The American Oil Co.

National Labor Relations Board - Board Decisions

Apr 18, 1967

164 N.L.R.B. 29 (N.L.R.B. 1967)

AMERICAN OIL CO. 29
The American Oil Company, a Texas
Corporation and Oil, Chemical and Atomic
Workers International Union, Local No.
9-449, AFL-CIO. Case 23-CA-2103.
April 18, 1967
DECISION AND ORDER
On September 22, 1966, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and Respondent
filed cross-exceptions with a brief supporting its
cross-exceptions and answering the General
Counsel's exceptions.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds. that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions, cross-exceptions and briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
description of the outside contracts, in addition to those
listed in the charge."'
The charge listed 18 alleged instances of work
performed by "outside" contractors, and further alleged
that "The Union has made repeated efforts to secure
information on these contracts," particularly specifying
that a request for information had been made by the
Union's workmen's committee to the Respondent on
April 1, 1965, which assertedly had been refused.
Respondent's original motion to dismiss the complaint
for failure to state a cause of action was denied by Trial
Examiner Lindner, and the Board thereafter denied
Respondent's request for permission to appeal specially
from this ruling and from the denial in part of
Respondent's motion for a Bill of Particulars.
Respondent's second motion to dismiss the complaint on
grounds previously stated in its original motion, and for the
additional reason that the General Counsel's Bill of
Particulars assertedly did not comply with the Trial
Examiner's order, was denied at the hearing by me. See
Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61, 72-73
(C.A. 3, 1965).
This proceeding was heard by me at Texas City, Texas,
on June 14, 15, and 16, 1966, upon the issues raised by the
complaint of the General Counsel and the answer of the
Respondent admitting some of the allegations of the
complaint, but denying the commission of any unfair labor
practices. Upon denial of its motion to dismiss made at the
conclusion of the General Counsel's case, the Respondent
rested its case, without presentation of evidence.
Upon the entire record; including my observation of the
witnesses, and after due consideration of the arguments
made on the record by the parties, and the briefs filed by
the General Counsel and Respondent, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: The complaint in
this matter, issued on February 21, 1966, upon charges
filed on July 16, 1965, alleges that the Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to furnish the
Charging Party, herein called the Union, upon request,
information relating to the terms and conditions of
Respondent's contracts with contractors whose employees
were performing work normally and regularly performed,
or capable of being performed, by Respondent's
employees in a collective-bargaining unit represented by
the Union.
In accordance with an order of Trial Examiner Lindner,
the General Counsel furnished Respondent with a Bill of
Particulars enumerating 64 "dates (or approximate dates)
of the Union's requests for data together with a brief
I Trial Examiner Lindner ordered that the particulars be
"furnished" to the Respondent on or before May 27, 1966 The
General Counsel mailed the Bill of Particulars on May 26, but
they were not received by Respondent until May 31, 1966 I
rejected Respondent's argument, in a motion to dismiss, that
General Counsel's action did not comply with the Trial
Examiner's Order Under Sec 102 113 of the Board's Rules and
Respondent , a Texas corporation , is engaged at Texas
City, Texas, in the manufacture and sale of petroleum
products, in the course of which, during a recent annual
period , Respondent sold and shipped in interstate
commerce from its Texas City refinery products of a value
in excess of $50,000. It is admitted and I find that the
Respondent is engaged in commerce within the meaning
of the Act. >
II. LABOR ORGANIZATION
It is admitted and I find that the Union is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The General Counsel does not here attack the right of
the Respondent to unilaterally subcontract work without
Regulations, Series 8, as amended, service is complete upon
deposit in the mails Further, no showing of prejudice because of
late delivery was made
2 In accordance with the stipulation of the parties G C Exh
1(Y), submitted since the close of the hearing, is received in
evidence
164 NLRB No. 7
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining with the Union over these matters in advance.
He does contend that the Respondent, by allegedly
refusing to supply certain data with respect to such
contracts to the Union, has prevented the Union from
fulfilling its statutory obligation to the employees it
represents, and, in particular, has prevented the Union
from policing the "Contract Work" provision of the
collective-bargaining contract between the Respondent
and the Union, thereby violating the Act. Specifically, the
General Counsel urges that the information requested was
necessary in order that the Union be able to intelligently
determine whether to file grievances initially under the
contract, and thereafter to determine whether to press
such grievances to arbitration.3
Further, the General Counsel argues that the statutory
obligation of the Union to represent employees "includes
the duty to remedy unfair labor practices, as well as to
police a collective bargaining contract," and therefore, the
Union is entitled to the information sought, in order td
determine whether charges should be filed in the future
with the Board, where it may find that Respondent's
subcontracting of work violates the principles laid down by
the Board governing such matters.
Respondent's position, in essence, is, first, that there is
no substantial evidence that the Respondent refused to
furnish the Union "relevant" information properly
requested; secondly, that since there is no contention that
Respondent had any obligation to bargain with the Union
concerning the subcontracting of work, there can be no
duty to give information concerning those matters, so that
"What is really asserted is a floating right of continuous
discovery, not for the purpose of bargaining or
administering the collective agreement, but rather for the
purpose of finding and prosecuting unfair labor
practices"; and lastly, that the parties have fully
negotiated concerning subcontracting of work and spelled
out their obligations in the collective agreement, and
therefore "the Board must, in light of the national labor
policy embodied in Section 203(d) of the Labor
Management Relations Act in favor of voluntary
arbitration, defer to the arbitration process agreed upon by
the parties for interpreting their agreement."
SECTION 8-CONTRACT WORK
It is the intention of the Company to provide full and
regular employment for its employees at all times. In
accordance with that intention , the Company will
make every reasonable effort to use its available
working force and equipment in order to avoid having
its normal work performed outside.
The agreement also contains a comprehensive
grievance and arbitration procedure, set forth in article
XVI, which provides, in pertinent part (sections 2 and 3 .of
article XVI) that, ". . . should any difference arise between
the Company and any employee or group of employees
covered by the Agreement as to the meaning and
application of the Agreement, or should a grievance arise
. the procedure for settlement shall be as follows:" Then
follows a multistep procedure, providing at the first level
for presentation of the grievance to the foreman, or the
foreman and department head jointly, with the
requirement that where the grievance is presented in
writing, the answer must be made in writing within 5 days.
Thereafter, if no settlement has been reached at the first
level, either the aggrieved employee or the workmen's
committee of the Union may submit the grievance in
writing to the plant manager.
Grievances submitted to the plant manager are
considered at meetings of workmen's committee and
management of Respondent held regularly on the first and
third Thursdays of the month. The plant manager is
required to render a written decision on such grievances
within 5 days after such joint meeting.
Any grievance involving the interpretation or
application of the agreement, which is not satisfactorily
settled by the decision of the plant manager , may be taken
to arbitration by either the Union or the aggrieved
employees.
Respondent also refers in its brief to certain other
provisions of the agreement, which are not necessary for
the decision of the issues involved.
The Genesis of the Issues
The Collective- Bargaining Agreement
The current collective-bargaining contract between the
Respondent and the Union, which became effective July 1,
1964, continues in effect through December 31, 1966.4
Among its terms , the provision most directly involved in
this proceeding is section 8 of article IV, which states:
S The Regional Director originally refused to issue complaint in
this matter because investigation had shown that the
subcontracting involved had not "resulted in a significant
detriment to bargaining unit employees since there has been
neither layoffs nor a reduction in the amount of their regular or
overtime hours", and further that all such subcontracting had
resulted in grievances , and in one case an arbitrator had held
"that the Employer's subcontract is privileged under the terms of
the contract " Upon appeal, the General Counsel agreed that
there was insufficient basis for alleging that the Respondent had
violated the Act by unilaterally subcontracting out work, in the
absence of a showing of detriment to the employees, but deemed
the Respondent "to have breached its duty to bargain by
withholding from the Union requested information concerning the
Although the language of the charge and the findings of
the Regional Director referred to in footnote 3 indicate that
there may be considerable background for the present
dispute, the General Counsel presented no evidence on
the matter. It is assumed that the parties have had
collective-bargaining relationships for a considerable
period of time from the complexity and sophistication of
the current agreement, as well as the fact that one of the
terms and conditions of these subcontracts which the Union
required in connection with its duty to process grievances under
its contract "
" The pleadings establish that at all times material to this
proceeding the Union has been the exclusive representative for
the purposes of collective bargaining , within the meaning of Sec
9(a) of the Act, of the following employees, who constitute an
appropriate unit within the meaning of Sec 9(b) of the Act All
employees engaged in the operation and maintenance of the
Respondent 's Texas City, Texas, refinery , excepting clerical,
office, technical or research , plant protection employees, and
supervisors as defined in the Act I so find The collective-
bargaining agreement between the Respondent and the Union
covers this bargaining unit
AMERICAN OIL CO. 31
witnesses testified to having been a shop steward for 16
years. It is further assumed that the Respondent has had
some past practice of subcontracting work which has been
the subject of negotiation between the parties from the
fact that the matter is treated in the agreement.5 Other
than this, the record contains no evidence that
Respondent was engaged in subcontracting out work or
that there had been any refusal by Respondent to provide
information as to the processing of grievances prior to
approximately the first of April 1965.
Billie Jones, Jr., an employee, who was chairman of the
workmen's committee during 1965, was asked whether, as
a representative of the committee, he had any
conversations with the management of Respondent
concerning the subcontracting of work, "prior to June 16,
1965" (the date of the first "subcontracting" grievance
placed in evidence), and, in answer, referred to only one
conversation with Kirchhoff in March or April 1965. The
pertinent part of that testimony of Jones is as follows:
I told Mr. Kirchhoff that we would like to know the
contractors that was coming into the plant that was
subcontracting, we wanted to see the contract, we
wanted to know the condition of these employees
coming into the plant to perform the work that we
considered our normal work. This was at one meeting.
And Mr. Kirchhoff informed me that he would give me
an answer at a later day.
It was approximately two meetings later-it
may have been the next meeting, but I think it was
two meetings later they came back and told us they
were denying us the right to see contracts of these
subcontractors that was coming in the plant.6
As will be discussed further hereinafter, there is no
evidence that the Union thereafter brought this subject up
again at a joint workmen's committee-management
meeting, although at least 86 grievances were thereafter
filed involving subcontracting, a substantial number of
which were taken up by the Union and Respondent at joint
workmen's committee and management conferences.
The Processing of Grievances Concerning Subcontracting
at the Foreman Level
The General Counsel introduced 86 grievances into
evidence submitted by an employee or employees in the
bargaining unit, complaining, in one form or another, that
the Respondent had given out work to a contractor which
should have been performed by unit personnel. The
earliest grievance is dated June 16, 1965, and the latest,
April 19, 1966. Fifty-nine of these grievances are dated in
1965.
These numbers, however, bear no necessary
relationship to the amount of subcontracting involved,
since in some cases more than one grievance refers to the
same piece of work or project, or a number of grievances
may refer to repeated instances of the same kind of work.
Thus, there are 3 grievances, filed by different
departments, concerning the repair of one truck, and there
are at least 18 grievances, bearing different dates,
complaining of 18 different occasions on which
Respondent is alleged to have had valves reconditioned by
an outside contractor-possibly the same contractor in
each case.
For the most part, the written grievances, though brief,
are detailed and specific as to the work complained of, and
the dates or time at which it was performed. With respect
to many of these grievances, it appears that the union shop
steward, or the complaining employee, did not request
information from the Respondent at the foreman level,
although in some such cases information or assistance
may have been requested with respect to other or related
grievances.
In some cases the only request made was for permission
to investigate the complaint, which request appears to
have been frequently granted by the foreman.
On one occasion shown by the record in which
permission to investigate the grievance personally was
denied, Shop Steward Gutierres testified that the
supervisor gave him the information upon which he
proceeded to file a written grievance. In the words of
Gutierres, the supervisor told him, "that they contracted
with the Nunez Construction Company to move the
whirley crane from the T-head at No. 1 dock and replace it
with the large berth crane .... And he also stated that the
reason they used the Nunez Construction Company was
because they thought it would be faster, since we would
have to take the cherry picker7 from our refinery down
there and a truck to do this work, and our people were tied
up on other work.""
In another case, as previously noted, three grievances
were submitted to Respondent from three different
S In his brief, General Counsel attempts to establish this
background by asserting that since the chairman of the Union's
workmen's committee "guessed" that there were 150
subcontracting cases awaiting arbitration at the end of 1965, and
since General Counsel placed in evidence only 59 grievances filed
in 1965, therefore, "the problem of contracting out obviously has a
relevant history predating June 16 [1965] " In addition,
General Counsel relies upon the alleged instances of
subcontracting of work set forth in the charge, but not proved at
the hearing I have given no weight to these contentions, in the
absence of an offer of more probative evidence, or some
explanation for the failure to produce it
6 In his opening statement, the General Counsel asserted that
Jones' request was for "all contracting in the past, all contracting
now, all contracting in the future." However, as noted above, no
evidence was adduced with respect to any subcontracting past or
current at the time of the request Moreover, the thrust of General
Counsel's arguments are to the effect that Respondent violated
the Act by failing to supply the requested information in the
future, so that the Union could "intelligently determine whether
to file a grievance initially and thereafter whether to press such a
grievance to arbitration," thus preventing the Union "from
policing the `Contract Work' provision," and precluding it "from
evaluating grievances filed by its stewards . . " On the basis of
this record it is found that the request was for future subcontracts
and the Respondent's refusal was to supply copies of these in the
future
7 "Cherry picker" is a slang expression for a particular type of
crane See "Webster's Third New International Dictionary"
(Unabridged, 1961).
8 Gutierres' written grievance with respect to this instance,
which is illustrative of the grievances filed generally with respect
to the subcontracting issue, is as follows
On Tuesday, November 9, 1965, about 2:00 P.M Nunez
Construction hooked onto and moved the Whirlette Crane
from No. 1 dock, and replaced same with the Barge Berth
Crane, using their crane to make the switch They finished
the job at 6.30 P.M This work has historically been
performed by plant forces We contend this is in violation of
the interpretation and application of the current working
agreement, and further that it should have been performed
by the Rigging Division personnel, and that we each be
compensated 7-1/2 hours at time and one-half our rate of pay
for this violation
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments, dated the same day, concerning the repair of
a truck. Two of these, set forth in General Counsel's
Exhibits 36 and 49, complained of the installation of a rear
bumper on the truck by an outside contractor. The other,
General Counsel's Exhibit 69, complained of bodywork
and repairs which allegedly should have been done by
plant forces.
Shop Steward Morse testified that he filed an oral
grievance with his foreman with respect to the installation
of the bumper, and received an answer from the foreman's
superior, as stated by Morse, that "he was denying the oral
grievance and explained it was part and parcel of a
complete overhaul job which included quite a bit of work. I
can't itemize it all. But it included the bumper, and I
believe painting and there was quite a bit of mechanical
work done on the truck. I can't verify how much work. I
didn't have a list .... I asked him the price of the bumper
job and he told me it was ten dollars." Morse made no
further requests for information and proceeded to file a
written grievance, General Counsel's Exhibit 49.
Although no testimony was offered with respect to the
processing at the foreman's level of the grievances
contained in General Counsel's Exhibits 36 and 69, a copy
of the foreman's written answer to the grievance set forth
in General Counsel's Exhibit 36, referring to the
installation of the bumper, was received in evidence,
which reads, in pertinent part:
The Work complained of was properly contracted
since it is part of a major overhaul on the gasoline-
diesel oil truck.
Furthermore, the personnel of the Welding Division
were fully and regularly employed during the period
that major overhaul was being completed.
There was no contract violation . Therefore your
grievance is denied.
As previously noted, a considerable number of the
grievances in this matter allege that Respondent had
contracted out the reconditioning of valves instead of
having plant forces do this work. It appears that these
grievances arose from observation by the shop stewards
and employees that valves were being unloaded at the
plant from trucks bearing the name of "Elliott Valve
Company." These valves bore tags or were otherwise
identified as reconditioned. Shop Steward David
Schoeffler testified that he counted the valves as they
were being unloaded and inspected the tags identifying
the valves as "reconditioned."
Schoeffler and employee Henry Welch, who is also a
shop steward, spoke to the assistant superintendent of the
mechanical department, Paul Stewart, about this. Since
the versions of the two men concerning this conversation
do not exactly coincide, only so much of their testimony at
is consistent with the following findings is credited.
After Schoeffler and Welch told Stewart that they were
there to find out the reason the Respondent was
9 The same answer was later given Welch by the machine shop
foreman in answer to his question as to why the Respondent was
contracting out this work
IU Thus, Welch testified that, after Stewart stated that he did
not believe he had any information on how many valves were
going out of the plant and coming back in, " I said, `Well , now, if
you are selling this stuff as scrap iron , you are bound to be
weighing it' .. And he said they were And I said, `Where is it
contracting out the repair of these valves, Stewart stated
that the valves were not being contracted out, but were
being sold to Elliott as scrap iron.9 He further said that
Elliott was well equipped to repair the valves and could do
the work fast. Implicit in the testimony, and confirmed by
other evidence, is that part of the arrangement between
the Respondent and Elliott also involved the purchase of
reconditioned valves from Elliott. Schoeffler and Welch
expressed their disbelief that valves were being sold as
scrap iron, and asked Stewart to advise them of the
number of valves "going out of the plant and coming back
in." Stewart said either that he was unable to or would not
tell them. It would further appear from Welch's testimony
that the men placed considerable emphasis on being
advised as to the details of the sales to Elliott, that is, the
valves "going out of the plant"' 0-possibly because they
felt able to ascertain the valves received at the plant from
Elliott from their own observations.
Since the General Counsel did not offer any of the
written responses made by the foremen to these
grievances, it is impossible to have a fully rounded view of
the processing of the grievances at this first level. In this
instance, however, Welch did acknowledge, on cross-
examination , that he had received from the foreman an
answer to one of these grievances stating that "Purchase
[of] reconditioned valves instead of new valves is not a
violation of the contract, therefore your grievance is
denied."
Welch further affirmed that he had heard-most
probably at a workmen's committee meeting-that
Respondent's position was that it was selling valves to
Elliott at scrap prices and the valves thereupon became
Elliott's property; that the Respondent also purchased
reconditioned valves from Elliott "at predetermined
prices."
Shop Steward Jack Hoogterp filed five written
grievances concerning work done on Respondent's
property by other than plant employees. Prior to
submitting these grievances, Hoogterp asked a number of
foremen or department supervisors questions concerning
the date these activities started, how many people were'
being used on the job, and what these people were doing.
He was given the approximate date and was informed that
exact information was not available, since the matter was
being handled by the engineering department. Hoogterp
was further advised, in his words, that "this did not come
under my craft work," and that the number of men being
used on the job was up to the contractor. He was, however,
given permission to check on the job, and it appears that
on at least one occasion he was accompanied on such an
inspection tour by the foreman.
Shop Steward Ray Gist, being aware, according to the
written grievance he filed, that 96 gauges had been
returned to Respondent's warehouse on July 10, after
being repaired by an outside contractor, asked his foreman
why this had been done, Gist testified that the foreman
,replied, "that was the way Mr. Nelson and Mr. Pierce
.wanted it." Nothing more appears.
weighed, on their scales 9' And he said no, at Schwartz or whoever
it is, Just over here, that deals in scrap iron . and 1 said, `Well,
they are bound to have some record on it ' And he said , `Well,
now, they may be sending the weights to the warehouse And
so I said, `You can probably get it from them ' He said, `Well, we
are going to do very little or no bookkeeping on this ' And so I
said, when we got ready to leave, I said, `Are we going to get this
information or not 'And he said, `No ".
AMERICAN OIL CO. 33
This material well illustrates, and largely exhausts, the
evidence submitted with respect to the processing of the
subcontracting grievances at the foreman level.
Two other matters involving testimony by shop
stewards, however, require comment at this point. The
General Counsel argues, upon a showing That a number of
shop stewards were aware of Respondent's refusal to
honor Jones' request for copies of all subcontracts, that
the shop stewards were restrained from seeking
information from foremen, feeling it to be futile.['
However, it is difficult to perceive how the failure of shop
stewards to investigate grievances at the foreman level, if
that occurred, could be excused by the refusal of the
Respondent some months before to produce documents,
which would normally be inapplicable to the processing of
these grievances at the first step, in any event. Indeed, the
record as a whole does not demonstrate any particular
hindrance to the proper investigation of grievances by the
shop stewards, considering the level on which they were
operating, the complexity of the problem, and the very
small likelihood that this sort of grievance could be settled
at this level. Although the record shows an uneven
response to queries for information-probably due to the
particular shop steward and foreman, as well as the
particular problem involved-it is far from leaving a
conviction of frustration of the shop stewards in the p. per
performance of their functions. The numbers and detail of
written grievances submitted, in addition to the evidence
set forth, are strong evidence to the contrary.
Lastly, there are a number of instances of conclusionary
testimony by shop stewards to the effect that they received
no information from Respondent concerning
subcontracting grievances. I believe that this testimony is
entitled to little or no weight. In a case of this character,
the value of the information received (or not received) can
be judged best in respect to the specific requests for
information, or lack thereof.
Discussions of Grievances at the Joint Workmen's
Committee Management Level
At least 59 grievances alleging improper subcontracting
out of work were filed from June 16, 1965, to the end of
that year. Most, if not all, of these grievances were
discussed at the regular joint meetings of the Workmen's
Committee and management under the collective-
bargaining agreement. However, there is no evidence that
the Union at any time, with the exception of one occasion
in December 1965, asked to be supplied with any records
pertaining to a specific grievance under discussion in a
joint workmen's committee-management meeting.
Billie Jones' testimony establishes that in December
1965, during one such joint meeting, the parties discussed
the grievances previously noted involving the installation
of a bumper on one of Respondent's trucks by an outside
repairman. When Jones disputed Respondent's claim that
the cost of repairing the bumper was $10, and asked to see
the records, he was told that he could not see them.
Other than this, Jones' testimony was to the effect that
no other requests were made of Respondent for
information. His further conclusionary testimony that he
received no information with respect to these matters has
been considered in this light. Indeed, his testimony that he
received no information from Respondent, taken in its
broadest sense, is not credited. In the absence of evidence
of a general refusal to cooperate on Respondent's part, it is
highly unlikely that the Union obtained no information
from the discussion of a large number of grievances of this
sort. The fact that some information was obtained is borne
out by the testimony of Shop Steward Dearinger, who
stated that while he was unable to find out from his
foreman the reason that certain work had been contracted
out, he was informed of the Respondent's reasons at one of
the joint meetings of the workmen's committee. Shop
Steward Welch, as previously noted, also indicated that, at
one of these meetings, he was advised of Respondent's
position with respect to obtaining valves from Elliott Valve
Company.
No evidence was submitted with respect to discussion at
this level of the grievances filed in 1966. It was, however,
stipulated that of the grievances received in evidence, a
great many are awaiting arbitration, or are "tied to"
grievances that are awaiting arbitration.
Conclusions
It is now well established that a labor organization
obligated to represent employees in a bargaining unit with
respect to the terms and conditions of their employment is
entitled, upon appropriate request, to such information
from the employer as may be reasonably necessary to the
proper execution of that obligation. And the right to such
information exists as well as for the purposes of
administering a collective-bargaining agreement after it
has been negotiated, as for the purposes of negotiating the
agreement in the first instance. As the Board has stated,
"The employer's duty, in either instance, is predicated
upon the need of the union for such information in order to
provide intelligent representation of the employees." See
F. W. Woolworth Co., 109 NLRB 196, 197, enfd. 352 U.S.
938 (1956).
While the limits of this right to information, and the
correlative duty to supply it, have not as yet been fully
defined, and although some variation appears in the
description of the criteria to be applied, all of the cases
considering this issue, either in their facts or their
rationale, indicate, as the Board stated in Woolworth, that
the right to the information arises out of a "need" for it
shown by the circumstances of the particular situation.
While it is often stated that the information sought must be
"relevant," more than abstract relevance is required. The
fact that the information will be merely "helpful" is not
enough. See Puerto Rico Telephone Company v. N.L.R.B.,
359 F.2d 983, 986 (C.A. 1, 1966); General Aniline and Film
Corporation, 124 NLRB 1217, 1219.
Where the information sought covers the terms and
conditions of employment of employees within the
bargaining unit, thus involving "the core of the employer-
employee relationship," no specific showing of relevance
or necessity is normally required; but where the request is
for information with respect to matters occurring outside
the unit, the employer's obligation to comply is raised only
where the union involved, "by reference to the
circumstances of the case, as an initial matter,
demonstrate[s] more precisely the relevance of the date it
desires." See Curtiss-Wright Corp. v. N.L.R.B., 347 F.2d
61, enfg. 145 NLRB 152.
" In two instances, the General Counsel obtained testimony
from shop stewards that such was their mental condition In one
instance the testimony was stricken on motion of Respondent
The remaining testimony, of an unexpressed mental condition not
substantiated by objective circumstances, is not entitled to and
has not been given any probative weight
34 DECISIONS OF NATIONAL
In Curtiss-Wright Corp., 145 NLRB 152,156-157, where
the information sought concerned work being performed
by employees outside the bargaining unit, as is the
situation in the present matter, Trial Examiner Reel
summarized the applicable principles, in a decision
adopted by the Board, as follows (footnote and citations
omitted):
The Union is charged with the statutory duty of
representing the employees in the bargaining unit. In
the exercise of that duty, it has a right to information
as to wage rates, job descriptions, and similar matters
which is relevant, or reasonably necessary, in the
discharge of its bargaining obligation. In my view, its
right to such data turns, in the final analysis, not on
whether the employee to whom the data refers is in
the unit, but on whether the data itself is relevant or
related to the Union's role as bargaining
representative. This is not to say, however, that the
employee's inclusion or exclusion from the unit is
irrelevant in determining whether the data is relevant.
Stated simply, I believe that there is a presumption of
relevance when the data covers employees within the
unit, and that no such presumption exists when the
employee is outside the unit.
In International Telephone & Telegraph Corporation
(ITT Federal Laboratories), 159 NLRB 1757, a recent case,
also involving the right of a bargaining representative to
information about employees outside the bargaining unit,
the Board, referring to Trial Examiner Reel's discussion,
part of which is quoted above, stated that: "The Union's
right to such data ... turns not on whether the employees
to whom the data refers are in a unit, but on whether the
data itself is necessary and relevant to the Union's role as
bargaining representative." [Emphasis supplied.] Cf.
Goodyear Aerospace Corporation, 157 NLRB 496.
Among the several cases which have involved the right
of a bargaining representative to extraunit information and
the correlative duty of the employer to supply it, the
present matter is particularly notable in its lack of a
relevant context giving rise to the request for information
and by which its necessity can be judged.
At the beginning of the hearing the General Counsel
advised that, quite apart from any other matter, he
considered that the allegations of the complaint stood or
fell on Jones' request for, and Respondent's refusal to
supply information in March or April 1965. This instance
then forms not only the beginning, but a crucial part of our
inquiry.
At the outset, it may be noted that the actual refusal of
Respondent was quite narrow: a refusal to make available
in the future all copies of subcontracts entered into which
involved unit work, or, it may be inferred, which might do
so. While the General Counsel at one point in his argument
described the Union's request as a desire "to know who is
coming in that gate," the Respondent's reply, in literal
terms, was merely a refusal to promise to supply the Union
with copies of documents, in the future, containing the
terms of Respondent's relationships with subcontractors,
when and if they occurred.
It is further clear that the request for information here,
as in Curtiss-Wright Corp., supra, concerned work that
might be performed by nonunit employees and possibly
12 The point, however, was clearly in the mind of the court in
Curtiss-Wright Corp. v. N.L.R.B., supra, as evidenced by the
court's statement that (347 F.2d at 69), "Although it may be
argued that information which would shed light on whether the
LABOR RELATIONS BOARD
affecting the unit. Here, however, we are left solely to
speculation as to the circumstances giving rise to the
request, as well as to the Union's need for the
subcontracts, as such.
It may be suspected, although there is no probative
support in the record for so finding, that the request was
rooted in previous difficulty with the Respondent over
subcontracting. The Union so claimed in its charge in this
matter, but, as has been previously noted, the General
Counsel concedes that as to those prior instances of
subcontracting set forth in the charge no violation of the
Act occurred. In addition, and, more important, there is no
evidence in this record that the Respondent had
previously ever refused to submit to the Union relevant
and necessary information concerning subcontracting
when requested.
On the basis of this record, therefore, it appears that the
General Counsel here seeks a ruling that, as a matter of
law, per se, on the basis of the contract language alone, the
Union is entitled to copies of all subcontracts involving, or
which might involve, unit work without reference to the
circumstances involved, or indication of a particular need
for such documents in respect to a particular dispute.
N9 decision of the Board or the courts, so far as I am
aware, supports such a position. 12 Indeed, the cases cited
above lead to the quite contrary conclusion that it must be
shown by the attendant circumstances that the
information sought was "necessary and relevant" to the
Union's statutory functions before the employer's refusal
to supply the information sought becomes unlawful. See
also N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 153-154
(1956).
In Acme Industrial Company, 150 NLRB 1463,
enforcement denied 351 F.2d 258, cert. granted 383 U.S.
905, upon which the General Counsel relies, the Board
held merely that with respect to grievances already filed,
protesting the removal of machinery and subcontracting of
work, the specific information sought "was necessary in
order to enable the Union to evaluate the grievances filed
and to determine whether those grievances were
meritorious, and whether to press for arbitration."
In Acme, the requests were not only specific and
pertinent, but were clearly founded on actions of the
employer which provided a basis for the information
sought. The lack of such specificity or the failure to show
good cause for information sought, has been held not to
raise an obligation on the employer's part to supply the
information requested. See Curtiss-Wright Corp., supra at
156-157.
On the basis of this record, therefore, and for the
reasons stated, it must be held that Jones' request in
March or April, alone, did not, per se, raise an obligation to
furnish the information requested, and that the
Respondent's limited refusal at that time did not violate
the Act.
At the most, Jones' request was for a commitment to
future action with respect to a proper subject of collective
bargaining. However, since the request, as such, involved
modification of the existing collective-bargaining
agreement, prior to the date set for reopening of its terms,
Respondent had no obligation to agree. See Section 8(d) of
the Act. Thereafter, so far as this record shows, no further
integrity of a bargaining unit, itself, was being eroded by an
employer is presumptively relevant, we need not reach that
question for, as the Trial Examiner found, the Union has
successfully demonstrated the relevance of the data requested."
AMERICAN OIL CO. 35
effort was made to negotiate the issue. Indeed, there is no
substantial evidence in this record that the Union
thereafter requested that copies of subcontracts between
Respondent and other employers alleged to be doing unit
work be made available to it.
There is further no merit to the argument of General
Counsel that the Respondent is obligated to furnish the
Union with copies of such subcontracts in order that the
Union may determine for itself whether the Respondent
may, in the future, violate the Act by not informing the
Union of such subcontracts and bargaining with the Union
concerning them, in advance.
Conceding the duty of the Union to protect the rights of
the employees under the Act,13 such a duty is
encompassed within, and is not separate from its
obligation to represent the employees in the bargaining
unit generally, and stands on no higher or different plane
than that general duty. Indeed, since it is conceded that
Respondents s subcontracting in the past has not violated
the Act, there is no reason to anticipate that it will do so in
the future, or that it would effectuate the policies of the
Act to give the Union here special means of spying on the
Respondent's future activities in that regard.14
Further, as was indicated by the General Counsel at the
hearing, the evidence in support of the complaint is not
much advanced by the testimony of the shop stewards in
respect to their processing of the grievances in this matter.
In his brief, General Counsel argues that the failure of the
shop stewards to make "formal requests for information,"
was occasioned by knowledge of Jones' previous
unsuccessful attempt to obtain information, and the
futility of their own experiences in processing grievances
at the foreman level.
However, this record, as previously discussed, would
hardly justify a finding that Respondent's limited refusal
of Jones' request, standing alone, made subsequent
approaches to Respondent for relevant information futile.
Nor, for reasons previously stated, does it appear that
Respondent dealt in bad faith with the shop stewards, or
that the shop stewards were improperly hindered in the
performance of their functions in representing the
employees or administering the bargaining agreement, or
filing adequate grievances.
In any event, as a practical matter, it would be
unrealistic to expect grievances of such complexity to be
settled at the foreman level. However, one would expect
such grievances to be discussed at the joint workmen's
committee-management level, where a meaningful
exchange of information and position is possible. However,
with the exception of two, possibly three, isolated
instances, the record is void as to the discussions which
took place at those meetings. Indeed, the record does not
even show the Respondent's written replies to the
grievances filed.
It is incredible that no information was sought by the
Union with respect to these grievances, or that
Respondent stated no position with respect to them, at
these meetings, but, with few exceptions, the record does
not show otherwise. In these circumstances, I am
compelled to infer either that the Union sought no
information, and therefore raised no obligation on
Respondent's part, or that the information sought was
generally supplied. I find support for this latter
observation from the fact that in one case in which the
Union requested information during one of these meetings
that Respondent refused to supply, evidence of the
instance was proffered.
In that instance, Jones' testimony establishes that when,
in December 1965, the question of the cost of installing a
bumper on Respondent's truck by an outside repairman
became a matter of dispute between the Union and the
Respondent, the Union was refused access to records
relating to Respondent's contention that this part of the
repair work cost $10. In this instance the request for
information was clearly relevant, its disclosure might well
have assisted in disposing of two grievances, and the
failure to disclose the information was, technically, a
violation of Section 8(a)(1) and (5) of the Act. However, on
this record, I cannot find that this instance standing alone,
in the course of processing 86 grievances, would justify the
issuance of a remedial order. Not only is the evidence
sparse and unsatisfactory with respect to the discussion of
this matter, but it is also clear that the "bumper"
grievances were but a minor part of the overall repair of a
truck which was the subject of a larger grievance,
apparently now noted for arbitration. There is no evidence
that the Union requested, or that Respondent refused to
provide relevant information as to the larger grievance. In
the special circumstances of this case, I find that it would
not effectuate the policies of the Act to issue a remedial
order in this matter.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning of
the Act
2. Respondent has engaged in no unfair labor practices
warranting the issuance of a remedial order.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.
11 But see International Telephone & Telegraph Corporation,
supra, particularly the Board's reservations with respect to the
matters set forth in In 4 therein
14 1 do not wish, however, to be understood as agreeing with
Respondent's argument that the Union should be refused
information on the ground that this would amount to an
unwarranted right of "discovery " The argument begs the issue If
the information sought is shown to have a legitimate relevance to
the Union's statutory function of representing the employees in
dealing with the employer , it should not be refused on the ground
that the employer may be disadvantaged by disclosure of the facts
because the employees' representative is thereby informed See
NLRB v Yawman & Erbe Manufacturing Co , 182 F 2d 947,949
(C A 2, 1951 ), Metropolitan Life Insurance Company, 150 NLRB
1478 , 1485-86
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