that on Jan. 30, 1984 and
Jan. 31, 1984 I stated that you could examine all
pertinent documents but that we could not provide
you with copies. I Never stated that you could not
inspect the files in question. In fact,, on Jan. 31,
1984, I Left a message with Teamsters Local 542 to
advise you that you could indeed look at all perti-
nent files. .
It is my understanding ' that this grievance could-
be heard on its merits in May at the JWAC There-
fore, my offer for inspection of all pertinent docu-
ments remains open. Please advise if you wish to.
comply with my offer
2 The Joint State Committee is comprised of equal numbers of employ-
er and union representatives The collective-bargaining agreement pro-
vides that a majority vote of a Joint State Committee shall be final and
binding, but when a Joint State Committee is unable to agree or come to
a decision on a case, at the request of the union or the employer, the
grievance may be filed with the Joint Western Area Committee •
3 It is clear from the record that this date should be February 9
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harris admits that he never requesied to inspect the
letter. -
The complaint alleges that by its refusal to furnish the
Union with a copy of the Sewco letter Respondent vio-
lated Section 8(a)'(5) and (1) of the Act. Respondent does
not question that an employer has a statutory obligation
under the Act to furnish, upon request, the collective-
bargaining representative of its employees such informa-
tion as may be potentially relevant and useful to a
union's effective and intelligent evaluation in the process-
ing of employee grievances. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967); Leland Stanford Jr. University,
262 NLRB 136 (1982), enfd. 715 F.2d 493 (9th Cir.
1983). However, the Board has held "that-the employer
is [not] obligated to furnish such information in the exact
-form requested by the representative. It is sufficient if
the information is made available in a manner not-so bur-
densome or time consuming as to impede the process of
bargaining." Cincinnati Steel Casting Co., 86 NLRB 592,
593 (1949). The type of disclosure that will satisfy the
statutory duty turns on the circumstances of the particu-
lar case . Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979). Further, an employer must apply no less a degree
of "diligence and promptness" in bargaining matters than
in "other business affairs of importance." J. H. Rutter-
Rex Mfg. Co, 86 NLRB 470, 506 (1949).
However, Respondent argues that it has fulfilled its
statutory obligation by permitting the Union access to
the document with no restrictions on the taking of notes,
and that it has no obligation to furnish the Union with a
photocopy of the letter. Specifically, Respondent argues
that the Union has a statutory right of access to informa-
tion which is• not equivalent to a duty on- the Employer
to provide copies of that information except where (1)
the information sought is so complicated or voluminous
that examination, taking of notes or copying the docu-
mentation by hand would be • impractical or insufficient;
and (2) the Union has not waived or modified its statuto-
ry entitlement to such information. Further, Respondent
argues; the Sewco-letter is equivalent to a witness state-
ment concerning employee wrongdoing which falls
within an established exception to the disclosure rules
Anheuser-Busch, Inc., 237 NLRB 982 (1978).
It is settled that where the relevant information re-
quested involves voluminous records, good-faith bargain-
ing requires an employer to furnish information "with an
opportunity for the union to make a copy of such infor-
mation if it so desires." United Aircraft Corp., 192 NLRB
382' (1971). However, case law is not as cleai in situa-
tions where, as here, only a few pages are involved.
Thus, in Abercrombie & Fitch Co., 206 NLRB 464 (1973),
the Board affirmed the administrative law judge's con-
clusion that the -employer's refusal to comply with the
union's request for a copy of the grievance confession of
wrongdoing, which was less than a half page in length,
was not unlawful. In reaching this conclusion, the judge
stated: '
In the instant case, the information consists of Mor-
illo's confession, less than half a page in length,
which can be easily read and understood in a matter
of a few minutes, and of uncomplicated cash regis-
ter records consisting of three one-page documents
and a series of sales slips. Also, there is no evidence
that the union representative was prohibited from
making notes about the information, nor did the
union representative exhibit or voice any difficulty
in evaluating the information in the manner fur-
nished For all of these reasons, I am of the opinion
that the United Aircraft and Lasko Metal Products
cases are distinguishable from the instant situation
and conclude that the Respondent in the circum-
stances of this case made available the requested in-
formation "in a manner not so burdensome or time
consuming as to impede the process of bargaining."
The Cincinnati Steel Castings Company, supra.
On the other hand, in American Telephone & Telegraph
Co., 250 NLRB 47 (1980), the Board affirmed the finding
of the administrative law judge that the employer violat-
ed the Act by refusing to provide the union with photo-
copies of relevant information In so doing, the Board
stated:
We believe the Administrative Law Judge fully
and accurately discussed both the -practical consid-
erations and the case law that support his findings
and recommendations, and we find his conclusions
persuasive.
In that case, as here, the employer's response to requests
for photocopies was that the union could hand-copy the
records but that company practice did not permit photo-
copying. The rationale set forth by the administrative
law judge, in pertinent part, was.
In determining whether Respondent was required to
furnish photocopies in this case, it thus seems appro-
priate to consider, among other factors, the volume
and nature of the information involved, whether
furnishing photocopies would have given the Union
greater assurance of the accuracy and completeness
of the information requested rather than reading to
union note-takers or permitting the Union to hand-
copy documents, the comparative costs and conven-
ience to both Respondent and the Union of provid-
ing photocopies rather than the reading, note-taking
and hand-copying procedures used, whether griev-
ance meetings would be shortened and the entire
grievance process expedited and otherwise facilitat-
ed by furnishing information by photocopy rather
than by reading, note-taking, and hand-copying, and
whether Respondent makes copies of documents by
hand rather than by photocopying devices in main-
taining and supplying information in other impor-
tant business affairs. [250 NLRB at 54.]
On a consideration of these factors, the administrative
law judge concluded:
[I]t is . . clear that a photocopying procedure
would have given the Union a much greater assur-
ance of the accuracy and completeness of the infor-
mation furnished. Needless to say, there is far more
potential for error-by management representatives
ROADWAY EXPRESS 11'11
in reading documents to union personnel,' by'union
personnel in taking notes read by management per-
sonnel, by union personnel 'in hand-copying detailed
and voluminous records, and then by the Union in'
transcribing and typing the notes. The record fur-
ther shows, even when Respondent makes docu-
ments available for hand-copying and where a doc-
ument contains, but a line or two, that erasures and
the particular handwriting on the original document
may be significant to the Union's appraisal of the
document and that hand-copying in these instances
affords the Union no real opportunity for consider-
ing these factors. This record also shows that fur-
nishing photocopies would shorten grievance, meet-
ings and, in some instance's, expedite the entire
grievance process-the refusal to provide photocop-
ies delayed the Benson matter by a month; and it
also would not subject union officials and other rep-
resentatives to time-consuming and" laborious note-
taking, hand-copying, and transcribing; all of which
from the Union's (and therefore the employees')
point' of view are a wasteful expenditure of-time,
money, and union officials' talents
Livingston, Respondent's labor relations , manag-
er, was asked time and again to explain the underly-
ing reasons for Respondent's policy against furnish-
ing photocopies. He never did so, not adequately at
least. In any event, Livingston offered- no justifica-
tion at all and he mentioned no legitimate company
interest to be served by refusing photocopies in situ-
ations where, as in the Benson-White-Gagne-Ben-
nett matters, Respondent offered or eventually of-
fered to make records, statements, or other docu-
ments available for hand-copying. This scarcely
comports with Respondent's own business practice
in the conduct of other "affairs of importance." No
modern day business concern -uses a quill for
making copies of multi- or even single-page -docu-
ments where photocopying equipment is available,
and Respondent admittedly is no exception
In the circumstances of this case, photocopies
were the only appropriate method by which Re-
spondent could satisfy "its information-furnishing ob-
ligations under the Act Its refusal to provide pho-
tocopies impeded the grievance-handling process
and frustrated "the statutory policy to facilitate ef-
fective collective bargaining " -Procter & Gamble v.
NLRB [603 F:2d 1310, 1315]. '[Supra at 54.]
In' setting forth the rationale for the remedy in' that
case, the administrative law judge further stated:
Taking administrative knowledge of the state of the
art of copying documents, modern reproducing
methods would undoubtedly . astound the inventor
of the pen or pencil and even Johann Gutenberg.
Today the practically universal practice of most or-
ganizations -large and . small, public and, private,
business and otherwise, and Respondent included-
is to use photocopy equipment in copying docu-
ments. The Board is obliged to ' keep ' abreast of sig-
nificant developments in•industrial life and'it has the
"responsibility to 'adapi the Act to [those] changing
patterns." NLRB v.' Weingarten, Inc., 420 U.S. 251,
266 (1975). In administering the information-furnish-
ing mandate of the, Act, there is no sound reason' of
policy why in 'the year 1979 all required documen-
-tary information should not be generally furnished
by photocopy, leaving 'Open, of course, the possibili-
ty of exceptions, for unusual cases due to lack of
photocopying equipment or because of undue in-
convenience to the furnisher of information Indeed,
the dearth of Board cases on this matter suggests
that photocopying is the usual manner by which
documentary information is being generally sup-
plied in this area of labor relations. _[Supra at 56.]
In affirming the.Board's decision, the court referred to
the evidence which- established that the employer's "no
photocopying"- rule -made it expensive and time-consum-
ing, if not -impossible, for the union to. obtain reliable
copies, it required to discharge its duties. as. bargaining
representative and plainly disadvantaged, the union - in
evaluating and prosecuting grievances and was likely to
discourage ,resort to the grievance at all . in some cases.
As, pointed out by, Respondent. herein, this conclusion
plainly refers- to .the 'voluminous -nature, of the" informa-
tion sought.- However, the Court further, states [644 F.2d
923 at 926 (1st Cir. 1981): , -
In,view 'of the company's vigorous -defense of its
ban on photocopies, we 'find it. perplexing, to say
the least , that it has neglected even to assert a' legiti-
"riiate business justification for"its policy. ' ... As we
said in NLRB v. Borden, Inc., Borden Chemical Divi-
'sion, 600 F.2d 313, 318 (1st Cir . 1979), manage-
ment's prerogative to determine ' the form ` of infor-
mation disclosure - is` not a , license to put 'the' union
"through the hoops": "The union is under no obli-
gation' to utilize a burdensome procedure -of obtain-
ing desired information where the ,employer may
have such information available in a more conven-
ient form" (quoting . The, Kroger, Compan,' , 226
NLRB 512 , 513 (1976)).' ,We held -in Borden' that
management could not refuse to. supply the 'union
with ihsurance , cost data because the same informa-
tion could be had by polling the employees. We see
no reason to accord , greater deference to manage-
ment prerogative , if any, exists, when , as. here, : the
employer supplies information in the ,requested form
(original documents) but -seeks to.limit the- . means by
which. the .union may, make copies. -We . affirm., the
Board's decision. that application .of, ithe "no photo-
-,copy'.,-rule in these ;cases- unnecessarily ;impeded the
-grievance process.
Even though the Board: expressly disavowed ; any. at-
tempt to overrule Abercrombie & Fitch, the court, in! dis-
tinguishing that case, noted, inter alia, that the union rep-
resentative conceded that he "believed that he had been
given an adequate opportunity intelligently- to consider
and evaluate the requested information." The'Court con-
cluded that the burden imposed on "the grievance process
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the company's rule in this case far exceeds the de,
minimis level present in Abercrombie & Fitch.
On a consideration of both of these cases, I conclude,
given the in business practice and the facility with
which documents are routinely photocopied, that in the
absence of some specific showing that photocopying re-
quested relevant documents would be burdensome to the
employer or of some legitimate employer interest, to be
served by refusing the time-saving and convenience to
the union of photocopying, it is inappropriate for Re-
spondent to seek` to limit the means by which the Union
may make copies to hand-copying.
Respondent contends, however, 'that the Sewco letter
is essentially a witness statement concerning employee
wrongdoing and, as such, need not be disclosed. An-
heuser-Busch, Inc:, 237 NLRB 982 (1978). I find this ar-
gument unpersuasive . The Anheuser-Busch case dealt
with substantive policy considerations regarding the dis-
closure of witness statements and the impact of such on
the integrity of the grievance and 'arbitration process.
Here, aside from Respondent's bald assertion, there is no
evidence that the Sewco letter is analogous to a witness
statement . Even assuming that it should be so treated,
the issue here is not one of whether Respondent should
be required to disclose the letter to the Union,. for Re-
spondent has already done so. Rather, the question is- one
of mechanics-whether the letter is to be hand-copied or
photocopied. Accordingly, I conclude that, in the cir-
cumstances herein, Respondent cannot avail itself of the
witness statement exclusion.
Finally, Respondent contends that the Union has spe-
cifically waived any right it might have to photocopies
of materials by agreeing to a specific contract provision
in the collective-bargaining agreement which defines the
Union's right of access to company documents as one of
examination. The contractual provision relied on by Re-
spondent provides- -
01. . ARTICLE 44.
Grievance Machinery Committee
Section 7
Examination of Records
The- Local Union, Joint State Committee, or the
Joint Western Area Committee shall have the right
to examine time sheets and any other records per-
taining to the computation of compensation of any
individual or individuals whose pay is. in dispute or
records, pertaining to a specific grievance.
Further, Respondent asserts,- and the union representa-
tives admit, it has never before provided photocopies and
indeed the Union has never before requested such. How-
ever, Harlow Hilton, a participant in the past three nego-
tiations as an employer representative, testified ' that
during the negotiations relating to this section, there
were no proposals regarding photocopies, and that in his
experience as an employer, member of the Joint State
Committee and a participant in the 'Joint Western Area
Committee adjudication meetings, this is the first time
the issue of the interpretation of this section, as it relates
to photocopying, has come up.
It is well settled that while a union may waive a statu-
tory right, any such waiver must be "clear and unmistak-
able," and also there must be "a conscious relinquish-
ment by 'the union, clearly intended and expressed to
give up the right." Procter & Gamble Mfg. Co. v. NLRB,
603 F.2d 1310, 1318 (1979), and cases cited therein:
American Telephone & Telegraph Co., supra 250 NLRB at
55 ' (1980). I find no such clear and unmistakable waiver
here. The fact that the contract speaks of examination of
records does not, without more, mean that the Union has
consciously- relinquished its right to photocopies of rele-
vant information. Compare Grove-Union, Inc., 233 NLRB
1458, 1460 (1977). I therefore reject Respondent' s argu-
ment as to waiver.
Accordingly, in view of the above, I find that Re-
spondent violated Section 8(a)(5) and (1) 'of the Act by
refusing to furnish the Union photocopies of the Sewco
complaint letter relevant - to the processing of the
Thacker discharge grievance. -
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to provide the Union with photocopies
of the customer complaint letter relevant to the process-
ing of the grievance relating to the discharge of Jack
Thacker, Respondent has violated Section 8(a)(5) and (1)
of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent' violated Section
8(a)(5) and (1) of the Act as set forth above, I shall rec-
ommend that it cease and desist therefrom, and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Since it has been found that Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to furnish
the Union "with photocopies of the customer complaint
letter relevant to the Union's processing of the grievance
relating to the discharge of Jack Thacker, I shall recom-
mend that Respondent be ordered to furnish the Union a
photocopy of said letter. '
[Recommended Order omitted from publication.]