The North American Coal Co.

National Labor Relations Board - Board Decisions

Jan 12, 1987

282 N.L.R.B. 696 (N.L.R.B. 1987)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quarto Mining Company , a wholly owned subsidiary
of the North American Coal Company and
Local Union 1785 , United Mine Workers of
America. Case 9-CA-22943
12 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 23 July 1986 Administrative Law Judge Ber-
nard Ries issued the attached decision. The Re-
spondent and the General Counsel each filed ex-
ceptions and supporting briefs, and the General
Counsel and the, Charging Party each filed a brief
in response to the Respondent's exceptions and the
Respondent filed a brief in response to the General
Counsel's exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, and
conclusions and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended 'Order of the administrative law
judge and orders that the Respondent, Quarto
Mining Company, a wholly owned subsidiary of
the North American Coal Company, Clarington,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
1 The General Counsel excepts to the judge's failure to include a visi-
tatonal clause in the recommended Order A visitatorial clause authorizes
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States Court of Appeals enforcing the Order Under
the circumstances of this case, we find it unnecessary to include such a
clause. Accordingly, we deny the General Counsel's request
Damon W. Harrison, Esq., for the General Counsel.
Leonard Fornella, Esq. (Corcoran, Hardesty, Whyte &
Polito, P.C.), of Pittsburgh, Pennsylvania, for the Re-
spondent.
Thomas M. Myers, Esq., of Shadyside, Ohio, for the
Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. Based on
a charge filed on 10 March 1986 and a complaint issued
on 25 April 1986, this matter was tried in Parkersburg,
West Virginia, on June 3, 1986. The issue raised is
whether Respondent violated the Act in February and
March 1986 when it refused to furnish the Charging
Union with certain information requested at those times.
Briefs have been received from all parties. Having re-
viewed the record and the briefs, I make, taking into ac-
count my recollection of the testimony of the witnesses
as it was given, the following
FINDINGS OF FACT
Respondent currently operates one coal mine in the
Clarington, Ohio area, although it has operated others
there in the past. The mine in issue here is called Quarto
Mine No. 4, which the pleadings and the testimony es-
tablish is represented as a separate bargaining unit for
collective-bargaining purposes by Local 1785 of the
United Mine Workers, under the terms of the National
Bituminous Coal Wage Agreement of 1984 (NBCWA).
Respondent also operates a central shop, separately rep-
resented by another local (the central shop is a central
repair shop for any viable mines of Respondent in the
area, including No. 4, and is loacted about 5 or 6 miles
from No. 4; it can evidently perform more sophisticated
repairs than the repair shops at the mines themselves).
Among the contract classifications of the approximate-
ly 760 employees at Quarto No. 4 in early 1986 was the
shop mechanic, also referred to as the outside'shop me-
chanic, a position occupied by 18 employees. These
workers repaired machinery that could not be repaired
by the underground mechanics (the inside shop) sta-
tioned in the mine itself.
On January 17, 1986, Respondent announced to Local
1785 representatives that effective 12:01 a.m. on Monday,
20 January, 49 unit employees at No. 4 would be laid off
and 89 employees would be realigned-i.e., moved from
one job to another. Of the 89 employees, 83 were re-
aligned from their current positions to the classification
of general inside laborer, who works underground and
"does about everything."
Thirteen of these realigned employees had served as
outside shop mechanics. The realignment apparently left
five shop mechanics still occupying that classification in
the outside shop. On January 20, 1986, the 13 realigned
shop mechanics jointly filed the following grievance (re-
produced verbatim):
We feel that we have been unjustly realigned
from our jobs as shop mecnanics.
The job is still in existence and must be continued
to be done to satisfy safety and health requirements,
furthermore the work being done by us is being sent
out in violation of the wage agreement , which pro-
vides that the company will not send out work of
the type normally and customarily performed by us.
We demand that we be retained in our shop me-
chanic job, or that these jobs be posted for bid. We
also demand that the company cease and desist
from sending out this work.
The wage agreement provision of the most recent con-
tract is found in article I,A, the "Scope and Coverage"
clause, which provides at section (g):
282 NLRB No. 103
QUARTO MINING CO. 697
Section (g) Contracting and Subcontracting --
(1) Transportation of Coal-The transportation of
coal as defined in paragraph (a) may be contracted
out under the Agreement only where contracting
out such work is consistent with the prior practice
and custom of the Employer at the mine; provided
that such work shall not be contracted out at any
time when any, Employees at the mine who custom-
arily perform such work are laid off.
(2) Repair and Maintenance Work-Repair and
maintenance work of the type customarily per-
formed by classified Employees at the mine or cen-
ut except (a)tral shop shall not be contracted out'
where the. work is being performed by a manufac-
turer or supplier under warranty, in which case,
upon written request on a job-by-job basis , the Em-
ployer will 'provide to the Chairman of the Mine
Committee a copy of the applicable warranty or, if
such copy is not reasonably available, written evi-
dence from a manufacturer or a supplier that the
work is being performed pursuant to warranty; or
(b) where the Employer does not have available
equipment or regular Employees (including laid-off
Employees at the mine or central, shop) with neces-
sary skills available to perform the work at the mine
or central shop.
(3) The Employer may not contract out the
rough grading in mine reclamation work.
(4) Where contracting out is ,permitted under this
section prior custom and practice shall not be con-
strued to limit in any way the Employer's choice of
contractors.
The grievance was denied at the first two steps of the
grievance procedure. At the step-three meeting on 27
February, the spokesman for the Union was Wilbert
Pyles, an employee of United Mine Workers District 6;
other Quarto employees present included several of the
grievants . Chief spokesman for the Respondent was
Gregory Driscoll, president of the Ohio Valley Coal Op-
erators Association , which represents Respondent in
labor relations matters. Two other labor representatives
of Respondent were also present.
In discussing the realignment grievance , Pyles restated
it as a claim that the Company was using outside con-
tractors to perform unit work in a "proportion" which
constituted a violation of the contract. He said, accord-
ing to Driscoll, that Respondent "had cut too deeply this
time . . . that the Company was wrongfully subcontract-
ing, out work that could be done or had been done by
those people who had held shop 'mechanics jobs at the
Powhatan No. 4 mine." Driscoll replied that the prior
practice of work assignment had been a "mixed" one, in-
volving much subcontracting ; this Pyles did not deny.
Reference was made to some arbitration decisions on the
subject, including one issued in June 1984 by Arbitrator
Marvin Feldman.
In the Feldman arbitration, this same Local had filed a
grievance pertaining to the same mine, Quarto No. 4, in
1984. The claim there was that -"during the past several
years," the mechanic group of 2 7 employees had been di-
minished in various ways by 10 vacancies-retirement,
deaih, etc. -For'4 years, the Union had filed no protest
because, "presumably" (the arbitrator's words), the me-
chanic classification was "obtaining all the hours that it
wanted." Eventually, however, "the mechanics thought
that the Company was contracting out much more work
than it had prior," and filed a grievance over the Compa-
ny's refusal to post bids for outside shop mechanics and
its alleged "practice of contracting out all maintaince
[sic] and repair work."
Arbitrator Feldman noted ' that , in construing article
I,A, section (g)(2),' the Union conceded that subcon-
tracting of unit work had been done in the past, and ap-
parently assumed that this was permissible under the
contract, but "[t]he argument raised by the Union was
that there was a greater amount of subcontracting pres-
ently that [sic] had been experienced previously." How-
ever, wrote the arbitrator, "[T]he Union did not offer
any evidence with any specificity whatsoever to sustain
its position ." He-went on to cite earlier coal mining arbi-
tral decisions which seem to say that once work has been
"from time to time . . . contracted out," the work "does
not belong exclusively within the bargaining unit," and
that such work assignment therefore "belongs properly
to the discretion of management who must act within the
realm of reason." Feldman also wrote, however, that "if
the record had included a comparison or if the record
had included any measure of the amount of mechanical
work done presently to that done prior," that might have
sufficed to make the Union's showing of a violation, but
"there has been no evidence placed into the record
which would compare prior year figures of contracting
out to triggering [sic] figures of contracting out present-
ly." Arbitrator Feldman concluded that "[fjurther hear-
ings, if they are caused pursuant to new grievances as
they are filed, should contain a showing of comparison fig-
ures of contracting out so as to meet the prescribed stand-
ards of creating a bidded vacancy pursuant to [a prior
decision]" (emphasis added).
After some , discussion of the Feldman decision, Pyles
made a demand for several groups of documents. He
asked for copies of "purchase - orders" (sometimes re-
ferred to, he thought, as cost sheets) for all outside con-
tractors who had performed mechanical repair for the
mine; a copy of the vender's logbook, a daily notebook
which shows alphabetically and chronologically the
repair work farmed out to subcontractors ; a copy of the
sign-in and sign-out book filled out by all nonemployees
who visit the mine each day; and evidence of whether
any of the subcontracting work was done pursuant to a
warranty (which would relate to a defense permitted the
Company under the contract provision , see above).
The record is confused about the period of time Pyles'
requests covered ; when first asked, he replied, "I told
them from 6 months back to a year,'from 6 months to a
year;" when asked by me he agreed that he requested "at
leat 6 months, but we prefer a year's worth." Testifying
without his notes, Respondent 's witness Driscoll seemed
to agree : "[H]e modified the demand for all subcontract-
' Which, as we shall see, differs in the latest contract from the preced-
mg one.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing records back for 6 months." His notes showed, how-
ever, that Pyles "requested records of subcontracting
from 1-20-86 forward. He requested central shop
records for the previous 6 months. , ... He requested
foreman's work sheets for 10 days prior to and after Jan-
uary 20th, 1986. He requested vendor's log books for 6
months."
I find it difficult to believe that Pyles would have
asked for varying quantities of records because he testi-
fied that some of the groups were intended to serve as a
"checks and balance" against the comprehensiveness of
the other groups. It seems probable to me that in the
end, ' after discussing the issue with Driscoll, he would
simply have requested (and did request) the 6 months of
records preceding 27 February in each category.
Driscoll's immediate response was to deny Pyles' re-
quest for any cost information on the ground of "confi-
dentiality." Although Driscoll testified that he asked'
Pyles why he was requesting the records, but "never
really" received a response from Pyles, I do not think
that Driscoll had any doubts on that score. For one
thing, Driscoll conceded that Pyles and he spoke of the
Feldman decision, which principally addresses the
Union's need for supporting data in such grievances;2 for
another, Pyles' uncontradicted testimony that Driscoll
spoke of a "mixed or alleged practice" discloses that
Driscoll understood what Pyles was getting at; for a
third, Driscoll actually did present Pyles with some of
the relevant records on the morning of 27 February.
At some point on 27 February, Driscoll presented the
Union with copies of eight "mine debit memorandums,"
which, he said, represented the "subcontracting records
for January 20th, 1986." These forms, filled out by
supply clerks, contain information about items sent out
for repair (or, in one case, exchange) on that day:, the
types of item or items, the name of the subcontractor,
and an assigned "purchase ' order" number. Driscoll's
somewhat metaphysical explanation for volunteering
these documents was, in part: ' '
[T]he grievance form was filed on January 20th,
1986. A grievance typically is filed in retrospect,
not prospectively [sic]. It's filed over something that
has happened that somebody want's stopped, or
they want reimbursed for, et cetera. Giving the
grievants in this case, the benefit of the doubt, as-
suming that they filed this grievance at 11:59 p.m.
on the 20th day of January, the most that could
have transpired between the actual realignment that
they were saying affected the grievance, was 24
hours, because, the realignment began-it became ef-
fective 12:01 a.m. on the 20th day of January. So,
predicated on that. ...,.I gave them all of the
records with regard to subcontracting that had oc-
curred on that particular ' time frame.
This explanation indicates that Driscoll believed at the
very least that the Union was entitled to ascertain the
8 Driscoll testified that Pyles' reference to the Feldman opinion on 27
February went to another point which he could not recall, but it is hard
to imagine what that might have been. Driscoll had represented Re-
spondent in the Feldman case.
amount of subcontracting which had occurred on the
first day of realignment so as to be able to make a judg-
ment about the 'relationship between the two. Driscoll
testified that he was familiar' with the Feldman arbitra-
tion decision, but he did not understand it (or other arbi-
trations) to require the production of documents relating
to events either before or after the date of the filing of a
grievance.
By letter of 4 March, Pyles wrote to Driscoll, in con-
nection with the grievance at issue:
In reference to the above-numbered case, the
union would like to request all written records since
June of 1985 for all work-related jobs which were
assigned to the companies listed below: (This'list is
not all inclusive and should other companies be in-
volved, those records are included in this request.)
Progressive -Industries
Testa Construction Company
Watt Car and Wheel
Warwood Armature
Cypress Construction
Superior Hydraulics
Morgantown Machine Shop
Morgantown Hydraulics
American Longwall
Joy Manufacturing 'Company
In addition to the above, specifically requested
are: All materials, work requests, etc., pertaining to
the above; copies of vendors log book for all con-
tractors; sign-in, sign-out sheet for all companies (at
both portals); cost of repair for each job to each
manufacturer; number of employees who worked
on each job; etc.
We would also like to request a copy of the
records kept on equipment sent for repair to the
Central Shop.
Phillip Wright, director of personnel and labor rela-
tions of Quarto, who did not appear to have much direct
knowledge about the subcontracting recordkeeping pro-
cedures of Respondent, at first testified that it would
take the reduced purchasing staff "a great deal of
time"-"days on days"-to "pull out that information."
On later examination, however, he stated that he
"imagine[d] they have information [which indicates the
equipment that is sent out to vendors] that is compiled
somewhere, but not in any one particular information-
any one particular spot . . . I would imagine they would
have information compiled somewhere." He also later
conceded that the sign-in and sign-out sheets at the
guard shacks would not themselves be a "voluminous"
amount of records. Driscoll testified, without contradic-
tion, that the Respondent's record (even the invoices)
would not normally indicate the "number of employees
who worked on each job" for the subcontractors.
By letter of 5 March, Driscoll replied that because,
prior to 20 January, there had been no basis for a griev-
ance, records "since June of 1985" would not be relevant
and the request was therefore denied. Driscoll added that
the request "would require, an unnecessary cost and
QUARTO MINING CO.
burden to the company . As you are aware , when an Em-
ployer company [sic] is required to produce administra-
tive material , they may assess the Union a reasonable
fee." He concluded by saying that the request could be
appropriately raised again at the arbitration hearing.
The arbitration has been held in abeyance pending the
disposition of this case.
II. DISCUSSION AND CONCLUSIONS
This case, while differing in certain factual respects, is
ineluctably controlled, by the recent decision of the
Board in Clinchfield Coal Co., 275 NLRB 1394 (1985)
cited by all parties on brief, and answering, argument by
argument, almost every contention made by Respondent
in the present case.3
As for, the argument based on relevance, the factual
differences between the cases are (pun intended) minor.
In Clinchfield, the local union president, representing the
central shop employees of Respondent, filed a class
action grievance alleging that Respondent was sending
out to subcontractors repair maintenance work which
was "customarily" performed by unit employees. He
provided the Company with some circumstantial evi-
dence from which he had derived this opinion. In the
present case, Pyles relied on the fact that 13 shop me-
chanics were abruptly reassigned (he told Driscoll that
the Company "had cut too deeply this time"), and the
specific opinion given by employee Call, who had been
keeping track of the fact that trucks had carried repair
work from No. 4 'to the central repair shop, and then the
work would be sent away from that location unrepaired.
With respect to, the issues of the breadth of the re-
quest, the confidentiality of cost figures, and the remote-
ness in time of the information sought, in Clinchfield, the
Union asked for a great deal of information regarding
past contracting-out practices (there, as here, in two sep-
arate request in which the second was regarded as ampli-
fication of the first). The requests were broad (the first
request contained 'nine demands; for the sake of example,
one was. "Please furnish a list of purchase orders issued
to outside vendors who do the same type of work as that
performed in the Clinchfield Coal Co. Central Shop, i.e.,
Industrial Machine, B. & L. Welding, Electric Motor
Repair, T. & T. Machine' Co., etc., and identify to whom
issued , and for what purpose for the years 1982 and
1983"). It should be noted that the written request was
delivered around the end of March, and the information
requested in this and five of the other questions thus cov-
ered a 15-month period. Similar to this case, the Clinch-
field request included another demand for a statement of
"the approximate dollar value of such work."
After a careful review of the relevant precedents per-
taining to a unions statutory right to information, includ-
ing information necessary to evaluate the merits of a
S I note that in Clinchfield, the Respondent filed no exceptions to the
administrative law judge's findings and conclusions However, instead of
simply taking cognizance of that fact and adopting pro forma the findings
adverse to the Respondent, the Board stated, "We agree ... that the re-'
quested information concerning the maintenance or repair work custom-
arily performed by unit employees at the Respondent's central shop is
relevant and necessary." I take this affirmative disposition to be fully au-
thoritative.
699
grievance,4 the administrative law judge concluded that
the General Counsel had "met his burden of establishing
the relevancy and necessity of the requested informa-
tion" in the circumstances presented, 275 NLRB 1384.
With a few necessary additional comments , I see no basis
for concluding otherwise in the instant case.
A pervasive, but not persuasive, theme of Respond-
ent's brief is that the Union is entitled only to subcon-
tracting information for 20 January, the day on which
the realignment occurred, on the theory that "the griev-
ance makes no reference, either directly or indirectly, to
work sent out prior to the date on which the grievance
was filed" and further that, because a grievance is "nec-
essarily premised on conduct which occurs on or before
the date of the grievance ... the Union should not, in
the instant case , be entitled to records which post-date
the filing of the subject grievance since events which
transpired subsequent to such filing are entirely unrelated
to the forces giving rise to the grievance."
The first argument quoted is literally true, but it is no
more valid than an argument, that evidence of lack of
past disciplinary actions for particular conduct is undis-
coverable because it predates a comparable act for which
discipline has been imposed. The, second argument ig-
nores both the gravamen of, the pending grievance and
the guidelines laid down in the Feldman arbitration deci-
sion, the last previous arbitration on the subject. Arbitra-
tor Feldman, following past decisions, clearly held that a
union might prevail if it could demonstrate by firm evi-
dence that the employer had exceeded the amount of
subcontracting in which the union had acquiesced in the
past.
This is, incidentally, no longer an overwhelmingly
clear construction of the contract. In years preceding the
adoption of the NBCWA of 1984-1988, section (g) of ar-
ticle I,A had read, in pertinent part (according to the
Feldman decision, it. Exh. 5, p. 6), "Repair and Mainte-
nance work customarily performed by classified Employ-
ees at the mine or central shop shall not be contracted
out" with two, specified exceptions. As modified in the
latest contract, it reads, "Repair and maintenance work
of the type customarily performed etc." (emphasis added).
The argument may be made that the change signals that
any subcontracting "of the type customarily performed"
by unit employees is violative of the contract, regardless
of past practice.,
The record contains no evidence regarding this modifi-
cation. Nonetheless, Pyles could scarcely afford to
ignore the clear thrust of the Feldman decision. This ob-
viously would lead him to request evidence, for purposes
of the requisite comparison mandated by Feldman, relat-
ing not only to the amount of subcontracting performed
before the realignment of 20 January, but also. thereafter.
He might have discovered that there was no proportion-
ate change in the amounts of work done by outsiders in
those periods, or even that there was less subcontracting
post-20 January than there had been before, either of
which result might have persuaded him to withdrew the
4E.g., NLRB v. Truitt Mfg. Co, 351 U.S 149 (1956), NLRB v. Acme
Industrial Co, 385 U.S 432 (1967); Ohio Power Co., 216 NLRB 987,
Newspaper Guild Local 95 v. NLRB, 548 F.2d 863 (9th Cir. 1977).
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance;5 or he might have found that the amount of
contracting out after 20 January had, by 27 February, in-
creased in suspicious parity to the work formerly per-
formed by the 13 realigned mechanics.
Although the administrative law judge in Clinchfield
did not address item 7 of the union's request there
(""Please furnish information showing the cost to the
Company for repair work farmed out to outside jobbers
for years 1982 & 1983") on the ground that this portion
of the request was not alleged in the complaint, he did
find that item 9 ("If Sycamore Strip is in the Clinchfield
Coal Co. Division of the Pittston Co., please identify all
outside jobbers who do work for them, the type of work
performed and approximate dollar value of such work")
(emphasis added) sought relevant information, without
discussing the basis for including the "dollar value" in
that category. The Respondent cites on brief Buffalo
Concrete, 276 NLRB 839 (1985), as standing for the
proposition that the relevance of a request for informa-
tion financial in nature must be "firmly established" by
the union (there, the Board held that the employer` was
required to furnish such information to the union because
of evidence received indicating work interchange be-
tween a "double-breasted" operation). Compare, howev-
er, Western Massachusetts Electric Co.,' 228 NLRB 607
(1977), in which the Board found' cost information to be
relevant simply because the union was seeking to recap-
ture work being contracted out, with 573 F.2d 101 (1st
Cir. 1978) in which the' court affirmed on a more narrow
theory of verification of an employer's statements about
subcontracting, and found it irrelevant that the Board
used ' the wrong rationale when the record disclosed a
proper one.
In this case, the record does not show that the Re-
spondent ever asked the Union why it wanted cost infor-
mation. At the third-step meeting, Driscoll immediately
stated that they "would never enter any costs because' he
felt that was a confidentiality of management" and that if
he gave Pyles any records, he could be "sure it will not
have or contain any cost of any work, material, and so
on, of that type." All that Pyles could 'recall saying was
that cost was a "very good issue for the union to dwell
into." At the hearing, when asked why the Union was
interested in the cost of subcontracting, Pyles first said
that he thought it would "become very relevant" to an
arbitrator if the Union could show that "the work can be
provided in the shop cheaper." He admitted, however,
that he could not offhand recall a case involving subcon-
tracting in which a company has raised lower costs as a
defense to such conduct."
But Pyles also testified that the relevance of the cost
data would be to show "man hours spent, how long it
took...." It seems self-evident that if the Respondent
must supply the Union with subcontracting information,
which Clinchfield compels (see also Ground Breakers,
Inc., 280 NLRB 146; United Technologies Corp., 274
NLRB 504), it will very likely be necessary to furnish
explanatory financial data. What records there'are in evi-
dence (the MDM's)' indicates that records stripped of
5 It should be recalled that some 49 employees were laid off on 20 Jan-
uary which could have lessened the need for machinery repair.
costs will give little or no guidance to the Union as to
the magnitude of the work done by the subcontractors.
For example, the first MDM in evidence for 20 January
shows "l Sprocket" to be "repair[ed]" and "return[ed]."
I presume that unless the Union receives somewhat more
concrete information about how sick the sprocket was, it
will be unable to even guess at the amount o€ manhour
subcontracting this item covers. As noted above, in
Clinchfield, the Board accepted, without demurrer, the
judge's undiscussed conclusion that "the approximate
dollar value" of subcontracted' work, in effect, satisfied
the Acme Industrial Co. standard (385 U.S. at 437) of a
"probability that the desired information was relevant,
and that it would be of use to the union in carrying out
its statutory duties and responsibilities."6
Finally, the Employer makes a contractual waiver ar-
gument based on one of the same ,contract terms which
the Board, in Clinchfield, specifically rejected. Obvious-
ly, I must do the same.?
While I conclude that Respondent violated the Act es-
sentially as alleged in the complaint, I would not make a
separate finding of violation based on the requests by
Pyles at the 27 February meeting.
In the first place, except for his knee-jerk response to
furnishing cost information, Driscoll did not on that date
'Tail[] and refused" to furnish the requested information.
An employer is entitled to a reasonable period of time to
both formulate a position and respond to such a request,
and in any event, as Pyles testified, Driscoll did not
(with the exception of the matter of cost information,
which is necessarily bound together with the remainder
of the requests) say' that Respondent was "refusing" the
demand, but rather; in Pyles' words, that he would "take
our request under advisement to check with his people,
and they would make a determination on whether or not
we would get the records." The February 27 oral re-
quest, in my view, was incorporated into the more
formal 4 March letter and the violation occurred about 5
March, when Driscoll responded negatively in writing.
There would appear to be a certain-amount of duplica-
tion in the Union's item-by-item requests, but I believe
that they can separately be justified.8 The,case for hand-
6 While I rely here on a secondary theory advanced by the Union at
the hearing, such an approach seems at least as legally acceptable as that
employed by the court in Western Massachusetts Electric Ca Y. NLRB,
supra, 573 F 2d at 107 ("But, although the Board may have applied a dif-
ferent rationale , ample basis exists in this record fora a finding that the
union needed subcontracting cost information to verify statements made
by WMECO as to the economic necessity of removing restrictions on
subcontractmg.")
4 Although Respondent's answer to the complaint asserted that this
entire matter should , be deferred to arbitration, that argument was wisely
not revived at the hearing or on brief,' and I see no need to consider it.
s I was not at all convinced by the testimony of Wright that the col-
lection of the records requested would be an onerous ' undertaking The
hesitancy and `speculation in Wright 's testimony suggests that he was
speaking on the basis of second-hand knowledge. We know definitely
from the record that a "Mine Debit Memorandum " is made up for each
item sent out from,the mine to a subcontractor, and that these are'as-
signed sequentially numerical "P.O." (purchase order) numbers ; as Dris-
coll testified, the MDM's are formalized into purchase orders Wright re-
luctantly testified that he, did not know it "for a fact," but he "would
think that we would have . . somewhere [one source that would indi-
cate all the repair and maintenance work that was being sent to subcon-
tractors] " I have little doubt of that. Wright also testified that the sign-in
and sign-out sheets ' could not be considered "that voluminous"
QUARTO MINING CO. 701
ing over the repair purchase order made out 'for ^a11 aiib-
contractors has been discussed already, and any other re-
lated "written records" which would show more precise-
ly the hours of work spent by the subcontractors would
fall within this category.9 I do not believe that it is nec-
essary for Respondent to also turn over the MDM's
since they appear to be simply the forerunners of the
purchase orders (they would not verify the accuracy and
completeness of the purchase orders because if Respond-
ent was of a mind to be less than forthcoming about the
purchase orders, it would presumably trim the MDM's
to fit).
The existence of the "vendors log book" is disputed
by Driscoll, but I believed the testimony of Pyles and
employee Algeo that there is such a volume; the latter
testified that he has made entries in it, and that he saw it
as recently as 2 months before the hearing. The book
records items sent out for repair and would, I think, tend
to verify the completeness of the other documents to be
furnished the Union under this decision, as would, to a
lesser degree, the sign-in, sign-out sheets at both portals.
Then, there is the claim that trucks were seen carrying
items for repair to the central shop, only to be driven
away unrepaired to unknown destinations, which is re-
flected in the 4 March claim for "a copy of the records
kept on equipment sent for repair to the Central Shop."
Even though the central shop is a separate bargaining
unit, repair jobs sent to it would not seem to constitute
the kind of "contract[ing] out" barred by the agreement.
But insofar as there appears to be a claim that work
which could have been performed by the Local 1785
unit was shipped to private contractors via the back door
of the central repair shops, the requested information
seems to satisfy the Supreme (Court standards of a "prob-
ability that the desired information was relevant," NLRB
,s. Acme Industrial Co., supra at 437.
Finally, there is 'the matter of the work done under
warranty. The Union originally asked for evidence of
any such work on 27 February; it did not expressly
repeat the request in the 4 March letter. The usefulness
of such information is to determine whether, any appar-
ently "subcontracted" work was done pursuant to the
first exception to section (g)(2), set out above. Because
that provision authorizes the Union to demand, "upon
written request on a job-by job basis," a copy of the
warranty or other reliable evidence the "subcontracting"
is nothing more than the invocation of a warranty, it
seems appropriate to consider the provision of such war-
ranties or like evidence as included in the "materials .. .
pertaining to the above" referred to in the 4 March letter
and moire fully explicated on 27 February. As far as I
can see, this evidence can only be helpful to the Re-
Driscoll testified that he understood on 27 February that Pyles
wanted "contracting out" records; and that this meant "anything that we
could give him to verify what had been contracted out on a given day or
period." Driscoll also testified that there is seldom a breakdown of man-
hours shown on the invoices received from subcontractors. To the extent,
however, that an invoice is available that shows the number of man-hours
performed on a subcontracted lob, 11 see no reason why Respondent
should not make that document available (as a "material ... pertaining
to the above," see,Pyles' 4 March letter, it Exh. 2), and delete any cost
figures in such cases, if it wished to do so.
-sporidont as ' the Union assesses its decision whether to
proceed with the grievance.
I shall make my recommendations in accordance with
the foregoing analysis.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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 , on and after 5 March 1985, to furnish
the information requested by the Union on 4 March
1986, Respondent violated , and is violating , Section
8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of the Act.
THE REMEDY
In view of the unfair labor practice found, certain tra-
ditional remedies are called for: the issuance of a cease-
and-desist order as amplified in the foregoing decision,
and the position of notices. The information to be fur-
nished by Respondent to the Union shall cover the
period from 1 June 1985 to 10 March 1986.
Like every brief filed by the General Counsel in recent
months, the one filed here contains a request for the in-
clusion of a visitatorial clause in the remedy, so that the
General Counsel "will be able to monitor compliance
with the Board's Order, as enforced by the Court of Ap-
peals." I envision no particular need for such a clause in
this case.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edlo
ORDER
The Respondent, Quarto Mining Company, a wholly
owned subsidiary of the North American Coal Company,
Clarington, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Local Union 1785, United
Mine Workers of America, as the exclusive bargaining
representive of bargaining unit employees, by denying it
requested information which is relevant and reasonably
necessary to the processing of grievances.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish, in a timely fashion, to the Union, as clari-
fied in the foregoing decision, documents regarding the
io If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracting out of repair and maintenance work between APPENDIX
1 June 1985 and 10 March 1986.
(b) Post at its Quarto Mine No. 4 facility in Claring-
ton, Ohio, copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps, shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to,comply.
I If this Order is enforced by a judgment of a United States court of
appeals, the words in, the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT refuse to bargain with Local Union
1785, United Mine Workers of America, as the exclusive
bargaining representative of the employees in the bar-
gaining unit, by denying it information that it requests
which is relevant and reasonably necessary for the proc-
essing of grievances.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL furnish, in a timely fashion, to the Union,
the documents requested by the Union, in connection
with the contracting out of repair and maintenance
work, as the Board has found appropriate in relation to
our realignment of 13 outside shop mechanics on 20 Jan-
uary 1986.
QUARTO MINING COMPANY, A WHOLLY
OWNED SUBSIDIARY OF THE NORTH AMER-
ICAN COAL COMPANY