Western Massachusetts Electric Co.

National Labor Relations Board - Board Decisions

Mar 11, 1977

228 N.L.R.B. 607 (N.L.R.B. 1977)

WESTERN MASSACHUSETTS ELECTRIC CO. 607
Western Massachusetts Electric Company and Local
455, International Brotherhood of Electrical Work-
ers, AFL-CIO. Cases 1-CA-10287, I-CA-10848,
and 1-CA-11056
March 11, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On June 3, 1976, Administrative Law Judge Robert
W. Leiner issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions, a supporting brief,
and a brief supporting parts of the Decision. Later,
the Respondent filed a motion to remand Case 1-
CA-10287 and the General Counsel filed a brief in
opposition thereto. Subsequently, all parties entered
into a joint stipulation and filed a motion proposing
settlement of that case.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
In Case 1-CA-10848, the Administrative Law
Judge found that the information requested by the
Union was relevant and necessary to permit intelli-
gent bargaining on the Union's proposal to limit the
subcontracting of unit work. We agree. However, we
also are of the view that the same information is
necessary for the Union's administration of the
contract. Accordingly, we shall provide in our order
that such information, upon request, shall be made
available.
In Case 1-CA-10287, the Administrative Law
Judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally terminating
its Employee Appliance Purchase Plan. As a part of
his Order and remedy, the Administrative Law Judge
i Unlike our dissenting colleague , we agree with the Administrative Law
Judge's finding that the Respondent did not violate Sec . 8(a)(5) of the Act
by refusing to furnish the Union information regarding the East Springfield
Service Center
As the Administrative Law Judge found , the East Springfield Center
opened in October 1969 and there were four bargaining unit janitors at the
center at that time . At the same time, however, the Respondent informed the
Union that it intended to use the employees of a subcontractor to perform
the janitorial work at the center . With the introduction of subcontractor
employees , the original work area , in which the unit janitors worked,
decreased . Also, almost as soon as the center opened, there developed a
practice by which the subcontractors performed work in the tiled areas
228 NLRB No. 66
recommended inter alia that the Respondent (a)
reinstate the plan and (b) make the employees whole
for any losses they incurred as a result of the
Respondent's action. The Respondent filed excep-
tions to the Decision and filed a motion to remand
Case 1-CA-10287 for the taking of additional
evidence. The General Counsel filed opposition to
the motion.
Subsequently, however, the parties entered into
stipulation and a joint motion to settle the matters
involved in Case 1-CA-10287. By the stipulation, the
Respondent withdraws its exceptions filed in Case 1-
CA-10287, its motion for remand, and the General
Counsel withdraws his opposition. The parties
further move that the Board adopt the Administra-
tive Law Judge's findings, conclusions, remedy, and
recommended Order in Case I-CA-10287 except to
the extent that his recommended Order required
reinstatement of the Employee Appliance Purchase
Plan. The parties have agreed that the payment of
the amount of $15,000 shall be deemed to make the
employees whole for losses resulting from the
termination of the Plan.
The Board, having considered the matter, is of the
view that the parties' joint stipulation will avoid
further litigation and effectuate the purposes of the
Act. Therefore, the joint motion regarding Case I-
CA-10287 as described above is hereby granted.
Accordingly, the Administrative Law Judge's Deci-
sion and recommendations are hereby revised to
reflect the same.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Western Massachusetts Electric Company, Spring-
field, Massachusetts, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 455,
International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union, by failing or
refusing to supply the Union with information
relevant and necessary to the performance by the
Union of its obligation to negotiate a collective-
while the unit janitors did the cement floor areas. Edward W. Collins, the
Union's business manager, admits that this rough functional distinction had
been in existence since 1970 or 1971. Thus, while unit janitors may have
performed, for a brief period of time, the work performed by subcontractor
employees, such appears to have been done only during a transitional
period. Accordingly, since the Union wished to limit , and sought
information only with regard to, work "normally performed" by bargaining
unit members, we find the Administrative Law Judge was correct in
dismissing the allegation of the complaint regarding the refusal to supply
information concerning the East Springfield Service Center since the work
inquired of there had not been "normally performed" by bargaining unit
members.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreement as exclusive bargaining repre-
sentative of a unit of employees of the Respondent
and to administer any contract agreed to by the
parties.
(b) Refusing to bargain collectively with the Union
by unilaterally terminating the Employee Purchase
Plan without adequate notice and opportunity with
respect thereto being afforded the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action found
necessary to effectuate the policies of the Act:
(a) Upon the request by the Union, furnish to it the
cost, in dollar amounts, paid to subcontractors
performing work presently performed by employees
of Respondent employed in the unit represented by
the Union which unit appears in section III of the
Administrative Law Judge's Decision, and other
information for the administration of any contract
agreed to by the parties.
(b) Make whole the employees in the aforesaid
appropriate unit for any monetary losses they may
have suffered by reason of Respondent's unilateral
termination of the Employee Appliance Purchase
Plan, in the manner set forth in the joint motion and
stipulation by the parties.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its places of business, where notices
pertaining to employees in the unit are customarily
posted, copies of the attached notice marked "Ap-
pendix." 2 Copies of said notice, on forms provided
by the Regional Director for Region 1, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS , dissenting in part :
Contrary to my colleagues, I would find that
Respondent violated Section 8(a)(5) by refusing to
furnish the Union with information as to dollar
amounts paid to subcontractors and the hours
worked by the subcontractors with respect to unit
janitorial work at Respondent's East Springfield
Service Center. The majority's finding is premised
upon the determination that the work performed by
the janitorial subcontractors was not bargaining unit
work and therefore did not encroach on work
performed by unit janitors . An examination of
history of the East Springfield Service Center, and
the collective-bargaining relationship between the
parties, establishes that the janitorial work at the
facility was clearly unit work.
When the East Springfield facility opened in 1969,
the janitorial work was performed by four unit
janitors who were transferred to the new facility.
Thereafter, Respondent advised the Union that it
was going to subcontract out some of the janitorial
work on a trial basis . As a consequence of the
subcontracting, the number of unit employees at the
facility diminished from four to two.3 Thus, the
statement by the Administrative Law Judge that the
bargaining unit janitors never performed the work
performed by the subcontractor employees at the
facility is plainly erroneous. Furthermore, at no time
did the Union agree that the janitorial work at the
facility would no longer be considered unit work. In
fact, prior to the 1975 negotiations, the Union at
various times demanded the return of certain
janitorial work. It is also significant that Respondent
did not claim, until the 1975 negotiations, that the
work of the janitorial subcontractors at the East
Springfield facility was not unit work.
In view of the foregoing, I must conclude that (1)
the Union never waived its claim that the work at the
East Springfield facility was unit work, and (2) the
considerations which the majority relies on to find
that Respondent violated Section 8(a)(5) by refusing
to furnish to the Union the costs, in dollar amounts,
paid to subcontractors performing work performed
by employees of Respondent employed in the unit,
are applicable to the work performed by janitorial
subcontractors at the East Springfield facility. The
General Counsel is correct in contending that these
amounts are needed, as in other situations, in order
to estimate whether unit employees could perform in
economic competition with subcontractor employ-
ees, and I would find the violation.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor 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."
3 Apparently , the two unit employees generally work in areas having
nontiled floors. There are, however , tiled areas in which unit janitors work.
WESTERN MASSACHUSETTS ELECTRIC CO.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, having found
after a hearing that we violated Federal law by
refusing to divulge certain information to the Union,
has ordered us to post this notice:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT refuse to bargain in good faith
with Local 455, International Brotherhood of
Electrical Workers, AFL-CIO, herein called the
Union, by (a) failing and refusing to supply the
Union with information relevant and necessary to
the Union's performance of its obligation to
negotiate a collective-bargaining agreement as
exclusive bargaining representative of a unit of
our employees; (b) unilaterally terminating our
Employee Appliance Purchase Plan without
notice and opportunity to bargain with respect
thereto being afforded the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL, upon request by the Union, furnish
to it the cost, in dollar amounts, paid to
subcontractors performing work presently per-
formed by our employees in the unit represented
by the Union and furnish information necessary
for the Union's administration of any collective-
bargaining agreement reached.
WE WILL make whole the employees in the said
unit for any loss they may have suffered by
reason of our unilateral change in terminating the
plan.
WESTERN
MASSACHUSETTS
ELECTRIC COMPANY
DECISION
STATEMENT OF THE CASE
609
ROBERT W. LEINER, Administrative Law Judge: Upon
charges and amended charges filed in the above cases on
December 4, 1974, and July 2 and August 15, 1975, the
General Counsel, on November 4, 1975, issued a second
order consolidating cases, amended complaint, and notice
,of hearing.' Respondent duly filed its answer on November
13, 1975. The amended complaint was further amended at
the hearing. The complaint, as ultimately amended, alleges
violations of Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, in two respects: (1) on or about
September 6, 1974, by unilaterally canceling or suspending
Respondent's Employee Appliance Purchase Plan for
employees, without due or proper notice to the Union and
without otherwise affording the Union a reasonable
opportunity to intelligently bargain over the decision and
effects thereof on unit employees; and (2) by refusing,
commencing on or about June 2, 1975, and thereafter, to
furnish the Union with information and data to enable the
Union to negotiate a new collective -bargaining agreement,
sand/or to enable it to administer a collective-bargaining
agreement and intelligently represent employees in a
bargaining unit, particularly showing the (a) dollar am-
ounts paid to subcontractors who performed or engaged in
bargaining unit work for Respondent during the period of
the expiring contract term (1973-75); (b) the total number
of man-hours of janitorial, custodial, or related work
performed or engaged in by subcontractors for Respondent
at its East Springfield, Massachusetts , service center
location; and (c) the total dollar amounts paid to
subcontractors during the aforementioned period for such
work. Respondent, admitting certain allegations of the
complaint, denied that the Union's purposes in obtaining
,such information was to enable the Union to negotiate a
new collective-bargaining agreement and/or to enable it to
administer a collective-bargaining agreement and intelli-
gently represent employees of the unit. Respondent denies
having unilaterally canceled or suspended the Employee
Appliance Purchase Plan, denies having refused to furnish
information to the Union in violation of the Act and, in
substance, denies violation of Section 8(a)(1) and (5) of the
Act, as alleged.
The matter was heard before me on November 25 and
26, 1975, and January 7-9, 1976.
On March 12, 1976, I received briefs from the General
Counsel and Respondent. The briefs thoroughly analyzed
'the matters alleged in the complaint and heard before me,
'were of particular help in the resolution of the allegations
This third charge supported the inclusion , in General Counsel's second
consolidated amended complaint , of an allegation relating to the unlawful
interrogation of an employee of Respondent, Jessie L Hernandez, outside
the presence of a representative of the Charging Party, Local 455,
International Brotherhood of Electrical Workers, AFL-CIO, hereinafter
called the Union. The matter was litigated at the hearing in November 1975.
On March 15, 1976, General Counsel submitted a motion to dismiss the
complaint insofar as this allegation was concerned , asserting that Respon-
dent and Hernandez had entered into a non-Board settlement which,
according to General Counsel, "sufficiently remedied" the allegation of the
complaint . The General Counsel asserted that Respondent and the
Charging Party were advised of his motion andjoined therein . The motion is
hereby granted and the complaint, insofar as it alleges unlawful interroga-
tion of Jessie L. Hernandez, is dismissed.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint , and were relied upon in the preparation
of this Decision.
Upon the entire record in this case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges , Respondent admits , and I fmd
that Respondent at all times material herein has been a
Massachusetts corporation whose principal office and
place of business is in the city of Springfield , Massachu-
setts, where it is a public utility engaged in the manufac-
ture, sale, and distribution of electric power and related
products . Respondent annually, as a public utility, derives
gross revenues in excess of $250 ,000 and annually purchas-
es and has delivered to its Springfield , Massachusetts, and
other Massachusetts facilities goods and materials valued
in excess of $50 ,000 transported to said Massachusetts
facilities from States other than Massachusetts . Respon-
dent is , and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.2
It. THE LABOR ORGANIZATION INVOLVED
Local 455, International Brotherhood of Electrical
Workers , AFL-CIO, herein called the Union , is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act . Respondent
expressly admits this allegation and I so fmd.
III. THE UNFAIR LABOR PRACTICES
The above alleged unfair labor practices are completely
disparate , without relation to each other , and will be
treated separately.
2 Respondent admits that the following named persons are supervisors
within the meaning of Sec. 2(11) of the Act and agents of Respondent.
Carol) Caffrey, director of industrial relations ; and Donald E. Riga,
manager of personnel.
s The Appliance Purchase Plan was available to employees of Respon-
dent other than those represented by the Charging Party.
4 The complaint alleges, Respondent 's answer admits , and I find that the
following unit constitutes a unit appropriate for collective bargaining within
the meaning of Sec. 9(b) of the Act-
Spr,ngrield Area.
All employees of Respondent in its underground, overhead , stock,
trouble , maps and records , street-lights , transportation , and mainte-
nance departments, ,janitors, metermen , servicemen, meter-readers,
area maintenance operators, assistants and apprentices in the City of
Springfield, Massachusetts ; all operating employees including electrical
maintenance and other maintenance employees at the West Spnngfield
generating station ; operators and station apprentices at the Cobble
Mountain Substation ; area operators and control center operators and
assistants in the Springfield area
Franklin-Hampshire Area.
All employees of Respondent in its line departments at Greenfield,
Hampshire , East Hamilton, South Deerfield and Gardner Falls,
including linemen , troublemen , groundmen, truckdnvers , cable slicers
A. Background
The complaint alleges that on or before September 6,
1974, Respondent, in violation of Section 8(aX5) and (1) of
the Act, unilaterally canceled or suspended the Employee
Appliance Purchase Plan (herein called the Plan ), a benefit
of Respondent flowing to employees3 in the unit4 repre-
sented by the Charging Party, without due or proper notice
to the Union and without affording it a reasonable
opportunity to bargain over the effects on the unit
employees of the unilateral change. Respondent, as above
noted, denies the allegation and interposes four affirmative
defenses : (1) the Union waived its right to bargain
collectively regarding the Employee Appliance Purchase
Plan and/or, in the alternative , Respondent did bargain
with the Union concerning its decision to temporarily
suspend the plan; (2) under the Collyer doctrine, a decision
of an arbitrator with respect to the Employee Appliance
Purchase Plan that it is not arbitrable under the collective-
bargaining agreement disposes of the matter (Collyer
Insulated Wire, 192 NLRB 837 (1971)); (3) the Employee
Appliance Purchase Plan is not a "condition of employ-
ment" within the meaning of Section 8(aX5) and 8(d) of the
Act; and (4) by its very terms, the Employee Appliance
Purchase Plan gives Respondent the option to terminate
the Plan at any time.
Respondent is one of several operating companies wholly
owned by Northeast Utilities Company , a common
corporate parent employing 7,500 employees whose princi-
pal office is in Berlin , Connecticut .5 One of the subsidiaries
of Northeast Utilities is Northeast Utilities Service Compa-
ny, which , on this record, is an unincorporated enterprise
whose function is to perform services , including labor
relations services, for the operating companies . For about
35 years, the Union has been the certified bargaining
representative in substantially the entire unit described
above.
The record shows that each of the operating subsidiary
corporations of Northeast Utilities has had some type of
appliance purchase plan since at least 1940. Under the
and helpers and metermen , meter clerks , stock clerks at Greenfield,
Hampshire and East Hamilton , all automobile mechanics , floormen
and building janitors at Greenfield service building ; all meter readers,
servicemen at Greenfield , Hampshire and East Hamilton, mainte-
nancemen , maintenancemen 's assistants and apprentices and area
maintenance operators , assistants and apprentices working out of the
Greenfield service building, headgate operators at headgates and
hydro-operators assistants and apprentice in # I Station at Turner
Falls and Gardner Falls station ; and all employees at Cabot Station
including operators, auxiliary operators and station apprentices;
exclusive of trouble and meter district employees , radio interference
employees and line department clerks.
Berkshire Area:
All employees of Respondent in its line department at Pittsfield,
including linemen, troublemen, groundmen , cable slicers and helpers,
metermen, area maintenance operators , assistants and apprentice,
maintenancemen and assistants, stockroom and garage employees,
janitors and utility maintenance men, meter readers and servicemen.
The above-appropriate unit excludes: all office clerical employees,
professional employees , guards, superintendents , assistant superinten-
dents, executives, draftmen , laboratory employees and all supervisors
as defined in the Act.
S About 2,900 employees in the operating companies are represented by
locals of the International Union, of which Local 455 is one.
WESTERN MASSACHUSETTS ELECTRIC CO. 611
Plan, an employee, whether in or outside the unit, desiring
to buy an appliance listed in the Plane first obtains
authorization from a company supervisor and then is
permitted to purchase the appliance from a vendor of his
choice at the best price. Respondent would then be
obligated to pay the vendor directly, finance the purchase
for the employee free of charge, arranging by payroll
deductions over a period of years to pay the vendor the
principal and interest for the appliance.
No collective-bargaining agreement between the parties
made mention of the Plan and, as Respondent points out,
the Plan itself was never discussed in negotiations between
the parties for the purposes for collective bargaining.
Respondent also notes that a letter of agreement in the
1963 collective-bargaining agreement was appended at the
Union's suggestion. Respondent prepared a list of agree-
ments previously unexpressed in any contract, which list
was included in the letter agreement (Resp. Exh. 3)
containing the statement that:
It is the purpose of this letter to confirm all of the
unwritten understandings which had been reached
between the Company and the Union over the period
of the last several years.
It should be noted that the Employee Appliance Purchase
Plan was not included in this letter and the Union never
requested that the Plan be included as part of any
agreement.
By memoranda emanating from the parent company,
Northeast Utilities, the Plan without consultation with the
Union was changed in each of the subsidiary corporations
in February 1971 by the deletion of "specials" 7 (Resp. Exh.
6); in June 1972 by the deletion of the coverage of certain
items including oil burner equipment and by the addition
of others; and in February 1974 by the elimination of all
appliances and financing previously relating to conversion
of employees' homes to the use of electrical heat.
The retiord is uncontradicted that the Plan was instituted
by Respondent's parent, was introduced into the operating
companies at a time when it was believed desirable by the
parent to promote the sales of electrical energy, and
encourages Respondent's employees to buy electrical
appliances.
The Plan has been listed as one of the Company's
"employee benefits" available to both prospective unit and
nonunit employees and such characterization occurred in a
company leaflet distributed to employees in June 1973
during an election among Respondent's clerical employees
whom the Union was organizing. None of the changes, in
1971, 1972, or 1974, as above noted, were discussed with
the Union prior to the changes nor was the Union
consulted on the changes. However, in each case, the
Respondent notified the Union of the changes in the Plan.
The change in February 1974, the elimination of
allowances and financing for electric residential heating,
brought a response from the Union. The president of the
Union filed a grievance with regard to the change in the
coverage of the Plan. While the exact problems and
6 G.C Exh. 6 lists the items of electrical appliances which are the subject
of the Plan , including air-conditioners , refrigerators, fans, table appliances,
etc The Plan provides a limit of $1,000 of indebtedness at any one time.
arguments relating to the disposition of the grievance are
not clearly a matter of record, General Counsel concedes
that the Union apparently became convinced of the merits
of the company action and withdrew the grievance.
In the collective-bargaining negotiations in May and
June 1975 (the current collective-bargaining agreement
between the parties covering the period of 1973 through
1975 expired on July 1, 1975), the Company proposed
amending the grievance procedure to avoid (a) grievances
on tuition reimbursement among its employees; and (b)
grievances on the Employee Appliance Purchase Plan,
similar to the above grievance filed in 1974. The Union
refused to agree to limit the scope of the grievance
procedure. Rather than change the language of the
grievance procedure, however, the Union proposed that a
letter of agreement deal with the matter, which letter would
be incorporated into the collective-bargaining agreement.
The agreement was reached and a memorandum of
understanding placed in the collective-bargaining agree-
ment for the year of 1975-76 (G. C. Exh. 3). By this
agreement, the parties stipulated that the Employee
Appliance Purchase Plan, inter alia, was not part of the
collective-bargaining agreement and was therefore not
subject to grievance and arbitration. This 1975 memoran-
dum of agreement, however, by consent of the parties, in
no way affected Respondent's actions in 1974, which
follow.
B. Bargaining Sessions
On Monday, September 2, 1974, Donald E. Riga,
Respondent's manager of personnel, who is charged with
administering the collective-bargaining agreement for
Respondent and who participated in the 1975 collective-
bargaining negotiations, telephoned Edward Collins, busi-
ness manager of the Union, and told him that he wished to
have a meeting with him at 8:30 a.m. on Friday, September
6. Collins asked Riga what was to be discussed and Riga
refused to tell him the subject matter of the meeting. As
scheduled, the meeting occurred at the Company's East
Springfield service center on September 6, 1974, at 8:30
a.m. Riga told Collins that, effective September 9, the Plan
would be suspended. Collins told Riga that the Union was
not happy, especially because the Company knew of its
decision on September 2 and kept the Union in the dark as
to the subject matter of the meeting until that very moment
on September 6. Riga told Collins that the subject matter
of the meeting had to remain secret or else the employees
would have run out and charged a lot of money on the
Plan, by buying up appliances, if they had any inkling of
the fact that the Plan would be suspended. Riga stated that
Respondent would post a notice on the company bulletin
boards on the following Monday, September 9, that the
Plan had been suspended . At that point Riga handed
Collins a copy of the Plan with the word "suspended"
printed across the top, along with the date September 6
(G.C. Exh. 6).
Collins testified that, although Riga said that the Plan
was suspended as of September 9, he stated that the Plan
7 "Specials" are Respondent's purchases from manufacturers at low
prices of electric appliances, which low prices are passed along to
employees.
612 DECISIONS OF NATIONAL
was already actually suspended. Collins asked Riga to
reinstate the Plan immediately, but Riga refused. When
Collins requested to know how much money was tied up in
the Plan, Riga said a great deal of money.
Riga denied that the Plan was "terminated" and stated
that, if the economic climate improved, the Plan could be
reintroduced. Riga stated, however, that the chances of
reintroduction were "very slim," and that the Plan had
been put into effect when it was desirable to promote the
sale of electrical appliances. At the present time, with the
shortage of electrical energy, Respondent was afraid of
public criticism of promotion of the sale of electrical
appliances on an interest-free basis. Collins testified that, at
the September 6 meeting, the Company did not ask the
Union for any suggestion or alternatives, nor did the Union
make any suggestions to the Company. The Union wanted
only the reinstatement of the Plan.
On September 17, 1974, the Union filed a grievance over
the suspension of the Plan. On September 30, 1974, the
Company and the Union met to discuss the grievance
which had been filed. Prior to September 30, Respondent
did not notify the Union that it was contesting the
arbitrability of the grievance. Thereafter it did.
The uncontradicted evidence shows that Respondent's
director of industrial relations , Caroll Caffrey, received a
memorandum from the parent company's vice president,
Pearson, dated September 5, 1974, instructing him to
suspend the Plan. As pointed out by the General Counsel,
the Pearson memo directed Riga to instruct company
personnel to refuse approval of any employee loan
applications "effective at once." In fact, on September 6,
1974, Riga told the Union, as of that date, the Plan could
no longer be used by employees and that he had no
authority to reinstate the Plan.
After the September 30, 1974, meeting to discuss the
grievance, the Union moved the grievance to arbitration.
By letter of October 29, 1974, Respondent took the legal
position that the grievance was not arbitrable under the
terms of the collective-bargaining agreement which posi-
tion it maintained in the entire arbitration process and
which it maintains today.
On December 4, 1974, the Union filed the first of the
charges supporting the present consolidated complaint. On
January 21, 1975, Respondent notified the Board's Region-
al Office that the merits of the grievance were not
arbitrable, but indicated its willingness to go to arbitration
for the sole purpose of litigating the question of arbitrabili-
ty. On January 24, 1975, the Regional Director of the
Board advised the parties that pursuant to Board's Collyer
policy8 he was deferring the matter to the parties'
grievance-arbitration machinery. The arbitration was held
11 Collyer Insulated Wire, 192 NLRB 837 (1971).
9 Inland Steel Co v N L R B., 170 F 2d 247 (1948), cert denied 336 U.S.
960, W W Cross and Company, Inc v N L.R B, 174 F 2d 875 (C.A. 1,
1949)
10 In pertinent part, Sec 8(d) provides that.
where there is in effect a collective-bargaining contract covering
employees the duty to bargain collective)y shall also mean that no
party to such contract shall terminate or modify such contract, unless
the party desiring such termination or modification -
(I) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty days
prior to the expiration date thereof.. .
LABOR RELATIONS BOARD
on July 9, 1975, and Respondent maintained its position
that the grievance, as submitted by the Union, was not
arbitrable under the terms of the contract. The Union
contended that Respondent had unilaterally changed terms
and conditions of employment without first bargaining to
Impasse . The arbitrator held that the grievance submitted
to arbitration was not properly a matter of contractual
interpretation nor was it the intent of the parties to submit
the matter to arbitration. Rather, the arbitrator held that
the matter was one intended by the parties to be resolved
by the Board rather than by an arbitrator (Resp. Exh. 9).
On August 8, 1975, the Union, by its attorney, notified
the Regional Director of the Board of the arbitrator's
award and the ruling that the matter was not arbitrable.
The Regional Director thereafter issued complaint in this
matter.
Analysis and Conclusions
In its brief and at the hearing, General Counsel took the
position that the Employee Appliance Purchase Plan was a
benefit (emolument) which constituted "wages within the
meaning of Section 8(d) and 9(a) of the Act"; 9 that,
whatever the original definition of "wages" within the
statutory obligation of an employer and labor organization
to bargain under Section 8(d) and 8(a)(5), that obligation
had been defined by Board gloss of "wages" to include,
inter alia, a free investment service, Seattle-First National
Bank, 176 NLRB 691 (1969); and an employee gas
discount in heating their homes, together with an allow-
ance to conversion with the use of gas, Central Illinois
Public Service Company, 139 NLRB 1407 (1962), enfd. 324
F.2d 916 (C.A. 7, 1963). General Counsel takes the position
that Respondent's unilateral discontinuance of the Em-
ployee Appliance Purchase Plan constituted a prima facie
violation of Section 8(a)(5) and (1) because the statutory
bargaining duty imposes upon employers the obligation to
notify and bargain prior to changing or altering existing
wages and other terms and conditions of employees within
the ambit of Section 8(d)10 of the Act, N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S.
736 (1962). With regard to the obligation to bargain and
not to change a term or condition of employment where
there exists a current collective-bargaining agreement,
General Counsel points to Seattle-First National Bank, 176
NLRB 691, 693 (1969), and McCall Corporation, 172
NLRB 540 (1968), as standing for the proposition that a
contrary conclusion is not required because contracts
between the parties had not expressly referred to the
Employee Appliance Purchase Plan or because the plan
had not historically been the subject of collective bargain-
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract ... containing the
proposed modification. .
(4) continues in full force and effect ... all the terms and
conditions of the existing contract ... .
WESTERN MASSACHUSETTS ELECTRIC CO.
ing between the parties. I agree. General Counsel further
argues that, even if there had been a failure to refer to the
Plan as a company benefit, that would not mean that the
benefit is not covered by the obligation to bargain imposed
by Section 8(a)(5) and 8(d) of the Act, Seattle-First
National Bank, supra at 693; but where, as here, Respon-
dent had effectively advertised the Employee Appliance
Purchase Plan as a company benefit, such express refer-
ence to the benefit constitutes some evidence that Respon-
dent considers the Plan to be a part of the employee wages.
Seattle-First National Bank, supra at 693, citing N.L.R.B. v.
Central Illinois Public Service Co., supra; Southland Paper
Mills, Inc., 161 NLRB 1077 (1966). I agree and conclude
that the plan is prima facie "wages" within the meaning of
Section 8(d) and 8(a)(5) of the Act and that a unilateral
change by Respondent violates the Act.
As above noted, the Company defends on the grounds
(a) that the plan is not a mandatory subject of bargaining
in that it is not a term or condition of employment within
the meaning of Section 8(d) of the Act, citing Fibreboard
Paper Products Corp. v. N.LRB., 379 U.S. 203, 223 (1964),
and Mr. Justice Stewart's statement whereby it was his
opinion, inter alia, with regard to the purpose of Section
8(d) of the Act, that "those management decisions which
are fundamental to the basic direction of a corporate
enterprise or which impinge only indirectly upon employ-
ment security should be excluded from that area."
Respondent cites G & W Electric Specialty Company, 154
NLRB 1136 (1965), for the proposition that a mandatory
subject of collective bargaining, within the scope of Section
8(a)(5) and 8(d) of the Act, relates only to working
conditions and the employment relationship. Further,
noting that the protection afforded employees under
Section 7 of the Act to engage in "concerted activities for
... mutual aid and protection" is much broader than an
employer's obligation to bargain under Section 8(d) of the
Act, Respondent cites G & W Electric Specialty Co., supra,
for the proposition that there the Board rejected a Trial
Examiner's findings that a credit union involved a term or
condition of employment subject to mandatory bargaining
under Section 8(d) of the Act. From the analogy of the
credit union, Respondent suggests that the Plan should not
be included within the scope of the mandatory subjects of
bargaining announced by the Board in its decisions with
regard to the scope of Section 8(d) of the Act.
In support thereof Respondent notes that for 30 years, on
this record, the parties themselves did not consider the Plan
to be a condition of employment; that, from its inception,
Respondent altered and amended the Plan unilaterally
without objection from the Union except for the single
grievance filed in 1974 which was rejected by Respondent
and dropped by the Union. Thus, according to Respon-
dent, the clear practice of Respondent, recognized by the
Union, was to make unilateral changes where necessary to
adjust the Plan to changing conditions.
In addition, Respondent points to the fact that the
memorandum agreement signed in 1962 by the parties was
ii Sec . XXIX of the collective-bargaining agreement which expired June
30, 1975, and the agreement in effect for the period of July 1, 1975, through
July 1, 1976, contains the following provision:
During the term of this Agreement neither party shall request the
613
for the purpose of protecting and preserving for union
members, or at least employees covered by the collective-
bargaining agreement , the concessions gained by the
Union from Respondent over the years. Those concessions
included meal allowances, protective clothing, free replace-
ment of tools, and overtime compensation for employees
temporarily assigned to do other work. By not including
the Plan in that memorandum agreement, which was
subsequently included in the 1963 collective-bargaining
agreement, the omission indicated that the Union consid-
ered the Plan to be under the absolute control of
Respondent.
Finally, Respondent argues that the Plan was never the
subject of collective bargaining by the parties until 1975
when the parties executed an agreement whereby the
Union agreed that the Plan was not a part of the agreement
and was not subject to grievance and arbitration. From
this, and the above other factors, Respondent argues that
the parties never considered the Plan to be a subject of
bargaining and never treated it as a subject of bargaining
during all the years of negotiation.
Respondent's second defense is that, assuming that the
Employees Appliance Purchase Plan is a mandatory
subject to bargain within the meaning of Section 8(d) of the
Act, the Union waived any right to bargain about the
suspension of the Plan. Respondent points to the fact that
the Union never complained or grieved over the many
unilateral changes which Respondent instituted in the past
with regard to the Plan and by failing to challenge these
changes or the existence in the Plan of the right to
terminate or revise it as circumstances warrant, such
conduct constituted acquiescence by the Union which was
tantamount to a waiver. Avco Manufacturing Corporation,
(Lycoming Division), 111 NLRB 729 (1955); Speidel
Corporation, 120 NLRB 733 (1958); The Berkline Corpora-
tion, 123 NLRB 685 (1959).
Furthermore, Respondent argues that by execution of
the memorandum of May 1962 (Resp. Exh. 3), after the
Union expressed concern that unwritten employees' rights
should be set forth in writing, and with the omission of the
Plan, this constituted an express waiver of the Union's right
to bargain over the suspension of the Plan.
In addition, Respondent points to the existence of a
"zipper clause" in the collective-bargaining agremeent
which expired on July 1, 1975.11
Lastly, in support of its argument of waiver, Respondent
suggests that there is an equitable estoppel working against
the Union by virtue of the clear practice of the parties that
led Respondent to believe that it could lawfully exercise
unilateral rights over the Plan, including its total suspen-
sion . It supports this theory by showing that the prior
practice was to give Respondent complete unilateral
control over the Plan; the Union never protested, prior to
1974, Respondent's alteration of the Plan; the Union never
sought to include the Plan in the collective-bargaining
agreement, never sought to bargain about the Plan, and
permitted the execution of the memorandum of agreement
other party to bargain with respect to any change of the provisions of
this Agreement or of any other matter that might add to the provisions
of this Agreement, and neither party shall have any obligation to
negotiate or bargain with the other party with respect to the same.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 1962 listing previously unwritten employee benefits,
without including the Employee Appliance Purchase Plan,
and agreed to a "zipper clause." Respondent argues that to
permit the Union to escape from its position of having
waived its right to bargain over the change or suspension of
the Plan or to prevent working of an estoppel herein would
be highly unfair and inequitable because it would permit a
finding that Respondent was guilty of an unfair labor
practice, subjecting Respondent to thousands of dollars in
liability which, because of the actions and failures to act by
the Union, it would not have incurred.
Respondent takes the further position that, even assum-
ing that Company was obligated to bargain over the
suspension of the Plan, the parties bargained to impasse
and the Company's action occurred only thereafter.
Respondent also argues that Section 10(b)12 of the Act
prevents consideration of the merits of the allegation of its
alleged unlawful unilateral suspension of the Plan because
the 6-month period should run from the time that
Respondent was obligated to bargain over alteration or
suspension of the Plan which commenced on February 4,
1974, when Leonard C. Hood, an employee filed the
grievance regarding the Company's discontinuance of the
heat allowances for installation and conversion rather than
from the time that Respondent suspended the Plan on
September 6, 1974.
Finally, Respondent argues that the Board is barred
from considering the unilateral suspension of the Employee
Appliance Purchase Plan because the arbitrator ruled the
matter to be nonarbitrable. Respondent, while granting
that "ordinarily" the Board takes consideration of a charge
after a determination of nonarbitrability by the arbitrator,
nevertheless argues that, in the instant case, the finding of
nonarbitrability by the arbitrator resolved a basic fact
"critical to the determination of the unfair labor practice
charge." That critical resolution was that "Plan" was not
subject to the grievance and arbitration provision of the
contract. Respondent further argues that, inasmuch as the
contractual language of the arbitration machinery extends
to "any difference, dispute or grievance ... regarding any
matter" (G.C. Exh. 2),13 the conclusion is inescapable that
the parties agreed to foreclose bargaining over the Plan.
Respondent's conclusions in its brief is that:
The suspension of the Plan is nonarbitrable because
the parties had argued that the Company had the
exclusive right to manage it. If it were otherwise, the
broad contractual language necessarily would apply to
make this "dispute" arbitrable. Under these circum-
stances, it is submitted that it would better effectuate
the purposes of the Act for the Board to give final and
binding effect to arbitrator Summer's finding that the
suspension of the appliance purchase plan was not
arbitrable.
12 In substance, Sec 10(b) of the Act provides that no complaint should
issue based upon unfair labor practice occurring more than 6 months
prior to the firing oanyf the charge with the Board.
13 The grievance and arbitration procedure under the contract includes a
no-strike clause relating to "any difference, dispute, or grievance
between the Employer and the Union regarding any matter, there should be
no suspension of work There follows a three-step grievance
procedure ending, in the third step, with arbitration. G.C. Exh 2, the 1973-
75 collective-bargaining agreement between the parties.
At the hearing, counsel for Respondent conceded that he
was not interposing an economic defense with regard to the
alleged unilateral action. He stated that Respondent kept
secret the reason for the meeting on September 6, in fear of
a so-called run-on-the-bank by employees. In the bargain-
ing of September 6, it appears that Respondent alleged that
$1 million in capital was tied up in financing the Plan.
Whether this was on a systemwide basis, or restricted only
to Respondent, is unclear on this record.
I conclude and find, as alleged in the complaint, that
Respondent on or about September 6, 1974, unilaterally
canceled the Plan without proper notice to the Union and
without affording it an opportunity to bargain over said
suspension, all in violation of Section 8(a)(5) and (1) of the
Act.
It should be noted that, when the Union rejected the
grievance on alteration of the Plan relating to Respon-
dent's financing of electric heating conversion filed by
employee Hood in February 1974, Respondent told the
union representatives (Hood and Collins) why Respondent
was rejecting the grievance. Riga told them that the
allowances were being discontinued because Respondent
was no longer in the incentive program to promote the sale
of electric home heating. The grievance was not, apparent-
ly, rejected on the ground that it pertained to a matter over
which Respondent was not obligated to bargain or
involved a matter over which Respondent had complete
and unilateral rights to change.
In the case at bar, the Plan has been in existence for
more than 35 years. According to Respondent, the use of
the Plan by unit employees causes Respondent to tie up
large sums of capital through borrowing or otherwise. The
Plan is not only included in a long list of items announced
as "employee benefits" of Western Massachusetts Electric
Company,14 but it is also uncontradicted that the employee
benefits list was given to Collins by Riga while the Union
was organizing a group of clericals in an NLRB election.
Riga sent the listed benefits to Collins when Riga was at a
meeting of employees that the Union was trying to
organize and Riga was using the list to demonstrate that
the Respondent was a good company to work for and had
distributed the list of benefits to employees during the
organizational campaign.
In N.L.R.B. v. Central Illinois Public Service Company,
324 F.2d 916 (C.A. 7, 1963), the Board, with court
approval, held that a gas discount was "an emolument of
value" which accrued to "employees out of their employ-
ment relationship." The court upheld the Board's finding
that the unilateral discontinuance of this discount violated
the employer's obligation to bargain with the union with
respect to wages, hours, and other terms and conditions of
employment. In that case, the gas discount had been in
existence for 36 years and permitted employees to purchase
at a one-third discount. In Seattle-First National Bank, 176
14 The employee benefits in G. C. Exh. 5 include II paid holidays,
vacations, accident pay, sickness disability plan, time off for death in the
family, grievance procedure for nonunion employees, life insurance, death
benefit plan, retirement program , major medical plan, dental insurance
plan, travel accident insurance , maternity leave-of-absence, credit union,
education aid program, physical examination plan, Christmas bonus,
Sunday premium, shift premium, double-time pay for Sunday work, etc.
WESTERN MASSACHUSETTS ELECTRIC CO. 615
NLRB 691, 692, citing Central Illinois Public Service, supra,
favorably, the Board, adopting the decision of the Trial
Examiner, noted the respondent's unsuccessful contention
that a 28-year-old free investment service was not regarded
or treated by the parties as an employee benefit. In the case
at bar, the Employee Appliance Purchase Plan is listed by
Respondent as an employee benefit. As above noted a
contrary conclusion is not required by the fact that the
collective-bargaining agreements between the parties have
not expressly referred to the Plan or that the Plan has not
historically been the subject of bargaining between them.
Seattle-First National Bank, supra; McCall Corporation,
supra. As noted in Seattle-First National Bank, supra,
controlling effect cannot be accorded to the fact that, in
certain cases (N.L.R.B. v. Central Illinois Public Service
Company, supra; Southland Paper Mills, Inc., 161 NLRB
1077; Westinghouse Electric Corporation, 156 NLRB 1080
(1966)), the employer never referred to the emolument or
benefit in communicating with its employees or potential
employees.
It is unnecessary to cite further cases or analyze the
Board's position with regard to the question of what
constitutes wages within the meaning of Section 8(d). See
the recent The Capital Times Company, 223 NLRB 651
(1976).
With regard to Respondent's citation of G & W Electric
Specialty Co., 154 NLRB 1136, 1137, suffice it to say that it
does not stand for the proposition for which the Respon-
dent cited same, i.e., the Board rejected the Trial Examin-
er's finding that a credit union involved a term or condition
of employment of a kind subject to mandatory bargaining
under Section 8(d) of the Act. In fact, the Board expressly
held that, for purposes of that case, it was unnecessary to
adopt the Trial Examiner's suggestion that the credit union
involved a term or condition of employment subject to
mandatory bargaining under the provisions of Section 8(d)
and Section 9(a) of the Act.15
1. Therefore, contrary to Respondent, I conclude that
the benefits flowing from Respondent to its employees
under the Plan constitute "wages" and the suspension or
termination of the Plan is thus a mandatory subject of
bargaining within the meaning of Section 8(d) and 8(a)(5)
of the Act.
2. I further conclude that Respondent's action with
regard to the Plan amounted to a unilateral discontinuance
or termination of the plan. The memorandum from Vice
President R. H. Pearson of Northeast Utilities Service Co.
to all holders of Respondent's policy and procedure
memoranda, including Caffrey and Riga, notes that the
Plan has been suspended, effective "September 9, 1974."
Pearson's memorandum is dated September 5, 1974, and
thus, as General Counsel argues, it is not unreasonable to
believe that the decision embodied in Pearson's memoran-
dum was made on or before September 5, 1974. The
memorandum continues by directing that instructions be
15 In G & W Electric Specialty Co, supra, the Board held (Member
Jenkins dissenting in part), that a violation of Sec. 8(a)(1) of the Act
occurred with the discharge of an employee for soliciting signatures to a
petition against the employer 's administration of a credit union . The Board
held that all that was necessary to decide in that case was whether the
employee was engaged in "concerted activity" for the purpose of mutual aid
or protection of employees, within the meaning of Sec. 7 of the Act, and
issued "effective at once that no additional Employee
Appliance Purchase Certificates . . . may be accepted or
approved by those persons presently authorized to do so in
your department or section ." Lastly, the memorandum
notes that the supervisor should be aware of employees
attempting to unlawfully use the plan and closes by stating:
"All employees under your supervision should be made
aware that the plan has been suspended and no further
employee purchases will be authorized ." The memoran-
dum opens by noting that the Company is attempting to
reduce expenses and to use available cash for essential
company expenditures . Riga then telephoned Collins on
September 2, advising him of a meeting for September 6.
Respondent states that the secrecy was based upon its fear
that there would be a "run-on-the-bank" if information
leaked to employees that the Plan was going to be
suspended . At the meeting , Riga told Collins of the
financial straits of the Company , in terms of tying up
capital and the need to use capital for other purposes and
that the plan would be suspended . Riga had , no authority to
reinstitute the plan and Riga told Collins that even as of
September 6, rather than on the official date of suspension
on September 9, no applications for using the Plan would
be accepted . It seems to me that there can be little
argument that, as of September 6, the Plan was terminated
and that it makes no difference whether the word
"suspended," "terminated," or "eliminated" is used.
What Riga was doing , contrary to Respondent's argu-
ment that he was bargaining on September 6, was merely
relaying a message from Caffrey and Pearson to the Union.
That message was that the Plan was terminated. Thus,
there was no bargaining session within the usual meaning
of that term but merely an effective and reasonable place
to make an announcement of an end result . For want of a .
better term, the expression fait accompli will do as well as
any other to describe Respondent's action . See Kroehler
Mfg. Co., 222 NLRB 1269, 1271 (1976). The unilateral act
of changing, withdrawing, and terminating the Plan
violated Respondent 's obligation under Section 8(a)(5) of
the Act for the Employer to notify and bargain with the
Union over any such change, at least to the point that the
impasse before the change can be implemented . N.LR.B.
v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369
U.S. 736 . The same case stands for the proposition that
Respondent's good faith and the existence of economic
reasons or conditions motivating the unilateral change or
the change itself are not defenses to a unilateral change in
terms and conditions of employment without consulting
and bargaining with the Union to impasse before such
change is implemented . Accord: Kroehler Mfg. Co., supra.
Further, I agree with General Counsel that Allied Products
Corporation, 218 NLRB 1246 (1975), supports the assertion
that even a unilateral suspension , rather than termination,
of the mandatory subject of bargaining without notice and
bargaining to impasse with the labor organization violates
whether he was discharged therefor . It was unnecessary to determine , in that
case, whether the credit union involved a term or condition of employment
within the meaning of Sec . 9(a) and Sec. 8(d) of the Act . It goes without
saying, based upon this decision, that Sec. 7 rights accorded to employees
appear to be of greater breadth than the rights on which labor organizations
and employers are required to bargain within the meaning of Sec. 8(d) and
8(a)(5) of the Act.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(5) of the Act. The fact that the Plan was never
the subject of bargaining is not significant . Gas Machinery
Company, 221 NLRB 862 (1975).
3. Respondent argues that, in any case, the Union's
conduct over the years has amounted to a waiver of any
right to bargain with regard to suspension of the Plan. In
substance , Respondent points to the fact that over the
years Respondent has made various changes in the plan.
Thus, from time to time, Respondent eliminated from the
Plan and changed the Plan with regard to various items.
The short answer is that to establish "waiver" and
"estoppel" seems to me to require a greater factual matrix
than present here . The Union's acquiescence in minor
changes in no way presents a "waiver," a doctrine which,
under Board rules , requires clear evidence . Kroehler Mfg.
Co., supra. Moreover, the 1974 grievance regarding Re-
spondent's elimination of conversion to electric heat
brought no argument of "waiver" from Respondent. See
Gas Machinery Co., supra.
Similarly, the existence of the "zipper clause " affords
Respondent no effective support for "waiver." The right to
refuse to discuss modification of an existing agreement
refers to terms and conditions integrated and embodied in
a writing , not to matters not reduced therein . Tide Water
Associated Oil Company, 85 NLRB 1096 , 1098 (1949). A
waiver of statutory rights will not be inferred from the mere
absence from the contract of specific reference to a subject
protected by the Act, or because the contract contains a
management prerogatives clause , or because the Union
failed during contract negotiations to obtain contract
protection of its statutory rights. The Bunker Hill Company,
208 NLRB 27, 33 ( 1973), and cases cited therein. Cf.
Proctor Manufacturing Corporation, 131 NLRB 1166, 1168
(1961). Here there was no bargaining on the matter, much
less affirmative evidence that, during bargaining, the
parties had discussed and explored the Plan and that the
Union had "consciously yielded ." Proctor Manufacturing
Corp., supra. Thus, there is no predicate to which the
"zipper clause" could attach.
4. The defenses of economic necessity and the bona
fides of economic distress , as excuses for unilateral change
in this mandatory subject of bargaining , have been rejected
by the Board . Kroehler Mfg. Co., supra,; N.L.R.B. v. Katz, et
al., 369 U.S. 736.
5. The Collyer defense is without merit . To hold, as
Respondent suggests, that an arbitrator 's decision of
nonarbitrability should lead to deferral is unsupportable.
For the paramount precondition to deferral is that the issue
presented to the Board be one which has been considered
in the non-Board proceeding . Joseph T. Ryerson & Sons,
Inc., 199 NLRB 461, 462 ( 1972); International Union of
Elevator Constructors, Local No. 1, AFL-CIO (New York
Elevator Manufacturers' Association), 214 NLRB 257
(1974). Here the arbitrator concurred in Respondent's
argument and did not pass on the merits of the submission,
holding the matter nonarbitrable under the contract. Thus
it cannot be said that the basic issue of unfair labor
practice was decided by the arbitrator . This is a condition
precedent to deferral . Electronic Reproduction Service
Corporation, 213 NLRB 758 (1974); Versi Craft Corpora-
tion, 221 NLRB 1171 (1975).
In passing , it should be noted that the unilateral
termination of the Plan seems to have been caused by
Respondent's desire to save money rather than energy.
Certainly there was no overwhelming necessity , National
Terminal Baking Corp., a Subsidiary of Kosher Kitchens,
Inc., 190 NLRB 465 (1971 ), or emergency condition.
N.L.R.B. v. Cone Mills Corporation, 373 F.2d 595 (C.A. 4,
1967).
Respondent's refusal to furnish information to the
Union regarding subcontracting
C. Background
Paragraph 11 of the second amended complaint alleges,
in substance , that Respondent , during collective bargaining
for a new contract, violated Section 8(a)(5) and (1) of the
Act in refusing to furnish the Union with the following
information: (1) the dollar amounts Respondent paid to
subcontractors who performed or engaged in bargaining
unit work for Respondent during the contract term of the
immediately preceding expired collective -bargaining agree-
ment (July 1, 1973, through July 1, 1975); and (2) the total
hours of janitorial , custodial, or related maintenance work
performed or engaged in by subcontractors for Respondent
at its East Springfield , Massachusetts , service center, and
the total dollars amount paid to such subcontractors
during the aforementioned period for such work. The
Union alleges that Respondent violated its statutory
bargaining obligation because this information was to be
used by the Union to : (a) negotiate a new collective-
bargaining agreement commencing July 1975; (b) enable it
to administer its collective -bargaining agreement, and (c)
intelligently represent unit employees.
The facts regarding the Respondent 's refusal to divulge
the above-mentioned information to the Union are not in
substantial dispute . The Union and Respondent have
engaged in collective bargaining for approximately 35
years , during which time Respondent has continuously
subcontracted out work which was performed by unit
employees . At the present time , Respondent continues to
subcontract out such work . The record shows that, in the
past, the Union with minimal success has attempted to
limit , during collective bargaining, the extent to which the
Union could use subcontractors . It is unclear as to what
specific actions and when such actions occurred in this
regard . There is also no dispute that the one restriction on
Respondent's right to subcontract appears in the 1973-75
bargaining agreement and is known to the parties as the
"Berkshire Restriction." This restriction on subcontracting
is limited to the laying , cutting, and preparation of cable
conduit ends for collar couplings in connection with the
installation of underground conduit in the Berkshire area
(G.C. Exh . 2). Other than this restriction, Respondent
regularly subcontracts work which involves the same work
as that regularly performed by unit employees. This work
includes ( 1) overhead line work, (2) underground excava-
tion; (3) installation of underground line and related
facilities ; (4) janitorial work (East Springfield Service
Center); (5) tree trimming work; and (6) overhead
transmission lines. The Company has engaged in the
practice of using "mixed crews ," i.e., where employees of
WESTERN MASSACHUSETTS ELECTRIC CO. 617
subcontractors and unit employees work side by side
performing the same work on the same job. Employees of
the Employer are often experienced in work performed by
subcontractors.
The evidence shows that, in 1973, there were 518
employees in the collective-bargaining unit represented by
the Union. In May 1975, when collective-bargaining
negotiations began, there were 485 unit employees. In
September 1975, there were 457 unit employees.
In May 1975, at the beginning of collective-bargaining
negotiations , Union Agent Keilty asked a company official
(Caffrey, director of industrial relations) whether Respon-
dent, which planned to lay off approximately 700 employ-
ees over the entire multicorporation system, had finalized
the number of employees to be laid off. This question was
posed because, sometime preceding May 1975, there was a
demotion of approximately 21 out of 30 unit employees in
the appliance service department. This demotion did not
entail the actual layoff of the employees, but caused the
employees, under the terms of the collective-bargaining
agreement ,16 to "bump" other employees. Shortly thereaf-
ter, Caffrey told the union that there would be 13 to 18
further reductions in bargaining unit personnel over the life
of the collective-bargaining agreement.l7
As above noted, the Union is the collective-bargaining
representative of essentially a production and maintenance
unit of employees in various areas in western Massachu-
setts, including the Springfield area. Respondent, by a duly
filed answer, admits that the Charging Party is the
statutory representative in the Springfield area of all of
Respondent's janitors in said area. The Springfield Service
Center, opened in October 1969, amalgamated several
physically separated departments under one roof. In the
physically separated departments prior to opening the
facility, there were five janitors. With the opening of the
facility, one janitor retired, four unit janitors were actually
employed in the service center, and, over the years, the
number of unit janitors was decreased to two. When the
Springfield Service Center opened, Respondent told the
Union that it intended to use employees of a subcontractor
to perform janitorial services at the service center.
Respondent said that the janitorial subcontractor was to be
brought in for a "trial period" to determine if it would be
more economical to do the work with the subcontractor.
While the record shows that, during collective bargaining
in June 1975, the Union insisted that the janitorial work
performed by the subcontractor remain bargaining unit
work, the Union never requested of the Employer that the
employees affected by the cutback in the appliance service
department be given the work performed at the East
Springfield Service Center by employees of the subcontrac-
tor. Moreover, the Union never requested or proposed in
the 1975 collective-bargaining negotiations that the mainte-
nance work performed by employees of subcontractors be
assigned to employees in the bargaining unit. As the
16 The layoff or "bumping rights," which are actually furlough provi-
sions, were in the 1973-75 collective-bargaining agreement (G.C. Exh. 2)
and in the current collective- bargaining agreement for the period 1975-76
(G C. Exh. 3)
17 The figure of 13 to 18 is derived from the testimony of the Union's
business agent and chief witness, Edward W. Collins, Jr. Caffrey testified
that he said that 10 to 12 bargaining unit employees might be laid off during
number of unit janitors shrank from four to two, the
evidence shows that the original work area in which the
unit janitors worked decreased. As of the present time,
employees of the janitorial subcontractor clean the offices
and other areas in the service center which have tiled
floors; the bargaining unit janitors clean the truck bays, the
garage area, and principally those areas where the floors
are not covered by tile but are cement floors. As General
Counsel notes, there is an exception to the above
distinction in that unit janitors work in tiled areas in the
storeroom office and in the garage superintendent's office,
which are tiled areas.
In the collective-bargaining negotiations which began in
May 1975 and concluded with the signing of a collective-
bargaining agreement (covering the period 1975-76) on
July 3, 1975, Respondent refused to divulge the informa-
tion requested by the Union (hours worked by the
subcontractor janitor employees and the cost of such work)
on the ground that the janitorial work performed by the
subcontractor's employees was not unit work. At an
unspecified time prior to the 1975 collective-bargaining
negotiation, the Union requested the Company to give
some of the subcontractor's janitorial work at the service
center to unit employees. It appears that, on one occasion,
the Company did honor the Union's request. However, the
return of this work did not have the effect of increasing the
number of unit janitors or reducing the amount of work
performed by the subcontractors.18 It was only in the 1975
negotiations that Respondent first took the position that
the janitorial work performed by subcontractors was not
unit work. It should also be noted that, on various
occasions during the contract term of the expired contract
(1973-75), Business Agent Collins mentioned to Respon-
dent's personnel manager, Donald Riga, that Respondent
should not use subcontractors while Respondent was
reducing the number of unit employees.
Union Agent Collins also testified that, commencing in
or about 1974, union members advised the Union that they
were not getting overtime because a subcontractor was
performing unit work.
As an incident of their regular work erecting and
constructing electric lines , unit linemen engage in tree
trimming work but Respondent often subcontracted out
tree trimming, not as an incident to erection of electric
lines, but as part of a process of clearing areas of trees
which interfered with transmission lines.
In the early fall of 1974, the Union discussed with
Respondent the possibility of using unit employees to do
tree trimming work instead of subcontracting the work out.
This occurred because the Union anticipated, by that time,
a reduction in the number of employees in the unit because
of the Company's austerity program and its desire to
eliminate unit jobs. Respondent and the Union entered
into an agreement whereby the Company agreed to put on
a tree trimming crew made up of employees of the
the year 1975-76. Unlike the "bumping" in the appliance service depart-
ment, wherein 21 out of 30 bumped employees did not lose all employment,
in the layoff of employees there was no assurance that this would be
accomplished without putting the employees "on the street."
rs The Union concedes that the increase in the number of unit janitors
was not solely the result of the Union's expressing a desire to have unit
employees perform the work.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit. It rented a large "chipper" and com-
menced operating this tree trimming crew composed of
unit employees on an experimental basis . Respondent
halted the experiment in or about December 1974 or
January 1975. In a meeting at the Treadway Inn, in or
about March 1975, Respondent told the Union that the
study of the use of unit employees failed to show that the
unit employees could do the work more cheaply than the
subcontractors. Donald Riga credibly testified that the trial
crew of unit employees doing tree trimming work was not
to determine if they could be used in lieu of subcontractor
employees but rather whether the unit employees, not
occupied in line work , could do tree trimming. Riga
testified that so utilizing unit employees would be a method
of keeping them on the payroll and working when their
work as cable and conduit men did not require them to do
those jobs. The Union urged the Company not to
discontinue the crew of tree trimmers made up of unit
employees, but the Company stated that, in addition to the
fact that the unit employees could not do the work cheaper
than the subcontractor employees, it did not intend to go
into competition with subcontractors in that area or work.
1. The 1975 collective-bargaining negotiations
The negotiations for the new contract to supersede the
agreement expiring July 1, 1975 , commenced on May 20,
1975. Other than the May 20 negotiating session, there
were eight other negotiating sessions , seven of which were
in June.
It was in this first negotiating session that the Union
inquired if there would be a further reduction in personnel.
Respondent said that there would be approximately a
dozen other reductions involving unit personnel over the
life of the contract.
At this first session, the Union and Respondent ex-
changed proposals . Among Respondent's proposals was
one to eliminate the Berkshire subcontracting restriction.
Respondent stated that the existing restriction limited them
and made the Berkshire operation less efficient and
economical. Respondent had opposed and sought to rid
itself of the restriction in previous years.
2. The June meetings
At the June 2 collective-bargaining session, the Union
submitted a proposal which would restrict Respondent
from subcontracting at times when (a) unit employees were
in layoff status, or (b) unit employees were deprived of a
full workweek or of overtime (G.C. Exh. 8). When the
Union's proposal to limit subcontracting was presented on
June 2 , the Union told Respondent that it was the Union's
desire to have unit employees perform the work . Respon-
dent said that it would consider the matter and respond
thereafter . Respondent, however, did inquire whether the
proposed limitation on subcontracting would apply even in
the case of subcontracting for short duration . Respondent
gave as an example the case where the subcontracting
would last only 5 or 10 days. Collins , in behalf of the
Union , said that the limitation on subcontracting would
apply in that situation. Respondent answered that, if it
would not be allowed to subcontract in such a situation,
that would not be an efficient or economical way to run a
business . Collins responded by saying that the obligation of
Respondent to its own employees, especially those on
layoff status, was greater than its obligation to subcontrac-
tors. Collins testified that the principal reason why the
proposal was submitted was because the Union anticipated
further layoffs among unit employees. When Respondent
argued that such a limitation on subcontracting was not an
economical or efficient way to run a business, Collins
answered that he believed that the unit employees could do
the job much cheaper and better.
In conjunction with the submission of the Union's
proposal to limit subcontracting, the evidence shows,
without contradiction, that the Union's negotiators, Keilty
and Collins, requested from Carrol Caffrey, Respondent's
director of industrial relations , information regarding the
man-hours worked and the dollar amounts paid to
subcontractors performing unit work over the life of the
1973-75 agreement. Caffrey recalled that the Union, in
previous years, had stated that it was entitled to cost
information on contractors. The Union, according to
Caffrey, took the position that the Union was "entitled" to
the information but did not advance reasons in support of
this position. In fact, at one point the Union threatened to
go to the Labor Board and file charges if the information
was not forthcoming. Caffrey testified that this was not a
new matter and in fact the Respondent had received such
demands before. The evidence also shows that, while
Collins did not flatly tell Respondent during negotiations
that, if the cost information was divulged, the Union would
make a proposal by which unit employees would do the
work cheaper than subcontractors, Collins did testify that
he told the Company that unit employees could do the
work cheaper and better than the subcontractors. The
record is unclear as to whether this statement by Collins
directly accompanied the request for information or the
submission of the Union's proposal to limit subcontracting.
While Caffrey was confident in his testimony that the
Union did not support its request for information by
stating that it was needed to support the proposal to limit
subcontracting or to support any other proposal, Caffrey
stated that he was sure that, in the past, the Union
probably did say that it could do the work cheaper than
subcontractors. Caffrey testified that the Union said that it
was entitled to the information regarding costs of the
subcontractors doing unit work and the hours that they
worked for "intelligent bargaining, under the law type of
thing." Otherwise, Caffrey testified, there were no particu-
lar reasons advanced or submitted in support of the request
for this information. For instance, the Union never asked,
whether in negotiations or outside the negotiations, for cost
information on the use of subcontractors doing tree
trimming. Nor were there any grievances filed in 1975 with
regard to the use of subcontractors; nor did the Union ever
complain that unit employees were telling the Union that
they were not getting overtime because of the use of
subcontracts; nor were there any grievances filed because
of unit employees not receiving any overtime.
Similarly, Respondent's manager of personnel, Donald
E. Riga, testified that he did not recall if the Union gave
reasons why it wanted to restrict subcontractors. He did,
WESTERN MASSACHUSETTS ELECTRIC CO. 619
however , recall that the Union said it wanted and needed
the information regarding costs of the subcontractors and
hours worked in order to assist in negotiations. Riga
testified , however, that , while Caffrey was the chief
negotiator and spokesman for Respondent , both he and
Caffrey knew that the information requested by the Union,
with regard to the costs of subcontractors doing unit work
and the hours their employees worked , was related to the
Union's subcontracting proposal . Collins testified that,
between June 2 and 24, there were only brief references in
the several collective-bargaining sessions to the Union's
proposal to limit subcontractors . Collins testified that the
Union did not feel that it was in a position to even bargain
over the matter until it obtained the information it sought.
At the June 24 session , the Union again requested the
information regarding costs and hours worked. The
Company orally specified the hours worked by subcontrac-
tors on unit work during the contract period , but refused to
divulge the cost information . In addition , the Company
refused to provide either the hours worked or the costs of
janitorial subcontractors at the Springfield Service Center.
With regard to Respondent 's refusal to give the cost
information , the company position was that the informa-
tion "was not relevant." The Union told Respondent that it
needed the cost information to "intelligently analyze" its
proposal to limit subcontracting . Collins testified that the
Union could not know what it really was talking about
unless it knew how much Respondent was spending on
various subcontracting jobs.
Collins also testified that Respondent did not claim at
any time that cost or economics were not a factor in its
decision to subcontract a particular job.
In a letter to Respondent dated June 26 , 1975 (G.C. Exh.
9), the Union made a second request for ( 1) the dollars
spent on subcontractors performing bargaining unit work
and (2) the man-hours worked and dollars spent on
janitorial subcontracting at the East Springfield Service
Center . The Union requested that the Company supply this
information by June 30 . At the June 30, 1975 , collective-
bargaining session , the Union withdrew its proposal
against subcontracting but told Respondent that it was not
thereby ceasing its request for the information . At this
meeting, Respondent withdrew its proposal to eliminate
the ban on subcontracting in the Berkshire area. At the
July 3, 1975, meeting, Respondent handed the Union a
letter (G.C. Exh . 10) in which it stated that it had supplied
the Union with man-hour information concerning subcon-
tracting where the work was normally performed by
bargaining unit employees but refused to give information
regarding the cost of such outside subcontracting because
it was "not material to negotiations ." The letter stated that
the refusal was not "based on economic reasons."
On cross-examination , Respondent's director of industri-
al relations , Caroll Caffrey , testified as follows:
Q. (By Mr . Steiglitz) Let me show you General
Counsel's No. 10 (showing document to the witness).
A. Yes.
Q. Now , was that-the reasons stated in this letter
the same reasons given to the Union during negotia-
tions , as to why the Company refused the information
requested?
A. Generally, except expanded a little bit that we
subcontract for many reasons besides cost.
Q. Besides cost?
A. Yes.
Respondent's Position: East Springfield Service
Center
Regarding the East Springfield Service Center , as above
noted, Respondent refused to provide either the hours
worked or the cost of subcontracting the janitorial work.
Respondent's position was that the information requested
was not irrelevant , which was the position that it took with
regard to costs of subcontracting generally , but that the
janitorial work performed by subcontractors in the service
center was not unit work . This was the first time that the
Company took that position . Respondent asserts that
subcontractors at the service center historically performed
work in the tiled floor areas while unit janitorials did the
cement floor areas . Collins admitted that this rough
functional distinction had been in existence since 1970 or
1971 but maintained that the janitor work at the service
center remained bargaining unit work. Collins also told
Respondent that the Union could do the work cheaper
than the subcontractors' employees since the subcontractor
had four or five employees working 3 to 4 hours a day and
that the Union could do the work cheaper with one full-
time unit employee . In this connection, Collins credibly
testified that he told Respondent 's personnel manager,
Donald Riga, not only that the janitorial work at the
service center remained bargaining unit work and that
merely because the work had been subcontracted did not
change that fact, but also that , when the Company opened
the East Springfield Service Center in October 1969
Respondent had told the Union that the subcontracted
janitorial work was being done on a "trial basis" to
determine whether or not it was more efficient and
economical to do the work with subcontractors . Collins
admitted , however, that the subcontractors who started
working at the service center on a "trial basis " ended up
staying at the service center.
As above noted, on June 30, the Union withdrew its
proposal to limit subcontracting and Respondent withdrew
its proposal to eliminate the ban on subcontracting in the
Berkshire area.
At the July 3 meeting , the parties reached agreement on a
new contract (G.C. Exh. 3) for the period July 1975
through July 1976.
Positions of the Parties ; Positions of the General
Counsel
The General Counsel argues that the issues of cost and of
using subcontractors , as opposed to employees, were raised
and discussed at the bargaining table and in previous
negotiations between the parties . Thus , General Counsel
points to the fact that , in the past, the Union raised the
issue of cost when seeking to restrict Respondent's
subcontracting and took the position that it could do the
work cheaper than the subcontractors . From this, General
Counsel argues that the cost factor was on the table and
under consideration by both parties while discussing
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subcontracting in the 1975 negotiations. In particular,
General Counsel states that, in the 1975 negotiations, the
parties discussed and argued the question of whether unit
employees performed the work of tree trimming more
economically than subcontractor employees. In addition,
the Company's own Berkshire proposal (the proposal to
eliminate the restriction on using subcontractors in the
Berkshire area) necessarily raised the question of whether it
was cheaper for the Company to use subcontractors.
Further, the General Counsel points to the fact that the
proposal by the Union to restrict subcontracting necessari-
ly contains within it the issue of the cost of using
subcontractors as against the cost of using unit employees.
By repeating in the negotiations that unit employees could
do tree trimming, janitorial work, and other work cheaper
than subcontractors, the Union necessarily raised the issue
of cost and the economic desirability of using unit
employees as opposed to subcontractors. General Counsel
points to the fact that Respondent told the Union that, in
subcontracting out work, cost was one of the reasons it
subcontracted out the work. Lastly, General Counsel notes
that during the negotiations , as opposed to Respondent's
position at the hearing, Respondent did not tell the Union
that cost and economic considerations were not factors in
the Company's subcontracting out unit work. In this
regard, the most that Respondent stated was that the cost
of outside contracting was "not material to negotiations"
(G.C. Exh. 10). According to General Counsel, this is not
the equivalent of stating that cost was not a consideration
in Respondent's decisions to subcontract unit work.
General Counsel asserts that the reasons the Union
needed the information were either expressly communicat-
ed to the Company or were otherwise fully known to the
Company without direct communication during collective-
bargaining sessions or otherwise . Among these reasons was
the fact that the dollar amount paid to subcontractors was
needed in order for the Union to engage in intelligent
contract negotiations in that such cost information was
intimately related to, and part of, its proposal to restrict the
Company's ability to subcontract unit work. General
Counsel points to the fact that Riga and Caffrey conceded
that they realized that the Union sought costs in order to
support its proposal to limit subcontracting. General
Counsel also points to the fact that the Union made a
proposal to expand the number of jobs into which unit
employees could "bump" in case of decrease in job
opportunities in the unit . While it is true , as Respondent
contends, that Respondent granted some relief in this area
by expanding the number of jobs into which furloughed
employees could "bump," General Counsel states that, in
negotiating on this point, cost information would be
relevant. The relevance would be that, if cost information
had been supplied, and demonstrated a poor likelihood of
bringing in greater work to unit employees from the
subcontracting area, the Union could be more persistent in
its demands for more job opportunities in the furlough
expansion proposal rather than attempting to limit subcon-
tracting.
Apart from the necessity of receiving information on cost
for purposes of contract negotiation, the General Counsel
also stated that the Union needed this information for
purposes of contract administration and properly repre-
senting unit employees . In view of the contract provision
relating to bumping rights, promotions, layoffs, and
transfers, and in view of the anticipated constriction of unit
jobs because of the recession, the Union needed cost
information in order to advise the unit members of their
rights with regard to unit work which was being subcon-
tracted out. The deprivation of unit work, overtime, and
promotion, and similar elements derived from the loss of
unit work were all matters which the Union saw that it
reasonably would be confronted with, given the economic
conditions requiring the restriction of unit work and the
Company's promise to lay off more unit employees. Thus,
since Respondent admitted that cost was one factor in
subcontracting out unit work, the cost information was
essential to the Union in order to enable it to intelligently
evaluate the situations which would arise from continued
subcontracting in the face of the diminution of unit work.
With regard for the need for cost information related to
Respondent's subcontracting (at the East Springfield
Service Center) of janitorial work, without the information
on hours and cost with regard to janitorial subcontracting,
the Union had no idea as to the extent of janitorial work
available; nor could it evaluate whether the amount of such
work was sufficient to warrant any attempt in the future to
obtain janitorial work for its members . Since Respondent
had admitted that hours worked-information it gave with
regard to all other subcontracting-was relevant to the
Union in estimating how many jobs were available for unit
members (by dividing total man-hours of subcontracting
by the number of hours for a particular job), the Union
needed the hours to evaluate the availability of jobs. Thus,
General Counsel argued that, if such hour information was
admittedly relevant to other subcontracting situations, it
was also essential and relevant to determine the center's
janitorial subcontracting situation. Similarly, the dollar
amounts were needed , as in other situations , in order to
estimate whether unit employees could perform in econom-
ic competition with subcontractor employees.
Respondent's Contentions
The Union's overall request for cost information
on subcontracting is immaterial
In the first place Respondent argues that the Union's
request for cost information on subcontracted unit work is
moot in the face of Respondent's specific denial that its
decision to subcontract unit work was based on cost or
inability to pay. Thus, Respondent states that the Union
had no need for such information unless and until it was
required to overcome a denial by Respondent of its
proposals on such a ground, i.e., cost or inability to pay.
Respondent's second ground of defense is that the Union
failed to support its request for the information in
collective-bargaining sessions or otherwise ; and thus,
neither by the Union's direct statements nor by the context
of negotiations or otherwise was Respondent apprised of
the relevancy of the Union's request. As an overall defense
to the request for information relating to all subcontractors
(except the subcontracting of janitorial services at the East
Springfield Service Center), Respondent notes that it
WESTERN MASSACHUSETTS ELECTRIC CO.
willingly supplied the Union with information of hours
worked by all other subcontractors, thus enabling the
Union to bargain intelligently and effectively. Respondent
concludes that, since the Union acknowledged that its
proposals with respect to limiting subcontracting and
expanding the "bumping" opportunities were for the
purpose of securing more jobs for bargaining unit employ-
ees, and since Respondent voluntarily submitted the
information regarding hours worked by subcontractors, the
Union was "armed" with information upon which it could
judge whether its proposals in these areas were worthy of
pursuit.
In support of its contention that the Union failed to
prove the relevance of the cost of subcontracting, Respon-
dent makes the following arguments: (1) the Union, aside
from testifying that it was "entitled" to the information
regarding hours and cost of subcontractors, never did
submit the reasons for its request; and (2), assuming
arguendo that the Union told Respondent that the
information was necessary to support its claim that the
Union could do the work more cheaply than could
contractors, such a plea would not place an obligation on
Respondent to supply the information based on the cost or
plea of inability to pay. The result is not changed,
according to Respondent, by evidence that agents of
Respondent, during negotiations or immediately prior
thereto in 1975, told the Union that (with regard to the tree
trimming experiment and Respondent's proposal to elimi-
nate the ban on subcontracting in the Berkshire area) the
use of unit employees in tree trimming and the failure to
use subcontract employees on conduit work in the
Berkshire area were not "economical or efficient." Respon-
dent argues that these remarks to Respondent 19 do not
constitute a claim by Respondent of an inability to pay.
Third, according to Respondent, none of the circumstances
known to Respondent at the time of the request for
information during the collective-bargaining sessions casts
any additional light on the relevance of information on the
cost of subcontracting to the Union's ability to bargain
effectively. It points to the fact that there was no pending
grievance concerning subcontracting nor were there any
grievances relating to lack of overtime filed during the
entire term of the 1973-75 collective-bargaining agreement.
Thus, Respondent argues that, aside from its proposal to
eliminate the ban on subcontracting at the Berkshire area,
the only other proposal relating to subcontracting was the
Union's proposal to restrict subcontracting (G.C. Exh. 8);
and with regard to this proposal, designed to preserve work
for unit employees, Collins testified that he needed the
information if the Company adopted a position claiming
that it was not cheaper to do the work with unit employees
but rather cheaper to do the work with subcontractor
employees. Thus, Respondent asserts that the Union
wanted the cost information regarding subcontractors "in
anticipation of a rejection of its subcontracting proposal on
grounds of financial inability." Thus, Respondent urges
that the relevancy of the requested information must turn
only on Respondent's rejection of the proposal based upon
18 Contrary to counsel for Respondent , I credit Caffrey's testimony that
Respondent did make these statements with regard to both tree trimming
621
cost or inability to pay, and since there was no such
rejection the requested information was not relevant.
Fourth, with respect to tree trimming, Respondent states
that it could not have been apprised that the request for the
information related to the tree trimming experiment
because there was no grievance filed with respect thereto
nor, more important, was there any discussion about tree
trimming during the negotiations.
Fifth, while the Union alleged that it needed the
information regarding cost of subcontracting because of
the anticipated layoffs, Respondent asserts that the layoff
of employees bore no relation to the cost of subcontracting
because of Respondent's specific denial that it employed
subcontractors for reasons of cost. Moreover, there was no
showing that the anticipated reduction in employee
personnel would cause employees in the unit to lose
employment.
B. The Refusal To Furnish Information Regarding
Hours Worked by Employees of Subcontractors and
Dollar Amounts Paid to Subcontractors Performing
Janitorial Work at the East Springfield Service
Center
With regard to Respondent's failure and refusal to
furnish the Union with hours worked by the subcontractors
at the East Springfield Service Center and the cost of such
work, Respondent asserts that there was no obligation to
furnish such information because the work performed at
that site by the subcontractors was not "bargaining unit
work." Respondent states that it is undisputed that, since
the opening of the service center in 1969, part of the
janitorial work had been performed by subcontractors, the
subcontractors being responsible for the same area within
the center during the entire period. Respondent points to
the fact that at no time during the 1975 negotiations did the
Union submit a proposal whereby the work at the service
center, in whole or in part, would be performed by unit
employees instead of employees of subcontractors. More-
over, the evidence shows that at no time since 1969 did the
Union ever propose that the work in the service center of a
custodial or maintenance nature belong to the bargaining
unit.
Finally, Respondent argues that Respondent was not
required to furnish the Union with hours worked by the
subcontractor employees performing janitorial work at the
service center because the Union either already had this
information or readily had the means to acquire the
information. On this last point, the General Counsel,
anticipating this defense, asserts that at no time prior to the
hearing did Respondent claim or tell the Union that the
Union could readily obtain the information on its own; nor
did Respondent ever indicate that ready accessibility of the
information was the basis for its refusal to furnish the
information. The General Counsel alleges that the refusal
to furnish the information on hours based upon the above
ground was pretextuous. In addition, the General Counsel
asserts that the information was not readily accessible to
the Union.
and the proposal to eliminate the ban on subcontracting in the Berkshire
area.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions Company, 104 NLRB 318 (1958). See Ohio Power Co., 216
NLRB 987 (1975).
Regardless of the existence of the terms of any collective-
bargaining agreement, except for a lawful waiver therein, a
collective-bargaining representative has the obligation to
police the enforcement of employees ' rights under the
National Labor Relations Act, Fleetwood Trailer Co., Inc.,
389 U.S. 375 (1967), as cited in Ohio Power Co., supra, and
has the independent obligation as collective-bargaining
representative to preserve employment standards and
opportunities within the collective -bargaining unit, Ohio
Power Co., supra. In this regard , preservation or diversion
of work usually performed in a bargaining unit is the
subject matter of mandatory bargaining under the Act,
Rockwell-Standard Corporation, etc., 166 NLRB 124, 132
(1967), enfd. 410 F.2d 953 (C.A. 6, 1969); Fawcett Printing
Corporation, 201 NLRB 964,970 (1973).
The test of the bargaining representative's "need" for
such information is satisfied by showing in a case before
the Board of "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."
N.LR.B. v. Acme Industrial Co., supra at 437; Brooklyn
Union Gas Co., supra. The evidentiary standard is of a
discovery type. This discovery-type standard decides
nothing about the merits of the Union's claims, since
eventual and proper resolution of such claims against the
Union would clearly not be precluded by the Board's
threshold determination concerning the potential relevancy
of the requested information , Acme, supra, 385 U.S. 432 at
438. Lastly, it is also clear that subject to this standard,
"probable" or "potential" relevancy, the employer is not
relieved of its obligation to supply information to the
exclusive bargaining agent even though it relates to
nonumt employees, Rockwell Standard Corp., supra, Cur-
tiss-Wright Corporation v. N.LRB., supra, Goodyear Aero-
space Corporation, 157 NLRB 496 (1966).
Though a union need not make a special showing of
relevancy and necessity to obtain information about
employment of employees within the bargaining unit,
where the request for information concerns matters outside
the bargaining unit , as in the case at bar, the union must
ordinarily demonstrate more precisely the relevancy of the
data requested. Vertol Division, Boeing Company, supra at
425. Thus, in Vertol the respondent argued that, in the
circumstances of that case , it had no obligation to inform
the union of maintenance subcontracts which might
involve bargaining unit work where the union had not
established a particular need for such documents in respect
to a particular dispute. In Vertol, the Administrative Law
Judge cited a similar argument made in International
Telephone & Telegraph Corporation (ITT Federal Laborato-
ries), 159 NLRB 1757 (1966), where the union had
requested the seniority data of out-of-unit employees who
might have the right to thereafter displace unit employees
under the terms of the collective-bargaining agreement. In
rejecting the employer's contention that it had no obliga-
tion to supply the information pertaining to nonunit 20
employees, the Board stated (159 NLRB at 1759):
A. Relevance and Necessity of Cost of
Subcontracting Generally
In Vertol Division, Boeing Company, 182 NLRB 421, 425
(1970), the Board, in adopting the Administrative Law
Judge's statement of underlying rules, accepted his state-
ment that it is now well established that a labor organiza-
tion, obligated to represent employees in a bargaining unit
with respect to the terms and conditions of their employ-
ment, is entitled, upon appropriate request , to such
information from the employer as may be relevant and
reasonably necessary to the proper execution of that
obligation . And the right to such information exists as well
for the purposes of administering a collective-bargaining
agreement after being negotiated as for the purposes of
negotiating the agreement in the first instance. 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 . F. W. Wool-
worth Co., 109 NLRB 196, 197 ( 1954), enfd. 352 U.S. 938
(1956). While the limits of this right to information and the
correlative duty to supply it have not been fully defined as
yet, all of the cases considering the issue indicate, as the
Board stated in Woolworth that the right to the informa-
tion arises out of a "need" for it shown by the circumstanc-
es of the particular situation . N.L.R.B. v. Acme Industrial
Co., 385 U.S. 432 ( 1967); The American Oil Company, a
Texas Corporation, 164 NLRB 29 ( 1967). The General
Counsel need not make a showing that the information
sought is certainly relevant or clearly dispositive of the
basic negotiating issues between the parties. If the
information is of probable or potential relevance , there is
an obligation on the employer to provide it. The Brooklyn
Union Gas Company, 220 NLRB 189 (1975).
It has long been established by court and Board
decisions that certain information is presumptively relevant
because it bears directly on the negotiation or general
administration of the collective -bargaining agreement.
Other information , not so obviously related to the Union's
bargaining or contract administration of grievance respon-
sibilities, may or may not be relevant depending on the
circumstances . Southwestern Bell Telephone Company, 173
NLRB 172 ( 1968); Curtiss- Wright Corporation, Wright
Aeronautical Division v. N.LR.B., 347 F.2d 61 (C.A. 3,
1965), enfg. 145 NLRB 152 (1963); Sylvania Electric
Products, Inc. v . N.LR.B., 358 F .2d 591 (C.A. 1, 1966),
enfg. 154 NLRB 1756 ( 1965), cert. denied 385 U.S. 852
(1966).
In addition , the collective-bargaining agent has a legal
obligation to the employees that it represents to do so
thoroughly and with due diligence. For breach of its
obligation in this regard, a bargaining representative may
be guilty of an unfair labor practice , Miranda Fuel Co., 140
NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A.
2, 1963); liable in a suit for damages Vaca v. Sipes, 386 U.S.
171 (1967); subject to injunction, Steele v . Louisville &
Nashville Railroad Co., et al., 322 U .S. 192 (1944); or having
its certification as representative revoked Hughes Tool
20 As noted in Brooklyn Union Gas Co, supra, relevance is not limited by the boundaries of the bargaining unit, General Electric Company, 199 NLRB
WESTERN MASSACHUSETTS ELECTRIC CO. 623
The Union's right to such data, however, turns not
on whether the employees to whom the data refers are
in a unit, but rather on whether the data itself is
necessary and relevant to the Union's role as bargain-
ing representative. Where, as here, the requested
information relates to the possibility of unit job
displacement by nonunit employees, we do not see how
the Union could properly detect infractions of the
contract or institute grievances in order to protect the
rights of unit employees improperly or adversely
affected by such transfers unless it were given the
requested information.
However, in I.T. & T. Corporation v. N.L.RB., 382 F.2d
366, 372 (C.A. 3, 1967), the court of appeals reversed,
holding that though there was no obligation to provide
such information in the circumstances there present-
where harm to unit employees was merely speculative-
when employer action made displacement of union
employees imminent, rather than theoretical, the union was
entitled to such information about nonumt employees "in
order that it may detect possible contract violations and, if
appropriate, institute grievance procedures."
The operative facts in the case at bar
1. At the outset of negotiations, Union Bargaining
Agent Kielty inquired of Respondent whether the number
of employees (predicted to be about 700 throughout the
Massachusetts and Connecticut system of which Respon-
dent was a part) who would be laid off had been finalized
with respect to Respondent itself. It would be recalled
evidence showed that, in 1974, the president of Respon-
dent's parent company, Northeast Utilities, estimated that
approximately 700 employees would be either laid off or
that the jobs would be discontinued. In response to Kielty's
question, the director of Respondent's labor relations,
Carol Caffrey, stated that there would be about a dozen
employees whose jobs would be eliminated.
2. The evidence is uncontradicted that Caffrey could
not guarantee that, in the diminution of jobs, there would
be no actual layoff.
3. Respondent and its parent had announced a general
cost cutting program to save Respondent money. In
consequence thereof, Respondent had decided to unilater-
ally discontinue its Employee Appliance Purchase Plan,
supra, as a cost-cutting device.
4. In 1975, the appliance service department had been
decreased a total of 21 out of 30 jobs. The employees were
bumped into other categories and not actually put out on
the street.
5. Assuming, contrary to the position of General
Counsel, that Respondent, pursuant to its letter of July 2,
286 (1972). The employer's obligation to furnish information regarding
nonunit matters has been extended to the employer's nonumt employees at
another plant, Hollywood Brands, Inc, 142 NLRB 304 (1963), nonunit
salaried technicians, Goodyear Aerospace Corporation, 157 NLRB 496
(1966), and wages paid to supervisors, Northwest Publications, Inc, 211
NLRB 464 (1974)
21 With regard to the Union's obligation to support its request for
information by reasons showing relevancy , it is unnecessary to judge the
sufficiency of the request for information by virtue of the communications
from the Union to Respondent alone As found in Ohio Power Company, 216
1975 (G.C. Exh. 10), by informing the Union that costs of
outside contracting were not material to negotiations, was
alleging that its subcontracting was based on elements
other than cost, and notwithstanding that, at the bargaining
table, Respondent never took the position that it refused to
give cost information to the Union because of an inability
to pay or because cost was not "material" to the
subcontracting, Respondent's director of industrial rela-
tions, Carol Caffrey, nevertheless explicitly testified that
cost was a factor in some subcontracting.
6. Respondent's agents Riga and Caffrey both knew
that the Union's request for hours and cost information
were related to the Union's subcontracting proposal.
7. The record is uncontradicted that, on various
occasions, the Union, whether in the collective-bargaining
negotiations or immediately before, told Respondent that
the unit's employees could perform work cheaper than the
subcontractor's employees. This related to both the tree
trimming experience in 1974-75 and, at the collective-
bargaining table, with regard to Collins' assertion that one
full-time unit employee could perform the work of the
three to four part-time employees of the subcontractor at
the East Springfield Service Center.21
For all of the above-cited reasons, I conclude that
Respondent's first line of defense, that cost of subcontract-
ing is irrelevant and that the Union never explained to
Respondent the reasons for its request for the hours and
cost to subcontractors generally, must fall. The above
reasons demonstrate relevance. The Union explicitly
notified Respondent that the Union was seeking to
preserve unit jobs; that it was concerned with the
announced layoffs; and that, at least in the janitorial area
at the East Springfield Service Center and with regard to
the tree trimming experiment, unit employees could
perform the jobs more cheaply than could the employees of
subcontractors. In addition, the background facts of
layoffs, of demotion, of Respondent's expressed desire to
save large sums (including the cessation of the Employee
Appliance Purchase Plan), and other announced curtail-
ments by the president of Respondent's parent corporation
- all of these factors, in conjunction with the proposal to
limit subcontracting itself, adequately described the
Union's proposition to Respondent to show that the cost of
subcontracting and the hours of subcontracting and the
desire to maintain unit jobs and prevent erosion and
demotion were fully at issue at the bargaining table. I
cannot accept Respondent's contention that the Union
never explained the reasons for its request. Under the
holding in Ohio Power, supra, the explicit statements by the
Union apprised Respondent of the relevancy of the
information, judged in the light of the entire pattern of
facts available to Respondent. I cannot help but observe
that Respondent, where there were going to be layoffs (or
NLRB 987, 990, fn. 8 (1975), the adequacy of the request to apprise
Respondent of the relevancy of the information must be judged in the light
of the entire pattern of facts available to Respondent . Moreover, since the
requests for information are still outstanding , and since the necessity , if any,
to supply the information is not mooted by the execution of the 1975-76
collective-bargaming agreement (G.C. Exh. 3), Respondent was apprised at
the hearing of the purposes for which the Union needed the information.
Respondent's continuing failure to exceed these requests can no longer be
attributed to inadequacy of communication.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at least no guarantee against layoffs and substantial
attrition in the unit) and with the Union faced with a
substantial economic recession, cannot reasonably take the
position that it did not know that the requested informa-
tion was relevant to and in support of the request to limit
subcontracting submitted by the Union . Riga and Caffrey
knew it.
For its second line of defense , Respondent urges that,
assuming, arguendo, that it was advised that the Union
wanted the information to support its claim that it could do
the work more cheaply than the subcontractors , this should
not be construed as or be equated to a suggestion that
Respondent pleaded an inability to pay, since Respondent
specifically denied that it was refusing to divulge the
subcontracting cost and hour information because of cost
or an inability to pay . In this regard , Respondent relies on
Southwestern Bell Telephone Company, 173 NLRB 172
1968); Century Electric Motor Company, 192 NLRB 941
(1971); and Ohio Power Company, supra. The cases are
distinguishable . In Ohio Power, there was no employer
statement that unit employees would be laid off. In
Southwestern Bell Telephone, the employer voluntarily
supplied the bulk of the material , but declined to provide
information as to cost, accompanying its declination with
the statement that costs were not a factor in the subcon-
tracting . The Board consequently held that, since the
information had no relevance to the dispute , there was no
obligation to supply it. In any event, unlike Southwestern
Bell Telephone, cost was a factor here . In addition, in
Southwestern Bell Telephone, the conclusion was warranted
that the respondent had determined that it lacked available
manpower for reasons unrelated to cost so that information
concerning subcontracting cost was not relevant to griev-
ances challenging the decision to subcontract . In the case
at bar, there is no suggestion that the reason for subcon-
tracting was that Respondent lacked available manpower
and would have to defer projects or subcontract. I thus
consider Southwestern Bell Telephone distinguishable on its
facts.
Respondent 's third line of defense appears to be that the
facts of the case demonstrate that there are no circum-
stances known to Respondent which show relevance of
cost of subcontracting to the Union 's ability to bargain
effectively . That argument is refuted supra
Having found that the information requested by the
Union was relevant and was necessary to permit intelligent
bargaining, and that Respondent was adequately advised
of the relevance of the material to the proposal propounded
limiting use of subcontracting, I conclude that Respondent
violated Section 8(a)(5) and ( 1) of the Act by refusing to
supply the Union with this information . I necessarily found
that Respondent did use cost as an element in subcontract-
ing. Therefore, cost having been made relevant, it was
under an obligation to substantiate its position and
therefore should have divulged the information . N.L.R.B.
v. Truitt Mfg. Co., 351 U.S. 149 (1956); cf. Southwestern
Bell Telephone Co., supra.
In view of my conclusion that the information regarding
cost of subcontracting was relevant to the Union's proposal
(G.C. Exh. 8) to limit subcontracting , I need not and do
not pass on the General Counsel 's further contentions that
the information was also relevant to the Union's obligation
to administer and police the collective-bargaining agree-
ment and its obligation to properly represent unit employ-
ees.
B. Obligation To Supply Costs and Hours of
Subcontracting at the East Springfield Service
Center: Unit Work
With regard to the obligation of Respondent to divulge
costs of subcontracting and the hours of employees of
subcontractors at the East Springfield Service Center, I
find that the principles enunciated above do not oblige
Respondent to divulge this information . It is only neces-
sary to look at the proposal submitted by the Union (G.C.
Exh. 8) in order to conclude that the requested information
with regard to the cost of, and hours incurred in, the
janitorial services at the East Springfield Service Center is
irrelevant to any bargaining proposal of the Union, to
administration of the contract , and to representation of
unit employees. Indeed, there is no special need to know
with regard to work performed by nonbargaining unit
personnel . Thus , the Union's proposal to limit subcontract-
ing, General Counsel's Exhibit 8, dated June 2, 1975,
consists of the following language:
The Company shall not contract out work normally
performed by members of the bargaining unit while
there are laid-off employees eligible for recall under the
terms . . . of this Agreement . Furthermore, there shall
be no work given to any contractor or subcontractor
unless all employees covered by this Agreement are
working a full week, including overtime for those
employees in the department and classification(s)
where the work is to be subcontracted.
Respondent defends its refusal to divulge the informa-
tion on the ground that this information is irrelevant
because the work performed at the service center by the
subcontractor employees was not "bargaining unit" work.
Respondent's argument appears to be that , since bargain-
ing unit employees had never been responsible for work
performed in the cement areas, the request for information
regarding the hours worked and the cost paid to subcon-
tractors for this work was irrelevant. I disagree with this
theory . The obligation to give information does not assume
that Respondent must surrender its right to subcontract.
Here , the obligation to supply the desired information
would give the Union the opportunity to try to capture
work which at least arguably could be performed by unit
janitors at the East Springfield Service Center. This does
not mean that the Respondent would be obligated to cease
subcontracting the work of the cement areas and give that
work to unit members ; but it would require Respondent to
divulge information regarding cost so that the Union could
at least make the argument that the work should not be
subcontracted out. Obviously , from the above , the question
of cost and hours of the subcontractor employees is clearly
relevant and under ordinary circumstances I would
recommend that it was an obligation within the meaning of
Section 8(a)(5) and ( 1) of the Act for Respondent to
divulge that information had there been a proposal by the
WESTERN MASSACHUSETTS ELECTRIC CO.
Union during bargaining which made that information
reasonably relevant.
Instead , however, the proposal made by the Union in the
case at bar was that : "The Company shall not contract out
work normally performed by members of the bargaining
unit . . . ." In the present circumstances it is clear, as
Respondent contends , that the bargaining unit janitors
never performed the work performed by the subcontractor
employees at the East Springfield Service Center . Since the
Union's proposal is a limitation on subcontracting only
with regard to work "normally performed by members of
the bargaining unit" and since bargaining unit members
never have performed the janitorial work performed by the
subcontractor employees , it appears to me that the demand
for information regarding cost and hours of the subcon-
tractors ' janitors is entirely irrelevant to the proposal
propounded by the Union . It thus follows , it seems to me,
that since the request for information is entirely irrelevant
to the demand at the bargaining table Respondent is not
under any obligation to supply such information . Had the
demand been couched in other terms , a different result
might follow . Thus , I conclude that the need for this
information was not only shown to be irrelevant under the
terms of the Union's own proposal , but no special
circumstances were shown to support the need for
information requested relating to employees outside the
bargaining unit.
Similarly , it is of no help to the Union that the collective-
bargaining agreement speaks in terms of the Union
representing "janitors" at the Springfield Service Center.
Under the circumstances of this case, the janitors referred
to would only be janitors who are members of the
bargaining unit who traditionally perform bargaining unit
work, i.e., the janitorial and custodial services in the
nontiled areas.
General Counsel argues further that , even if the informa-
tion was not required for purposes of contract negotiations,
it was necessary in order for the Union to adequately
administer and police the collective-bargaining agreement
and to exercise the Union 's obligation to properly represent
the unit employees . In this regard General Counsel cites
Ohio Power Company, supra at 992 of the Administrative
Law Judge's Decision for the proposition that the Union is
entitled to information which would fully apprise it of
subcontracting practices of an employer which not only
concern unit work but where such practices "conceivably"
affect jobs and work opportunities for unit employees. That
case , however , concerned the union 's obligation to police a
collective-bargaining agreement and to negotiate a collec-
tive-bargaining agreement relating to the rights of returned
economic strikers . Moreover, in that case, although the
employer subcontracted out work from time to time where
the subject of the work had been performed by unit
employees , the subcontracting was without prejudice to the
employment of employees in the unit . In addition, the
collective-bargaining agreement contained a provision
whereby the respondent agreed neither to lay off or
discharge employees covered by the contract due to work
being subcontracted out. In that case , the union requested
information concerning the extent of subcontracting but,
as the Administrative Law Judge held, the request did not
625
include the cost of subcontracting as was the case in
Southwestern Bell Telephone Co., supra.
Thus, not only is Ohio Power distinguishable from the
instant case in the sense that in that case there was a
contractual prohibition against subcontracting which
would affect the work of unit employees , but there was no
request for cost information and, unlike the instant case,
the union was concerned about the extent of the employer's
subcontracting as it affected the rights of returned
economic strikers . Thus, where Administrative Law Judge
Charles W. Schneider stated (at 992): ". . . it is conceiv-
able that the subcontracting of work performable within
the unit might constrict the possibilities of employment
within the unit, including the possibilities of promotion of
unit employees," his reference in that case was to future
subcontracting out of work where it had not been
previously performed , or where it encroached upon the
work of unit employees . In the instant case , the work
performed by the subcontractors ' janitors never en-
croached on work performed by unit janitors . Therefore,
unlike Ohio Power, where the subcontracting might affect
the right to work and the seniority of returned economic
strikers, in the case at bar there was no possibility of
encroachment. Thus, as in the case of irrelevance concern-
ing the need to be informed with regard to contract
negotiation , I find that the information would be here
irrelevant with regard to the policing or administration of
the collective-bargaining agreement or the rights of
employees in the unit.
In view of my conclusion that the information with
regard to cost and hours of subcontractor janitors at the
East Springfield Service Center is irrelevant and that
Respondent is under no obligation to supply this informa-
tion to the Union, it is unnecessary for me to consider or
analyze Respondent 's assertion that the material was either
in the possession of the Union or easily obtainable by the
Union.
On the basis of the foregoing findings of fact , I conclude
that the information requested by the Union of Respon-
dent immediately before and at the collective-bargaining
sessions commencing May 1975 is relevant and essential
for the performance of the obligations of the Union as
bargaining representative of employees of Respondent, and
to enable it to engage in collective bargaining with
Respondent . It is further found that the communication as
a whole between Respondent and the Union in connection
with the collective-bargaining proposal advanced by the
Union reasonably apprised Respondent as to the relation-
ship between the proposal and the request for information
regarding the cost and hours of subcontractor employees
other than the work performed by subcontractor janitors at
the East Springfield Service Center.
It is further found that by failing and refusing to provide
the information with regard to General Counsel's Exhibit
8, the hours and cost of subcontractors , other than at the
East Springfield Service Center , Respondent interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and refused to
bargain collectively with a representative of its employees,
and that by such conduct Respondent violated Section
8(a)(1) and (5) of the Act.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further conclude that the aforesaid unfair labor
practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Specifically, I will
recommend that Respondent reinstate the Plan and make
its employees whole for any benefit lost by virtue of
Respondent 's violation of the Act. The difficulty of
discovering employees, if any, who would have purchased
appliances and the computations involved therein should
not prevent issuing an order necessary to prevent the
wrongdoer from enjoying the fruits of his unfair labor
practice and gaining undue advantage at the bargaining
table. Computation, if necessary, may await a backpay
proceeding. See Gas Machinery Company, 221 NLRB 862
(1975); Central Illinois Public Service Company, 139 NLRB
1407, 1419 (1962).
Any loss of money occasioned thereby shall be accompa-
nied by interest at 6 percent, to be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
The posting of an appropriate notice will also be
recommended.
CONCLUSIONS OF LAW
1. Western Massachusetts Electric Company, Respon-
dent herein , is now , and at all material times herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 455, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Union , is now, and
at all material times herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
3. The employees employed by Respondent in the unit
described in section III of this Decision constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union, at all material times herein , has been and
is the exclusive bargaining representative of all the
employees in the appropriate unit described above, for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By unilaterally , and without prior notice to or
negotiation with the Union , terminating on September 6,
1974, the Employee Appliance Purchase Plan, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By failing and refusing since June 2 , 1975, upon
request, to furnish to the Union the costs , in dollar
amounts, paid to subcontractors performing work per-
formed by employees of Respondent employed in the unit,
above described , represented by the Union, Respondent
violated Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not violated the Act in any respect
other than that specifically found.
[Recommended Order omitted from publication.]