Rochester Gas & Electric Corp.

National Labor Relations Board - Board Decisions

Aug 16, 2010

355 N.L.R.B. 507 (N.L.R.B. 2010)

ROCHESTER GAS & ELECTRIC CORP.
355 NLRB No. 86
507
Rochester Gas & Electric Corporation and Local Un-
ion 36, International Brotherhood of Electrical
Workers, AFL–CIO. Case 3–CA–25915
August 16, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On June 12, 2008, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and Charging Party Union each filed an answer-
ing brief, and the Respondent filed a reply brief. The
Charging Party filed cross-exceptions and a supporting
brief, the General Counsel and Respondent each filed an
answering brief, and the Charging Party filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1 The judge found, and we agree, that
the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to provide the Union with certain infor-
mation and by refusing to bargain over the effects of its
decision to discontinue its practice of allowing employ-
ees to drive company vehicles to and from work.2
1. The Union, the Charging Party in this proceeding,
filed a motion to strike portions of the Respondent’s an-
swering brief. For the following reasons, we find it un-
necessary to pass on the motion.
First, the Union, which contends that the General
Counsel did not withdraw his allegation that the Respon-
dent refused to engage in decisional bargaining, moves to
strike the Respondent’s contention that the General
Counsel’s posthearing brief supports the judge’s finding
that the allegation was withdrawn. In affirming the
judge’s finding that the General Counsel withdrew the
allegation, we find it unnecessary to consider the General
Counsel’s posthearing brief. Therefore, we need not pass
on the motion to strike references to it.

1 We shall modify the judge’s remedy to better effectuate the poli-
cies of the Act. We shall also modify his recommended Order and
substitute a new notice to conform to the violations found and to the
Board’s standard remedial language.
2 The original complaint alleged that the Respondent also violated
Sec. 8(a)(5) and (1) by refusing to bargain over its decision to discon-
tinue the vehicle practice. We affirm the judge’s finding that the Gen-
eral Counsel’s amendment to the complaint withdrew the decisional-
bargaining allegation. We observe, however, that the amendment was
made before the hearing, not, as the judge stated, at the hearing.
Second, the Charging Party moves to strike portions of
the Respondent’s argument that the decision to change its
vehicle practice was lawful. Having found that the deci-
sional-bargaining allegation was withdrawn, we do not
consider that argument on the merits, and therefore we
need not pass on the motion to strike those portions of
the Respondent’s argument.
Finally, the Charging Party moves to strike certain
statements supporting the Respondent’s argument that
the case should be deferred to the parties’ contractual
arbitration procedure. Even if we were to consider those
statements, we would adopt the judge’s decision not to
defer, as stated below. Therefore, we need not pass on
the motion to strike the statements.
2. We agree with the judge that the Respondent unlaw-
fully refused to bargain over the effects of its decision to
discontinue the practice of allowing employees to take
company vehicles home from work.3 Noblit Bros., 305
NLRB 329 (1992), cited by the Respondent, is distin-
guishable. In Noblit, the Board found that the union
never requested effects bargaining; rather, the union’s
bargaining demands were aimed at reversing a decision
to change the scope and direction of the enterprise, a
nonmandatory subject of bargaining, not at obtaining
“adjustments in the employees’ terms and conditions in
the wake of that change.” Id. at 330 fn. 10. In support of
that finding, the Board noted that the briefs of both the
General Counsel and the union characterized the union’s
bargaining requests as relating to the decision rather than
its effects. Id. In the present case, by contrast, the Un-
ion’s references to the monetary impact of the decision
and to making employees whole show that the Union
was seeking to negotiate over the effects of the decision.
Moreover, unlike in Noblit, both the Union and the Gen-
eral Counsel argue in their briefs that the Union implic-
itly demanded effects bargaining as well as decisional
bargaining.4

3 In doing so, we do not rely on AT&T Corp., 325 NLRB 150 fn. 1
(1997), or Yellow Cab Co., 229 NLRB 1329 (1977), enfd. in part 603
F.2d 862 (D.C. Cir. 1978), both of which were cited by the judge.
4 We affirm the judge’s finding that the Union did not waive its right
to effects bargaining. Although Member Schaumber adheres to his
position that the Board should apply a “contract coverage” test rather
than the “clear and unmistakable waiver” standard, see California
Offset Printers, 349 NLRB 732, 737 (2007) (Member Schaumber,
dissenting), he acknowledges that no Board majority currently exists to
adopt the contract coverage standard. Accordingly, for institutional
reasons, Member Schaumber joins in adopting the judge’s waiver
analysis.
We also adopt the judge’s decision not to defer to the parties’ con-
tractual arbitration procedure. In doing so, we find it unnecessary to
pass on the Union’s argument that the contractual procedure improperly
requires employees to waive their statutory rights. Member Schaumber
would find that information-request allegations, if covered by a con-
tractual arbitration clause, are deferrable. He recognizes, however, that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508
AMENDED REMEDY
Having considered the Respondent’s exception, we
conclude that a remedy similar to that in Transmarine
Navigation Corp., 170 NLRB 389 (1968), is more ap-
propriately tailored to the violation and will better effec-
tuate the policies of the Act.
A Transmarine remedy, typically granted when an
employer fails to bargain over the effects of closing a
facility or otherwise removing work from the bargaining
unit, requires the employer to bargain over the effects of
its decision and to provide employees with limited back-
pay from 5 days after the date of the Board’s decision
until the occurrence of one of four specified conditions.
See Transmarine, supra at 390, as clarified in Melody
Toyota, 325 NLRB 846, 846 (1998); Gannett Co., 333
NLRB 355 (2001); Sea-Jet Trucking Corp., 327 NLRB
540 (1999), enfd. 221 F.3d 196 (D.C. Cir. 2000) (per
curiam). The Transmarine remedy is “designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent[].” Liberty Source W, 344 NLRB 1127,
1128 (2005), enfd. 478 F.3d 172 (3d Cir. 2007), cert.
denied 552 U.S. 818 (2007). Transmarine is the standard
remedy in effects-bargaining cases. Stevens Interna-
tional, 337 NLRB 143, 144 (2001).
Here, as in Transmarine and its progeny, the Respon-
dent violated its legal obligation to engage in timely bar-
gaining about the effects on the employees of its decision
to discontinue the vehicle benefit. Although the Respon-
dent’s decision to discontinue the benefit did not result in
the loss of jobs, as with the partial closing at issue in
Transmarine, it did cause unit employees to incur eco-
nomic losses in the form of increased commuting costs.
As the Board observed in Transmarine, 170 NLRB at
389, the Respondent’s unfair labor practice thus deprived
the Union of “an opportunity to bargain . . . at a time
prior to [implementation of the decision] when such bar-
gaining would have been meaningful in easing the hard-
ship on employees. . . .” In Gannett, above, the Board
observed, “the Union may have been able to secure ‘ad-
ditional benefits for employees had the Respondent en-
gaged in timely effects bargaining.’” 333 NLRB at 359
(quoting Live Oak Skilled Care & Manor, 300 NLRB
1040 (1990)).

Board precedent is to the contrary. See Team Clean, Inc., 348 NLRB
1231 fn. 1 (2006). And, in any event, Member Schaumber acknowl-
edges that the effects-bargaining and information allegations here are
not covered by the contractual arbitration clause, and therefore are not
deferrable.
Several years have now passed since the vehicle bene-
fit was discontinued, and we cannot determine the result
that timely effects bargaining would have produced.
Moreover, we cannot order the Respondent to restore the
benefit because, as the Respondent points out, it acted
lawfully when it unilaterally implemented the decision to
discontinue the benefit. However, were we to merely
order that the Respondent now engage in effects bargain-
ing, “the Union can hardly hope to obtain the same bene-
fits from bargaining that might have helped ease the unit
employees’ transition . . . had ‘effects’ bargaining taken
place at the time required by law.” Gannett, above, at
359 (quoting Signal Communications, 284 NLRB 423,
428 (1987)). As in Transmarine, above, “a bargaining
order alone cannot serve as an adequate remedy for the
unfair labor practices committed by the Respondent.”
170 NLRB at 390. At this point, meaningful bargaining
cannot be assured without restoring some measure of
bargaining power to the Union in relation to the issue.
Accordingly, in order to ensure that meaningful bar-
gaining occurs and to effectuate the policies of the Act,
we shall order the Respondent to bargain over the effects
of its decision and to provide employees with a limited
and conditional make-whole remedy similar to that re-
quired in Transmarine, above. Specifically, we shall
order the Respondent to pay each employee the monetary
value of the vehicle benefit from 5 days after the date of
this Decision and Order until the occurrence of the earli-
est of the following conditions: (1) the Respondent bar-
gains to agreement with the Union on the effects of dis-
continuing the benefit; (2) the parties reach a bona fide
impasse in bargaining; (3) the Union fails to request bar-
gaining within 5 business days after receipt of this Deci-
sion and Order, or to commence negotiations within 5
business days after receipt of the Respondent’s notice of
its desire to bargain with the Union; or (4) the Union
subsequently fails to bargain in good faith. The sum paid
to each employee shall not exceed the monetary value of
the vehicle benefit to that employee from January 1,
2006 (the date the benefit was discontinued) until the
date on which the Respondent shall have offered to bar-
gain in good faith. However, in no event shall the sum
paid to any employee be less than the monetary value of
the benefit to that employee for a 2-week period.5 The
amounts due shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682, 683 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).

5 We leave to compliance the determination of the monetary value of
the vehicle benefit to each affected employee.
ROCHESTER GAS & ELECTRIC CORP. 509
ORDER
The National Labor Relations Board orders that the
Respondent, Rochester Gas & Electric Corp., Rochester,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local Union 36, Interna-
tional Brotherhood of Electrical Workers, AFL–CIO (the
Union), over the effects of eliminating the benefit of al-
lowing the low-voltage trouble maintenance and repair
(TM&R) employees to take their service vehicles home
at the end of their shifts.
(b) Failing and refusing to provide the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of employees in the unit
described below, and/or failing to inform the Union that
the requested information did not exist.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union as
the exclusive representative of the employees in the fol-
lowing appropriate unit concerning the effects of the Re-
spondent’s decision to discontinue the benefit of allow-
ing the low-voltage TM&R employees to take their ser-
vice vehicles home after work, and if an understanding is
reached, embody the understanding in a signed agree-
ment:

All employees of Respondent described in Section 1—
Representation and Recognition, of the collective-
bargaining agreement between the Respondent and the
Union, which is effective from September 1, 2003 to
May 31, 2008.

(b) Pay each low-voltage TM&R employee the mone-
tary value of his or her vehicle benefit, with interest, for
the period set forth in the remedy section of this decision.
(c) Furnish the Union with the information it requested
on March 7 and June 5, 2006, namely, the cost of allow-
ing the bargaining unit employees to have the benefit of
taking a company vehicle home, a listing of all nonunit
employees who have the benefit of taking a company
vehicle home, and whether the Respondent announced to
any nonunit employees that the benefit would be discon-
tinued.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of money due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Rochester, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 10,
2006.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with Local Union 36,
International Brotherhood of Electrical Workers, AFL–

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510
CIO (the Union), over the effects of our elimination of
the benefit of allowing the low-voltage trouble mainte-
nance and repair (TM&R) employees to take their ser-
vice vehicles home at the end of their shifts.
WE WILL NOT fail or refuse to provide the Union with
requested information that is relevant and necessary to
the Union’s performance of its duties as the exclusive
collective-bargaining representative of employees in the
unit described below, and/or fail to inform the Union that
certain requested information did not exist.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL, on request, bargain collectively with the Un-
ion as the exclusive representative of the employees in
the following appropriate unit concerning the effects of
our decision to discontinue the benefit of allowing the
low-voltage TM&R employees to take their service vehi-
cles home after work, and if an understanding is reached,
embody the understanding in a signed agreement:

All employees of Rochester Gas & Electric Corpora-
tion described in Section 1—Representation and Rec-
ognition, of the collective-bargaining agreement be-
tween Rochester Gas & Electric Corporation and the
Union, which is effective from September 1, 2003 to
May 31, 2008.

WE WILL pay each low-voltage TM&R employee the
monetary value of his or her vehicle benefit, with inter-
est.
WE WILL provide the Union with the information it re-
quested on March 7 and June 5, 2006, namely, the cost to
us of allowing the bargaining unit employees to have the
benefit of taking a company vehicle home, a listing of all
nonunit employees who have the benefit of taking a
company vehicle home, and whether we announced to
any nonunit employees that the benefit would be discon-
tinued.

ROCHESTER GAS & ELECTRIC CORPORATION

Linda Leslie, Esq., for the General Counsel.
James R. LaVaute, Esq., of Syracuse, New York, for the Charg-
ing Party Union.
James J. Gleason, Esq., of Binghamton, New York, for the
Respondent Employer.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Buffalo, New York, on February 11, 2008. Local
Union 36 Electrical Workers, AFL–CIO (Union) filed the
original charge in this case on June 13, 2006. An amended
charge was filed on June 15, 2006 and a second amended
charge was filed on September 8, 2006. The Regional Director
for Region 3 issued a complaint and notice of hearing (Com-
plaint) on October 31, 2006.1 The complaint alleges, inter alia,
that Rochester Gas & Electric Corporation (Respondent, RG&E
or Company) has engaged in certain conduct that is in violation
of Section 8(a)(1) and (5) of the National Labor Relations Act
(Act). Respondent filed a timely Answer to the Complaint
wherein it admits, inter alia, the jurisdictional allegations of the
Complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party and Respondent, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with its principal place of
business in Rochester, New York, has been engaged in the
generation, transmission, distribution and sale of electricity and
natural gas. During the 12-month period ending October 31,
2006, Respondent, in conducting its business described above,
derived gross revenues in excess of $250,000. During the same
time period, Respondent purchased and received at its Roches-
ter, New York, facility goods valued in excess of $50,000, di-
rectly from points outside the State of New York. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Complaint Allegations
The complaint alleges and the Respondent admits that the
following individuals held the positions opposite their respec-
tive names and have been supervisors of Respondent within the
meaning of Section 2(11) of the Act and agents of Respondent
within the meaning of Section 2(13) of the Act:

Cathleen Frain RGE/NYSEG Labor Relations
Richard Frank Manager of Electrical Operations
2

The complaint alleges and Respondent admits that at all ma-
terial times, the Union has been the designated representative of
Respondent’s employees in the following unit which is appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All employees of Respondent described in Section 1—
Representation and Recognition, of the collective-bargaining
agreement between Respondent and Union, which is effective
from September 1, 2003 to May 31, 2008.

The complaint further alleges that on or about January 10,

1 All dates are in 2006, unless otherwise indicated.
2 Frank testified that his job title was manager of regional operations.
Though it is relatively immaterial, I will accept Frank’s version as he
should know best what his job is titled.
ROCHESTER GAS & ELECTRIC CORP. 511
2006, Respondent discontinued the practice of allowing certain
unit employees to take a service vehicle home after work. It
alleges that this practice relates to wages, hours, and other
terms and conditions of employment of the unit and is a manda-
tory subject of bargaining. It also alleges that Respondent en-
gaged in this conduct without prior notice to the Union and
without affording the Union an opportunity to bargain with
Respondent with respect to the effects of this conduct.3
In its answer, Respondent admits that on January 10, 2006, it
discontinued the practice of requiring certain unit employees to
take service vehicles home after work, but denies the other
allegations of the preceding paragraph.
The complaint further alleges that on or about March 7,
2006, the Union, by letter, demanded bargaining over Respon-
dent’s decision to terminate the practice, (called benefit by the
Union) noted above and requested that Respondent furnish the
Union with the following information with respect to that bene-
fit:

1. A listing of jobs and unit personnel that have the benefit;
2. Any Company analysis of the cost of this to the Company;
3. A listing of nonunit personnel who have the benefit, so
that we may assess the significance of this issue to the
Company; and,
4. Whether the Company announced to any nonunit person-
nel the same restriction now being imposed upon members
of the bargaining unit.

The Complaint alleges that this information is necessary for,
and relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit. The
Complaint further alleges that on or about March 7, 2006, Re-
spondent, by Cathleen Frain, by letter, failed and refused to
furnish the Union with the information requested above. Re-
spondent admits that the Union filed the information request,
but denies the other allegations related to it.
B. Facts Related to the Decision to End the Practice of Allow-
ing Certain Employees to Take Company Vehicles Home
and the Union’s Response
1. Facts related to the making of this decision
Richard Frank testified that the Company provides gas ser-
vice to about 370,000 customers and electricity to about
280,000 customers in a nine county area around Rochester,
New York. Frank is regional operations manager for Respon-
dent. Within the geographic area of his responsibility, he man-
ages the trouble maintenance and repair operation (TM&R) and
also electrical construction of such things as substations. There
are two groups of employees in TM&R, high voltage and low
voltage. The high voltage group works with the overhead and
underground electric transmission system with voltages as high
as 35,000 volts, whereas the low voltage group primarily deals
with residences with voltages under 480 volts. The high voltage
crews use a material handling truck with a bucket attachment.
These crews have never taken a Company vehicle home at

3 The complaint was amended at hearing to remove an allegation that
Respondent did not afford the Union prior notice and an opportunity to
bargain over its decision to cease the involved practice.
night. When there is an emergency for them to handle, they
report to the Respondent’s Rochester, New York West Avenue
facility and are dispatched in their trucks from that facility.
The low voltage group works on commercial and residential
meter and service work. They do a lot of meter installations and
meter change-outs. They do maintenance work on what is
called a current transformer which uses voltages up to 480
volts. They do both scheduled and emergency work. The emer-
gency work accounts for about 40 percent of the work of the
low voltage group. In this group are eight employees, seven
electric meter technicians and one electric meter inspector. On
a day to day basis, the employees in this group work solo. They
use a ¾ ton van in their work. These vans have two front seats
with a bulkhead behind them to keep material in the rear from
coming into the driver compartment. The vans are equipped
with a computer and any materials the employee needs to do his
work are in the rear of the van. Their work is divided into two
shifts, one from 7 a.m. to 3 p.m. and the other from 3 to 11 p.m.
Usually the first shift is manned by four to six employees,
Monday through Friday. The second shift is manned by one or
two employees normally, Monday through Friday. The Satur-
day and Sunday shifts are manned by one employee for each
shift. Emergency work coming after 11 p.m. is handled by the
high voltage crews.
Emergency situations can arise from employees calling in
sick or storm situations. On these occasions, off duty employ-
ees may have to be called in. Employees are called in order
from a list supplied to the Company by the Union. They can
refuse the call out and in that event, the next person on the list
is called. Prior to January 1, 2006, these employees took their
service van home at night. If called in for an emergency while
at home, they would drive the Company vans to the West Ave-
nue facility to pick up the packet of material needed to do the
emergency work, then go to the worksite. The Company also
provides a helper for emergency work and the low voltage em-
ployee would pick this person up at West Avenue. On what
Frank termed “rare” occasions, the employee might be dis-
patched to a worksite without first going by the West Avenue
facility.
Subsequent to January 1, 2007, the employees now always
report to West Avenue for their van, material and a helper if
needed. In November, 2005, Frank decided he wanted to end
the practice of the employees taking their assigned vans home
at night.4 He testified that garaging them at West Avenue at
night would be a cost savings to the Company. He was also
concerned that having the Company trucks parked at employ-
ees’ homes presented some sort of negative public reaction. He
did not elaborate on this point. He also did not do any formal
cost analysis of the savings associated with the decision.
He recommended to one of the Company’s labor relations
specialists, Cathleen Frain, that the practice be discontinued. He
made the recommendation to her because he wanted to be sure
he was allowed to do it under the collective-bargaining agree-
ment. He made the request by email. The communication, dated
November 3, 2005, reads:

4 This practice had been in operation for about 29 years.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512
As you are probably aware, Operations across NY
State is looking at reducing costs to meet budget con-
straints. One of the cost savings ideas for my group would
be to have the 8 Low Voltage employees who currently
take home their vehicles, park them here at West Ave now
and commute back and forth to work in their personal ve-
hicles. This makes good business sense in that these em-
ployees start their shift each day here at West Ave.
These employees get called in from home approxi-
mately 1 time per month. If the call-in is storm related,
they are reporting to West Ave. first to meet up with their
rider anyway. One call-out per month doesn’t constitute
having their vehicles at their homes for emergency re-
sponse. As mentioned above, they report to West Ave.
each day at the beginning of their shift to get their work
assignments for that day. They also have their morning
tailboard at that time. Rarely do they have a job scheduled
earlier than their start time.
Currently, these employees would finish their last job
for the day and head home from there. If they have to re-
port back to West Ave. to drop off their vehicle, they
would pretty much be leaving the worksite at about 30
minutes or so before the end of their shift in order to be
back to West Ave. at the end of their shift. We’re not 100
percent certain they are on the jobsite much past that any-
way even if they are going home from the site.
My recommendation is that you and I sit with Rick
Irish5 and give him a heads up that this is coming. The
sooner the better. I would then communicate this to the 8
employees involved. I would like to pull the trigger on this
as soon as 11/28/05. If we were to let the employees know
next week, they would have nearly 3 weeks to prepare.

A chart introduced by the Respondent reflects the emergency
call-outs for 2005. By months it shows for January, 6 call-outs.
June and July, 2 call-outs for each month, August, 8 call-outs,
September, 1 call-out, October, 4 call-outs and no call-outs in
the other months.
2. Notice of the decision is given to affected employees
and the Union responds
Frain approved the recommendation and Frank set a meeting
for November 18, 2005, and explained the company’s plans to
the eight affected employees.
Steven Parnell is a low voltage employee of Respondent and
a union steward. He is one of the employees affected by the
decision to stop letting employees take home company vehi-
cles. He attended a meeting on November 18 at Respondent’s
West Avenue facility. In attendance for management were
Frank and Supervisor Jim Connell. The employees in atten-
dance in addition to Parnell were Tom Eichle, Dick Shamp,
Alford Smith, Tom Spratt, and Tony Proctor. All are electric
field technicians, except for Smith, who is an electric meter
inspector and all are considered low voltage employees. Frank
informed the employees that as of January 1, 2006, they would
no longer be allowed to take company vehicles home at night.
Smith then asked Frank if management had considered other

5 Richard Irish is the Union’s President.
options such as charging the employees for taking the vehicles
home at night. Smith added that he considered the benefit of
taking the company vehicle home part of his compensation.
Frank responded that the decision had already been made.
Frank also noted that other employees under his management
were similarly going to lose the use of company vehicles to get
to and from work. Presumably these were nonunit employees.
Parnell testified that he used the company vehicle about twice a
year to answer emergency call-outs from his home. On these
occasions, Parnell might report to the emergency directly or he
might first go to the West Avenue facility.
Parnell was not allowed to take a company vehicle home af-
ter January 1, 2006. He had been taking one home since 1990.
He did not have to buy gas for the company vehicle. The com-
pany withheld an amount from his pay to cover what the Inter-
nal Revenue Service deemed the value of the right to use the
company vehicle to go to and from work. This value was con-
sidered to be income to the employee. An exhibit in this record
lists the value or imputed income assigned for the years 2004
and 2005 for each affected employee. The annual values range
from a low of $426 to a high of $663. For Parnell, the imputed
income was listed as $597 for 2004 and $549 for 2005. Parnell
lives about 17 miles from the involved company facility. He
now uses his personal vehicle to get to the West Ave. facility.
Thomas Spratt is a low voltage employee of Respondent. As
noted above, Spratt also attended the meeting with Frank.6 Ac-
cording to Spratt, Frank gave as the reasons for taking away the
Company vehicles budget cuts and restraints. Spratt remem-
bered asking if other employees would also lose the use of
company vehicles to go to and from work. According to Spratt,
Frank said, “Probably, this is just the start of it.” Spratt lives
about 25 miles from his place of work and had to take a per-
sonal vehicle out of storage and use it to go to work after his
Company vehicle was taken away January 1, 2006. The im-
puted income for Spratt for the benefit of taking home the
Company vehicle for 2004 was $645 and for 2005 was $636.
Spratt also testified that he was on a Company hiring com-
mittee in the spring of 2005. Also serving on this committee
were employees Tony Proctor and supervisor Jim Connell.
Spratt said there was a fourth member, but failed to identify
him. This committee screened candidates for employment in
two openings for electric meter technicians in their department.
The candidates with the highest scores were offered employ-
ment. Spratt told each candidate that the use of a company ve-
hicle to go to and from work was part of the job’s compensa-
tion package. According to Spratt, supervisor Connell agreed
with him.
Richard Irish is the President, Business Manager and Finan-
cial Secretary of the Union. The Union was certified at Re-
spondent’s facility in 2003 and the unit has 395 members. He
testified that in November, 2005, he had a telephone conversa-
tion with Richard Frank. Frank informed Irish that effective
January 1, 2006, Respondent would no longer allow the low

6 With this witness, the General Counsel indicated the date of the
meeting was November 8, 2005, whereas with Parnell it was identified
as taking place on November 18. Based on correspondence in the re-
cord, the correct date is November 18 2005.
ROCHESTER GAS & ELECTRIC CORP. 513
voltage teams and meter men to take their service vehicles
home at night. Instead, Respondent planned on garaging them
at its West Avenue Facility. Irish responded that Respondent
could not take this action unilaterally, but rather, was required
to bargain over it as the existing benefit was a mandatory sub-
ject of bargaining. Frank said that he would relate the Union’s
position to Labor Relations and added, that the workers af-
fected were not using the vehicles to answer emergency calls at
night and that when they did, they first reported to the West
Avenue Facility anyway. Frank called the decision a good one
and noted the expense to the Respondent involved in the em-
ployees using the vehicles to go to and from their homes and
the West Avenue Facility. Irish did not conduct an investigation
among the affected employees to determine if Frank were cor-
rect in his assertions.
Later on the same day, Irish spoke to Steve Parnell. Parnell
informed him that he and other affected employees had a meet-
ing with Frank where the loss of the benefit was announced.
Parnell told Irish that the employees were upset about the deci-
sion as they would have to get another vehicle or find some
other means to get to work.
On January 10, 2006, Irish sent a letter to Respondent’s La-
bor Relations Analyst, Jay Shapiro, which stated that it was
formal grievance, adding:

This grievance is being filed in reference to January 1, 2006
requirement that Low Voltage TM&R employees with the
Company with Company vehicles park the vehicles overnight
at West Ave.

This unilateral action was a violation of past practice. This
removes the benefit of use of the vehicles for commuting to
work and responding to callouts directly from home. Wages,
benefits, hours and working conditions are mandatory topics
of collective bargaining. The Company refused collective
bargaining in this matter.

The resolution to this instant case is that all affected members
are made whole.

The Union met with the Company on three occasions to dis-
cuss the removal of the benefit. The first meeting took place on
December 20, 2005. The meeting lasted 2 hours and the matter
of the benefit was just one of a number of topics discussed.
Appearing for the Respondent was Jay Shapiro and for the
Union, IBEW International agent, Mike Flanagan and Irish.
Irish testified that the discussion of the removal of the benefit
took about 5 minutes. Irish did not remember the substance of
the discussion. The next meeting where this matter was dis-
cussed took place in January 2006. Appearing for the Respon-
dent were Cathleen Frain and Richard Frank. Appearing for the
Union were Irish and employee-steward Steve Parnell. The
portion of the meeting relating to the grievance took about 20
minutes. The Union pointed out that the cost of the decision to
its affected members was about $5000-$6000 for transporta-
tion. There was no detailed explanation given for how this fig-
ure was calculated and it is not entirely clear whether Irish
meant the figures given related to each individual affected em-
ployee or was for the whole group of eight employees com-
bined. I would think the latter would be more likely. Irish noted
that one of these affected members, Dick Shamp, had taken the
job with Respondent at a pay cut as the use of the Company
vehicle made up for the cut. He again pointed out that the re-
moval of the benefit was a mandatory subject of bargaining.
Respondent’s representative took the position that it was a good
business decision and that it had the right to remove the benefit
under the contract.
There was a third step meeting held in July, 2006. Appearing
for the Company were Frain, Shapiro, labor relations analyst
George Savaker, Frank and his immediate boss, Walt Matias.
Appearing for the Union were Irish, Parnell and then union
Vice-President, Craig Rody. The Union reiterated its position
that Respondent’s decision was a mandatory subject of bargain-
ing, and that the benefit had been explained to some job appli-
cants as being part of the compensation for the job. The Union
also took the position that by making the unilateral change in
the involved benefit, the Respondent had violated the Act. The
Company again took the position that it had the right to make
the change under the contract and that it was a good business
decision.
On March 7, Irish sent Frain the letter requesting information
noted above at page 3 of this decision. Frain responded with a
letter dated March 17, 2006, which stated:

Respectfully the Company is not rescinding the determination
it has made with regards to the Low Voltage TM&R group
garaging their vehicles at night. I disagree with your charac-
terization of the issue as being a benefit. This issue is cur-
rently in the grievance process and we will be willing to dis-
cuss your concerns within that forum. As for your request for
information, we will provide you the information relevant to
the matter.

Irish testified that he sent this letter and another on June 5 in
an attempt to get the Company to bargain over the removal of
the vehicles, “have them bargain over some recompense, you
know, some typ of compensation for removing the vehicles,
. . . .”

Irish wrote Frain again on June 5. This letter is practically
identical to the one sent on March 7, with the difference being
that he notes that Respondent had not yet complied with the
information request as of the date of the later letter.
Frain responded with a letter dated July 10, which reads:

This letter is in response to your letter dated June 5, 2006 re-
questing information regarding the Employer Vehicle Pro-
gram. I have enclosed a report listing bargaining unit mem-
bers, their job title and the company vehicle they have been
assigned to take home at night. The company believes that it
is not obligated to provide you with any financial information
on company vehicle costs more does the company believe the
Union’s request for information on non-union employee vehi-
cles is relevant or necessary to your duties and responsibili-
ties.

As stated in the company’s March 17, 2006 response, we dis-
agree with your characterization of this issue as a “benefit”
and the company is not rescinding its determination to have
these vehicles garaged at night.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
Please note that the information being provided is being pro-
vided for use by the Union strictly for the purposes of contract
administration and/or collective bargaining. The information
remains confidential and proprietary and may not be distrib-
uted or used for anything but the above stated purpose, with-
out the written consent of the Company. If you have any ques-
tions on the information provided, please call me.

Respondent thus supplied the information requested in para-
graph one of the information request, but no information was
supplied for the other three paragraphs.
On July 21, 2006, Irish wrote to Shapiro, stating that the Un-
ion was withdrawing the grievance over the removal of vehicles
and stating that it would pursue the matter before the NLRB.
Irish testified that he requested the information, including
that for nonunit employees to see how many people were af-
fected and what was the cost of the program to the Respondent.
He testified the Union needed this information in order to de-
velop a bargaining position. As he was not sure of the total
number of employees affected, he was not sure what cost sav-
ings the Respondent might realize by the removal of the vehi-
cles. He implied that the proposal might be affected by the total
amount of the cost savings. Other than the information pro-
vided by Frain in her July 10 letter in response to paragraph 1
of the Union’s request, Respondent has not made available any
other information sought.
On July 10, Irish had a phone conversation with Shapiro who
told him the Respondent did not see the relevance of the infor-
mation sought about nonunit employees (Paragraphs 3 and 4 of
the request). According to Respondent, Irish did not give either
Shapiro or anyone else with the Company reasons why these
two requests involving nonunit employees were relevant. I
cannot find any evidence that Respondent asked the relevance.
With respect to Paragraph 2 of the request, Irish was never told
the Company could not afford to let the employees take Com-
pany vehicles home. Irish testified that the Respondent never
bargained or offered to bargain with the Union over the effects
of the decision to remove the company vehicles from the eight
employees who had been allowed to use them to go to and from
work. Similarly, he testified that Respondent never offered any
compensation to these employees for taking away the vehicles
that they had been allowed to take home at night.
3. The relevant provisions of the collective-
bargaining agreement
Irish was part of the negotiating team that reached the cur-
rent collective-bargaining agreement. The parties, and primar-
ily, Respondent makes some fairly broad contentions about
Irish’s testimony related to bargaining. I think it important to
see exactly what Irish did say, which is not easy to summarize
otherwise. This testimony was fragmented by numerous evi-
dentiary objections from all parties. The testimony was given
starting at page 25 of the transcript and questions are by Re-
spondent’s counsel and answers by Irish. The exchange, ex-
cluding objections and arguments reads:

Q. In the course of that bargaining for that agreement,
you discussed, did you not, taking vehicles home—union
members taking vehicles home, is that correct?
A. Yes, we did.
Q. You also discussed, in the course of that agreement
that the—there would be certain rights that the company
would retain with regard to work rules and work practices,
did you not?
A. Yes, we did.
Q. As part of that agreement the union agreed, did
they not, that the company was free to unilaterally change
any work rule or any practice that had been ongoing at
RG&E during the course of this collective bargaining
agreement, except as provided in the agreement itself, is
that right?
A. No answer given as the parties engaged in a num-
ber of objections and counsel went to another question.
Q. You bargained over the company’s right to retain
the ability to make certain unilateral changes with regard
to work practices and work rules, did you not?
A. Yes, we did.
Q. And, the result of that bargaining is set forth in the
collective bargaining agreement, is it not?
A. No answer was given as the parties again objected
and counsel opted to ask another question.
Q. You told us you bargained over the company’s
ability to make changes—unilateral changes with regard to
certain work rules and certain work practices as they ex-
isted and the result of that bargaining is contained in the
collective bargaining agreement itself, is it not?
A. No answer was given and objections were made.
Counsel chose to ask another question.
Q. You bargained about work rules, did you not?
A. Yes, we did.
Q. You bargained about whether or not the company
would have the right to make unilateral changes in work
rules as they existed at RG&E, did you not?
A. Yes, we did.
Q. You arrived at an agreement with regard to that,
did you not?
A. Yes, we did.
Q. And that’s reflected in the collective bargaining
agreement, is that right?
A. Yes, it is.
Q. With regard to work practices, you bargained about
that, did you not?
A. Yes, we did.
Q. And, you arrived at an agreement which would
give the company certain rights with regard to making uni-
lateral changes to work practices?
A. Objections were made and no answer was given.
Counsel then asked another question.
Q. Did you bargain, during the course of the negotia-
tions, about the company’s right to make certain unilateral
changes to existing work practices at RG&E?
A. Yes, we did.
Q. And the result of that bargaining is set forth in the
collective bargaining agreement, is it not?
A. Yes, it is.
Q. With regard to just for the convenience of the
judge, the agreements with regard to work practices and
ROCHESTER GAS & ELECTRIC CORP. 515
work rules are contained in Article 7 of the collective bar-
gaining agreement, is that correct?
A. Yes, they are.
Q. Now, you also—let me back up for a second. You
told me that you had recited the union’s position on a
number of occasions to the company with regard to this
change in the practice of taking—the low voltage TMR
people taking trucks home; isn’t that right?
A. Yes, I did.
Q. I believe, and correct me if I am wrong, that the
thrust of your discussions with the company was that you
viewed that a benefit to be allowed to take the trucks
home; is that right?
A. It was a benefit or compensation.
Q. And, in your mind was this dollar amount that
there would be some value in taking the truck home so you
didn’t have to pay for a vehicle of your own to get work in
the morning, is that right?
A. That’s correct.
Q. And to get home at night too, right?
A. Yes.
Q. And, your view was that that was a benefit to the
employees, right?
A. A benefit or compensation?
Q. A benefit and compensation?
A. Or compensation, to me they’re kind of analogous
terms.
Q. Meant the same thing to you?
A. Yes.
Q. During the course of negotiations for this collective
bargaining agreement, Joint Exhibit No. 7, you bargained
about benefits, did you not?
A. Yes, we did.
Q. And, the company retained certain—the company’s
position was that they should be able to retain certain
rights with regard to changing those benefits unilaterally;
isn’t that right?
A. Would you ask that again, please?
Q. The company’s position during the bargaining was
that they should be able to retain the right to change bene-
fits unilaterally, isn’t that right?
A. I don’t know if I agree that it was the company’s
position.
Q. You don’t know what—you don’t recall the com-
pany’s position?
A. I don’t recall that position.
Q. But you do remember this concept of benefits be-
ing discussed?
A. Yes.
Q. Let’s set wages aside for a second, okay? There are
certain things that the employees get by virtue of their em-
ployment at RG&E that have some economic benefit to
them, is that correct?
A. Yes.
Q. That’s aside from the wages that they earn, right?
A. That’s correct.
Q. There are certain things like clothing allowance
and some other things that just for an example of a benefit
that employees get; is that right?
A. Yes.
Q. And that’s separate and apart from their wages,
right?
A. That’s correct.
Q. This benefit or let me ask it another way, taking a
vehicle home after work, is that one of those benefits that
you get that’s separate and apart from your wages, if
you’re in that category?
A. It’s a benefit or compensation separate and apart
from wages.
Q. Taking the concept of wages out of it for a second,
all right, it’s a benefit in terms of something that they get
that’s of value apart from their wages: is that right?
A. Yes.
Q. During the course of the negotiations that you had
with the company to arrive at this collective bargaining
agreement, you discussed this concept of benefits that
were separate from the compensation, right?
A. Yes we did.
Q. You arrived at an agreement with regard to that, is
that right?
A. Yes, we did.
Q. The agreement that you arrived at with regard to
benefits is set forth in Article 25 of the collective bargain-
ing agreement that’s in front of you, is that correct?
A. Yes, it is.

The next questioning of Irish on the subject of negotia-
tion was by General Counsel.

Q. If you would refer to Joint Exhibit 7, and specifi-
cally Article 7. In the first paragraph, there is a reference
to a joint committee?
A. That’s correct.
Q. Do you know who was on that Joint Committee?
A. No, I do not.
Q. In the terms of the article on benefits, were vehi-
cles ever discussed?
A. Objections were made and no answer was given.
Another question was asked.
Q. So were vehicles ever discussed in relation to bene-
fits?
A. I don’t remember vehicles being discussed in rela-
tion to Article 25.

The next questions about negotiations of Irish were asked by
counsel for the Union.

Q. Mr. Irish, in the course of the negotiations, I’m re-
ferring to Article 7 here, was there any discussion in the
negotiations about the interplay or how you reconciled the
first paragraph of Section A with the second paragraph of
Section A; was there any discussion about that?
A. I don’t recall a discussion of how they interplayed.
Q. In the course of negotiations did the company ever
state to the union that it retained the right to withdraw the
take-home vehicles?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
A. No they did not.

Article 7 of the collective-bargaining agreement states:

(7) SAFETY AND WORK RULES

(A) It is understood and agreed that there are in existence spe-
cific safety and/or work rules, customs, regulations, or prac-
tices which reflect detailed application of subject matters
within the scope of this Agreement and which are consistent
with it. It would be impractical to set forth in this Agreement
all of these rules, customs, regulations, and/or practices, or to
state which of these matters may have been eliminated. A
joint committee will be formed to review safety and work
rules, customs, regulations, and practices. It is understood and
agreed that if a dispute arises as to the existence or enforce-
ability of a specific safety or work rule, custom regulation, or
practice, such dispute shall not be subject to the grievance and
arbitration provisions of this Agreement, but shall instead be-
come the exclusive concern of the Director of Human Re-
sources for the Company and the International Representative
of the Union or their specifically authorized deputies.

In addition, it is understood and agreed that the Company
shall have the exclusive right to issue, amend, and revise
safety and/or work rules, customs, regulations, and practices,
except as expressly modified or restricted by a specific provi-
sion of this Agreement. This provision shall include job speci-
fications for the classifications which were recognized by the
NLRB Certification dated April 11, 2003, Case No. 3–RC–
11307, except as expressly modified or restricted by a specific
provision of this Agreement.

Paragraphs (B) and (C) of this Article are confined to safety
rules and safety training and are not relevant to the issue under
consideration.

Article (8) MANAGEMENT RIGHTS AND
RESPONSIBILITIES

It is mutually understood and agreed by the parties to this
Agreement that: except as expressly modified or restricted by a
specific provision of this Agreement, all statutory and inherent
managerial rights, prerogatives, and functions are retained and
vested exclusively in the Company, including but not limited to
the rights, in accordance with its sole and exclusive judgment
and discretion to reprimand, suspend, discharge, and otherwise
discipline employees for just cause; to determine the number of
employees to be employed; to hire employees, determine their
qualifications and assign and direct their work; to promote,
demote, transfer, lay off, recall employees to work; to set the
standards of productivity, the products to be produced and/or
the services to be rendered; to maintain the efficiency of opera-
tions; to determine personnel, methods, means, and facilities by
which operations are conducted; to determine the size and
number of crews; to determine the shifts to be worked; to use
independent contractors to perform work or services; to sub-
contract, contract out, close down, or relocate the Company’s
operations or any part thereof; to expand, reduce, alter, com-
bine, transfer, assign, or cease any job, department, operation or
service; to regulate the use of machinery, facilities, equipment,
and other property of the Company; to introduce new or im-
proved research, production, service, distribution, and mainte-
nance methods, materials, machinery, and equipment; to deter-
mine the number, location and operation of departments, divi-
sions, and all other units of the Company; to issue, amend and
revise reasonable policies, rules, regulations, and practices not
in conflict with any express provisions of the collective bar-
gaining agreement; and to direct the company employees. The
Company’s failure to exercise any right, prerogative, or func-
tion hereby reserved to it, or the company’s exercise of any
such right, prerogative, or function in a particular way, shall not
be considered a waiver of the Company’s right to exercise such
right, prerogative, or function or preclude it from exercising the
same in some other way not in conflict with the express provi-
sions of this Agreement.
The parties at hearing referred to Article 25 as the Benefits
Article in error. Article 25 is a one line article dealing with the
Company’s Pension. Article 26 is a one line Article dealing
with the Company’s 401(k) plans. Article 24 deals with bene-
fits other than pension or 401(k). It reads:

(2) BENEFITS (other than Pension or 401(k))

During the term of this Agreement, the Company will pro-
vide “General Benefits” and “Benefit Plans” described in the
“Rochester Gas and Electric Union Employee Benefit Hand-
book”, subject to the terms and conditions of the plan docu-
ments. The terms of the plan documents, including the sum-
mary plan descriptions are specifically incorporated herein by
reference.
Except as set forth below, it is understood and agreed that
during the term of this Agreement the Company (consistent
with the plan documents) shall have the exclusive and unilateral
right to issue, amend, revise or terminate any or all benefits and
benefit plans:

There follows four numbered paragraphs dealing with medi-
cal plans and flex fit credits, none of which are relevant to the
issued involved in this case.

Though the parties discussed the matter of employees taking
home Company vehicles, it is not mentioned in the agree-
ment. The only mention of vehicles I find is in Article 16
which deals with overtime. The last sentence of this Article
reads. “The Company may require employees to take home
vehicles.”

C. Discussion and Conclusion with Respect to the Issues
1. Did the Respondent violate the Act by refusing
to bargain over the effects of its decision?
Wages, hours and other terms and conditions of employment
are mandatory subjects of bargaining, which cannot be changed
by an employer without providing the union with timely notice
and an opportunity to bargain. NLRB v. Katz, 369 U.S. 736, 743
(1962); NLRB . Borg-Warner Corp., 356 U.S. 342 (1958).
Making unilateral changes in mandatory subjects of bargaining
“circumvent[s] . . . the duty to negotiate which frustrates the
objectives of Section 8(a)(5) as much as does a flat refusal.”
Katz, at 743. The effects on employees of losing the benefit of a
service vehicle to drive to and from their residences is a manda-
ROCHESTER GAS & ELECTRIC CORP. 517
tory subject of bargaining as it relates to their wages and condi-
tions of employment.
The Respondent has argued that the Union has waived its
right to this statutory mandate to bargain over unilateral
changes by its agreement to the parties’ collective-bargaining
agreement. Whether that is correct or not is moot as the General
Counsel has amended the Complaint to remove the allegation
that Respondent was obligated to bargain over its decision to
cease the practice of allowing the low voltage workers to use its
vehicles to commute to and from work.
On the other hand, there remains the issue of whether Re-
spondent was obligated to bargain with the Union over the
effects of its decision. Under Board law, I find that Respondent
was obligated to give the Union notice and an opportunity to
bargain about the effects on unit employees of its decision to
eliminate the benefit of the employee’s use of Company vehi-
cles to go to and from work and home. That is true even if it
had no obligation to bargain about the decision itself. Good
Samaritan Hospital, 335 NLRB 901, 902 (2001); Kiro, Inc.,
317 NLRB 1325, 1327 (1995). In Good Samaritan Hospital,
the Board held that contractual language that waives the un-
ion’s right to bargain about a decision is not a waiver of its
right to bargain about that decision’s effects. Id. at 902. Spe-
cifically, in Good Samaritan Hospital, the Board found that the
language in the parties’ collective-bargaining agreement
waived the union’s right to bargain over the hospital’s decision
to change its staffing matrix, but did not waive the union’s right
to bargain over the effects of this decision. Id. at 901–903. The
Board found that the hospital’s decision impacted the employ-
ees’ terms and conditions of employment and that the hospital
had to bargain over these effects. Id. at 903–904.
Here Respondent’s decision had a substantial monetary ef-
fect on the affected employees. Whether one accepts the Re-
spondent’s own estimate of the value to the employees of its
practice, the value or income imputed to the employees because
of their use of Respondent’s vehicles to commute to work, or
the higher $5000 to $6000 figure asserted by the Union or
something in between, the value was substantial. The costs
incurred by the employees as a result of the decision included
providing a vehicle to replace the one provided by Respondent,
and paying the maintenance, insurance and gasoline costs for
the vehicle. It is obvious to anyone who drives a car these days
that these costs are very real and substantial. Thus, the effects
of Respondent’s decision included changes to employees’ terms
and conditions of employment in ways that were material, sub-
stantial and significant. It is clear that Respondent realized the
truth of this as the value of the use of the Company vehicle was
considered income by Respondent and was represented to pro-
spective employees and relied upon by some of those taking
involved jobs, as being part of their total compensation. As
such, Respondent had a duty to bargain over the effects of the
decision. Kiro, Inc., supra; Union Child Day Care Center, 304
NLRB 517 (1991)(finding that the employer violated Section
8(a)(5) of the Act by unilaterally discontinuing its practice of
allowing employees to use a company vehicle to obtain their
lunches); Yellow Cab Co., 229 NLRB 1329, 1333, 1354 (1977)
(finding that the employer violated Section 8(a)(5) of the Act
by unilaterally changing its policy allowing employees to use
their cab for transportation to and from work).
I cannot find any evidence that the Union has clearly and ex-
pressly waived its right to bargain over the effects of the Re-
spondent’s decision. Nothing in the evidence relating to the
negotiations for collective bargaining speaks to any intent by
the Union to consciously waive its right to effects bargaining
and the collective-bargaining agreement is silent as to effects
bargaining, though arguably giving the Respondent the right to
unilaterally make changes in otherwise mandatory subjects of
bargaining. Clearly there were no negotiations over the effects
of the decision to take away the private use of Respondent’s
vehicles by low voltage employees and there is no language
dealing with this issue in the collective-bargaining agreement.
The Supreme Court, in Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983), held that it would not “infer from a gen-
eral contractual provision that the parties intended to waive a
statutorily protected right unless the undertaking is ‘explicitly
stated. “The Board has held that to meet the clear and unmis-
takable standard, ‘the contract language must be specific, or it
must be shown that the party alleged to have waived its rights
consciously yielded its interest in the matter.’” Allison Corp.,
330 NLRB 1363, 1365 (2000). Furthermore, in addressing ef-
fects bargaining, the Board has held that it must be clear and
unmistakable that effects bargaining is being waived. Good
Samaritan Hospital, supra at 902.
None of the contractual provisions, Article 7, Article 24 or
Article 8, all set forth in their relevant entirety above, address
the effects of taking any action under their wording nor do they
address the removal of service vehicles at all. There is nothing
that clearly gives Respondent the right to avoid effects bargain-
ing from any action it might take in reliance on these Articles.
There is nothing in the evidence in this record about negotia-
tions that deals with effects bargaining. I find that Respondent
has failed to meet its burden that the Union clearly and unmis-
takably waived its right to bargain over the effects of Respon-
dent’s unilateral removal of the low voltage employees long-
standing benefit.
Likewise it is clear that the Union timely and continuously
requested to bargain over the matter. Irish made clear requests
for bargaining in his November 2005 telephone conversation
with Frank, in his meeting with Respondent’s representatives in
December 2005, and again in its official grievance over the
matter submitted on January 10, 2006. The grievance in part
states:

“This unilateral action was a violation of past practice. This
removes the benefit of the use of vehicles for commuting to
work and responding to callouts directly from home. Wages,
benefits, hours and working conditions are mandatory sub-
jects of collective bargaining. The Company refused collec-
tive bargaining in this matter. The resolution to this instant
case is that all affected members be made whole.”

The grievance is clear that the loss of a benefit of using the
vehicles for commuting purposes is at issue and equally clear is
the fact that, inter alia, the Union is seeking compensation for
the losses its members incurred as a result of Respondent’s
decision. At both grievance meetings in January and July 2006,
Irish repeated the Union’s position that Respondent’s conduct
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518
was a unilateral change and that hours, wages and conditions of
employment were mandatory subjects of bargaining. The Union
also maintained that position in its letters of March 7 and June
5, 2006. During the grievance meetings, Irish informed Re-
spondent that the use of Company vehicles was part of the em-
ployees’ compensation and that its loss was costing the em-
ployees $5000 to $6000 annually. I find that this makes per-
fectly clear that the Union was seeking an effects remedy in
addition to seeking bargaining over the decision itself. On the
issue of waiver, The Board has held that “[i]n the absence of a
clear and unmistakable waiver by the union concerning effects
bargaining, such bargaining is still required.” Good Samaritan
Hospital, supra at 902. Though I find that it is clear that the
Union here requested by effects and decision bargaining, the
Board has held that no magic words are required to establish a
demand to bargain. They made it clear that the loss of the vehi-
cle for commuting to work and the costs associated with that
loss were substantial. Implicit in such a position is that a rem-
edy is due to the employees for the effects of the lost benefit.
AT&T Corp., 325 NLRB 150 (1997); Legal Aid Bureau, 319
NLRB 159 fn. 2 (1995). Any argument by Respondent that the
practice of letting the low voltage employees use their Com-
pany vehicles to commute is not a benefit, as was made in the
testimony, is disingenuous as their best argument for waiver
with respect to the decision to discontinue the practice is found
in the section of the collective-bargaining agreement dealing
with benefits.
In conclusion, I find that Respondent violated Section 8(a)(5)
of the Act by refusing to bargain with the Union over the ef-
fects of its decision to cease the practice and benefit of allowing
the low voltage employees to use their Company vehicles to
commute to and from work.
2. Did Respondent violate Section 8(a)(5) of the Act by
refusing to supply the Union with requested information?
Though Respondent did supply one part of the Union’s in-
formation request, it continues to refuse to supply the following
portions of it:

Any Company analysis of the cost of this to the Company; A
listing of non-unit personnel who have the benefit, so that we
may assess the significance of this issue to the Company; and,
Whether the Company announced to any non-unit personnel
the same restrictions now being imposed upon the members
of the bargaining unit.

The Respondent has informed the Union that it does not con-
sider the last two requests to be necessary and relevant to the
Union’s duties as representative of the unit employees and with
respect to the first one, has stated that no analysis of the costs
associated with its decision has been made. This latter informa-
tion was first given at the hearing in this case and was not given
to the Union prior to the hearing.
With respect to the cost request, General Counsel asserts that
the Union is seeking an analysis of the cost to the Company of
providing service vehicles to bargaining unit personnel, not an
analysis of the cost savings achieved by taking the service ve-
hicles away. I would agree though would note they might be
the same thing. Whether any formal analysis was performed or
not, the underlying cost information is available. Certainly the
Respondent thought there were cost savings to be achieved by
stopping the longstanding practice of letting the low voltage
employees take Company vehicles home at night. Budget con-
straints and budget cuts were the reasons given to employees
when they were informed of the Company’s decision. I find
that such information is highly relevant and necessary to the
Union to be able to effectively bargain with the Company over
the effects of its decision. Whether the costs are associated with
increased mileage on the vehicles, increased maintenance costs
or increased fuel costs are all matters within the knowledge of
the Respondent. If it did not understand what the Union was
seeking, it could have sought a clarification, but instead it sim-
ply chose to not comply without giving a legitimate reason.
Respondent is obligated to furnish the Union with informa-
tion about the cost of providing the benefit to bargaining unit
employees. Information relating to wages, hours and working
conditions of employees in the bargaining unit is presumptively
relevant. North Star Steel Co., 347 NLRB 1364, 1364, 1368
(2006). Accordingly, the Board has held that financial informa-
tion related to the cost of providing benefits to the bargaining
unit is presumptively relevant for purposes of collective bar-
gaining and must be furnished upon request. E.I. Dupont & Co.,
346 NLRB 553, 577 (2006); V&S Schuler Engineering, 332
NLRB 1242 (2000). There is no contention made in the evi-
dence that such information does not exist and common knowl-
edge would affirm that it does exist. Simply stating some years
after the request was made that no analysis was made is just not
sufficient. Respondent has violated the Act by not complying
with this request.
With respect to the information sought concerning nonunit
personnel, I believe this information is similarly necessary and
relevant for the Union to properly represent the involved unit
employees. Frank announced to the low voltage employees that
ceasing the practice of letting them use their Company vehicles
to commute to and from work was just the start of similar steps
the Company intended to take. Thus he opened the door to
legitimate inquiry by the Union as to the scope of Respondent’s
cost savings program. With respect to information pertaining
to employees outside the bargaining unit, the Union must dem-
onstrate the information is relevant. National Grid USA Service
Co., 348 NLRB 1235 (2006). The burden in demonstrating
relevance is “not exceptionally heavy.” Leland Stanford Junior
University, 262 NLRB 136, 139 (1982). The Union need only
show a “probability that the desired information was relevant,
and that it would be of use to the union in carrying out its statu-
tory duties and responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432, 437 (1967).
The Union’s information request was based on Respondent’s
representations regarding the reason it eliminated the vehicle
benefit. Frank notified the low voltage employees that they
were losing the use of the vehicles and in doing so indicated
that it was a cost savings measure and that other employees
would also lose the use of the vehicles. Frank made similar
assertions to Irish. On this basis, the Union stated in its request,
that it needed the information to “assess the significance of this
benefit and its cost to the company and to aid the Union in re-
sponding to employer demands to terminate the benefit.” The
ROCHESTER GAS & ELECTRIC CORP. 519
information relating to nonunit personnel would demonstrate
the significance of the benefit, including whether the change
was going to be instituted Company-wide or if it was only be-
ing applied to the low voltage members of the bargaining unit.
This information would aid the Union in bargaining over the
effect of losing the benefit, as it would clarify its impact on
Respondent and assist the Union in preparing bargaining pro-
posals. It would clearly affect the Union’s bargaining position
as it relates to the size of the cost savings sought by Respon-
dent, whether minimal in the case of the low voltage employees
or substantial if a number of nonunit employees were similarly
losing the use of Company vehicles for their commute. I be-
lieve the Unions approach would be different in one case versus
the other. Further, other than its claim of nonrelevance, Re-
spondent has offered no reason why it cannot supply the infor-
mation or what harm could result if it did. Relevancy of the
information is also established by Frank’s statements that the
removal of the benefit was a cost savings measure that would
be borne by other employees as well. The requested informa-
tion would verify the assertion that Frank made to the low volt-
age employees.
I find that Respondent has violated the Act by not providing
the information sought with respect to nonunit employees.
3. Deferral is not appropriate in the circumstance of this case
On brief and in its answer, Respondent urges deferral of this
case to the parties’ grievance and arbitration procedures. I think
deferral in this case is inappropriate for two reasons. First, the
use of take home Company vehicles at employer expense is a
noncontractual term and condition of employment. The griev-
ance and arbitration procedure allows processing only of an
alleged “violation of the specific terms of this Agreement.”
Section 10(A). It states:

No other matter may be submitted to the grievance and arbi-
tration procedure.

Work rules, customs, regulations, or practices which reflect
detailed application of subject matters within the scope of this
Agreement” are excluded from the grievance and arbitration
procedure. Section 7 (A). Deferral is not appropriate here be-
cause the arbitration clause in the collective-bargaining agree-
ment does not cover the item at issue.

Second, deferral is not appropriate as the Complaint alleges
violations of Section 8(a)(5) of the Act for failing and refusing
to provide information. Postal Service, 302 NLRB 767 (1991);
DaimlerChrysler, 344 NLRB 1324 fn. 1 (2005). The Board
held in DaimlerChrysler Corp. that “under the Board’s decision
in Postal Service, (citation omitted), the 8(a)(5) complaint alle-
gations concerning failure to provide requested information are
not appropriate for deferral pursuant to Collyer Insulated Wire,
192 NLRB 837 (1971). Id. at fn. 1. Thus the information re-
quest allegations are not deferrable. Insofar as deferring the
other allegation of this Complaint, the Board has held that it
does not favor piece-meal deferral and prefers to have an entire
dispute resolved in a single proceeding. DaimlerChrysler
Corp., supra.
CONCLUSIONS OF LAW
1. Respondent, Rochester Gas & Electric Corporation, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local Union 36, International Brotherhood of Electrical
Workers, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing to timely notify the Union and afford it an op-
portunity to bargain over the effects of discontinuing the benefit
of allowing the low voltage TM&R employees to take their
service vehicles home after work, Respondent has violated
Section 8(a)(1) and (5) of the Act.
4. By failing and refusing to provide the Union with the in-
formation it requested on March 7, and June 5, 2006, namely,
the cost to Respondent of allowing the bargaining unit employ-
ees to have the benefit of taking a company vehicle home, a
listing of all employees who have the benefit of taking a com-
pany vehicle home, and whether Respondent announced to any
employee or group of employees not in the bargaining unit that
the benefit would be discontinued, and by failing to inform the
Union that certain requested information did not exist, Respon-
dent violated Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent should be ordered to, on request, bargain collec-
tively with the Union concerning the effects of its decision to
discontinue the benefit of allowing the low voltage TM&R
employees to take their service vehicles home after work. It
should further be ordered to make whole its employees for any
losses they may have suffered as a consequence of its decision
to eliminate the vehicle benefit, with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). Re-
spondent should further be ordered to furnish the Union with
the information it requested on March 7 and June 5, 2006,
which is relevant and necessary to the Union’s duties as statu-
tory representative of the Respondent’s employees. And last,
Respondent should be ordered to post an appropriate notice.
[Recommended Order omitted from publication.]