Brooklyn Union Gas Co.

National Labor Relations Board - Board Decisions

Sep 18, 1989

296 N.L.R.B. 591 (N.L.R.B. 1989)

BROOKLYN UNION GAS CO.
The Brooklyn Union Gas Company and Local 101,
Utility Division, Transport Workers Union of
America, AFL-CIO. Cases 29-CA-13533-2
and 29-CA-13825
September 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On May 31, 1989, Administrative Law Judge
Edwin H. Bennett issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified and set forth in full below.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent , The Brooklyn Union
Gas Company, Brooklyn, New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local
101, Utility Division, Transport Workers Union of
America, AFL-CIO by refusing to furnish it with
the following information:
(1) Specific reasons for the removal of em-
ployees in the appropriate contract unit from
dues checkoff and their transfer to nonunit po-
sitions, including a description of the newly as-
signed job;
(2) A list of all management job titles;
(3) A job description of all management job
titles below the level of assistant department
head , the number of persons in each of those
jobs, and their names.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
' In sec. II, B, par . 2, the judge stated that at the time of the 1977 arbi-
tration proceeding , the Union withdrew its demand to include 47 classifi-
cations in the bargaining unit. In par . 10 of the discussion section, the
judge stated that the Union withdrew 41 classifications We find that the
record shows the correct number is 47 . This inadvertent error does not
affect the result in this case.
The Respondent has excepted to the judge 's remedy, which is broad-
er than the traditional remedy . We find that under the circumstances of
this case the traditional remedy is appropriate , and we have modified the
Order to reflect this.
591
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish the Union in writing the following
information:
(1) Specific reasons for the removal of em-
ployees in the appropriate contract unit from
dues checkoff and their transfer to nonunit po-
sitions , including a description of the newly as-
signed job;
(2) A list of all management job titles;
(3) A job description of all management job
titles below the level of assistant department
head , the number of persons in each of those
jobs, and their names.
(b) Post at its Brooklyn, New York facilities
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
296 NLRB No. 85
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively with
Local 101, Utility Division, Transport Workers
Union of America, AFL-CIO as the exclusive rep-
resentative of our employees in the appropriate
contract unit by failing and refusing on request to
furnish it with the following information:
(a) Specific reasons for the removal of em-
ployees in the appropriate contract unit from
dues checkoff and their transfer to nonunit po-
sitions, including a description of the newly as-
signed job;
(b) A list of all management job titles;
(c) A job description of all management job
titles below the level of assistant department
head , number of persons in each of those jobs,
and their names.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish Local 101, Utility Division,
Transport Workers Union of America, AFL-CIO
the following information:
(a) Specific reasons for the removal of em-
ployees in the appropriate contract unit from
dues checkoff and their transfer to nonunit po-
sitions, including a description of the newly as-
signed job;
(b) A list of all management job titles;
(c) A job description of all management job
titles below the level of assistant department
head , number of persons in each of those jobs,
and their names.
THE BROOKLYN UNION GAS COMPANY
April Wexler, Esq., for the General Counsel.
Alvin Adelman, Esq. (Cullen & Dykman), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT , Administrative Law Judge. On
March 23, 1989, a hearing was held before me on two
complaints that had issued on June 30 , 1988, and January
27, 1989, and thereafter were consolidated for hearing.
Taken together, the complaints allege that The Brooklyn
Union Gas Company (Respondent or Company) unlaw-
fully had refused to furnish various categories of infor-
mation and data to Local 101, Utility Division , Trans-
port Workers Union of America, AFL-CIO (Union or
Charging Party) upon its request . The proceeding was
initiated by the filing of charges by the Union in Case
29-CA-13533-2 on May 2, 1988 , and in Case 29-CA-
13825 on December 13, 1988.
The Respondent denies that it violated Section 8(a)(5)
and (1) in the manner so alleged and offers several af-
firmative defenses including, inter alia , that certain of the
information either was furnished in an adequate form or
was known to the Union, and that other information was
not relevant or necessary to the Union 's functioning as
bargaining representative.
On the entire record, including my observation of the
witness, and after due consideration of the briefs filed by
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is located in the Borough of Brook-
lyn, city and State of New York, where it is engaged in
the sale and distribution of natural gas and related prod-
ucts from which it annually derives revenues in excess of
$250,000. It also has annual purchases of natural gas and
other products in excess of $50,000 directly from enter-
prises located outside New York State. It is admitted and
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and further that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Unit
Since 1942, Respondent has recognized the Union as
the representative of all its physical and clerical employ-
ees working in and , permanently assigned to the Bor-
oughs of Brooklyn and Queens , New York, as more spe-
cifically described in a series of successive collective-bar-
gaining agreements, the most recent of which is effective
by its terms for the period October 15, 1986, through
October 15, 1989 . The Union received a Board certifica-
tion in this unit following an election in April 1959 con-
ducted pursuant to Board direction reported at 123
NLRB 441 ( 1959), which certification subsequently was
clarified in Brooklyn Union Gas Co., 129 NLRB 361
(1960), to include employees added as a result of Re-
spondent 's consolidation with another gas company. Ex-
cluded from the certified unit are all ( 123 NLRB at
447):1
. .. executives , superintendents, heads of depart-
ments, foremen , skilled technical employees in the
chemical laboratories other than those who have by
mutual agreement in the past been included in the
bargaining unit, confidential employees, guards, and
all supervisors as defined in the Act.
An examination of the current contract indicates that in
excess of 150 job classifications are included in the unit
encompassing technical, white collar, blue collar, skilled
and unskilled titles.
I The excluded categories also are repeated in Art 1(2) of the current
agreement.
BROOKLYN UNION GAS CO.
Notwithstanding the foregoing , Respondent denies that
the Union is the exclusive representative of its employees
in an appropriate unit within the meaning of Section 9(a)
of the Act, based on an assertion that the unit impermis-
sibly mixes guards (presumably as defined in Sec . 9(b)(3)
of the Act) with nonguards . Respondent , however, did
not offer any evidence to support that assertion and con-
sequently it need not be considered . Accordingly, in
light of the continuous bargaining history and Board cer-
tification , I find , as alleged in both complaints , that the
Union is, by virtue of Section 9(a) of the Act, the exclu-
sive representative in an appropriate unit of employees as
more fully described in the current collective -bargaining
agreement between the parties.
B. The Violation
In January 1988 (all dates are in 1988 unless stated oth-
erwise) a new union president , Marcia Spinowitz, took
office. There were then outstanding many unresolved
grievances involving personnel actions of various kinds
necessitating frequent meetings between Spinowitz and
her staff with the Company's assistant director of indus-
trial relations , Francis J. Katulak, and Company Counsel
Alvin Adelman. Spinowitz had been employed by the
Company for more than 20 years in the accounting de-
partment and had been on the Union 's executive board in
1977 when the parties resorted to arbitration to resolve
the Union's claim that bargaining unit work was being
performed by nonunit employees in a variety of job
titles, including many classified as managerial or supervi-
sory. Spinowitz , an articulate , concerned , and knowl-
edgeable union official, impressed me as being thorough-
ly familiar with company operations to the extent that
they had an impact on unit work.
She knew that some unit work had been lost in 1986 as
a result of the closing of the Company's Synthetic Natu-
ral Gas (SNG) plant, the precise number is not entirely
clear, and that a few unit positions were trimmed as a
result of increased clerical hours provided for by the Oc-
tober 1986 contract , a figure again not precisely delineat-
ed in the record. However, she was convinced that these
events did not, and could not, account for the shrinking
of the unit from about 2400 employees in 1986 to 2116 in
October 1987 and the further shrinkage to under 2000 in
February 1988. Her sensitivity to the loss of unit work
and belief that it might be attributed to a siphoning of
unit work to nonunit positions was heightened by her
knowledge of and participation in the 1977 arbitration. In
that award , the arbitrator rejected company contentions
that some 31 excluded positions were either supervisory,
professional, protective , or confidential and found instead
that the duties of these jobs were such as to warrant
their inclusion in the unit . Although some 47 additional
classifications also had been in dispute , the Union had
withdrawn its demand to include them , but only for a
period of 5 years.
Thus, it was that Spinowitz came to believe that the
Company once again was eroding the unit by assigning
unit work to excluded classifications held by transferred
unit employees or new hires , a belief confirmed in her
mind by periodic reports furnished by the Company to
the Union regarding employees on dues checkoff. These
593
reports furnished on a weekly basis, although not always
on time, show the names of unit employees for whom
checkoff has ceased together with one of several nota-
tions for such action , e.g., employment terminated , retire-
ment , leave of absence , or, in some cases, transfer of the
employee to a nonunit position . However, the nonunit
position is not identified on the report and no details of
any sort, beyond the cryptic remark "from bargaining to
non-bargaining ," are furnished . In addition , Spinowitz
also observed nonunit employees actually performing
unit work . In sum , Spinowitz was aware that unit mem-
bership was shrinking , that in the past the Company had
assigned unit work to nonunit employees whom it desig-
nated as managerial or supervisory, and that the Compa-
ny continued to transfer or reclassify unit employees into
nonunit positions.
It was in this context, and for these reasons , that start-
ing in mid-February or March, at the regular and ongo-
ing meetings being held with Katulak and Adelman,
Spinowitz began her repeated efforts to obtain from the
Company information she believed would be helpful in
determining if her fears of unit erosion were well found-
ed and, if so, to pursue remedial action . On numerous oc-
casions until about October, she expressed her beliefs to
Katulak and Adelman that the Company was dissipating
the unit by improperly classifying unit positions as "man-
agerial" and filling these nonunit positions with new
hires or transferred unit employees . She explained her
reasons for these opinions including the history and cir-
cumstances of the 1977 arbitration award.
The information requested by the Union fell into two
broad categories . First, the Union asked for more de-
tailed and specific information for the removal of unit
employees from checkoff including the reasons for each
and every transfer and a description of the newly as-
signed jobs . The Company repeatedly declined to
comply with these requests explaining only that the in-
formation already supplied , i.e., that a unit employee no
longer was in the unit, was adequate for the Union's
needs.
Spinowitz' second request was for job descriptions for
all management jobs below the level of assistant depart-
ment head , because as noted above, of the Union's belief
that such jobs might include functions properly falling
within the unit . Respondent rejected this demand on the
ground that information regarding management jobs was
not the business of the Union. In what can only be con-
sidered a nonresponse , Respondent also stated that it ob-
jected to furnishing a job description for the company
president , which of course was not requested.
During these oral exchanges , reference often was had
to several written requests for information by Union
counsel and responses by company counsel . On February
11, the Union wrote Respondent that:
Local 101 believes that since Arbitrator Cohen's
award of September 1977, a number of new em-
ployees have been hired by the Brooklyn Union
Gas into "management" jobs which should be
within Local 101 's bargaining unit . In order for
Local 101 to properly evaluate this question we will
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
require certain information from the Company, in
stages.
The first information Local 101 needs is a listing
of the presently existing management job classifica-
tions in each of the Company's departments. We
would appreciate receiving a distinct list of manage-
ment classifications for each department.
I am sure that I do not need to remind you that
the NLRB required the Company to supply similar
information in its September 11, 1975 decision re-
ported at 220 NLRB No . 38, since the status of em-
ployees as being unit or non-unit employees is a
mandatory subject of bargaining.
On March 18 , not having received a reply, the Union
sent a letter warning that NLRB charges would be filed
if a response was not forthcoming . In addition, the Union
stated that:
we have learned that a number of Local 101 dues-
paying members have been removed from the dues
check-off list. Please supply us with information as
to the reasons why each unit employee so removed
has been removed from the dues check-off during
the period December 1, 1987 to the present.
Finally, on April 19, Respondent replied as follows:
This is in response to your letters of February 11
and March 18, 1988 requesting "a listing of the
presently existing management job classifications in
each of the Company's departments."
You indicate that this request is prompted by
Local 101's belief that since September, 1977, a
number of new employees have been hired by the
Company into management jobs which should be
within Local 101 's bargaining unit . We believe the
inquiry will be more focused if you would specify
the particular post-1977 employees or positions
which are of concern to Local 101. Our suggestion
is made without conceding that the Company is ob-
ligated to provide this information or that these
matters are mandatory or appropriate subjects of
bargaining.
You should be aware that it is the Company's
view (a) that all present management positions are
properly excluded from the bargaining unit, and (b)
that if the situation were to be examined , it would
be obvious that there are a number of present bar-
gaining unit positions which should be excluded
from the bargaining unit.
If you would like to meet to discuss the particu-
lar post-1977 employees or positions which are of
concern to Local 101, please let us know.
The Union replied on April 25 stating:
Your response is wholly inadequate . Our request
is simple and straightforward . We request a list of
all management positions by department . After re-
ceiving such a list we can eliminate management
positions which clearly fall outside of the bargain-
ing unit from any further requests for information.
Our February 11, 1988 request specifically asked for
preliminary information . Without a prior list of all
management positions , the union cannot narrow
down the scope of our request.
Finally, the fact that it took over two months for
the company to respond to such a simple request,
and even then failed to provide any of the requested
information , is disturbing. We expect in the future
that you will be more forthcoming.
Respondent did not reply in writing and, as noted
above, did not respond to the Union's satisfaction during
the numerous conversations between Spinowitz and
Company Representatives Katulak and Adelman . Conse-
quently, on October 3 the Union sent another letter to
Respondent stating its belief that "unit accretion ... has
occurred over the last ten years" and it therefore was
making the following additional request for information:
1. The job descriptions of all presently existing
management job classifications in each of the Com-
pany's departments . The documents we are looking
for need not be entitled "job description." They can
be letters, memos, manuals , or charts which de-
scribe particular jobs.
2. The number of persons holding each presently
existing management job classification in each of the
Company's departments.
3. The name of the persons holding each present-
ly existing management job classification in each of
the Company's departments.
The Company did not reply and this litigation ensued.
Discussion
The information requested by the Union falls into two
broad categories . The first concerns information regard-
ing employees in the unit who were removed from the
unite for any one of several cryptically stated reasons as-
signed by the Company . Here , the Union simply request-
ed the underlying reasons in greater detail for the remov-
al and if the employee was transferred to a nonunit job
the Union sought a job description of the new job to de-
termine if the transfer included unit work along with the
unit employee. The Company refused the request on the
ground that the Union was furnished all the information
it was entitled to receive, i.e., the information that
prompted the Union 's request in the first place, namely,
that an employee was transferred.
The second broad category was for information con-
cerning nonunit jobs , to wit, a list of all management
titles below assistant department head (a generic classifi-
cation not specifically excluded from the unit descrip-
tion), a description of those jobs, the number and names
of individuals holding those jobs. The Company rejected
these requests and its answers to the complaints specifies
several reasons in justification including that the informa-
tion is not relevant , the Union waived any right it might
2 Discontinuance of dues checkoff is tantamount to removal from the
unit
BROOKLYN UNION GAS CO.
have, the request is overbroad , and that the Union did
not furnish a legitimate basis for its request.
We begin the analysis by setting forth certain well-set-
tled principles governing the issues raised in this case
which only recently were restated in Island Creek Coal
Co., 292 NLRB 480, 487, 488 (1989) (citations omitted):
The Act requires an employer to furnish informa-
tion requested by a union that is the bargaining rep-
resentative of its employees if there is a probability
that the information is relevant and necessary to the
union in carrying out its statutory duties and re-
sponsibilities as the employees ' bargaining represent-
ative. . . . Those duties and responsibilities include
the filing and processing of grievances . . . . Al-
though information that is not relevant to the
union 's purposes need not be furnished , the standard
for assessing relevance is a liberal , discovery-type
standard. . . . The Board in Ohio Power formulated
the following test for evaluating the relevance of
broad categories of requested information:
Where the information sought covers the terms
and conditions of employment within the bar-
gaining unit, thus involving the core of the em-
ployer-employee relationship , the standard of rel-
evance is very broad , and no specific showing is
normally required ; but where the request is for
information with respect to matters occurring
outside the unit, the standard is somewhat nar-
rower (as where the precipitating issue or con-
duct is the subcontracting of work performable
by employees within the appropriate unit) and
relevance is required to be somewhat more pre-
cise . . . . The obligation is not unlimited. Thus
where the information is plainly irrelevant to any
dispute there is no duty to provide for it.
The Union's request for information regarding removal
of unit employees from dues checkoff and consequently
from the bargaining unit plainly falls within the area of
presumptively relevant information as it involves the
very integrity of the unit . The Union is not required,
under the foregoing rules, to demonstrate a specific
showing of relevance . Nothing could be plainer on its
face that the information requested here concerns the
very existence of the unit . In its letter of March 18 the
Union asked for specific reasons why employees were re-
moved from checkoff and this request was repeated
orally many times thereafter through October. Addition-
ally, the Union demanded job descriptions for the posi-
tions to which unit employees had been transferred.
Since this involves a request for information concerning
work performed by a unit employee, that information
similarly bears a stamp of presumptive relevance , albeit
the job description requested is, on its face, a job outside
the unit , at least by company definition. However, the
Union is not obligated to accept the Company 's assertion
at face value that a unit employee suddenly converted to
a nonunit one. Cherokee Culvert Co., 262 NLRB 917, 926
(1982). The Union is entitled to determine for itself if
that conduct was bona fide or an act of legerdemain.
595
But even if such presumption is not applied , the rel-
evance of that information to the Union's role as repre-
sentative of the unit is demonstrably clear . It is an inte-
gral part of the information concerning the reasons for
transferring the employee outside the unit and manifestly
related to the broader issue of preserving unit work. The
possibility that the transferred unit employee might con-
tinue to perform unit work in the new job is clear and
present and the Union certainly is entitled to receive all
information to enable it to determine for itself whether
or not the "new" job simply is a rose by another name.
The need for such information is self evident, and in any
event Spinowitz adequately explained the need to Katu-
lak and Adelman.
Respondent consistently has refused to furnish the in-
formation maintaining that by notifying the Union of the
bare fact that an employee was removed from the check-
off it furnished adequate information to the Union and
satisfied its statutory obligation . That position is patently
without merit . The information that was furnished served
only to trigger the need for the additional information
requested by the Union. Respondent 's actions were in
contravention of, and not in satisfaction of, its obligations
imposed by the Act and by not acceding to the Union's
request for information regarding the removal of unit
employees from checkoff. Respondent violated Section
8(a)(5) as alleged in the complaint.
The second category of information requested by the
Union concerns work performed by employees outside
the bargaining unit . The Company is under no statutory
obligation to furnish such information unless the informa-
tion is shown to be relevant to bargainable issues and it
can be determined from all the surrounding circum-
stances that the Company was informed , or otherwise
was aware , of the relevance of the information request-
ed. Island Creek Coal Co., supra; NLRB v. Rockwell-
Standard Corp., 410 F.2d 953 (6th Cir. 1969). Further-
more, in assessing the Union's legitimate need for non-
unit information , the Union must have more than a mere
suspicion that the Company has diverted unit work. It
must have an objective and reasonable basis on which to
conclude that the information is necessary . Sheraton
Hartford Hotel, 289 NLRB 463 ( 1988). Reference to the
circumstances of the case will determine whether or not
the Union has a genuine concern and need for the infor-
mation to enable it to intelligently function as the statuto-
ry representative as opposed to some abstract interest in
the information . Curtiss-Wright Corp. v. NLRB, 347 F.2d
61, 69 (3d Cir. 1965).
We turn to an application of these general principles to
the Union's request for a listing of all management job
classifications in each department , a job description for
such classifications , the number of persons in those jobs
and their names . The evidence is substantial and persua-
sive that the Union had a genuine and highly reasonable
basis for believing the Company was dissipating unit
work, that the information requested was pertinent and
relevant to this fear, and the Company clearly was aware
of the basis for the Union 's concern and the relevance of
the information.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Initially, we consider the fact that this request was not
made in a vacuum but rather in context of a long stand-
ing dispute between the parties predicated on the Union's
complaint that unit work was being performed in nonunit
positions including those classified as managerial. In
Brooklyn Union Gas Co., 220 NLRB 189 (1975), the his-
tory of that dispute as far back as 1971 is detailed.
Indeed , in that very case, the Board concluded the Com-
pany had unlawfully refused to furnish the Union various
data , including job descriptions , pertaining to nonunit
(including supervisory) employees , because that informa-
tion was shown to be relevant to the administration of
the contract , preparation for possible arbitration, and
future negotiation . At that time the parties had a contrac-
tually established committee to try and resolve unit
placement disputes.
In its February 11 letter requesting the nonunit infor-
mation at issue here, the Union reminded the Company
that the aforesaid Board decision required production of
the similar information presently being requested. Thus,
the Company was put on notice that many of the same
concerns which justified disclosure in 1975 still were
present . Again , in 1977 claims of unit erosion led to an
arbitrator's award confirming the Union's worst fears
that the Company had in fact siphoned away unit work
by assigning the duties to 31 nonunit job titles (including
purported supervisory ones ). An additional 41 positions
also in dispute at that time , had been withdrawn from
the arbitration by the Union which agreed not to contest
them but only for a 5-year period. Thus, those jobs re-
mained a potential source of future conflict . Here again,
when the Union made its present demand for information
it confronted the Company with the facts of the arbitra-
tion , thereby raising the consciousness of the Company
to the needs and requirements of the Union. Nor was this
an exercise in abstract metaphysics for the simple fact is
that the number of unit employees was steadily declining
without any immediate apparent legitimate justification.
In addition , the Company 's own conduct regarding the
steady removal of employees out of the unit reinforces
the case against it. By not responding to the Union's re-
quest for obviously necessary information regarding
these actions and by delaying more than 2 months in re-
sponding to the Union 's requests , the Company gave
ample reason to believe that it was concealing facts that
would support a union claim of improper unit dissipa-
tion. The Company letter of April 19 somewhat disin-
genuously asked the Union to particularize its demand
for nonunit job information. Of course, if the Union
knew where the unit work was hidden, it wouldn't have
sought information in the first place but presumably
would have undertaken some remedial action to recap-
ture the work. In effect, the Company would first re-
quire the Union to prove that it has a meritorious claim
before it can obtain the very information it requires in
order to intelligently decide whether or not to pursue
the claim in the first instance . This approach is contrary
to established law for the cases are quire clear that the
employer has a fundamental obligation to furnish infor-
mation judged relevant under a liberal discovery-type
standard which decides nothing about the merits of a
particular controversy. See Westinghouse Electric Corp.,
239 NLRB 106 (1980), modified on other grounds sub
nom. Electrical Workers IUE v. NLRB, 648 F.2d 18
(D.C. Cir. 1980).
Finally, it is evident that the nonunit information re-
quested bore directly on , and was supplemental to, if not
an integral part of, the data sought regarding the remov-
al of unit employees . The presumption of relevance re-
garding the unit information in some measure attaches to
the nonunit information as well . In both cases, what is at
stake is the integrity of the bargaining unit which is at
the core of the parties ' relationship . In circumstances less
compelling than those present here, it has long been the
case that justification exists for requiring an employer to
furnish nonunit information similar to what the Union re-
quested here .3 Goodyear Aerospace Corp., 157 NLRB 496
(1966), enfd. 388 F.2d 673 (6th Cir. 1968); Brooklyn
Union Gas Co., supra.
In sum , the record amply supports conclusions that all
the nonunit information requested is required by the
Union to intelligently carry out its role as bargaining
representative because it directly relates to a bargainable
issue, namely the preservation of the unit ; that such in-
formation most probably is relevant to consideration of
that question ; that the Union had more than a mere sus-
picion but rather had a reasonable , well-founded belief
that the unit was being eroded by the device of assigning
unit work to management positions ; that the Company
knew by the very nature of the requests as well as by
direct communication from the Union of the reasons for
the requests ; and that the Company has no legally recog-
nized excuse for declining to furnish the information.
Therefore, the Company violated Section 8(a)(5) and (1)
by refusing to furnish the information requested concern-
ing management positions as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. Local 101, Utility Division , Transport Workers
Union of America , AFL-CIO (Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Union is, and at all times material has been, by
virtue of Section 9(a) of the Act, the exclusive collec-
tive-bargaining representative of Respondent's employees
in an appropriate bargaining unit as defined more fully in
the current collective -bargaining agreement between the
parties (the contract unit).
4. Since on or about various dates between February
and October 1988, Respondent continuously has failed
and refused to provide the Union with the following in-
3 I am mindful that the Company 's delaying tactics in replying to the
various union requests are not separately alleged as violations and the
foregoing discussion is not to be viewed as suggesting that such conduct
constitutes independent violations of the Act However , that conduct as
well as the history described here cannot be ignored in assessing the alle-
gations of the complaint I note also that when the Union warned it
would file charges with the Board to secure its right to the information
the Company responded that it would "be a fruitless adventure because
they take too long " I shall recommend a remedy broad enough to meet
the Company 's concern that Board action is ineffective and to take into
account the Company's prior similar violation.
BROOKLYN UNION GAS CO. 597
formation thereby violating Section 8(a)(5) and (1) of the
Act.
(a) Specific reasons for the removal of employees in
the appropriate contract unit from dues checkoff and
their transfer to nonunit positions , including a description
of the newly assigned job;
(b) a list of all management job titles;
(c) a job description of all management job titles
below the level of assistant department head , the number
of persons in each of those jobs, and their names.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act. Specifi-
cally, I will recommend that Respondent be ordered to
provide the information already requested of it as set
forth in Conclusions of Law 4, as well as the same infor-
mation if requested by the Union in the future. The
Union's access to this data must be assured because the
reassignment of unit employees or siphoning of unit
work is not an event fixed in time but rather is conduct
of an ongoing nature . If the remedy was limited to past
requests alone this litigation would be rendered almost
meaningless.
In addition , the circumstances require a remedy broad-
er than the traditional furnishing of precisely identified
information . This Respondent has been found by the
Board to have unlawfully failed to provide very similar
information it unlawfully withheld in this case (220
NLRB 189), an arbitrator has concluded that bargaining
unit work was funnelled into 31 excluded classifications,
it refused to furnish presumptively relevant information
without the semblance of a lawful excuse, and it has
stated that process of the Board is so slow that the
Union is without an effective remedy for Respondent's
unlawful actions . Therefore, we must seek to address Re-
spondent 's cavalier disregard for the Union's most basic
representative obligation , namely the preservation of the
very existence of the bargaining unit . Accordingly, in the
hope that any future similar violations can be remedied
more promptly, I shall recommend that Respondent be
ordered to furnish, on request , any information relevant
to determining whether or not bargaining unit work is
being performed by anyone outside the unit, as well as
any other relevant information to allow the Union to
function effectively in its representative capacity.
[Recommended Order omitted from publication.]