Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Oct 10, 1968

173 N.L.R.B. 172 (N.L.R.B. 1968)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwestern Bell Telephone Company and Commu-
nications Workers of America, AFL-CIO, and its
Local 6504. Case 26-CA-2594
October 10, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND ZAGORIA
On January 30, 1968, Trial Examiner James T.
Barker issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent and the Charging Party filed exceptions and
supporting briefs, and the Respondent also filed an
answering brief. I
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's
Decision, and the exceptions and the briefs, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent
consistent herewith.
The facts are largely undisputed. As more fully set
forth in the Trial Examiner's Decision, the Respond-
ent and the Union have maintained a collective-
bargaining relationship since 1947. For years, the
Respondent has contracted out work from time to
time, while the Union has attempted, without success,
to obtain a contract provision limiting the Respond-
ent's right to do so, and has filed numerous grievances
protesting the contracting out of unit work.
The instant grievances arose as a result of the
Respondent's contracting out work on two projects
which had been completed when the Union learned of
them. The Union based its grievances on articles I, III,
and XIV of the agreement between the parties,2 and
asked the Respondent to provide it with certain
specific information concerning the subcontracting.
The Respondent met with the Union and furnished all
the information requested by the Union except that
relating to the cost of the subcontracting to the
Respondent, and what such cost would have been had
the work been performed, instead, by the Respond-
ent's own employees. The Respondent maintained,
as it did in all the discussions with the Union and
throughout this proceeding, that such information
was not relevant to the grievances, based as they were
on articles I, III , and XIV. The Respondent further
advised the Union that the subcontracting had been
done because its employees were too busy and could
not handle the work, and not on the basis of cost, and
the information sought had not been compiled and
was not readily available. The parties processed the
grievances as to both projects through all the steps of
the contractual grievance procedure, but the Union
did not take them to arbitration. After the time for
seeking arbitration expired under the terms of the
agreement between the parties, the Union filed the
charges in the instant case.
The Trial Examiner concluded that under the
"standard of relevancy" of Acme,3 the requested cost
information pertaining to subcontracting of unit work
was broadly relevant to the Union's representation
function. Therefore he found that the Respondent,
by refusing to furnish the Union with such informa-
tion, violated Section 8(a)(5) and (1) of the Act. We
do not agree.
It has been long established by court and Board
decisions that certain information is presumptively
relevant because it bears directly on the negotiation
or general administration of the collective-bargaining
agreement. Other information, not so obviously re-
lated to the Union's bargaining or contract adminis-
tration or grievance responsibilities, may or may not
be relevant, depending on the circumstances? In our
opinion the relevance of the information requested
has not been established herein.
Thus, the record herein shows, as noted above, that
the Union requested cost information solely for the
purpose of processing specific grievances alleging that
the subcontracting violated certain specified Articles
of the collective-bargaining agreement between the
parties. These pertained to recognition of the Union
as bargaining representative of unit employees, wages
to be paid such employees for unit work, and a
prohibition against strikes protesting the subcontract-
ing of certain kinds of work not involved in the
instant case. At no time during the grievance discus-
sions did the Respondent claim that cost was a factor,
nor did the Union explain how cost was relevant to its
preparation or presentation of the grievances in
question. Nor do we see any probability of relevance,
I The Respondent 's request for oral argument is hereby denied as, in
our opinion, the record , including the exceptions and briefs, adequately
presents the issues and the positions of the parties.
2 Article I provides for the Union 's recognition by the Respondent
Article III refers to wages which the Respondent must pay its own
employees , when they are performing unit work . Article XIV contains
an agreement by the Union not to strike when contracting out certain
types of work not involved herein.
173 NLRB No. 29
3 N.L.R.B. v Acme Industrial Co., 385 U.S. 432.
4 See , e.g., Curtiss- Wright Aeronautical Corp., Wright Aeronautical
Division v. N.L.R.B., 347 F.2d 61 (C.A. 3), enfg 145 NLRB 152,
Sylvania Electric Products, Inc v. N.L.R.B., 358 F.2d 591 (C.A. 1),
enfg. 154 NLRB 1756, cert . denied 385 U.S. 852 , Avco Manufacturing
Company, 111 NLRB 729.
SOUTHWESTERN BELL TELEPHONE CO. 173
as none of the Articles on which the grievances were
based refer to cost.5 Cost was not asserted as a reason
for subcontracting, and it would thus appear that the
detailed information requested by the Union would
not have made the subcontracting any more or less
permissible. Under all the foregoing circumstances,6
we find that the Respondent's obligation to furnish
the Union with the cost information requested has
not been established and, accordingly, we shall
dismiss the complaint in its entirety.?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
5 We note that Heiser, the Union's grievance representative, con-
tended during the course of the grievance discussions that the
subcontracting was violative of the collective -bargaining agreement,
whether nonumt employees performed the work at a greater or lesser
wage than that provided for in the collective -bargaining agreement.
6 This is not a case where information requested was presumptively,
or shown to be, necessary to enable the Union to fulfill its duties as
collective -bargaining representative , to negotiate a new agreement or to
police and administer the existing collective -bargaining agreement
Further the record does not show that the subcontracting resulted in
loss of earnings or working time by unit employees
7 In view of our finding that the requested cost figures were not
shown to be relevant to the purpose claimed by the Union , we deem it
unnecessary to decide whether , as contended by the Union , cost was a
factor in the decision by the Respondent to contract out the work.
Missouri corporation qualified to do business in the State of
Arkansas. At all times relevant it has maintained a place of
business at Little Rock, Arkansas, where it is engaged in the
business of furnishing telephone service as a communications
common carrier which operates under the Federal Communica-
tions Act throughout the States of Arkansas, Kansas, Missouri,
Texas and a portion of Illinois, with interstate communications
service by wire and radio.
During the 12-month period immediately preceding the
issuance of the complaint herein the Respondent, in the course
and conduct of its business operations as an interstate
communications service, received gross revenues in excess of
$250,000 in each of the above-named States
Additionally, during the 12-month period immediately
preceding the issuance of the complaint herein, Respondent in
the course and conduct of its business operations, purchased
and received at its Arkansas location, supplies and services
having a value in excess of $50,000 directly from points
located in States of the United States other than the State of
Arkansas.
Upon these admitted facts I find that Respondent has been
at all times material an employer engaged in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, and its
Local 6504, is admitted to be a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner Upon a charge filed on
November 4, 1966, by Communications Workers of America,
AFL-CIO, and its Local 6504, hereinafter called the Union,
the Regional Director of the National Labor Relations Board
for Region 26, on June 13, 1967, issued a complaint and
notice of hearing alleging violations of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, hereinafter
called the Act.
Pursuant to notice a hearing was held before me at Little
Rock, Arkansas, on September 14 and 15, 1967. All parties
were represented at the hearing, and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument and to file briefs with me. Briefs were
filed with me on October 31, 1967.
Upon the entire record of the case and upon my observation
of the witnesses, and after due consideration of the briefs filed
with me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Southwestern Bell Telephone Company, hereinafter called
the Respondent, has been at all times material herein a
A. The Issues
The principal issue in this proceeding is whether certain cost
information sought by the Union from the Respondent was
relevant and necessary to the processing of two grievances filed
by the Union pursuant to grievance procedures established by
the terms of the collective-bargaining agreement between it
and the Respondent. Additionally, there exists a threshold
question whether the proceedings are barred by the 6-month
limitations provision of Section 10(b) of the Act and a
derivative question of an appropriate remedy should a viola-
tion of Section 8(a)(5) and (1) of the Act be found.
B. The Alleged Unlawful Conduct
1. Background facts
a. The work of the plant department
The four principal operating departments of the Respondent
are the plant, traffic, commercial, and accounting departments
The operations of the plant department, the department
pertinent to this proceeding, encompasses the construction,
maintenance and removal of physical facilities, including wire
and cable, used by Respondent in providing telephone service
to the public.
The composite testimony of record establishes that tele-
phone service is installed by connecting a pair of wires-called
"a pair" in telephone parlance-from the instrument on the
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customer's premises through existing cables and open wire
facilities to the Respondent's central office. Further, by means
of switching equipment, the customer's telephone can be
interconnected to all other telephones in the network when
this interconnection is actuated by the customer dialing his
telephone. It is the responsibility of plant department person-
nel to maintain detailed records showing where pairs can be
connected at terminals throughout a given community. As a
prelude to installing a pair to be used at a terminal location
where it is to be connected, the pair is assigned on a service
order from records maintained by Respondent's test center
personnel.' This service order information is, in turn, used by
the installer as a guide in performing the actual installation
work.
b The contracting out
In September 1965 the Respondent contracted with a
private concern, Frank Horton & Company for the preparation
of rural open wire records for use in Respondents Grady and
Altheimer, Arkansas exchanges The Horton Company com-
pleted its work in connection with this assignment in early
1967.
During the latter part of 1965, the Respondent contracted
with Fred Luft, d/b/a Luft Construction Co. for the removal
of certain open wire facilities along the MacFadden Road in
Pine Bluff, Arkansas. Involved in this removal were 6,700 feet
of distribution wire, approximately 59,000 feet of iron wire
and some 30 cross arms which had become obsolete through
substitution of buried cable. The work was completed in late
1965.
The record establishes that with respect to neither the
Grady and Altheimer nor the Pine Bluff contracting was the
Union consulted or advised in advance.2
c. The collective-bargaining relationship
The Respondent has recognized the Union as the represen-
tative of its employees since 1947, and for 10 years prior
thereto recognized the Union's predecessor. The Respondent
and Union negotiate separate collective-bargaining agreements
for each of the four operating departments of the plant. The
employees in each of the operating departments constitute a
separate collective-bargaining unit covered by these individual
agreements. In addition, the parties have a general agreement
covering subject matter of general application to all of the
departments.
At all times material the Respondent and the Union were
parties to a 1963 plant agreement.3 This agreement made
provision for a three-step formal grievance procedure and
provision is made for resort to arbitration.
Delo Selig, Labor Relations supervisor in Respondent's
general personnel department, credibly testified that the
Company and the Union over the years have had bargaining
table discussion concerning Union proposals to limit company
freedom to subcontract. Many contract proposals have been
submitted by the Union designed to achieve this result but
have been rejected by the Company.
Article XIV of the 1963 plant agreement prohibits strikes or
lockouts because of the "allocation of work to contractors"
-work of a variety not here involved-when said allocation
does not involve the layoff or part-timing of regular employ-
ees. Article XIV first became a contractual provision on May
17, 1947 and evolved as a strike settlement provision ending a
long strike. Since 1947 the text of Article XIV has remained
unchanged.
Selig's credited testimony, supported by the plant agree-
ment, reveals that the plant agreement requires the Respond-
ent to furnish certain information to the Union on a variety
of subjects, but does not provide for submission of infor-
mation and data concerning subcontracting.
The evidence of record establishes that the Union has filed
many grievances with the Respondent involving the issue of
subcontracting. The parties have been involved in one unfair
labor practice proceeding pertaining to subcontracting.
d. The grievance procedure
Carl Heiser, president of Local 6504, credibly testified that
at all times material it was his responsibility to initiate
grievances filed on behalf of the members of the Local under
the terms of the plant agreement. Arrangements are then made
with the Company for a meeting to discuss the grievance. The
initial grievance level in Arkansas is the area level.4 If the
grievance is not resolved at the area level, Heiser decides
whether to proceed to the general level or to dismiss the
grievance. If he decides to proceed to the general level, he
advises the International and arranges a grievance meeting with
the Company. If the grievance is not resolved at this stage, a
decision is made whether or not to arbitrate the subject matter
of the grievance.
At this juncture it becomes Heiser's responsibility to make a
recommendation to his superior, Floyd Taylor, staff represen-
tative of the International. Heiser's recommendation is given
weight by Taylor, but is not conclusive and can be accepted by
Taylor after he has made his own evaluation of the merits of
the grievance and the likelihood of its successful prosecution.
The record evidence indicates that, it costs the Union an
average of $2,000 to carry a grievance to arbitration.
2. The grievances
a. The decision to contract out
Arthur Miller credibly testified that operating demands
rendered essential the preparation and compilation of a
completely new set of open wire records pertaining to the
Grady and Altheimer area. He further credibly testified that
the preparation of these records is essentially a production line
process and that the need for current records is continuing and
nondeferable. The maintenance of these records, essential to
the proper installation and maintenance of customer telephone
service, is normally performed by regular test center per-
sonnel on overtime, or, in times of stringent demand,
I Cable records are maintained for urban service and open wire
records for rural service.
2 As the charge herein was served on Respondent on November 4,
1966, all conduct prior to May 4, 1966, is considered merely for the
purpose of shedding light on conduct occurring subsequent to May 4,
1966, which may warrant a finding of unfair labor practices.
3 The 1963 plant agreement was superceded by a 3-year plant
agreement which became effective on February 5, 1967.
4 In other operating areas of the Company, the first level would be
the division level and the area level would be the second step in the
grievance procedure.
SOUTHWESTERN
with the additional help of station installers.5 At the time the
decision was made to prepare the Grady and Altheimer
records, the test center personnel were fully occupied in their
normal work tasks and were working on an order of 10 percent
overtime. Because of normal work demands, qualified installa-
tion personnel could neither be removed from essential daily
assignments nor borrowed from another exchange.
Because of the poor state of the records the productivity of
installers had been lagging and disruption and deterioration of
existing telephone service had resulted However, the demand
for new service had been mounting in the Grady-Altheimer
area and in order to meet this need and because timely
completion of the work was mandatory, the Company made
the decision to contract the work. According to the further
credited testimony of Miller, in the attendant circumstances,
cost was not a factor in the decision to contract the work. In
further amplification, Miller testified that qualified personnel
was not available to the Company for use in the project and that
because of the repetitive, production line nature of the work,
further overtime use of test center personnel would have been
erosive of their efficiency and physical capacity,and thus unwise.
Arthur Miller also credibly testified that the Pine Bluff
removal work was contracted out in keeping with an estab-
lished practice of contracting this type of work for reasons of
force management. He testified that there were insufficient
construction employees on the payroll to meet both the
demands for new customer facilities and the performance of
the removal work involving nonworking plant facilities Miller
further credibly testified that construction personnel had been
working overtime to meet the increased demands for new
facilities and thus management was faced with the choice of
deferring the dismantling work or contracting it out. He further
credibly testified that demands for wire as a source of raw
copper to be used in the manufacture of new cable, the
dangers of theft of the abandoned wire and considerations of
public safety dictated the decision to dismantle the unused
facilities. He credibly testified that cost was not a factor in the
decision to subcontract the work.
b. The grievances initiated
During January or early February 1966 representatives of
the Union became aware of the contracting out of work
involving preparation of records at the Grady and Altheimer
exchanges. Pursuant thereto, on February 14, Carl Heiser,
president of the Union, sent a letter to Respondent stating that
representatives of the Union had become aware of the
contracting out of work involving the preparation of new
records of the rural exchange plant facilities in the Grady and
Altheimer exchanges. Additionally, the letter contained nine
questions requesting information pertaining to the Grady and
Althermer contracts. Included were the following two ques-
tions designated numbers 5 and 6, respectively:
What is the cost of the contract to your company?
What would have been the cost of the work if it had been
performed by your own employees?
By letter of February 18, Respondent responded to the
Union's communication. The letter contained no statement of
5 Carl Heiser testified that estimate assigners normally performed
this type of work . Arthur Miller's testimony is convincingly to the
contrary and I credit Miller.
6 Article I is a recognition clause wherein the Union is accorded
recognition of bargaining agent for Plant Department employees
BELL TELEPHONE CO 175
company position but expressed willingness to meet with the
Union on March 11 to discuss the Grady and Althermer
matter. Thereafter on February 28, the Union filed a formal
grievance under grievance article XIX of the 1963 plant
agreement. In pertinent part the February 28 grievance
communication read as follows.
The preparation and maintenance of records of exchange
plant facilities, the field work necessary to prepare and
maintain these records and the numbering or re-numbering
of poles is work normally performed by Southwestern Bell
Telephone Co. employees in the Plant Unit represented by
the Union. The Union believes that this work should have
been assigned to these employees.
Contracting out work normally performed by employees
in the Plant Union violates the following Articles of the
1963 Plant Agreement.
1. Article I-Recognition and establishment of The Unit
2 Article III-Basis of Compensation.
3 Article XIV-Contract Work.
On February 28, Carl Heiser wrote to Respondent informing
Respondent of the Union 's awareness of the contract let by
Respondent for the removal of open wire plant in the Pine
Bluff exchange. In this letter, the Union posed the same nine
questions as were presented in the Union's February 14 letter
relating to the Grady and Altheimer matter.
On March 2 the Respondent replied to the Union's
February 28 letter relating to the Pine Bluff contract and
agreed to meet with representatives of the Union pertaining
thereto on March 16. No explanation of company position
with respect to the decision contract was set forth.
Thereafter, on March 24, the Union filed a formal grievance
relating to the Pine Bluff contract, asserting that the removal
of open wire plant was work normally performed by employ-
ees in the plant unit and should have been assigned to unit
employees Moreover, as with the Grady and Altheimer
grievance, the Union contended that the contracting out of
work at the Pine Bluff exchange violated articles I, III, and
XIV of the 1963 plant agreement.6
c The GradyAlthermer grievance
(1) The March 11 meeting
The parties met in an initial meeting pertaining to the
Grady-Althermer contracting out matter on March 11 The
Union was represented by Carl Heiser and James Matthews and
the Company was represented by Arthur Miller and W. M.
Gentry The business of the meeting was commenced with
Heiser inquiring if Miller would answer the nine questions con-
tained in Heiser's letter of February 14. Pursuant to Heiser's
request the nine questions were discussed seriatim and the first
four questions were answered by Miller to the satisfaction of
Heiser. After an extensive discussion of questions five and six the
remaining three questions were discussed and were answered
again to the satisfaction of the union representatives.
During the course of the meeting Heiser stated that he
desired to obtain the information to enable him to process the
"having job titles designated in Section 1 of Article III, and as
subsequently established under section 3(a) or 3(c) of Article X VI .11
Article III provides for the classification and grouping of nonsuper-
visory unit employees and comprehensively details the basis of their
compensation and their rates of pay.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance which he had initiated on February 28. In amplifica-
tion he stated that he thought it was very important to him to
know why the Company had contracted out and why the
Company had thought it possibly economical to contract out.
Miller declined to answer question five asserting that cost
information was not relevant to the processing of the grievance
filed by the Union and that contract cost information was
confidential information between the contracting parties and
could not be disclosed to a third party.
With respect to the issue of relevancy, Miller asserted that
the articles I, III, and XIV grieved by the Union contained no
"cost" limitation controlling the Company's right to contract
out work and that as a consequence the contract cost
information could not be relevant to the Union's grievance.
Additionally Miller informed Heiser that cost had not been a
factor in the Company's decision to contract out work and
that, accordingly, factually the information could not be
relevant.8
With respect to question six9 Miller informed the Union
that as cost had not been a factor in the Company's decision to
subcontract, it could not be relevant to the Union's grievance.
He further stated that the Company was unable to answer the
question because it had made no study regarding what the cost
would have been had the work been performed by company
employees
At approximately this juncture James Matthews asked
Miller if the cost to the Company was less by contracting the
work than by using unit employees to perform the work on
the basis of premium or overtime compensation Miller
answered that overtime compensation should be resorted to
only when there are no practical alternatives and that the
Company would not work its employees overtime because it
was economically unsound to do so. At this point Heiser
returned to the question whether it would be less costly to the
Company to employ unit employees in the work which was
subcontracted. Miller did not directly answer this inquiry. At
no time during the meeting did Miller state that the Company
had let the contract for cost reasons.' 0
(2) The March 15 meeting
The parties met in an area level formal grievance meeting on
March 15.11
The Union was represented at the meeting by Carl Heiser,
James Matthews and Claude Ledford. The Respondent was
represented at this meeting by Arthur Miller, W. M Gentry,
and Carl Woodyear.
At the opening of the meeting Heiser explained the Union's
contention that the Respondent had violated articles I, III, and
XIV of the 1963 plant agreement. With respect to article III,
the compensation provision, Heiser contended that this article
had been violated by having nonunit employees perform unit
work for either a greater or a lesser amount than provided for
in the contract. Miller denied that the Company had violated
any of the provisions of the 1963 plant agreement and further
asserted that it was the Company's sole responsibility to
provide and maintain services; and that the Company could
not be restricted in this right which included the right to
decide who would perform the work and how and when it
would be performed.
Heiser again requested the cost information contained in
questions five and six and Miller again refused to furnish the
information. Miller stated that he did not feel that the cost
figures were relevant to the grievance and asserted that they
would be of no value to the Union in processing the grievance.
Miller informed Heiser that cost had not been a factor in
Respondent's decision to contract and, as a consequence, the
questions pertaining to cost were not relevant.
The grievance was not resolved at this meeting and the
Union appealed the grievance to the general level step in the
grievance procedure.i 2
(3) Respondent's statement of position
By letter of March 31, Arthur Miller provided the Union
with a written statement of the Company's position with
respect to the Grady and Altheimer contracting out dispute. In
pertinent part the letter read as follows:
7 Question five posed the question , "What is the cost of the contract
to your company9"
8 The testimony of Miller and that of Heiser suggest that the
discussion relating to question five was somewhat extensive . Heiser
asserted in his testimony that Miller read from a prepared statement, the
substance of which he could not remember Miller denies having read
from the prepared statement but his testimony of record pertaining to
the reasons for refusing to answer question five carries some suggestion
that he did not communicate in haec verba the bases for his irrelevancy
contention . In light of testimony revealing that there was some in depth
discussion of question five, and in view of other evidence subsequently
discussed , revealing that cost considerations became a topic of discus-
sion later at the meeting , I find that Miller's declination to answer
question five was not predicated alone on alleged confidentiality as
Heiser testified , but upon the issue of relevancy , as Miller testified.
9 This question sought to elicit information, "What would have been
the cost of the work if it had been performed by your own employees9"
10 Arthur Miller testified convincingly that he had not stated during
the meeting that cost had been a factor in letting the contract and I
credit him. But I credit the testimony of Carl Heiser to the effect that
Miller adverted to use of overtime work as being "uneconomical."
However, the record as a whole convinces me that this reference had a
connotation broader than that attributed to it by Heiser and the
General Counsel , and referred as Miller credibly testified , to complexi-
ties of manning and prudent use of available skills in meeting the
totality of the Company 's manpower needs in the Pine Bluff area-
encompassing the Grady-Altheimer exchange - in the light of a scarcity
of skilled craftsmen and the consequent likely erosion of overall
efficiency through performance by unit employees , on overtime, of the
repetitive tasks which made up the Grady -Altheimer open wire record
work
In this context it is not persuasive , in contradistinction to Miller's
testimony , that in this grievance and in similar grievances , Respondent,
in correspondence with the Union invoked the form reply that the
contracting had been done "to effectively carry out the operation of the
business ... lorl to effect all possible economies " by keeping overtime
"at a minimum ." The more definitive verbal explanations detailing the
specific considerations controlling the specific grievance at issue carry
more probative weight in evaluating whether the decision to contract
was cost -based than does the language of an essentially form letter
designed to articulate in general inclusive terms the Company's view of
its subcontracting prerogatives.
11 Arthur Miller credibly testified that because of its size the
Arkansas area does not include a division level which, under the 1963
plant agreement , would otherwise have been the initial grievance level.
12 The foregoing is based upon a composite of the credited
testimony of Arthur Miller and Carl Heiser . Heiser testified without
amplification that at the meeting of March I S there occurred "rather a
lengthy" discussion of cost figures. Miller testified that at the meeting
Heiser and Matthews insisted that the contract must have been let for
cost reasons and that he answered merely that it had not been . In light
of Miller's testimony and that of Heiser to the effect that Miller was
persistently terse in insisting that cost data was not "valid ," I conclude
and find that Miller was not drawn into a discussion or explanation of
costs and that his account of the discussion of costs as it transpired at
this meeting is accurate . It is credited over the generalization of Heiser.
SOUTHWESTERN BELL TELEPHONE CO 177
Management's decision as given in the meeting [Marc,h
11] was that the Company is responsible for the provision
and maintenance of telephone service It has been our
practice over the years to contract work, in some cases
when in the judgment of Management it is necessary and
appropriate to effectively carry out operations of the
business
The contracting of this work was justified in meeting the
needs of the business in light of the practical circumstances
of this case Contracting of work is consistent with good
force management and is in the direct self interest of
employees in helping to stabilize and maintain continuity of
employment It helps to avoid layoffs of extra people who
would otherwise be hired during peak work periods but
would not be needed when workloads returned to normal
or dropped
Furnishing and maintaining telephone service is the sole
responsibility of the Company, and as we have advised you
in the past we cannot agree to restrict the right to determine
who will do work or how or when it will be done
The Union's request for a copy of the telephone com
pany's contract and the cost figure relative to that contract
with an independent contractor is declined
In the meeting [of March 11] you requested that
assignment people be assigned to work overtime rather than
contract any of this type of work Management stated that
overtime will be authorized when there is no practical
alternative Work will be so planned that overtime work will
be kept to a minimum so as to effect all possible economy
inquired why the Company did not use regular employees on
overtime to perform the contracted work Harrington an
swered that overtime would be worked only if there was no
practical alternative
(5) The Respondent denies grievance
The Company denied the Union's grievance and agreed to
reduce its decision to writing
By letter of June 17, the Company supplied the Union with
a written rejection of the grievance The letter read in
pertinent part as follows
The meeting was closed on June 15, and we are
furnishing Management's decision in writing as requested
As we advised during the meeting, the performance of this
record and pole numbering work by contract was justified in
meeting the needs of the business in light of the particular
circumstances of this case Management must retain its right
to contract work to the extent necessary for the practical
and economical operation of the business The Union s
verbal charge of the violation of Articles I, III, and XIV of
the 1963 Plant Agreement is denied, and there is nothing in
the Plant Agreement which places any limitation on the
kind or character of work which may be contracted by the
Company The Union s request for the cost of the contract
to the Company and estimated cost of the work had it been
performed by our own employees is respectfully declined
The Union did not elect to take the Grady Althemter
grievance to arbitration
(4) The June 15 meeting
The parties met at the general level of the grievance
procedure on June 15 The Union was represented by Carl
Heiser and the Company by James Harrington and W M
Gentry
At the commencement of the meeting Heiser informed the
company representatives that he needed the information that
was being requested in questions five and six to "be certain
whether the Company was indeed being truthful with [him]
that it was more economical to contract out than it was to
work people overtime, and whether there was [sic] actually
any economies in doing the job by contract work, even if the
people could do it on a regular time basis " Heiser specifically
asked the Company to answer questions five and six and
Harrington declined to do so explaining that cost had not been
a factor in determining whether to contract the work
Harrington further stated that the comparative cost figures so
far as he knew "did not exist "13 During the meeting Heiser
13 Carl Heiser testified that Harrington informed him that the cost
figures were not available to the Union and did not predicate his
declination upon the nonexistence of such figures Harrington s testi
mony was to the contrary and I credit Harrington in this regard in the
light of his testimony and other persuasive evidence of record
indicating that an estimate of the cost of performing the work by use of
unit employees was not at any time compiled and upon my conviction
therefore that in this circumstance it is entirely likely that the
Company spokesman would candidly say so and would not have been
recalcitrant by limiting the availability in the manner indicated by
Heiser
14 The testimony of Heiser and that of Miller indicates that at the
meeting Miller advanced no reasons for his refusal to supply the
d The Pine Bluff grievance
(1) The work
As found above, the Pine Bluff contract involved the work
of removing cross arms and wire pole line located along
McFadden Road in Pine Bluff This work is normally per
formed by linemen in the plant unit
(2) The March 16 meeting
A meeting concerning the Pine Bluff grievance was held on
March 16 At this meeting Carl Heiser represented the Union
and Arthur Miller and W M Gentry represented the Company
As at the March 11 meeting concerning the Grady Althermer
grievance, the parties discussed the nine questions presented by
the Union Miller answered seven of the nine questions to the
satisfaction of Heiser, but declined to answer questions five
and six 14
information requested in questions five or six In explanation of his
declination Miller testified that the contract had been let for reasons of
force management and cost had not been a factor Miller further
testified that with respect to question six he did not have the
information concerning comparative cost and that such information
would have been difficult to compile Miller also testified that he did
not supply Heiser with the information requested by question five
because the Union had filed a grievance charging violations of articles I
III and XIV and the Company is not restricted under those articles in
its right to contract work as regards cost My analysis of Miller s
testimony convince me that while these considerations led to the
decision to decline to answer the question posed the explanations were
not articulated at the meeting
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The April 5 meeting
Representatives of the parties met at the area level of the
grievance procedure on April 5 Arthur Miller and W. M.
Gentry represented the Company while Carl Heiser and
Tarpley Wood represented the Union. At the commencement
of the meeting Heiser reiterated his contention that the
Respondent had violated articles I, III, and XIV by contracting
the Pine Bluff open wire work. Miller, however, disagreed and
stated that there had been no violation of any provision of the
contract. Heiser again requested the cost information con-
tained in the Union's questions five and six and Miller refused
to furnish the information stating that it was not good business
ethics to discuss agreements between two contracting parties
with a third party. Miller further asserted that cost had not
been a factor in determining to contract the work and the
Company was not restricted under article I, 111, and XIV of the
contract in its right to contract the work.' S
(4) The June 15 meeting
The Union's grievance having been left unresolved at the
April 5 meeting was the subject of a general level grievance
meeting on June 15. This meeting was attended by Carl Heiser
on behalf of the Union and W M. Gentry and James
Harrington on behalf of the Company. At this meeting the
Pine Bluff grievance was the subject of separate discussion as
was the Grady-Althermer grievance and other grievances which
had been filed by the Union. With respect to the Pine Bluff
grievance Heiser, at this meeting, outlined the Union's position
with respect to the grievance and explained the Union's reason
for contending that the collective-bargaining agreement had
been violated. He then asked Harrington to furnish the cost
information contained in questions five and six and Harrington
declined to furnish the information. In so declining Harrington
stated that cost was not a factor in letting the contracts and
that the Company was justified in contracting the work to be
done in order to meet the needs of the Company. Harrington
asserted that the Company's Pine Bluff employees were
urgently needed in other work. Harrington also informed
Heiser that the cost figures which the Union sought to obtain
under question six did not exist.
The Company denied the Union's grievance' 6
By letter of June 16 the Company furnished its position in
writing pertaining to the denial of the grievance as it had at the
meeting of June 15 agreed to do. The letter read in pertinent
part as follows-
The meeting was closed on June 15, and we are
furnishing Management's decision in writing as requested.
As we advised during the meeting, the performance of this
record and pole numbering work by contract was justified
in meeting the needs of the business in light of the
particular circumstances of this case. Management must
retain its right to contract work to the extent necessary for
the practical and economical operation of the business. The
15 The foregoing is predicated upon the testimony of Arthur Miller
I do not accept the testimony of Carl Heiser to the extent that it
attributes to Miller a statement that cost figures were not available to
the Union
16 The foregoing is predicated principally upon the credited testi-
mony of James Harrington as supported in some aspects by that of Carl
Heiser . I do not credit Heiser 's testimony to the extent that he testified
Union's charge of violation of article I, article III, and
article XIV of the 1963 Plant Agreement is denied. There is
nothing in the Plant Agreement which makes any limitation
on the kind or character of work which may be contracted
by the Company.
e. The decision not to arbitrate
Carl Heiser credibly testified that following the June 15
meeting he communicated with his superior, Floyd R. Taylor,
and recommended that neither the Grady-Altheimer nor the
Pine Bluff grievance be taken to arbitration, the next and
ultimate step in the grievance process. Heiser further testified
that the cost information which he had sought to elicit from
the Company was necessary in enabling the Union to deter-
mine if the Respondent was accurate in its stated position that
the work in dispute had been contracted for practical and
economical reasons Heiser further testified that the cost
information he sought was not available to the Union through
any other means with any degree of accuracy.
Taylor concurred in Heiser's recommendation not to
arbitrate the grievances Taylor testified that in order to permit
the Union to arbitrate the question the cost information would
have had to have been made available to the Union.
Heiser and Taylor testified that although the Union
maintained its legal position that independent of the cost
factor in the subcontracting, articles I, III, and XIV of the
contract had been violated, they could not reasonably expect
the Union to prevail before an arbitrator if the Respondent
had been able to establish that the work was subcontracted for
economic reasons. Taylor testified that the cost information
was a relevant factor for the processing of the grievances
because the Respondent took the legal position that the
contracts had been let for economic reasons
Carl Heiser also testified that article III would have been
violated by compensating the nonunit employees at rates
higher than those provided in collective-bargaining agreements
for unit employees and that by obtaining answers to questions
5 and 6, and by application of the expertise of union personnel
conversant with manpower and equipment requirements essen-
tial to perform the work contracted, the Union could have
reached an informed opinion as to whether the Company was
operating in an economic manner in contracting the work.
Heiser conceded that, as the Union did not know the overhead
and profit requirements of the companies to whom the
contracts were let, the opinion reached would have been in the
nature of an "educated guess."
Heiser further testified that he considered article I to have
been possibly violated by the fact of contracting unit work to
be performed by nonunit employees, with a consequent
erosion of the bargaining unit, and that although there were no
cost implications affecting article I arising from the contracting
of unit work, article I must be construed in conjunction with
article III.
that Harrington informed him cost had been a factor in letting the
contract or that Harrington stated in specific time that the contract had
been let for the economical operation of the business . Neither do I
credit Heiser 's testimony that in declining to furnish the cost infor-
mation to the Union Harrington stated that the figures were not
available to the Union.
I
SOUTHWESTERN BELL TELEPHONE CO 179
With respect to article XIV Heiser testified that the Union
believed the collective-bargaining agreement to have been
violated because the work involved in neither the Grady-
Altheimer grievance nor the Pine Bluff grievance was of the
variety given sanction under the terms of the article. He
further testified that it would be the Union's position that
regardless of cost considerations, article XIV would have been,
in these circumstances, violated, but that, irrespective of this
consideration, because the Company consistently contended in
prior, analogous circumstances that contracts had been let for
economic reasons the cost information would have been of
value to him in assessing the Union's tactical approach to the
grievance.
In the ultimate, Heiser further testified that regardless of
cost factors he would still have filed the instant grievances
alleging contract violations, but that the cost information
would have been valuable to him and to his superior, Taylor, in
determining whether to pursue the grievances to arbitration.
Further, Heiser credibly testified that over the years, prior
to the instant contracting, the Union had challenged other
contracts let by the Company involving unit work; that the
Company "historically has attributed a great portion of their
reason for contracting out to economic reasons," and that,
specifically, with respect to contracting out grievances pro-
cessed through grievance meetings during the period June 1,
1965, to February 14, 1966, the Company generally pleaded
as basis for their action the necessity "to perform the work
[contracted] economically and practically."
Heiser also testified that at no time during the meetings
relating to the grievances herein did the Respondent's represen-
tatives challenge his authority to represent the Union in the
grievance procedure or to process grievances.
Conclusions
1 The statute of limitations
Without merit is the Respondent's contention that this
proceeding is barred by the 6-month limitation proviso of
Section 10(b) of the Act. Respondent views the November 3,
1966 charge as being barred by reason of the fact that
Respondent's refusal to furnish the cost data which the Union
requested for the purpose of processing the grievances herein
occurred on March 11, 1966, more than 6 months prior to the
date on which the charge herein was filed. The Respondent
asserts that at this point of request and refusal the cause of
action, if any, accrued and the statute of limitation period
commenced to run. As in contract law, contends Respondent,
when the performance of the terms of a contract by one of the
contracting parties is conditioned upon the request of the
other, the statute begins to run with the initial request and the
limitation period is not extended, nor a new cause of action
created, by subsequent demands.
Contrary to Respondent, I find, as did Trial Examiner
Charles Schneider in denying the Respondent's pretrial motion
to dismiss, the refusal to furnish relevant cost information
constitutes a refusal to bargain under the Act, and each
separate unsuccessful demand for assertedly relevant informa-
tion constitutes a new and separate cause of action. The
Union's initial request sought information to assist it in
processing the grievance herein. During the grievance meetings
held pursuant to the grievances filed, the Union requested the
cost data to assist it in processing the grievances, and
Respondent on each occasion refused to provide the informa-
tion Specifically, at the June 15 meeting both the Grady-
Altheimer grievance and the Pine Bluff grievance were
considered On June 15, at the meeting, the Union renewed its
request for the information and Respondent refused this
request I find that in light of the June 15 demand and refusal
the charge herein was timely filed."
2. The merits
The General Counsel contends that the Respondent failed to
fulfill its collective-bargaining obligation under the Act by
refusing to furnish certain cost information which the Union
had requested to assist it in processing the grievances it had
filed relating to contracting out of the work, and assertedly, to
assist it in evaluating the arbitral merits of the grievances.
Respondent concedes its obligation under the statute to
furnish the Union with information probably or potentially
relevant to the grievances filed, and its further obligation, upon
proper request of the Union, to furnish information which the
Union might need to enable it to police and intelligently
administer the collective-bargaining agreement However, Re-
spondent denies that it was under any statutory obligation to
comply with the Union's request for cost data relating to the
contracting out of unit work which is here in issue, and further
asserts that, under the issues framed by the pleadings, only its
observance or breach of the first of the aforesaid statutory
obligations may be measured.
In this latter regard the Respondent avers that under the
discovery-type proceeding outlined in the decision of the U S
Supreme Court in the Acme case' 8 the trier of fact in a
proceeding under Section 10(a) of the Act, must evaluate the
merits of the grievances to which the requested information
assertedly relates sufficiently to make a threshold determina-
tion of potential relevance, and, urges Respondent, analogizing
the role of the Trial Examiner in the instant proceeding to that
of a U.S District Court judge in a pretrial discovery
proceeding under Rule 26(b) and Rule 33 of the Federal Rules
of Civil Procedure, in performing his function the trier of fact
must determine relevance solely upon the issues framed by the
grievance. From this premise, the Respondent argues that, as
the grievances herein rely for their gravamen upon three
specific articles of the collective-bargaining agreement to
which cost information could not be relevant, and further, as it
did not predicate its decision to contract the work upon cost
considerations, and so informed the Union during all stages of
the grievance procedure, no statutory foundation exists in this
proceeding before the Board under Section 10(a) of the Act
for requiring Respondent to produce the cost information. In
this latter regard, Respondent tacitly denies the application of
17 See West Penn Power Company, 143 NLRB 1316, 1320-21,
enforcement denied on other grounds 337 F 2d 993 (C.A. 3) The
Respondent concedes its statutory obligations upon proper request of
the Union to furnish relevant information to assist the Union in
administering the grievance provisions of the collective-bargaining
agreement . Arbitration is but a continuation of the grievance process
and the June 15 requests had as their object the disclosure of
information which would permit the Union to determine whether or
not to process the grievances through arbitration.
18 N.L R B v. Acme Industrial Company, 385 U S 432
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truitt Manufacturing Co., or of cases rendering wage data
presumptively relevant.' 9
Upon factual findings previously made I conclude and
further find the cost was not a factor in the Company's
decision to contract the Grady-Althermer or Pine Bluff work,
and that cost-so defined-was not advanced in justification of
the contracts at any time during the ensuing meetings between
representatives of the Company and the Union. In view thereof
there is no warrant here for an application of the Truitt
doctrine
However, this finding is not determinative of the issues
before me for upon careful consideration of the decisions in
The Fafnir Bearing Company, 146 NLRB 1582, and Acme
which I deem to be controlling precedent I am of the opinion
that Respondent too narrowly defines the standard of rele-
vancy applicable to this proceeding. Pursuant to its statutory
duty under Section 10(a) of the Act, the Board, consistent
with the National policy favoring arbitration, and in aid of the
arbitral process, is empowered without deciding the merits of
the grievances to make a threshold determination of relevance
for the purpose of sifting from the stream of arbitration those
unmeritonous claims filed as grievances 20 Through an early
determination of the relevancy issue the grieving party is
spared the dissipation of resources, and overburdening of the
arbitration system is avoided.21
To achieve these ends opportunity must be accorded the
grieving party to evaluate as a prelude to arbitration the merits
of the claim.22 It is the relevance of the information requested
and the benefit to the requesting party in furtherance of this
preliminary and purgative purpose which here must be
assessed,2 3 and this standard is the one correctly to be applied
even though the Union's request herein did not in haec verba
specifically solicit the information for the purpose of assisting
it in policing the collective-bargaining agreement.24
In Fafnir, upon which the General Counsel relies in support
of the complaint, authority to establish standard rates for
certain tasks resided with the employer and machinery for
challenging the employer's determination of rates existed
under a contractual four-step grievance procedure culminating
in arbitration. The Union therein filed four grievances con-
testing the standards and upon request of the Union the
employer furnished all time study data extant pertaining to the
challenged standards. At the third grievance level--the last
prior to arbitration-the Union sought permission to make its
own time study to enable it to evaluate the validity of the
employer's determination of rates and to assist it in reaching a
decision whether to arbitrate the grievances. The Company
declined to permit the Union to take the time studies. The
Board held:
It is well settled that Section 8(a)(5) of the Act imposes
an obligation upon an employer to furnish upon request all
information relevant to the bargaining representatives's
intelligent performance of its function. This obligation
extends to information which the Union may require in
order to "police and administer existing agreements." The
time studies requested by the Union herein were in the
nature of requests for such information. It is clear that the
information requested was both and relevant and necessary
to enable the Union to fulfill its functions as bargaining
representative, and that it was within the power of the
Respondent to make such information available to the Union.
We are of the opinion that compliance with the good-faith
bargaining prescribed by the Act required the Respondent to
cooperate with the Union by making plant facilities available
to the Union for the conduct by the latter of its own time
studies, unless the Union's request was improper for some
other reason or imposed an unreasonable burden on Respond-
ent. [Footnote citations deleted.]
The Union sought the information for the purpose of
enabling it to decide whether to take the grievance to
arbitration in the first place. The benefit to the Union of
making its own timestudy, both for that purpose and for
the purpose of preparing its cases for arbitration, should it
ultimately take that course, is not so tenuous or insubstan-
tial as to warrant our declining to support the Union's
statutory claim to the information sought.
In the instant case, the Union interpreted the Respondent's
decision to contract unit work as potentially erosive of union
standards and of the integrity of the bargaining unit Probative
of this position, in the Union's view, would be cost infor-
mation which would tend to give insight into whether nonunit
employees were being utilized to perform unit work as a means
of avoiding the strictures and application of the contractual
wage scale. Past experience arising from closely analogous
contracting disputes to which the Union and the Company had
been parties, wherein the Company had pleaded justification
arising from "economic and practical considerations," gave the
Union reasonable basis for believing that cost considerations
had influenced Respondent in its decision to contract the work
herein. This conviction was undoubtedly reinforced at the
March 11 area level Grady-Altheimer grievance meeting by
the oblique response of Respondent to inquiries of the Union
as to cost considerations of overtime work as an alternative to
contracting out. The necessity to effect economies through the
avoidance of overtime work was reiterated in the Respondent's
March 31 letter. Thus, throughout the Grady-Altheimer
grievance meetings the Union remained unconvinced, despite
company denials, that cost considerations had entered into the
decision to contract, and the Union sought data by which to
test its belief, a belief which, by reason of past and
contemporaneous experience had also affixed to the closely
related Pine Bluff grievance. Similar to Fafnir the cost data
requested by the Union was in the nature of requests for
information to assist it in policing and administering the
existing agreement.
In the foregoing framework and circumstance I find that the
cost data which the Union sought was relevant to the grievance
19 N.L R B. v. Truitt Manufacturing Co, 351 U.S. 149, wherein the
U.S Supreme Court on certiorari from the U.S Court of Appeals for
the Fourth Circuit reversed the Circuit Court and sustained the Board's
order requiring an employer to furnish the Union with information to
substantiate its claimed inability to grant a requested wage increase, see
also Curtiss-Wright Corporation, Wright Aeronautical Division v.
N.L,R.B., 347 F.2d 61 (C A 3).
20 N.L.R.B. v. Acme In dustrial Company, supra.
21 N.L.R.B. v. Acme Industrial Company, supra , The Fafnir Bearing
Company, 146 NLRB 1582, enfd . 362 F 2d 716 (C.A. 2).
22 N.L.R.B. v. Acme Industrial Company, supra, The Fafnir Bearing
Company, supra.
23 N L.R.B. v. Acme Industrial Company, supra, The Fafnir Bearing
Company, supra.
24 Cf Timken Roller Bearing Company v. N.L.R.B., 325 F.2d 746
(C.A. 7).
SOUTHWESTERN BELL TELEPHONE CO. 181
allegation specifying a violation of article III of the collective-
bargaining agreement. It is unnecessary here to consider the
relationship of cost data to the other articles pleaded in the
grievance. It is enough to find, as I do, that the Union sought
the cost data as a guide in assisting it to evaluate the arbitral
merits of the grievance it had filed. In this regard, the
testimony of record is convincing that if the information had
been furnished the Union would have been decisively influ-
enced in its grievance and arbitral course by the cost
comparisons revealed thereby.
While a gross cost disclosure in answer to question five
would not have definitively established an evasion or circum-
vention of the contractual wage scales contained in article III
of the agreement, it would have supplied necessary data to
enable the Union by construing the estimate requested under
question 6 and in the application of experience and expertise,
as Heiser and Taylor testified, to make a reasonably astute
judgment. Thus, I find, that the benefit of the cost data to the
Union in deciding whether to pursue the grievance to
arbitration was not so tenuous or insubstantial as to require
rejection of the Union's statutory claim to the data .2 5
In recognizing the Union's statutory right to obtain closure
of the data, I make no determination of the ultimate merits of
the grievance nor do I undertake a divination of its probative
weight before an arbitrator. Consistent with Acme I conclude
merely that it is relevant and necessary to assist the Union to
carry out its statutory duty as collective-bargaining agent In
Acme the Supreme Court observed
For when [the Board] ordered the employer to furnish the
requested information to the union, the Board was not
making a binding construction of the labor contract. It was
only acting upon the probability that the desired informa-
tion was relevant, and that it would be of use to the union
in carrying out its statutory duties and responsibilities. This
discovery-type standard decided nothing about the merits
of the union's contractual claims. When the Respondent
furnishes the requested information, it may appear that no
subcontracting or work transfer has occurred, and, accord-
ingly, that the grievances filed are without merit. On the
other hand, even if it appears that such activities have taken
place, an arbitrator might uphold the respondent's conten-
tion that no breach of the agreement occurred because no
employees were laid off or reduced in grade within 5 days
prior to the filing of any grievance. Such conclusions would
clearly not be precluded by the Board's threshold deter-
mination concerning the potential relevance of the re-
quested information. Thus, the assertion of jurisdiction by
the Board in this case in no way threatens the power which
the parties have given the arbitrator to make binding
interpretations of the labor agreement. [Footnote citations
omitted]
A result different from that here reached is not dictated by
the Board's Decision in Anaconda American Brass Co., 148
NLRB 474, or Hercules Motor Corporation, 136 NLRB 1648,
which cases the Respondent cites in support of its thesis.
Neither are apposite.
In Anaconda in dismissing the complaint alleging a violation
of Section 8(a)(5) of the Act arising from the failure of the
company therein to furnish the union with certain cost
information, the Board held, "Thus, the Union's demands for
point information herein were not related either to a pending
grievance or to the general administration of the contract."
While, in footnote dictum the Board in Anaconda observed,
"Assuming, arguendo, that point information could be gener-
ally relevant to the administration of the agreement, the
problem posed by this case is that the Union itself limited the
request for information to a specific purpose, i.e., the
processing of Shaw's grievance. At no time did the Union
acknowledge that the point system had any bearing on its
administration of the contract, and, indeed rejected the
Respondent's efforts to incorporate the point system into the
bargaining process .... under these circumstances we do not
believe that it would be appropriate for us to hold that
Respondent unlawfully refused to bargain in good faith with
the Union by denying the Union's request for information
with respect to a grievance which had become defunct more
than 6 months prior to the Union's demand for the
information."
A careful reading of the Anaconda decision reveals that
the defunctness of the grievance was a principal factor in the
decision, and there is no persuasive indication, either in the
language of the decision or in precedents cited therein, that
had the grievance been a viable one, as were the grievances
here, the decision would have been the same.
Similarly, the Hercules decision is distinquishable because,
there, unlike the present case, the issue involved a dispute
concerning the interpretation of contractual provisions.
Dispositive of the Respondent's contention is the fact that
here the issue is whether the Union was entitled under the Act
to information which was relevant and necessary to its
processing of grievances respecting contracting out of the unit
work, and there is no warrant in this proceeding to interpret
the agreement for the purpose of determining whether the
contracting out accorded with the terms of the agreement 26
In consequence of the foregoing I find that the cost
information which the Union requested was relevant and
necessary in assisting it in its evaluation of whether to carry
the grievances to arbitration and that by refusing to provide
the Union with the information requested the Respondent
violated Section 8(a)(5) and (1) of the Act.
The foregoing finding implies a rejection of the contention,
explicit or inferential, that the Union had waived its right to
the information because this right was not affirmatively
memorialized in the collective-bargaining agreement. How-
ever, as the Board observed in Fafnir, "merely because the
right to such information was not `recognized by the Company
in the bargaining agreement ... does not mean that it does not
exist by virtue of statute' " nor is a waiver of a clear and
unmistakable character essential to acceptance of the Respond-
ent's contention, to be inferred from the failure of the parties
at the bargaining table to agree to the Union's proposals to
restrict subcontracting of unit work. See N.L.R.B. v. Perkins
25 The Fafnir Bearing Company , 146 NLRB 1582 . While Respond-
ent correctly cites the testimony of union representative Heiser to the
effect that he would have filed the instant grievances regardless of what
the cost figures had revealed, this evidence is not persuasive of the
Respondent 's contention because, as the Union properly asserts, a
distinction must be drawn between "the principle of a contract
violation , necessitating the filing of a grievance , and the practical and
pragmatic problem of processing it through the grievance machinery." It
is clear both from his testimony and his recommendations respecting
the processing of the grievances that Heiser knew and understood that
distinction.
26 See The Fafnir Bearing Company, 146 NLRB 1582, 1585,atfn.6
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machine Company, 326 F 2d 488 (C.A. 1), Timken Roller
Bearing Company v. NL.R.B., 325 F 2d 746 (C.A. 7).
Neither was the Respondent insulated by reason of confi-
dentiality or undue burden from the statutory obligation to
make available to the Union the information which it sought
under questions 5 and 6. The resolution, unfavorable to the
Respondent, on the plea of confidentiality is predicated upon
precedent of which Curtiss-Wright Corporation, Wright
Aeronautical Division v N.L.R.B., 347 F.2d 61 (C.A. 3) is
representative.27 Rejection of Respondent's plea of unreason-
able burden proceeds from the equitable consideration arising
from the evidence establishing that the Union did not possess
the cost data and had no alternative means of acquiring rt;28
the record concession that the data necessary to answer
question 5 was available to Respondents, and the testimony of
Miller and inferences reasonable to be drawn therefrom, that
without unreasonable expenditure of manpower and funds the
estimate could have been compiled from wage, personnel and
productivity records maintained by the Company in the
normal course of business which were readily available to
management.2 9
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
collective-bargaining agreement no determination of the
merits of the instant grievances by an arbitrator is possible and
no public or statutory purpose would be served by ordering
the Respondent now to disclose the cost information which
the Union sought. However, the aforesaid prospective order is
deemed essential for the reason that evidence of record reveals
the recurrence of grievances closely parallel and analogous to
those at issue herein. Contrary to the Respondent's view, the
prospective remedy herein is not intended to be in the nature
of a declaratory judgment and is not to be construed as a
prospective determination of per se relevance of cost informa-
tion to all subsequent contracting out grievances that may arise
between the parties under the collective bargaining agreement.
Rather the remedy here is limited to those subsequent like and
related circumstances wherein cost information is relevant and
necessary to the Union's administration of the collective-
bargaining grievance machinery or wherein it is demonstrated
what relevant cost information is necessary to assist the Union
in deciding the arbitral merits of the grievance pertaining to
contracting out of unit work.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following
CONCLUSIONS OF LAW
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes obstructing and burdening commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor
practices violative of Section 8(a)(5) and (1) of the Act, I shall
recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent on June 15 , 1966 refused
the Union ' s request for disclosure of cost data which the
Union sought for the purpose of administering the grievance
machinery of the collective -bargaining agreement and for the
related purpose of determining whether to pursue the griev-
ances to arbitration , I shall also recommend that in the future,
under like or related circumstances , upon request of the
Union, the Respondent furnish the Union with similar cost
information which is relevant and necessary in assisting the
Union to appraise the merits of the grievance and to
intelligently assist the Union in assessing the arbitral merits of
the grievances to which the cost information relates. See Otis
Elevator Company, 102 NLRB-770, enfd. in pertinent part
208 F.2d 176 (C.A. 2).
Because of the failure of the Union to carry the grievances
herein to arbitration within the time specified under the
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Communication Workers of America, AFL-CIO, and its
Local 6504, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All Plant Department employees of Respondent, having
job titles designated in section 1 of article III of the current
collective-bargaining agreement between the Union and Re-
spondent, and as subsequently established under section 3(a)
or 3(c) of article XIV of said collective-bargaining agreement,
excluding confidential and professional employees, guards and
supervisors as defined in Section 2(11) of the Act, as amended,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
4. On June 15, 1966, and at all prior and subsequent times
herein material, the Union has been and now is the represen-
tative for the purposes of collective bargaining of all employees
in the above-described appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing on June 15, 1966, to furnish the
Union with cost information for its use in administering the
grievance provisions of the collective-bargaining agreement
between it and Respondent and for the further related purpose
of assisting it in evaluating the arbitral merits of the grievances,
the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
27 See also the Ingalls Shipbuilding Corporation, 143 NLRB 712, NLRB 1229, N L R B v. J.H. Allison & Company, 165 F 2d 766 (C A.
717, Boston Herald Traveler Corp, 102 NLRB 627, 635. 6).
28 While supportive of the instant finding, the availability of the 29 See Taylor, Forge & Pipe Works, 113 NLRB 693, enfd 234 F.2d
information through alternative sources would not necessarily absolve 227 (C.A 7), cert . denied 352 U.S 942 , Western Wirebound Box Co,
the Respondent from furnishing it See Anderson & Sons, Inc, 151 145 NLRB 1539 , see also Standard Oil of California , Western
Operation, Inc., 166 NLRB No 45, fn. 6.
SOUTHWESTERN BELL TELEPHONE CO
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record of the case, I
recommend that Southwestern Bell Telephone Company, its
officers, agents, successors, and assigns, shall-
1. Cease and desist from.
(a) Refusing to bargain collectively with Communications
Workers of America, AFL-CIO, and its Local 6504, as
exclusive bargaining representative of all employees in an
appropriate collective-bargaining unit, by failing and refusing
to furnish the Union with cost information which it has
requested for its use in administering the grievance provisions
of the collective-bargaining agreement between it and Respon-
dent or for the further related purpose of assisting the Union
in evaluating the arbitral merits of grievances relating to the
contracting out of unit work.
(b) In any like or related manner interfering with the
efforts of the Union to bargain collectively with it in behalf of
the employees in the collective bargaining unit herein found
appropriate.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon future request, furnish to the Union, as exclusive
collective-bargaining representative of all employees in the
collective-bargaining unit herein found appropriate, cost
information relevant and necessary for the Union's use in
administering the grievance provisions of the collective-
bargaining agreement or for the related purpose of assisting the
Union in determining the arbitral merits of grievances when
the cost information is necessary to the Union in the
achievement of the aforesaid purposes and when it relates to
grievances filed contesting the contracting out of work in
violation of the collective-bargaining agreement.
(b) Post at its Little Rock, Arkansas, office and at all other
offices, plants, installations, and places within the geographical
confines of the Respondent's Arkansas area where notices
pertaining to or affecting Plant Department employees are
customarily posted, copies of the notice attached hereto and
marked Appendix. Copies of said notice, to be furnished by
the Regional Director for Region 26, shall, after being duly
signed by a representative of Respondent, be posted by the
Respondent immediately upon receipt thereof and be main-
tained by it for a period of 60 consecutive days thereafter, in
conspicuous places, where notices to employees are customarily
posted Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by
any other material
(c) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of the receipt of this Trial
Examiner's Decision what steps the Respondent has taken to
comply with the foregoing Recommended Order.30
APPENDIX
NOTICE TO ALL EMPLOYEES
183
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL upon future request of Communication
Workers of America, AFL-CIO, and its Local 6504, furnish
the union, as the exclusive representative of our employees
in the bargaining unit described below, cost information for
the purpose of assisting it in administering the grievance
machinery of the collective-bargaining agreement between
us and the union or for the related purpose of assisting the
union to determine whether to pursue the grievances to
arbitration, when the cost information is necessary to the
union in the achievement of the aforesaid purposes and
when it relates to grievances filed contesting the contracting
out of work in violation of the collective-bargaining
agreement between us. The bargaining unit is.
All Plant Department Employees having job titles desig-
nated in section of article III of the current collective
bargaining agreement between us and the union, and
subsequently established under section 1 Article 111(a)
and 111(c) of article XVI of said collective-bargaining
agreement, excluding confidential and professional em-
ployees, guards and supervisors as defined in section
2(11) of the National Labor Relations Act as amended
SOUTHWESTERN BELL TELEPHONE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal Office
Building, 167 North Main St., Memphis, Tennessee 38103,
(Tel. 534-3161).
30 if this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 26 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."