Salem College

National Labor Relations Board - Board Decisions

Mar 23, 1982

261 N.L.R.B. 327 (N.L.R.B. 1982)

SALEM COLLEGE
Salem College and Teamsters Local Union No. 789
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 6-CA-13694
March 23, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On November 23, 1981, Administrative Law
Judge Thomas R. Wilks issued the attached Deci-
sion in this proceeding. Thereafter, the Union filed
exceptions and a brief in support of its exceptions;
Respondent filed a brief in support of the Decision
of the Administrative Law Judge; and the General
Counsel submitted the brief it had filed with the
Administrative Law Judge. Respondent filed an an-
swering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order dis-
missing the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint in this proceeding
be, and it hereby is, dismissed in its entirety.
'Under the Board's Rules and Regulations, a party filing exceptions to
the rulings, findings, and conclusions of an administrative law judge
"shall designate by precise citation of page the portions of the record
relied on," Sec. 102.46(b), and any brief filed in support of exceptions
"shall contain ... specific page reference to the transcript and the legal
or other material relied on," Sec. 102.46(c). Respondent, in its answering
brief, argues that the Board should consider the Union to have waived
any exceptions to the Administrative Law Judge's Decision because of
the Union's failure to comply with the above-stated rules. Inasmuch as
we find no merit to the Union's exceptions, we do not reach the issue of
its failure to file exceptions in the manner prescribed by the Rules and
Regulations.
' The Union has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
261 NLRB No. 56
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: Pursu-
ant to an unfair labor practice charge filed on August 1,
1980, by Teamsters Local Union No. 789 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, herein called the Union,
against Salem College, herein called Respondent, and a
complaint issued by the Regional Director in October
1980, and an answer filed by Respondent, a hearing was
held before me in Clarksburg, West Virginia, on April 20
and 21, 1981. The complaint alleges that Respondent vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act, as amended, herein called the Act on July 7,
1980, by entering into an agreement with Columbus
Services, Inc., to subcontract maintenance and custodial
work previously performed by its employees "without
having afforded the Union an adequate opportunity to
negotiate and bargain as the exclusive bargaining repre-
sentative of Respondent's employees with respect to such
acts and conduct." The complaint also alleges that on or
about July 3, 1980, the Union had requested Respondent
to furnish it with a copy of "all correspondence between
Respondent and Columbus Services, Inc., concerning the
subcontracting . . . and by written request dated July 7,
1980, requested Respondent to furnish the Union with all
relevant documents concerning the subcontracting [re-
ferred to above]," which it is alleged is relevant to "the
Union's performance of its function as the exclusive col-
lective bargaining representative" of the bargaining unit
employees, and that Respondent has thereafter refused to
respond to such request in violation of Section 8(a)(5)
and (1) of the Act.'
Respondent's answer admits the alleged agreement to
subcontract unit work on July 7, 1980, but denies that
the Union was not afforded an adequate opportunity to
negotiate the decision to subcontract. Respondent's
answer also admits the alleged requests for information
but denies the balance of the allegation.
At the hearing the General Counsel was permitted to
adduce evidence in support of its theory that the failure
to provide adequate opportunity as alleged in the com-
plaint encompassed a fixed intent by Respondent not to
reach agreement on the issue of subcontracting. That
issue was therefore fully litigated. In its post-trial brief,
the General Counsel moved to amend the complaint to
allege that Respondent met with the Union "without in-
tending to reach agreement." Inasmuch as the issue was
adequately litigated, I grant that motion.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor and in con-
sideration of post-trial briefs, I make the following:
' There is no allegation that Respondent failed to bargain, or to pro-
vide the Union with an adequate opportunity to bargain about the effects
and impact of subcontracting upon the unit employees.
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a West Virginia corporation with its
office in Salem, West Virginia, is and has been at all ma-
terial times engaged in the operation of a private 4-year
liberal arts college. During the 12-month period ending
September 30, 1980, Respondent in the course and con-
duct of its operations derived gross revenues in excess of
$1 million which amount excludes contributions which,
because of limitation by the grantor, are not available for
operating expenses, and received goods and materials
valued in excess of $50,000 directly from points located
outside the State of West Virginia.
It is admitted, and I find, that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
1. THE LABOR ORGANIZATION
It is admitted, and I find, that the Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
A. Background
Pursuant to a Board-conducted election, the Union
was certified as the exclusive bargaining agent for Re-
spondent's maintenance employees on July 31, 1979.
There were about 26 persons in the unit. On October 9,
1979, a series of 12 or 13 bargaining meetings ensued. No
agreement was reached. An economic strike commenced
on April 11, 1980, which was supported by the vast pre-
ponderance of unit employees. One of the issues separat-
ing the parties was that of wages. The Union had pro-
posed a 15-percent increase, whereas Respondent had of-
fered a 7-percent increase. The Union's last wage propos-
al was made in mid-May 1980 and remained at 15 per-
cent.
Columbus Services, Inc., of New Castle, Pennsylvania
(herein called Columbus), is engaged in the business of
providing maintenance and custodial services either ex-
clusively or in large part to educational institutions. In
early 1979, Columbus decided to seek entry into the
West Virginia market. In January 1979, Columbus' agent,
Razzano, contacted Respondent's fiscal vice president,
Capacola, and attempted to solicit Respondent's interest
in its services. He was told to call again in the spring.
Razzano made contact next in May 1979, but was again
deferred because Respondent was in the process of in-
ducting a new physical plant director. The Union filed
its representation petition on June 1, 1979.
Respondent's vice president of administrative affairs,
Michael Greer, testified that Razzano placed a telephone
call to Greer's office on February 28, 1980, but Razzano
was told to call back in late March upon Greer's expect-
ed return from an absence from the campus.
On April 17, 1980 (all dates hereinafter are 1980),
Greer was called by Razzano and in that telephone con-
versation Razzano described Columbus' services and
desire to expand to West Virginia. Greer indicated that
Respondent might be interested in receiving a proposal
from Columbus, and Razzano was invited to visit the
campus on May 14. On the agreed-upon date, Razzano
and two other Columbus representatives met with Greer
in his campus office. Greer and Razzano engaged in a
conversation for several hours while Razzano's associates
toured the campus with representatives of Respondent
for the purpose of formulating a proposal. The informa-
tion conveyed to Greer on that date related to the type
of services Columbus offered. Greer supplied Razzano
with information as to the number of students and
campus facilities. The purpose, of course, was for Raz-
zano to construct a proposal. No commitment was ten-
dered by Greer who was only one of several vice presi-
dents, and who was required to submit recommendations
to Respondent's president, James Stam, for decision.
There is no evidence that Greer had formulated any rec-
ommendation as of May 14.
On May 28, Razzano returned and in a meeting with
Greer, at the college, presented Greer with a "feasibility
study" and proposed a contract which was then dis-
cussed and explained by Razzano. Greer made no tenta-
tive commitments to Razzano. In answer to Razzano,
Greer explained his limited authority and stated that Co-
lumbus' "proposal and feasibility study" would have to
be circulated among other responsible persons "in
house," and the matter discussed internally. Razzano was
told that thereafter Respondent would contact Colum-
bus.
The 107-page "feasibility study" and proposed con-
tract was prefaced by a first page in letter form ad-
dressed to Greer from Razzano which, inter alia, out-
lined the contents which consisted of the following enti-
tled sections:
1. General Overview and Conclusions
2. Why Contract Service?
3. Exhibit "A"-Custodial Specifications and
Work Program
4. Exhibit "B"-General Maintenance Specifica-
tions and Work Program
5. Operations Plan and Organizational Chart
6. References
7. Budget and Cost Comparative Analysis
8. General Maintenance Services Agreement and
Contract Price Schedule.
Section 1 contained a nine-page critique of Respondent's
maintenance operations. Section 2 set forth nine pages of
advantages to be derived from subcontracting. Section 3
specified the frequency of service for all Respondent's
facilities and equipment. Section 4 contained a descrip-
tion of the scope of maintenance work, specifications for
mechanical operations, inspection and maintenance, an
energy conservation program and a cleaning and mainte-
nance responsibilities chart. Sections 5 and 6 are self-de-
scriptive. Section 7 sets forth Respondent's physical plant
budget for 1979-80, i.e., the wage rate and direct labor
costs of each maintenance employee, supervisors, clerk,
etc., and the total direct labor cost in wages, salaries, and
fringes, $274,543, and materials and supplies, $126,000,
for a total budget of $400,453. Columbus estimated a 7-
1-80 to 6-30-81 contact price of $443,400, and projected
328
SALEM COLLEGE
prices of $487,740; and $536,514 for the next 2 years
compared to what it estimated Respondent would pay if
it retained its own operation, assuming increases of 20
percent, 10 percent, and 10 percent for those periods fol-
lowing negotiations with the Union, i.e., $480,544;
$528,598; $581,458.
The July 1 commencement date, according to Greer's
uncontroverted testimony, was selected by Columbus on
the grounds that it coincided with Respondent's fiscal
year and without any discussion between Greer and Raz-
zano regarding commencement dates. Greer testified that
he made clear to Razzano that Respondent was engaged
in collective bargaining and that any subcontract would
be subject to negotiations with the Union. Subsequent to
May 28, the feasibility study and proposal was circulated
among various Respondent administrators. Pursuant to a
telephone call from Respondent, a meeting was arranged
and held at the college among president Stam, Greer,
and several representatives of Columbus on June 17. At
the meeting Stam and Greer requested explanations as to
several areas of uncertainty regarding various areas of
Columbus' proposal and feasibility study. Greer testified
that, upon receiving these further explanations on June
17, the Respondent first became "seriously interested" in
pursuing a subcontract.
Following the June 17 meeting, Respondent forwarded
the proposed Columbus contract to its attorney, Robert
Steptoe, for review. On June 20, Steptoe telephoned
Greer and sought answers to a series of questions. After
consulting Stam, Greer telephoned Columbus on June 20
or 21 to obtain answers to Steptoe's question from Co-
lumbus President Morgan. On June 24, Morgan tele-
phoned Greer and informed him that Steptoe's queries
had "raised no problems," and advised Greer to have
Steptoe re-draft the proposal and to utilize language that
he felt would alleviate his concerns. Thereafter, Steptoe
redrafted the Columbus proposal.
B. Notification to the Union
The president of the Union, John Van Horn, was "in
charge" of the Union's contract negotiation efforts, with
the assistance of Richard Peluso, a representative of the
Eastern Conference of Teamsters. Respondent's negotia-
tions team was headed by attorney Steptoe. Van Horn
testified that, at some point during the third week of
June (June 16-20), he engaged in a telephone conversa-
tion with Steptoe wherein Steptoe advised him that a
meeting should be arranged between the Union and Re-
spondent in that Respondent was "thinking about sub-
contracting" the entire unit work. A meeting date of
June 30 was agreed upon. This was the first notification
of contemplated subcontracting that the Union received.
Thereafter, two bargaining sessions were held between
representatives of the parties on June 30 and July 3. At
the hearing of this matter the parties entered into a writ-
ten stipulation of a "complete and accurate" account of
those meetings except for one point which will be dis-
cussed infra concerning an alleged last appeal for con-
tract negotiations on July 3 by Peluso.
On the morning of June 30, prior to the bargaining
session, Morgan and two other Columbus agents met
with Greer at the college. Greer delivered Steptoe's re-
visions to them. Costs were further discussed, including
Columbus' projected costs for subsequent years. At that
point Columbus offered a firm price of $421,000, a re-
duction from the original estimate of S443,000 for the
first year of service. Furthermore, Columbus agreed to
fixed prices for 2 years thereafter (i.e., a 9-percent in-
crease of 1981-82, and an 8-percent increase for 1982-
83). Greer testified that, on June 30, Respondent had
pressed Columbus to make a firm proposal on the price
so that Respondent would be able to present the Union
with such firm proposal in order that the Union could
"respond rationally and knowledgeably in order that
they knew what they were talking about." No accept-
ance of Columbus' offer was made prior to a meeting
with the Union.
C. The June 30 Bargaining Session
The bargaining session between Respondent's and the
Union's bargaining teams was held in the Salem College
library conference room between 2 p.m. and 5:10 p.m.
Steptoe acted as chief spokesman for Respondent, and he
opened the meeting by announcing that Respondent was
"considering the possibility of subcontracting because it
can obtain this service at a lower price." He stated that
Respondent was in the process of negotiating with Co-
lumbus but that the price and "some details" were not
"settled." He further explicitly advised the Union that
Columbus had conducted "preliminary studies of the
campus." Steptoe denied accusations by Peluso of dis-
criminatory motivations. In response to Peluso's query as
to whether the subcontracting decision was irrevocable
despite negotiations with the Union, Steptoe stated that it
was not and that Respondent desired to discuss Respond-
ent's reasons for subcontracting. Peluso then claimed that
the Union had no obligation to set forth reasons against
subcontracting. He asserted that he was present "to settle
a strike, that's all." Peluso, when pressed by Steptoe as
to whether the Union desired to bargain over the sub-
contracting issue, declined to do so but rather threatened
to file an unfair labor practice charge. Steptoe again
urged him to negotiate the subcontracting decision. The
union representatives caucused for 1-1/2 hours, during
which time Peluso placed several telephone calls. (The
Union had access to free use of a telephone in an adja-
cent private room during the entire negotiations.)
After the caucus, Peluso reiterated the Union's posi-
tion that it did not wish "to discuss subcontracting," that
it desired to discuss only the collective-bargaining agree-
ment and that it would file an unfair labor practice
charge and continue the strike with imported "profes-
sional pickets" if subcontracting occurred. Peluso refused
to answer Steptoe's question as to whether the Union de-
sired to negotiate concerning the effects of subcontract-
ing upon the unit employees. Steptoe next inquired if the
Union desired to make any changes in its last bargaining
position as set forth at the last bargaining session of May
15. Peluso indicated that although he had nothing specif-
ic to offer, upon review there "might be room for move-
ment." A short caucus ensued, after which Steptoe re-
peated Respondent's position that it was "inclined to ex-
plore the possibility of subcontracting with Columbus,"
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was economically advantageous and that it would
provide Respondent with improved service, but that Re-
spondent was still willing to negotiate the decision to
subcontract as well as its effects upon employees. He fur-
ther expressed a willingness to review all "open areas in
the collective bargaining negotiations" and make another
effort to reach an agreement on a contract "that is as ac-
ceptable as the subcontracting deal." He stressed that
Respondent was entertaining a "strong inclination to sub-
contract" and would proceed to resolve the remaining
"details" of the subcontract with Columbus. However,
he reminded the Union that they were still in negotia-
tions with the Union and that a collective-bargaining
agreement was still possible. Peluso responded that the
Union had contacted its attorney (presumably during the
last caucus), and that their attorney "has no problem
with the concept of negotiating [the] subcontracting
issue," but that the Union desired to see a copy of the
proposed Columbus contract.
Steptoe urged the Union to meet again on July 3 and
promised to deliver the proposed contract before that
meeting. He stated, "Right now, let's go over the items
that are still open on the labor contract. Let's move it
because we have a campus to clean up." Thereupon, dis-
cussion turned to the nonagreed-upon unit contract pro-
posals. The meeting ended as Setptoe suggested a meet-
ing for July 3, a Thursday, and stated that Respondent
intended "to keep talking with Columbus." He stated,
"We still think the subcontracting arrangement is best for
the college." Peluso then stated: "We also would like
copies of all correspondence." Steptoe answered: "We
will try to get that too."
Peluso made no request for copies of Columbus' pre-
liminary studies, nor did he request any other specific in-
formation.
Subsequent to the meeting on June 30, Steptoe and
Greer met and discussed just what documents would sat-
isfy Peluso's request. It was decided that no correspond-
ence existed, i.e., the hand-delivered "feasibility study"
was considered by Respondent not to fall within the
definition of "correspondence." All other communica-
tions between Respondent and Columbus were verbal.
The subcontracting proposal, as redrafted by Respond-
ent's counsel and submitted to Columbus agents on the
morning of June 30, was copied and supplied to the
Union on July 1. Included with that proposal were 23
pages of attachments covering the subjects of vehicle as-
signment; certain campus facilities; vandalism; renova-
tion; major repairs; prices as modified on June 30; and a
"custodial specifications and work program" which, inter
alia, set forth the beginning of service for all facilities;
"Mechanical Specifications" and "Scope of Maintenance
Work"; "Energy Conservation Program;" "Cleaning &
Maintenance Responsibilities"; and "Plant Operations
and Maintenance." Thus the Union was not provided
with the portions of the feasibility study concerning the
critique of Respondent's operations, the section entitled
"Why Contract Service?" which had contained 17 rea-
sons suggested by Columbus for subcontracting, the
"General Operations Plan," and the section entitled
"Physical Plant Budget and Operations Analysis."
D. The July 3 Meeting
On July 3, the same bargaining teams resumed discus-
sions at the same conference room at 9:30 a.m. Steptoe
initiated the discussion by asking whether the Union had
received the Columbus proposal. Peluso acknowledged
receipt but Van Horn had not seen it. A 30-minute recess
was taken for Van Horn to review it. The Union did not
repeat its request for "correspondence" nor did it ask for
any further information during the course of the meeting.
After the recess Peluso commenced the discussion by
announcing that the Union desired to make some propos-
als with respect to the collective-bargaining agreement
which he stated "is what the people are interested in." A
written union agency shop proviso was then tendered.
Steptoe responded by asking whether there were any
other proposals. Peluso demanded a response to the
agency shop proposal. Steptoe then stated that Respond-
ent remained "strongly inclined to subcontract" the unit
work unless the Union could "convince [the Respondent]
not to." He stated, however, that a collective-bargaining
agreement was not precluded but that Respondent de-
sired to see the Union's entire proposal. At that point the
Union submitted a written proposal concerning prohibi-
tion of subcontracting, maintenance of standards, and
wages for 1980, and they were discussed in that order.
As to wages the Union stated that it withdrew its past
15-percent across-the-board wage increase demand and
now offered a 7-percent raise plus an equalization of all
wages of maintenance employees by raising the lowest
wages to that of the highest wage level. Asked whether
there were other proposals, Peluso stated that there were
other open issues but that they would "fall into line." A
caucus was then taken during which Respondent "costed
out" the wage proposal. Prior to the caucus, Steptoe had
urged the Union to review the Columbus proposal
during the caucus. Peluso had stated that he had looked
at it and had concluded that it gave no cost advantage to
Respondent, to which Steptoe countered that Respond-
ent was prepared to demonstrate that the subcontract of-
fered "financial advantages as well as service advan-
tages."
After the caucus held by the management bargaining
team, Steptoe explained to the union negotiators the re-
sults of the "costing out" of their proposal. The net
result, the Union was informed, was a wage proposal
that was 24-percent higher in cost than the preceding
union wage offer. Steptoe recited to the Union Respond-
ent's then present direct labor cost, Respondent's 7-per-
cent wage proposal cost, the Union's prior 15-percent
wage increase proposal cost, the Union's July 3 wage in-
crease cost, the June 30 Columbus subcontract price
offer, and the materials and general and administrative
costs. Steptoe then proceeded to demonstrate that the
Columbus offer effectuated a total maintenance service
cost lower than either the Union's wage proposal or Re-
spondent's wage proposal or even the present wage
level. Steptoe explained that Respondent calculated into
the total maintenance costs a general and administrative
costs figure amounting to 93 percent of the direct labor
cost, and a materials cost of $130,000. Peluso immediate-
ly challenged the estimated general and administrative
330
SALEM COLLEGE
cost as "exaggerated." He asked the number of adminis-
trators involved. Steptoe responded that it involved
three persons and himself. He stated:
The 93 percent of labor cost figure is what the gov-
ernment allows and what is allocated for this pur-
pose based upon the college's May 1980 negotia-
tions with G.A.O. concerning the allowable G & A
overhead rate, the college could charge the United
States government for administration of government
grants.
Peluso then obtained an admission that even if the work
were subcontracted the administrators would not be
"completely free of these duties." Peluso then rejected
the 93-percent figure as a "phantom figure" and pointed
out that with the materials cost stated by Steptoe the
Union's proposal was about $8,000 less than the Colum-
bus package. Steptoe then pointed out that the Columbus
offer would include use of Columbus' supervisors and
would allow Respondent to eliminate maintenance super-
visors that cost Respondent $50,000 a year. 2 Further-
more, he pointed out that there were other reasons for
subcontracting and enumerated the following:
1. Better trained employees and skilled supervi-
sors.
2. The good reputation of Columbus.
3. The opportunity to free Greer, an academician
without business and managerial background, from
overseeing the custodial and maintenance employ-
ees
4. The opportunity to obtain better and more
comprehensive services, as specified in the Colum-
bus proposal, of which he gave several examples in-
cluding improvements in the condition of the dor-
mitories of which students had complained.
5. The opportunity to initiate a preventive main-
tenance system.
6. The ability of Columbus to undertake service
contracts with other companies, of which he cited
several examples including references to a service
contract for heating and cooling, and for fire
alarms.
7. The opportunity for Columbus to provide the
services of a professional electrician, water treat-
ment for the boilers, specialists in fields relating to
maintenance and personal matters, fiscal responsibil-
ities, payroll processing, energy auditors; and that
Columbus could assume all responsibility for order-
ing, purchasing and inventory control of all sup-
plies.
To this exposition Peluso expressed doubt that Colum-
bus could perform at the price it offered. Steptoe ex-
plained why he thought Columbus could effectuate its
promised performance. Peluso persisted in expressing
doubts, and asked if the Union's proposal was rejected.
Steptoe stated that it was and concluded:
2 There were three supervisors, including a director and assistant direc-
tor of maintenance, and a custodial supervisor. The feasibility study pre-
pared by Columbus failed to consider the custodial supervisor, but it did
consider the cost of a clerk-typist employed by the maintenance director.
The economics of the situation eclipse everything
that is on the table because Columbus can offer us a
better cost than anything we have now.
Peluso insisted that Columbus' promised performance
was "impossible."
The union negotiators did not challenge any estimates
set forth by Steptoe other than the 93 administrative
costs estimate which Peluso had rejected out of hand as
a "phantom figure." The union negotiators did not chal-
lenge Respondent's assertion that better and more serv-
ices could be obtained by subcontracting other than to
denigrate in a conclusionary manner Columbus' ability to
perform as promised. There was no challenge to the as-
sertion that Respondent needed an improvement in serv-
ices. There was no debate as to the validity of Steptoe's
proffered noneconomic reasons for subcontracting. There
was no request for underlying data concerning actual ad-
ministrative costs or costs of materials. Instead, a caucus
was taken.
Upon return from the caucus Peluso stated:
I guess we have the facts and figures but there is no
way in God's world we can agree with them. The
strike is going to continue.
Steptoe responded, "We still want to subcontract with
Columbus." Steptoe attempted to elicit the Union's inten-
tion to bargain "over the subcontract." Peluso stated:
No, I personally don't feel that there is any need to
negotiate it further. Maybe my attorneys will feel
differently.
Peluso, when asked by Steptoe, rejected the opportunity
to discuss the effects of subcontracting by stating: "No,
not at this time." Steptoe then stated that Respondent
would continue to communicate with Columbus and
"eventually execute a contract," unless the Union could
"talk" Respondent out of it. He asked if the parties met
the next day, or thereafter on Saturday, whether the
union negotiators would "be in a better position to dis-
cuss the subcontracting issue." The following colloquy
ensued:
Peluso: We're not here to discuss the subcon-
tracting issue, we are here to negotiate a labor con-
tract. I'm putting you on notice that if you subcon-
tract, we will file charges at NLRB.
Steptoe: In other words, Dick, you do not want
to discuss subcontracting at all, just a contract for
these employees.
Peluso: Yes. We thought you came here to dis-
cuss a labor contract. You costed it out and then
you tell us you are still inclined to subcontract.
Steptoe: We are here to discuss the subcontract,
if you want to.
Peluso: My assumption on Monday was we were
going to discuss the contract and we brought pro-
posals. You didn't reject them. You only said you
were inclined to subcontract.
Steptoe: Do you see any need to meet again to
discuss subcontracting?
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peluso: I don't. John [Van Horn] or my attorney
might. Do you see any need to further discuss a
contract?
Steptoe: I don't see any need to discuss the con-
tract further because the college feels the subcon-
tracting is the best financial deal for it. John, do
you see any need to discuss subcontract further?
Van Horn: We feel you are only doing it to be
unfair to your people. The way I feel about the sub-
contract, it's an unfair labor practice. I don't want
to discuss subcontracting any more. I want only to
discuss a contract for these employees.
Steptoe: Do you want to make any more propos-
als?
Van Horn: Let's clear up the language of the
proposals we made today. Maybe the wages will
fall into place. [Respondent took a 5-minute caucus.]
Steptoe: We reject the proposal you made today
with regard to subcontracting in its entirety. We do
not want to surrender the right to subcontract.
Your language, in terms of economic reality, gives
up our right to subcontract. With regard to your
language on maintenance of standards, we reject it.
It gives the Union the right to unilaterally write the
contract. We can't accept your wage proposal of
today either, because it is excessive and in fact it is
an increase from your last demand. We also reject
your agency shop proposal of today because it still
restricts employees' freedom of choice as to wheth-
er or not to pay dues. Our position is still that we
want to subcontract and want to talk about it.
Peluso: We think you are acting in bad faith and
we want to talk about a contract.
Steptoe: Make another proposal on the contract
then.
Peluso: How can we beat the subcontracting
idea?
Steptoe: Do you want to make another proposal?
Peluso: [Asked for a caucus which lasted 10 min-
utes.]
Our final offer today is as follows:
1. The agency shop proposal we presented earlier
today.
2. The subcontracting language we presented ear-
lier today.
3. The maintenance of standards language we
presented earlier today, except that disputes as to
what is a past practice can be submitted to the
grievance and arbitration procedure.
4. Plant-wide seniority to permit bumping both
ways.
5. During the first year of the contract, all custo-
dians will make $3.50 per hour and all maintenance
employees will make $4.30 per hour.
Steptoe: We need a caucus to cost out your new
wage proposal. [After this a short caucus took
place. During the caucus, Greer and Steptoe calcu-
lated the direct labor cost of the Union's new pro-
posal to be $257,379, a 12.6% increase over the col-
lege's current direct labor cost of $228,556. This
proposal is also $5,000 less than the Union's 15%
across-the-board wage demand but is $13,000 more
than Respondent's final offer as of April 10 of a 7%
across-the-board increase ($224,554). At 3:10 p.m.
the caucus ended.]
Steptoe: [He explained their cost analysis as de-
tailed above and told the Union that this most
recent demand is higher than Respondent is giving
its demand is higher than Respondent is giving its
administrative and clerical employees.] Therefore
we can't accept your latest wage package.
Peluso: [Peluso questioned their math, especially
the statement that the Union's latest proposal is
12.6% above present labor costs. Steptoe showed
him how they reached this figure.]
Steptoe: The employer can't accept your final
offer but we are still willing to talk about the deci-
sion to subcontract and/or the effects. We still feel
the subcontract would be the best deal for us but
we are still willing to talk to you about it. We will
withhold making a decision on the subcontracting
until Monday at 10 a.m. If we hear from you by
then, we are will to talk more. If we don't hear
from you by then, we will assume you don't want
to discuss the decision or the effects and we will
probably sign a contract with Columbus. I propose
that if you want to meet on the subcontracting
issue, we could meet at 1 p.m. on Monday.
Steptoe: (Directed to Van Horn) Do you know
where to reach me over the weekend?
Van Horn: Yes, I've got phone numbers.
Peluso: I am on vacation Monday but I may send
some of my Teamster buddies down to visit you.
Gateman: It's nice down here.
Peluso: It may not be nice when they get here.
There is a discrepancy in the testimony between Van
Horn and Greer and Steptoe as to when the July 3 meet-
ing ended; and a dispute as to whether Peluso and Step-
toe engaged in a further colloquy wherein Steptoe pur-
portedly stated that Respondent did not desire to negoti-
ate further with respect to a collective-bargaining agree-
ment. In view of Van Horn's unconvincing demeanor,
his uncertainty and obscurity in testifying as evidenced in
part by hesitancy in responding to questions, and his
resort to lengthy pauses when his memory appeared to
fail him, I credit the testimony of Greer and Steptoe. I
find that the meeting ended between 3:20 and 3:30 p.m.,
and that no further colloquy took place between Peluso
and Steptoe.
The union negotiators made no effort to communicate
with an attorney at the conclusion of the meeting despite
the availability in an adjacent office of a telephone to
which they had resorted during past negotiations. Van
Horn testified that the attorney who represented the
Eastern Conference of Teamsters is located in Bethesda,
Maryland, and normally is not in his office at 5 p.m., and
that Van Horn did not have his home telephone number
and the Eastern Conference headquarters was closed on
July 4. Van Horn attended a 3-day horse show in an-
other part of the State over the holiday weekend. Peluso
told him that he had plans to visit Maine commencing
that weekend. No attempt was made to contact attorneys
in Fairmont or Charleston, West Virginia, who in the
332
SALEM COLLEGE
past had rendered service to the Union. Van Horn con-
ceded that he has in the past contacted Steptoe at his
house. He conceded that he understood that Respondent
was awaiting notice from the Union whether the Union
desired further negotiations concerning subcontracting,
and that neither he nor Peluso objected to the deadline
set by Steptoe. No effort was made to advise Respondent
that the Union found the deadline inconvenient, or that
either Van Horn or Peluso would not be available over
the weekend. It is difficult to conclude therefore that the
Union had any intention of pursuing further negotiations
as to the subcontracting at the end of the July 3 meeting
or throughout the deadline period.
After the meeting on July 3, Greer reported the results
of the meeting to President Stam and told him that the
Union had indicated no interest in discussing the subcon-
tracting issue but that an offer to negotiate further was
held open until 10 a.m., Monday, July 7. Stam told
Greer that if the Union failed to request bargaining by
that deadline he should proceed and enter into an agree-
ment with Columbus. At 10 a.m., July 7, Greer tele-
phoned Steptoe and was advised that no communication
had been received from the Union. Steptoe advised
Greer that it was permissible for him to proceed and
enter into an agreement with Columbus. Greer then tele-
phoned Morgan and informed him that Respondent
agreed to enter into a subcontract with Columbus. It was
agreed that the subcontract would be effective on July 7
and the document would be executed on July 9, which it
thereafter was. Morgan indicated that he would proceed
to send Columbus personnel to the campus that after-
noon in order for them to commence recruitment of em-
ployees on July 8. In fact, such recruitment took place as
promised.
Van Horn testified that on Monday, July 7, at or about
9 a.m., he placed a telephone call to the Eastern Confer-
ence attorney's office but was told he was not present
but would be expected later. A message was left. At 2
p.m. the attorney telephoned Van Horn. It was not until
3 p.m. that Van Horn telephoned Steptoe and informed
Steptoe that the Union was "willing" to negotiate Re-
spondent's decision to subcontract and the effects thereof
upon employees. Steptoe reminded him of the deadline
and stated that he would communicate with Respondent
to determine whether there had been any communication
between Respondent and Columbus. At 3:45 p.m. Step-
toe communicated by telephone with Greer and inquired
whether an oral agreement had been reached with Co-
lumbus. He was told that an agreement was reached
upon the June 30 proposal. Steptoe inquired as to wheth-
er that agreement was binding or whether there were
any "loose ends" left open. Greer responded that he felt
the agreement to constitute a binding and moral obliga-
tion. Greer testified:
[T]he way we try to do business at Salem is you
know, once we give our word, our word is our
own word and on July 7th, we committed ourselves
to a contract with Columbus Services. -After we
had made a good-faith commitment, [to rescind that
commitment] was no longer a viable option because
we had committed ourselves in a good faith way.
Steptoe thereafter telephoned Van Horn about 4 p.m. on
July 7 and informed him that Respondent had committed
itself to a subcontract with Columbus. He told Van Horn
that Columbus would proceed to send job recruiters to
Salem the next day and that the Union ought to send the
unit employees to apply for jobs. Van Horn stated that
the employees did not desire employment with Colum-
bus. According to Steptoe's more coherent and certain
testimony which I credit, he asked Van Horn whether
the Union desired to make arrangements for meetings
that week for the purpose of negotiating the effects of
subcontracting, but that Van Horn indicated that he
could not because commitments required his presence
elsewhere that week but that Steptoe should write him
concerning such dates. According to Van Horn, he
asked Steptoe for any "relevant documents pertaining to
the subcontracting between Salem College and Colum-
bus." Steptoe recalled the request as occurring during
the first conversation with Van Horn on July 7. I credit
his testimony as the more certain and reliable.
Thereafter, Respondent refused to negotiate the basic
decision to subcontract unit work but offered to negoti-
ate concerning the effects of subcontracting. Some of the
former employees applied for jobs with Columbus. All
who applied were accepted by Columbus. Some former
unit employees who were offered employment by Co-
lumbus rejected such offers.
E. Subsequent Events
By letter to Steptoe dated July 7, Van Horn again reit-
erated the Union's desire to negotiate the decision and
effects of subcontracting unit work and concluded, "but
before we do so, we would like to have a copy of all
relevant documents." By letter to Van Horn dated July
8, but prior to receipt of the above letter, Steptoe, inter
alia, confirmed Respondent's refusal to further discuss
the decision to subcontract but invited negotiations as to
the effects of the decision to subcontract. He closed by
requesting contact at the "earliest convenience." On July
9, Steptoe received Van Horn's July 7 letter. Steptoe tes-
tified that he did not know what Van Horn meant by the
reference to "relevant documents," and that he intended
to obtain clarification at the next negotiation session. On
July 10, Steptoe wrote to Van Horn and suggested that
Van Horn contact him upon Van Horn's return from a
vacation in order to schedule a bargaining session. On
July 15, Steptoe wrote to Van Horn and suggested a
meeting to discuss the effects of subcontracting on
August 5 and requested confirmation of Van Horn's
availability. That letter was never received by Van Horn
who testified that although he received the July 10 letter
he had no recollection of responding to it. Steptoe, fear-
ing that a protracted trial elsewhere might preclude his
availability on August 5, attempted to communicate with
Van Horn's office and ascertained that his letter of July
15 was not received. On August 5, Steptoe telephoned
Van Horn and asked whether they could negotiate on
August 7, but Van Horn said he would not be available.
Steptoe requested Van Horn to contact him as soon as
possible as to when Van Horn might be available. In
view of Van Horn's unreliability as a witness noted
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, I credit Steptoe's testimony that Van Horn made
no reference to requested documents. For the same rea-
sons I credit Steptoe's testimony that Van Horn did not
telephone him and engage in a conversation on August
15, or any other time in August. On September 18, con-
versation on August 15, or any other time in August. On
September 18, Van Horn telephoned Steptoe's office and
in his absence left a message to return the call, but upon
Steptoe's return to the office Van Horn was no longer
available.
On October 1, Steptoe and Van Horn engaged in a
telephone conversation. It is not clear who initiated the
call. An agreement was reached to meet on October 14.
A reference was made by Van Horn to "relevant docu-
ments," and explained as "anything that pertains to
Salem College, the subcontracting of Salem College and
Columbus." Steptoe testified that he was not satisfied
with that explanation but that he decided to defer a clari-
fication request until the next meeting.
The meeting set for October 14 was canceled by Step-
toe on the morning of October 14. Steptoe testified that
he canceled the meeting because of a change in the posi-
tion of the Regional Director regarding settlement of the
unfair labor practice charge, i.e., a status quo ante
remedy was now demanded as a condition of settlement.
Stam and Greer were informed by Steptoe of the Re-
gional Office's position on October 13 and requested that
he meet with them to discuss the Region's position. Ac-
cordingly, Steptoe cancelled the October 14 meeting
with Van Horn in order to visit with Stam and Greer
with respect to the Regional Director's position regard-
ing settlement. Steptoe and Van Horn tentatively agreed
to meet on October 17 or October 24. Respondent's prin-
cipal agents were unable to meet on October 17 or Octo-
ber 24, and ultimately the parties met next on November
21.
At the meeting of November 21, Van Horn was pres-
ent without Peluso and acted as spokesman. Van Horn
made several requests. Van Horn asked the duration of
the subcontract. He also asked for a signed copy which
Steptoe agreed to provide and which was forwarded
within 24 hours. Van Horn inquired as to the number of
employees Columbus employed at Respondent's facilities
and their hourly rate of pay. Steptoe deferred. Steptoe
testified that he desired to first obtain approval from Co-
lumbus before releasing the information. He subsequently
did so during a caucus but Columbus requested that the
information not be disclosed and Steptoe did not disclose
it to the Union. Van Horn asked whether Respondent's
last collective-bargaining agreement was "still on the
table." Steptoe replied that it was not as it had been re-
jected and the subcontracting decision was made thereaf-
ter. Van Horn inquired as to what the "effect" would be
if the "striking" unit employees offered to return to
work, i.e., whether they would be employed by Re-
spondent or Columbus. For reasons previously stated, I
find Steptoe the more reliable witness. Accordingly, I
credit his testimony that Van Horn was asked whether
he was making an offer on behalf of unit employees to
return to work whereupon Van Horn said he was not.
Steptoe then responded that the question was hypotheti-
cal and could not be answered "off the top of my head."
Steptoe asked Van Horn if he were ready to proceed to
negotiate with respect to the effects of the subcontract-
ing and Van Horn replied that he was not, but preferred
to wait until he received a copy of the executed subcon-
tract. Steptoe asked Van Horn whether there was any
other "information or documentation" that he needed
before the next meeting, but no specific request was
made. Steptoe suggested that Van Horn discuss with
Peluso a future date for bargaining and that Van Horn
contact Steptoe later. Van Horn agreed.
On November 25, Steptoe forwarded with a covering
letter to Van Horn the requested copy of the executed
contract.
Prior to the November 21 meeting, Respondent had
been in receipt of a letter dated October 20 addressed to
Greer from Columbus which set forth therein informa-
tion, including the total number of employees employed
by Columbus at Salem, the information that Columbus
needed no additional employees, an enumeration of
former unit employees who applied for jobs with Colum-
bus, including six employees hired as strike replacements,
information that indirect inquiries for employment were
made on behalf of former unit employees, the manner in
which Columbus solicited job applicants, i.e., news
media advertisements, state employment agencies, a ter-
mination letter from Respondent to employees showing
that Columbus was accepting employment applications,
and the information that Columbus did not attempt to
contact any former unit employee. Steptoe testified that
he did not consider the October 20 letter to constitute a
"relevant document." He testified:
I really didn't understand precisely what the Union
was looking for when it said "relevant." That's why
I wanted a meeting so I could sound them out on
the point and so they could tell me specifically
what they were looking for.
Van Horn in a letter dated December 2, addressed to
Steptoe, stated:
Please advise Mr. Mike Greer and Mr. Ted Gate-
man that the Teamsters Local Union No. 789 ac-
cepts the last final offer made by Salem College and
will sign a contract between Salem College and
Teamsters Local Union No. 789.
Also be advised that upon acceptance by Salem
College, the employees on strike will return to
work immediately.
By letter dated December 9, Steptoe responded to Van
Horn and summarized the discussion of the November 21
meeting concerning the inquiry as to Respondent's last
contract offer, and again stated that Respondent's last
collective-bargaining agreement offer was "not on the
table." Steptoe concluded by stating that he was still
waiting for Van Horn's suggested future meeting dates
with respect to negotiations as to the effects of subcon-
tracting.
In a letter dated March 16, addressed to Steptoe, Van
Horn stated:
334
SALEM COLLEGE
Please be advised that the employees on strike at
Salem College are willing to return to work for
Salem College at their prevailing wage rate.
The Local Union would like to return to the bar-
gaining table as soon as possible in hopes that we
can clear up this situation.
If you have any questions, please contact this
writer.
Steptoe testified that he had "problems" with the phrase
therein, "prevailing wage rates," but intended to raise it
at the next negotiation meeting. The March 16, 1981,
letter led to a telephone conversation between Steptoe
and Van Horn wherein they agreed to return to the bar-
gaining table on April 16, 1981. On April 13, 1981, Van
Horn telephoned Steptoe and canceled the meeting and
merely explained he had "problems." Steptoe stated that
Respondent was willing and available to meet with the
Union. However, Van Horn declined to meet further.
Van Horn testified that the former unit employees re-
mained on strike thereafter.
F. Respondent's Motivation
It is conceded that Respondent was motivated by eco-
nomic and business reasons with respect to its decision to
subcontract unit work. As to Respondent's reasons for
the timing of the decision to subcontract, the testimony
of Vice President Greer is uncontroverted and credible.
Greer testified that, had the Union asked for an extension
of time within which to request bargaining over the deci-
sion to subcontract, Respondent would have agreed to it.
However, he explained that his "clear impression" based
on two bargaining sessions was that the Union had no
desire to bargain about the decision to subcontract and
that Respondent was subjected to pressures to get its
campus cleaned up and repaired by mid-August for the
coming semester. During the strike Respondent resorted
to the use of volunteer students and five strike replace-
ments (four of whom were custodians) to supplement the
three nonstriking unit employees in order to maintain
minimal maintenance and custodial services. The student
body remained on campus until the first week of May.
There were 100 students on campus for the 2-week
summer "inter term." On the weekend of May 30, 700
accommodations were rented to high school bands for a
state festival. Thereafter, 150 accommodations were pro-
vided to church groups for a church camp from early
June to August 12. Additionally, Respondent's own bas-
ketball and football youth camps utilized the facilities.
The summer school session commenced June 15 as did
Respondent's "high school upper bound" program which
involved use of the campus buildings. A state square
dance festival occurred on the campus during the first
weekend in August. There were 110 students who uti-
lized the facilities for the varsity football program.
Concurrently, Respondent was obliged to repair and
paint the residence facilities, which were occupied and in
continuous use up to the end of June. Accordingly,
painting, plumbing, carpentry, and electrical repairs had
to be executed in a 6-week period from July 1 to August
15. One hundred and fifty dorm rooms needed painting
plus the corridors, at a rate of four or five rooms a day.
A 2-week startup period by Columbus was estimated.
Time was running out and Greer was under pressure to
get the campus in order at the time the Union was given
the July 7 deadline. Greer admitted that the 10 a.m.
deadline was arbitrary, but that it was set with the
knowledge that the campus had to be in fit condition by
August 15, and in the face of what he assumed was a
lack of union objection to such deadline. Greer testified
that the decision to adhere to the deadline and to make
the July 7 decision to subcontract irrevocable was based
upon Respondent's moral commitment to Columbus on
July 7 within the context of the mounting pressures to
clean up and repair the campus. He gave no considera-
tion to the possibility of hiring Columbus on a temporary
basis and solicited no information from Columbus as to
their desire to perfrom services on a temporary basis, or
as to the cost of such temporary services.
Analysis
Section 8(a)(5) and (1) of the Act obliges an employer
to notify and consult with the employees' exclusive bar-
gaining agent concerning changes in wages, hours and
conditions of employment. N.L.R.B. v. Benne Katz,
Alfred Finkel, and Murray Katz, d/b/a Williamsburg Steel
Products Company, 369 U.S. 736 (1962). That obligation
has been extended to an employer's decision to replace
employees by subcontracting bargaining unit work to an-
other employer. Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203 (1964).3 The bargaining concern-
ing the decision to subcontract unit work, of course, pre-
supposes good faith. The General Counsel argues that
Respondent herein did not engage in good-faith bargain-
ing because it entered negotiations with a fixed intent to
subcontract unit work regardless of the Union's bargain-
ing efforts to dissuade it from subcontracting, as is evi-
denced by dishonest representations in negotiations, by
the imposition of unreasonable deadlines that it was un-
willing to extend, by the negotiation of a final and com-
plete subcontract before meeting with the Union, and by
the withholding of information which was necessary and
relevant to negotiations over subcontracting.
The General Counsel contends that Respondent's rep-
resentations with respect to its administrative costs, and
supplies costs were misleading, if not false. Respondent
represented its estimate of administrative costs as 93 per-
cent of the direct labor cost. It based this calculation, not
on actual discernible administrative costs, but on the in-
direct cost rate Respondent was allowed to charge the
United States Department of Health, Education and Wel-
fare (DHEW) to administer Government grants and pro-
grams. Greer testified that the 93-percent rate charged
for such programs involving teaching programs was ana-
lagous to similar administrative overhead costs for the
maintenance department. The General Counsel correctly
observes that different factors are involved in teaching
programs than are involved in the maintenance of a
physical plant, i.e., maintenance costs are part of the
S An obligation to bargain may not exist, however, where an employer,
for economic reasons, decides to shut down a part of its business and thus
change the scope and direction of the enterprise. First National Mainte-
nance Corp.v. NLR.B., 425 U.S. 66 (1981).
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overhead of the education department but it is not appro-
priate to include maintenance costs as overhead for main-
tenance work. The General Counsel asks that, since
Greer had admitted in his testimony that Respondent's
auditors had prepared summaries for DHEW of the
actual costs of operating a physical plant department,
why did not Respondent rely on that underlying data the
July 3 negotiations. Accordingly, the General Counsel
argues that Respondent's position in bargaining with re-
spect to administrative costs evidences bad faith.
Clearly, there are administrative costs involved in
maintaining a maintenance department. That is not ques-
tioned. Certainly, Respondent utilized an imperfect anal-
ogy when it relied on a 93-percent administrative over-
head factor. However, Respondent did not represent to
the Union that 93-percent factor was computed by an
actual study of the maintenance department exclusively.
It clearly identified the basis for the 93-percent factor.
The Union speedily evaluated that factor as being exces-
sive and called it a "phantom" figure. Respondent in re-
sponse explained that, even if the total administrative
costs of the maintenance department were not consid-
ered, the subcontract saved enough money in supervi-
sors' salaries to make it more economical than would be
the retention of unit work at the labor costs entailed in
the collective-bargaining agreement. The Union did not
challenge that assertion. Respondent did not produce un-
derlying cost data on administrative costs because the
Union did not request production of it and because the
Union offered no challenge to Respondent's assertion of
economic benefits notwithstanding the discounting of the
93-percent asserted weekend factor. Furthermore, Re-
spondent enumerated a wide range of noneconomic ad-
vantages of subcontracting which the Union did not
challenge.
With respect to the $130,000 cost of materials estimate
cited by Respondent in negotiations, the General Coun-
sel premises his argument of misrepresentation upon testi-
mony of Greer elicited by Respondent for the purpose of
demonstrating prospective costs that might be incurred
in the event a status quo ante order would be rendered
by the Board. Greer testified that incidental to a restora-
tion of the unit work would be the costs of $20,000 for
cleaning supplies, custodial waxes, cleaners, paper prod-
ucts, lights, carpentry, plumbing, and electrical supplies;
$7,500 for a floor buffer and six lawn mowers; and
$40,000 for a bus. These costs are far below the $130,000
figure stated in negotiations by Steptoe. However, it is
not clear from the record that these costs comprised the
total cost of supplies for the first year of subcontracting,
or that they were part of the total supply cost, or an ad-
dition to the normal cost of supplies. The record indi-
cates that extensive painting, plumbing, electrical, and
carpentry costs were necessary for the maintenance of
the dormitories during the summer of 1980. These costs
are not encompassed within the costs described by Greer
in his testimony concerning the expenses that might be
caused by a restoration of unit work. Thus, I cannot find
that Respondent's citation of a $130,000 costs of supplies
was false or misleading. The Union did not challenge or
question that figure when it was presented with it on
July 3. 4
The General Counsel argues that Respondent misrep-
resented to the Union the status of its negotiations with
Columbus, particularly on June 30 by indicating that the
"price" and "remaining details" were subjects to be dis-
cussed further. However, a review of the entire discus-
sion of June 30 and July 3 reveals that the Union was
apprised that Respondent viewed with some urgency the
need to clean up its facilities and that it was well down
the road with respect to obtaining a final offer by Co-
lumbus. In the meeting of July 3, the Union was present-
ed with citations of costs and comparative costs. Thus,
Respondent did not mislead the Union by suggesting that
an agreement to subcontract was remote in time or prob-
ability. Steptoe took pains to explain to the Union that
no irrevocable decision to subcontract had been made
and that Respondent was receptive to countervailing ar-
guments. Thus he used such terminology as "the possibil-
ity of subcontracting." However, I conclude that there
was no effort to mislead the Union as to Respondent's
strong inclination to enter a subcontract and of its desire
to make a decision to either subcontract or retain unit
work quickly.
The General Counsel argues that the note of urgency
as expressed by Steptoe in negotiations, i.e., "let's move
it, we have a campus to clean up," evidences an overall
attitude of bad faith. I do not agree. Respondent's desire
for expedition was understandable and justifiable. After a
lengthy period of negotiating with the Union during
which time there is no contention that it bargained in
bad faith, no contractual agreement had been reached. A
crisis was imminent. The Union surely must have been
aware that the fall term was imminent. I cannot conclude
that under these circumstances the request for expedition
in negotiations revealed bad faith.
With respect to the contention that Respondent im-
posed an unreasonable deadline upon the Union, I am
unpersuaded by the General Counsel's argument. There
was justification for expedition in negotiations. It is un-
derstandable that Respondent desired to reach a resolu-
tion quickly. The Union was notified that Respondent
was entertaining a decision to subcontract sometime be-
tween June 16 and June 20. A meeting was called in
consequence of that notification. A union that has had
notice of an employer's proposed change in a term or
condition of employment must timely request and dili-
gently pursue bargaining if it wishes to preserve its right
to bargain on that subject. American Buslines, Inc., 164
NLRB 1055 (1967); City Hospital of East Liverpool, Ohio,
234 NLRB 58 (1977).
From the first notification to the conclusion of the
July 3 negotiation session, the Union revealed that it did
not desire to negotiate the matter of subcontracting but
rather wished to pursue collective-bargaining negotia-
tions divorced from the subcontracting issue. It sought
no opportunity to propose alternative solutions aside
from a slight modification of its wage proposal which
I It is noted that Columbus' estimate of Respondent's costs for materi-
als and supplies for the 1979-80 year were $126,000 which obviously is
quite close to the $S130,000 estimate for 1980-81.
336
SALEM COLLEGE
had little impact on the economic attractions to subcon-
tracting and no impact on the noneconomic advantages
to be accrued from outside maintenance service. The
deadline was not imposed as an ultimatum. It was,
rather, an offer of one final opportunity to negotiate
before the decision to subcontract became irrevocable.
The union negotiators mutely acquiesced in that dead-
line. Peluso's cryptic assertion that a union attorney
might disagree with his lack of desire to negotiate the
subcontracting of unit work falls far short of a demand
for further negotiations. Indeed, the final word on July 3
from Van Horn indicated a strong aversion to such fur-
ther bargaining. Thus there was no request to Respond-
ent to hold open its decision beyond the proffered time.
There was no acceptance of Steptoe's offer to negotiate
throughout the weekend. The meeting of July 3 itself
ended on Peluso's announced intent to go on a vacation
on Monday, July 7, and on his apparent jocular reference
to the unpleasant future visit by some of his "Teamster
buddies" to the campus. It was only after Van Horn re-
turned from a 3-day horse show that he apparently had
some second thoughts and telephoned an attorney and
thereafter informed Steptoe that the Union was "willing"
to negotiate the decision to subcontract.
Based on the facts of this case, I cannot conclude that
the Union was provided with an inadequate opportunity
to bargain by the imposition of an unreasonable deadline.
Furthermore, I do not conclude that Respondent's refus-
al to negotiate the subcontracting decision after 10 a.m.,
July 7, breached its bargaining obligations. I conclude
that the Union had been provided an adequate opportu-
nity and had by its statements at the bargaining table re-
jected that opportunity. I conclude that Respondent did
not act arbitrarily or in bad faith by adhering to a dead-
line which was implicitly agreed to by the Union. I con-
clude that Greer's explanation for adhering to an oral
commitment to Columbus within the context of a need to
expedite campus maintenance and an expressed disinter-
est in bargaining by the Union does not manifest bad
faith.
I cannot substitute my business judgment for that of
Respondent's business judgment in order to conclude
that Respondent should have or could have entered into
a temporary contract with Columbus, or that it should
have hired more strike replacements while continuing
with the contract negotiations. It is conceded that Re-
spondent entered into a subcontract for economic rea-
sons. I have no evidence before me on which to con-
clude that a temporary contract would have been availa-
ble at the same advantageous rates. Finally, I cannot
view with the same skepticism, as expressed by the Gen-
eral Counsel, Greer's testimony that Respondent con-
ducts its business in a manner by which it abides by its
word. There is no evidence herein to the contrary, and
such concepts of "moral" behavior are not inherently un-
believable.
The General Counsel argues that Respondent could
have subcontracted for a temporary period of time, or
could have hired replacements, or could have slowly
phased out unit work. The General Counsel is correct.
However, one of the things Respondent could and did
do was to subcontract its unit work for nondiscrimina-
tory reasons after having given the Union an adequate
notice and opportunity to bargain over the decision to
subcontract.
The General Counsel contends that Respondent's fixed
intent to subcontract unit work regardless of the bargain-
ing position of the Union is evidenced by the negotia-
tions of a complete subcontracting agreement with Co-
lumbus before it had met with the Union. The General
Counsel cites the Board's decision in ABC Trans-National
Transport, Inc., 247 NLRB 240 (1980), wherein the
Board adopted Administrative Law Judge Julius Cohn's
Decision wherein Administrative Law Judge Cohn held
that an employer who gave a union only a few days'
notice of a decision to subcontract that had already been
made had not afforded the union with "the opportunity
to bargain during the critical time when such bargaining
perhaps could have been productive, that is, the period
when the decision was being considered and about to be
made." (247 NLRB at 242) The General Counsel also
cites the language of Administrative Law Judge Thomas
S. Wilson in Edward Axel Roffman Associates. Inc., 147
NLRB 717, 723 (1964), who in analyzing Town & Coun-
try Manufacturing Company, Inc., 136 NLRB 1022, deci-
sion stated "if such bargaining is to be of any value, such
negotiations should antedate any final determination by
Respondent .. ." and "If then the notification and nego-
tiation with the Union . . . is to be more than a perfunc-
tory gesture, it would seem necessary for Respondent to
have opened negotiations . . . [at the time when it con-
sidered the change to have become highly practicable] or
at least before Respondent became irretrievably commit-
ted to the move .... " The Board adopted the Adminis-
trative Law Judge's ultimate decision but did not adopt
his analysis of the Town & Country decision.
More particularly, the General Counsel relies on the
recent decision of the Board in Roman Catholic Diocese
of Brooklyn, Henry M. Hald Association, Bishop Ford Cen-
tral Catholic High School, 236 NLRB 1, 23-24 (1978),
which he argues parallels the facts of this case. That
case, however, dealt with the closing of a school. The
factual situation therein is complex. However, in that
case it was held that the respondent did not afford the
union with sufficient time to prepare an effective propos-
al and to bargain in a meaningful manner. The union
therein had demanded negotiations, had made numerous
proposals, had requested specific information, and had
raised numerous questions concerning the respondent's
position. The initial proposal for the takeover of a school
by the Bishop Ford's parents group had been prepared
by the active participation of the Diocese. Revisions
were subsequently made as a result of the efforts of the
parents group and the Diocese. The union was given
first notification after the proposal had been made and
after the Diocese had contributed to its structure and re-
visions had resulted. After bargaining with the union
commenced, the union was only provided with portions
of the proposal. In that case it was held that the Diocese
was not justified in withholding the proposal from the
union because at the time that it did so it could have rea-
sonably anticipated that the proposal would be found ac-
ceptable. Additionally, in that case the respondent de-
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layed submission to the union of specific financial infor-
mation which it had requested, to the point in time when
the union was faced with a fait accompli. The Diocese
imposed a deadline for bargaining to which the union fu-
tilely sought to extend.
The facts of the instant case are substantially distin-
guishable. The Columbus proposal of May 28 was not
the product of joint efforts of Respondent and Colum-
bus. Rather, Respondent was faced with a proposal en-
compassed within a sales promotion effort by Columbus.
Though Respondent after reviewing the proposal may
have been strongly attracted to the subcontract, I cannot
conclude that Respondent had reached a point prior to
notification to the Union, i.e., the week of June 16-20,
where it had concluded that the Columbus proposal was
satisfactory and acceptable in all aspects, nor that it
became irretrievably committed to subcontracting prior
to bargaining. Columbus' final cost figure and commit-
ment to fixed cost prices for a 3-year period was not ten-
dered until June 30. Respondent was able to present to
the Union the exact options in terms of costs which were
presented to it. I cannot conclude that Respondent
became irretrievably committed to the subcontract at the
time it presented the Union with an opportunity to nego-
tiate. It did not withhold from the Union specific infor-
mation which the Union had requested. It did not with-
hold the complete subcontract proposal as the General
Counsel suggests. The Union's request for "correspond-
ence" was vague, ambiguous, and not pursued. The
Union was advised that Columbus had made preliminary
studies but it made no demand for these studies. The
Union made no demand of Respondent to set forth rea-
sons why Respondent considered improvement in service
necessary or useful. It sought no further explication or
documentation of Steptoe's oral exposition of nonecono-
mic reasons for subcontracting. It requested no financial
data concerning supply and overhead costs. It asked for
no extention of time to negotiate until after Respondent
committed itself to an agreement with Columbus. That
came after the expiration of a deadline to which the
Union had acquiesced and the consequences of which it
was well aware. In fact, the Union did not express a seri-
ous desire to challenge or even discuss the subcontract-
ing decision. Under these circumstances, Respondent's
failure to tender the entire Columbus feasibility study as
"correspondence" cannot be found to constitute evidence
of an intention to hinder or impair the Union's ability to
negotiate, nor of an intention to refuse to enter into open
and meaningful bargaining.
In view of the foregoing analysis, I conclude that the
General Counsel's reliance on the Roman Catholic Dio-
cease of Brooklyn case is misplaced. I conclude that de-
spite the status of the Columbus offer, the evidence re-
veals that Respondent had not effectuated afait accompli
and had not irrevocably decided to subcontract unit
work during the time when it offered to negotiate with
the Union.
5 Compare U. S. Contractors Inc., and the Doro Chemical Company.,
US.A., Texas Division, 257 NLRB 1180 (1981).
Delay and Refusal To Provide Relevant
Information
A failure to furnish to the employees' designated bar-
gaining agent requested information which is relevant to
the negotiation or administration of a collective-bargain-
ing agreement or of use in carrying out its statutory
duties and responsibilities may constitute a breach of an
employer's good-faith bargaining obligations under the
Act. Detroit Edison Company v. N.L.R.B., 440 U.S. 301,
303 (1979); N.L.R.B. v. Acme Industrial Co., 385 U.S.
432, 435-436 (1967); N.L.R.B. v. Truitt Mfg. Co., 351
U.S. 149, 152 (1956). Information concerning terms and
conditions of employment within the bargaining unit is
presumptively relevant and no specific showing of rel-
evance is required, but as to areas outside the unit a
more restrictive standard of relevance is applied. Ohio
Power Co., 216 NLRB 987, 991 (1975) (which involved
the subcontracting of work performable by employees
within the appropriate unit). In Connecticut Light and
Power Company, 229 NLRB 1032 (1977), a request was
made for detailed information concerning the subcon-
tracting of work. In that case it was stated by the Ad-
ministrative Law Judge whose Decision was adopted by
the Board:
The issue of relevancy here must . . . be deter-
mined in the entire context of the Unions' request
and the measure of the Respondent's compliance
under all of the circumstances attending the dispute.
In this case the Union requested, as the June 30 meet-
ing was ending, copies of all correspondence between
Respondent and Columbus. It asked for no specific data.
It requested no information as to the preliminary studies
that Steptoe informed them had been conducted by Co-
lumbus. Respondent did not thereafter provide the Union
with the feasibility study which it did not consider to be
"correspondence." The General Counsel argues that Re-
spondent breached its bargaining obligation by failing to
provide the Union with a copy of the May 28 feasibility
study which it contends contains information which
would have been relevant and useful to the Union with
respect to the negotiation of the decision to subcontract
unit work. It is therefore the substance of the feasibility
study that the General Counsel argues is relevant and
useful, not the study itself, or as a piece of correspond-
ence. The General Counsel argues that Respondent re-
fused to disclose the feasibility study because it wished to
deprive the Union of bargaining ammunition, i.e., the in-
formation disclosed therein. The information contained
in that study, however, is not of such an esoteric nature
that its existence would not have occurred to a reason-
ably diligent bargaining agent. Thus the reasons of dissat-
isfaction with unit work, the noneconomic advantages to
subcontracting, and the underlying financial data sup-
porting the conclusions of economic advantages consti-
tute information which the Union could easily have ex-
plicitly requested had it earnestly desired to engage in
bargaining. The General Counsel sets forth several
cogent arguments why such information might have
been useful to the Union. However, I conclude that the
338
SALEM COLLEGE
Union's unresurrected request of June 30 for correspond-
ence was abandoned by it during the July 3 bargaining
session as it was jettisoned by the Union along with any
real desire to negotiate the subcontracting decision. It is
recalled that during that meeting Steptoe discussed both
economic and noneconomic reasons for subcontracting
such as Columbus' reputation as a subcontractor and its
method of operation. The Union made no request for
any underlying data or information upon which Steptoe
based his arguments.
The General Counsel correctly urges that a union
need not repeat a request for relevant information to
which it is entitled. De Palma Printing Co., 204 NLRB
31, 33 (1973). However, I conclude that the circum-
stances of Respondent's failure to comply with the
Union's request herein, i.e., a generalized request quickly
followed by a manifestation of a lack of desire to pursue
negotiations, are so mitigating as to preclude a finding
that it breached its bargaining obligations by failing to
produce the entire feasibility study prior to July 7.
The General Counsel argues that Respondent failed to
supply the feasibility study to the Union subsequent to
the July 7 union request for "relevant" documents. As I
have concluded that Respondent satisfied its obligation
to provide the Union with an adequate opportunity to
bargain concerning its decision to subcontract unit work
prior to July 7, I conclude that Respondent was not
obliged to negotiate further concerning the decision to
subcontract. There is no allegation that Respondent re-
fused to bargain concerning the effects of subcontracting
unit work. Indeed, the Union's conduct thereafter indi-
cates little desire to negotiate the effects of subcontract-
ing, although a formal request was made by the Union to
negotiate the decision and effects of subcontracting.
Rather, it appears that the Union clung to the position
that the parties were still in negotiations for a collective-
bargaining agreement and that the unit employees re-
mained strikers. The request for "relevant documents"
seem to have been directed to the issue of the subcon-
tracting decision. The feasibility study is relevant to that
issue, and not clearly relevant to negotiations as to the
effects of subcontracting. I conclude that Steptoe's con-
duct in deferring a request for clarification is justified in
the circumstances of this case, particularly when the
Union did not indicate the nature of information that it
desired and when it became increasingly doubtful that
the Union wanted to discuss the effects of subcontracting
as evidenced by long periods of unavailability. The Gen-
eral Counsel does not argue that the Union was entitled
to information concerning, inter alia, Columbus wage
scales, nor the letter from Columbus concerning the
hiring of its employees at Salem. That information does
not appear relevant either to the effects of subcontract-
ing or the decision to subcontract. Accordingly, I con-
clude that Respondent did not breach its bargaining obli-
gations by withholding information relevant to negotia-
tions concerning the effects of subcontracting after July
7.
For the foregoing reasons, I conclude that Respondent
has not violated the Act as alleged in the complaint as
amended, and I hereby issue the following recommend-
ed:
ORDER 6
The complaint is dismissed in its entirety.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
339