Equitable Gas Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Equitable Gas Company and International Brother- hood of Electrical Workers, Local Union 1956, AFL-CIO. Case 6-CA 11654 September 24, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRULtS)ALI On May 15, 1979, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed an answering 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. as modified below. We agree with the Administrative Law Judge, for the reasons fully stated by him, that Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilaterally subcontracting unit work of remittance clerks in its treasury department without affording to the Union, as the exclusive representative of those employees, advance notice and an opportunity to bargain with respect to its decision and by refusing, upon request, to provide the Union with a copy of its subcontract- ing agreement with the Mellon Bank and any rel- evant cost data with respect thereto. In order to rem- edy these violations the Administrative Law Judge recommended that Respondent be ordered to bargain collectively with the Union concerning its decision to subcontract unit work to the Mellon Bank and to pro- vide the Union with the requested information. How- ever, he did not require Respondent to rescind its agreement with the Mellon Bank and to restore the status quo ante in the Respondent's treasury depart- ment by reinstating the conditions existing prior to the elimination of the bargaining-unit work therein I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces 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. The Administrative Law Judge inadvertently erred in finding that Respondent's contract with Mellon Bank became effective on September 21. 1978. the date the contract was executed. The uncontradicted record evidence establishes that the arrange- ment was not put into operation until January I. 1979, and by its terms would not be fully implemented until March 1979. This error does not affect any conclusion or other finding of the Administrative I.aw Judge or the results of his Decision. and offering the affected remittance employees their former positions without prejudice to their seniority or other rights and privileges. The General Counsel filed limited cross-exceptions to the Administrative Law Judge's failure to include such an order as part of his remedy. We find merit to the General Counsel's exceptions for the reasons stated below. In fashioning remedies the Board bears in mind that the remedy should be adapted to the situation that calls for redress, with a view toward restoring "the situation, as nearly as possible. to that which would have obtained but for [the unfair labor prac- tice]."2 In cases of this type the normal remedy would be to order the return of the status quo ante.3 The Administrative Law Judge impliedly acknowledged as much in his Decision, but nonetheless he con- cluded that requiring Respondent to return to the sta- tus quo ante would impose a disproportionate burden upon it in relation to the redress necessary to effect statutory policies. We disagree with his analysis in the circumstances of this case. Absent evidence of undue hardship we will apply our normal remedy.4 Here we perceive no undue hardship to the Employer by re- quiring it to reinstate the remittance clerk operation in its treasury department because the Pittsburgh fa- cility is still in existence, necessary machinery has not been sold, and the affected employees are still em- ployed by Respondent in other positions. Therefore. in order that the Union may have a meaningful op- portunity to bargain about the subcontracting of the remittance work we shall order Respondent to restore the status qylo ante by abrogating its subcontract with Mellon Bank and offer to restore its employees to the positions which they held prior to this unlawful ac- tion. 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge. as modified be- low, and hereby orders that the Respondent, Equitable Gas Company, Pittsburgh. Pennsylvania, its officers, agents, successors, and assigns, shall take 2Phelpi Dodge (Corporruion . .L RB., 313 U.S 177. 194 (1941). American Needle & Novelti Co (mpony. et al.. 206 NLRB 534, 535 1973): Townhouse T V & Appliance. 213 N .RB 716, 717 (1974). 4 Iid 'See Town & (ountrv tanufacturing (Co. Inc.. et-., 136 NL.RB 1022. 1030 31 (1962). Member Truesdale would adopt without change he Remred provided by the Administrative Law Judge for the reasons he sets forth. Thus. Member Truesdale would not require In the particular circumstances of this case that Respondent rescind its contract A ith Mellon Bank, reinstate the remittance clerk operation, and otherwise restore the slatus quo ante i ts treasury department. 245 NLRB No. 38 260 EQUITABLE GAS COMPANY the actions set forth in the said recommended Order, as so modified: I. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs accordingly: "(c) Reinstate the remittance clerk operation in its treasury department at its main office in Pittsburgh, Pennsylvania, and offer those employees, who were displaced by the subcontracting of that operation, im- mediate and full reinstatement to their former posi- tions wihtout prejudice to their seniority or other rights and privileges." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally, and without prior notice and bargaining with the Union, subcon- tract work historically performed by employees covered in the collective-bargaining unit repre- sented by International Brotherhood of Electri- cal Workers, Local Union No. 1956, AFL-CIO. WE WILL NOT fail or refuse to supply the Union requested information which is necessary to the performance of its obligations in adminis- tering the collective-bargaining contract or in ne- gotiating a new agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your rights under Section 7 of the Na- tional Labor Relations Act. WE WILL bargain with the Union concerning our decision to subcontract the work of remit- tance clerks to the Mellon Bank and in the future WE WILL afford the Union notice and an oppor- tunity to consult with respect to any decision that we make resulting in a change in terms and conditions of work in said unit. WE WILL reinstate the remittance clerk opera- tion in our treasury department at our main of- fice in Pittsburgh, Pennsylvania, and WE WILL offer our employees, who were displaced by the subcontracting of that operation, immediate and full reinstatement to their former positions with- out prejudice to their seniority or other rights and privileges. WE WILL provide the Union with a copy of our agreement with the Mellon Bank pertaining to remittance work performed in our behalf, as well as any other pertinent cost data. EQUITABLE GAS COMPANY DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This pro- ceeding was heard in Pittsburgh. Pennsylvania, on Febru- ary 9, 1979, upon an original unfair labor practice charge filed on September 26, 1978. and a complaint issued on November 28. 1978, alleging that Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to provide, upon specific request, information relevant and necessary to the Union's performance of its representative functions and by unilaterally and without prior notice and consultation with the Union subcontracting certain work previously per- formed by employees in the appropriate unit. In its duly filed answer Respondent denied that any unfair labor prac- tices were committed, asserting affirmatively, by way of de- fense. that the requested information is neither relevant nor necessary to any legitimate collective-bargaining objective. and that as a matter of contract, past practice, and negotiat- ing history between the parties the Charging Party has waived all right to the information and data requested, that the subcontracting has had no affect upon the employees represented by the Union, and further, that any such affect resulting from the subcontracting arrangement has been ne- gotiated by the parties. At the close of the hearing briefs were filed on behalf of the General Counsel and Respon- dent. Upon the entire record in this proceeding, including con- sideration of the post-hearing briefs, it is hereby found as follows: I. JURISDICTION Respondent is a Pennsylvania corporation, located in Pittsburgh, Pennsylvania, where it is engaged as a public utility. In the course and conduct of such operation Re- spondent, during the calendar year preceding issuance of the complaint, derived revenues exceeding $250.000 and purchased goods and materials from sources directly out- side the Commonwealth of Pennsylvania valued in excess of $50.000. The complaint alleges, the answer admits, and I find that Respondent is now and has been at all times material herein an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Brotherhood of Electrical Workers. Local Union No. 1956. AFL-CIO, is now and has been at all times material herein a labor organization within the mean- ing of Section 2(5) of the Act. II. THE Al.l.E(GED UNFAIR LABOR PRACTIC('ES A. The Issues This case involves alleged violations of the duty to bar- gain in good faith which emerged from Respondent's con- tracting out to the Mellon Bank of Pittsburgh certain cash 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt functions formally performed by unit employees represented by the Charging Party. Thus, it is alleged that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally, without prior consultation, notification, or bar- gaining, awarding said contract and by thereafter, upon re- quest, refusing to provide the Union with a copy of the said subcontracting agreement and any pertinent cost data. B. Concluding Findings I. Background As a public utility Respondent is engaged in the sale and distribution of natural gas to consumers in the Pittsburgh area. Since 1954 the Union has represented some 320 hourly employees, whose work is essentially clerical in na- ture. The bargaining unit has been covered by successive collective-bargaining agreements, the most recent of which had an effective date of March 16, 1977, with a scheduled expiration of May 15, 1980. Employees in the represented unit are deployed in a number of departments of small size, including the treasury department which is the focal point of the instant controversy. Historically, the treasury department was responsible for the initial processing of bill payments mailed directly to Respondent's main offices by consumers. Prior to Septem- ber 1978 that department consisted of seven unit employ- ees; namely, four remittance clerks, one miscellaneous re- mittance clerk, one stenographer, and one general clerk. On September 21, 1978, Respondent entered an arrange- ment with the Mellon Bank, wherein certain work formerly performed by remittance clerks would be performed by the bank through an automated process. This arrangement lead to the immediate elimination of two of the four remittance clerk classifications, with a third scheduled to be eliminated by March 1979. Despite the elimination of these classifica- tions, as of the date of the hearing no layoffs had resulted and according to Respondent none was foreseen. Prior to the new arrangement with the bank Respon- dent's remittance clerks physically opened mail containing bill coupons and payments, forwarded checks to the com- puter room for tallying, and retained payment coupons which they themselves processed into a final tally. Any en- closures in said envelopes collateral to payment were for- warded by the remittance clerks to the customer service departments. Ultimately, toward the end of the day, the computer room returned to the remittance clerk a tally of the checks processed that day, whereupon the latter com- pared that tally against the tally of the coupons, reconciled any imbalance, and then forwarded the balanced tally to the cashier for preparation of the daily deposit. Upon com- pletion thereof the deposit would be forwarded to the Mel- lon Bank through an independent delivery service for de- posit in Respondent's account. Under the system effective as of September 21, 1978,' customer remittances are forwarded directly to a "lock box" maintained by Mellon Bank, where employees of the latter, on a 24-hour basis, pick up the mail which is pro- ' Unless otherwise indicated all dates refer to 1978. cessed through an almost entirely automated system. Thus, the letters are opened on a mechanized basis, after which the only employee involved in the process separates the checks from coupons and miscellaneous customer corre- spondence for further processing. Beyond that no manual work is performed, and the recording and correlation of payments and coupons is handled through a computerized system, enabling immediate crediting of Respondent's ac- count at the bank. A daily tally or printout is returned to Respondent which both evidences the amount of the de- posit and contains the data enabling Respondent's employ- ees to post customer accounts. Union representatives were first informed of the arrange- ment with Mellon Bank on September 21, the same day that a contract was executed between the bank and Re- spondent. At that meeting the Union was infbrmed that the Mellon arrangement resulted in a gain of 2 to 2-1/2 day's time getting payments processed and deposits credited to Respondent's bank account. Thus, according to the expla- nation afforded the Union, the arrangement with Mellon would result in more efficient remittance services and an acceleration of cash flow. while affording more current up- dating of customer's files. As it was estimated that the ac- celeration in the handling of these payments would provide an additional $700,000 in available cash on deposit for Re- spondent, considerable savings in interest would result to the Company. As for the impact upon unit personnel, the Union was informed that the number of remittance clerks would ultimately be reduced from four to one, with all af- fected employees permitted to exercise bumping rights in accordance with the terms of the subsisting collective-bar- gaining agreement. The meeting closed with the Union being informed that the Company would be willing to fur- ther discuss the matter if the Union wished to do so. On September 25 a second meeting was held. At that time inquiries addressed to the Company by the Union pro- duced disclosures that the Company had commenced nego- tiations with Mellon Bank in August, and the contract had been signed on September 21.' On September 26 the unfair labor practice charge giving rise to this proceeding was filed. On October 16 union representatives again met with company officials with respect to the issue. The Company was informed that the Union needed certain questions an- swered in order to bargain. In response to such inquiries the Company again advised that negotiations had commenced with Mellon on August I or 2, and that the contract had been signed on September 21. The Union then asked for the 2 John Mosco, Jr., the Union's chief steward, testified that in late August he had been apprised of an unposted job vacancy in the treasury depart- ment. Mosco brought this to the attention of Respondent's chief cashier, Testa. inquiring as to why the Company had not taken steps to fill the vacancy. Testa indicated "I cannot tell you." When Mosco inquired as to the reason for Testa's refusal Testa indicated, "I just can't tell you." Mosco attended the September 21 meeting wherein the Mellon arrangement was first disclosed. He testified that union representatives were taken aback by that announcement, and that he associated Testa's position in late August with respect to the vacancy as having been derived from the Mellon agree- ment. At a subsequent meeting on September 26, according to the testimony of Mosco, John Wallace. Respondent's assistant treasurer, admitted that the pending negotiations with the Mellon Bank had foreclosed posting the ear- lier vacancy. 262 EQUITABLE GAS COMPANY unit coupon cost for Mellon's services.' In addition to "cou- pon cost" the Union requested a copy of the contract be- tween Respondent and Mellon. The Union was questioned as to how such information would be used, whereupon it was explained that the Union intended to make an appro- priate bid for the work, and that the information was neces- sary to negotiate the matter fully. The Company, through James Curran, responded that there was no interest in ob- taining the Union's bid, that the information sought was not pertinent, and that it would not be provided. At this juncture the Union refused to discuss the matter further and walked out of the meeting. 2. Analysis There can be little question that Respondent was willing, albeit on its terms, to discuss the effects of the Mellon Bank arrangement upon bargaining-unit employees. It is also clear, however, that Respondent committed itself to and implemented the arrangement while refusing to engage in any discussions with the Union concerning its decision to do so. Further, it declined at all times to furnish a copy of the underlying agreement with Mellon as well as other cost data enabling the Union to test the accuracy of interpreta- tions and conclusions made by management and articulated on an after-the-fact basis. Section 8(d) of the Act makes it "the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with re- spect to wages, hours, and other terms and conditions of employment...." As a general proposition, those principles are offended where an employer, even during the term of a collective-bargaining agreement, displaces employees in the appropriate unit by contracting out their work without af- fording to their designated representative advance notice and an opportunity to consult with respect to any such de- cision. See, e.g., Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 210 (1964). On the other hand, the Board was quick to recognize that the reach of this doc- trine, if applied intemperately, could in certain circum- stances produce untoward results. It stated that "condem- nation of... unilateral subcontracting of unit work was not intended as laying down a hard and fast new rule to be mechanically applied regardless of the situation involved." See Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574, 1576 (1965). In the above Westinghouse case (at 1577) the Board dis- missed 8(aX)(5) and (I) violations, creating exceptions to the broad reach of the Fibreboard doctrine in circumstances where the unilateral action possessed the following charac- teristics: [T]he recurrent contracting out of work . . . was moti- vated solely by economic considerations . . . it com- ported with the traditional methods by which the Re- spondent conducted its business operations . . . it did not during the period here in question vary signifi- Baned upon the credited testimony of Mosco. Although James Curran. Respondent's assistant personnel director, denied that the Union requested coupon cost data. The testimony of Mosco seemed the more probable. cantly in kind or degree from what had been custom- ary under past established practice . . . it had no de- monstrable adverse impact on employees in the unit; and . . . the Union had the opportunity to bargain about changes in existing subcontracting practices at general negotiating meetings .... As I construe the defense, Respondent seeks to fit its overall pattern of subcontracting. including that in issue here, as falling within the Westinghouse mold. It is also con- tended that the Union had waived its interest in subcon- tracting including its statutory right to notice and advance consultation. With respect to the question of significant detrimental impact. as of the date of the hearing no layoffs had resulted from the Mellon arrangement. Nonetheless, two job classifi- cations were immediately eliminated. with a third to be eliminated in 6 months. Of the four remittance clerks in the unit prior to September 21, those whose jobs were elimi- nated sustained no perceptible loss of employment or earn- ings. Thus, remittance clerk Eunice Bates bid into a record service clerk position in the customer service department. a job in a wage level class equal to that of a remittance clerk. Remittance clerk Jay Barcini bid into a stockman position, a higher rated job. Finally, an employee by the name of Ludwig was expected to be on leave of absence until March 1979, at which time her former remittance clerk position was to be eliminated. Should she return, Ludwig will be required to exercise her seniority rights and bump into an- other position in accordance with article IV of the collec- tive-bargaining agreement, as did Bates and Barcini.' It is not unreasonable to assume that unilateral subcon- tracting which fails to produce layoffs might well be deemed as lacking in "significant impairment of job tenure, employment security, or reasonably anticipated work op- portunities for those in the bargaining unit."5 This, if cou- pled with a background disclosing a high volume of subcon- tracting, may produce tension between the burden to be placed on management were it suddenly required to bar- gain with respect to each of a number of subcontracts, none of which exceeds that which had historically been let, on the one hand, and the right of employees. on the other, to rely upon their representative to mitigate threatened job security. The accommodation turns upon the nature of past subcontracting experience. For a denial to employees of the services of their designated agent with respect to matters within the framework of their legitimate concern should not be condoned where the employer's action, even if layoff free, radiates against established employment interests in an unprecedented and fear inspiring fashion. 4It is noted that while art. iv, sec. N, I. afforded the opportunity for displaced employees to exercise their senionlty to bump parallel and down- ward, that section contemplates layoff for employees who are displaced or whose jobs have been eliminated under conditions in which there are no further bumping opportunities. Accordingly, under the contractual provi- sions which cushion the impact of job dislocation it is entirely possible that upon Ludwig's return a bumping process might ensue which could result in a layoff or loss of work for a unit employee, It also appears that under art. IV. sec. M. 2. employees who change jobs may dunng their initial 4-month probation period in the new job, at their option. return to their former clas- sifcation. This option was lost to ay Barcini. since his former position of remittance clerk had been eliminated. 5 Westinghouse (Mansfield Plant), supra at 1576. 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consistent therewith, the results reached and standards enunciated in such cases as Westinghouse (Mansfield Plant), supra; Westinghouse Electric Corp., Bettis Atomic Power Laboratory, 153 NLRB 443 (1965); Allied Chemical Corpo- ration (National Aniline Division), 151 NLRB 718 (1965): and American Oil Company, 155 NLRB 639 (1965), were not intended to enlarge management perogatives beyond those derived from a clearly defined and extensive plant practice. In affording primacy to management interests, those decisions proceed narrowly under stated criteria to remove from ad hoc bargaining only that which is so clearly in consonance with plant practice as to itself be etched into the terms and conditions under which employees knowingly work. In such circumstances, absent significant detrimental impact the precedent sanctions a withholding of Board remedies, deferring employee recourse as against continued adverse influence of an established pattern of unilateral subcontracting to the usual process of contract renewal ne- gotiations. Contrary to Respondent, the instant record does not dis- close that the contracting out of remittance work was just another example of management operational procedure so imbedded in practice as to itself constitute a term and con- dition of employment. Unquestionably, the appropriate bargaining unit herein had not over the years been insu- lated from the subcontracting of work performed by its members. However, Respondent's practices in this respect related essentially to the closedown of branch offices and the contracting out of temporary work above that custom- arily performed in the unit. The branch offices had been maintained by Respondent in various communities, in which consumers could deal di- rectly with Respondent directly in purchasing merchandise, paying their bills, and communicating generally as to ser- vices provided by Respondent. Beginning in 1963 Respon- dent began to eliminate certain of these branch offices. Ar- rangements were made with various banks and retail outlets in the community served by the branch office to provide direct consumer payment facilities. Between 1960 and 1973 seven branch offices were closed under these conditions. No layoffs ensued, but as was true of the Mellon Bank arrange- ment job classifications were reduced. As for the balance of subcontracting in the unit, with a single exception each instance involved the utilization of outside contractors to cover peak load situations or addi- tional work forseeably lacking in continuity and of a spo- radic nonrecurrent nature.6 The Union, with respect to each of the above instances, was notified after the decision was made in that respect; Respondent bargained as to the effects thereof, and insofar as this record discloses furnished all economic data which would enable the Union to evaluate the appropriate course to be taken in response. The foregoing hardly substantes the assertion that the Mellon arrangement involved a type of subcontracting in "kind or degree . .. customary under past established prac- tice." It posed a new unprecedented threat to unit employ- ees insofar as it represented the first instance where unit 'The exception involved the contracting out of two messenger jobs in August 1971. Although the positions were eliminated there were not layoffs. work was removed and classifications elminated due to technological advance. Notwithstanding a history of bar- gaining dating back some 25 years, the subcontract in issue, subject to a single occurrence in 1971, marked the only occasion for elimination of unit positions under circum- stances dissociated from closures or fullfilling work de- mands beyond that customarily discharged by unit person- nel. On the facts, it is fair to conclude that the overall practice of contracting out work in the instant bargaining unit was sporadic. compartmentalized, and something less than the frequently repeated readily anticipated means of operation contemplated by the line of decisions following Westinghouse (Mansfield Plant), supra.7 It is concluded that those cases are distinguishable and hence failed to exuse Respondent's breach of its statutory obligations concerning the contracting out of remittance work. Also lacking in merit is Respondent's claim that the Union waived its intent in bargaining with respect to sub- contracting. As stated by Administrative Law Judge Paul Bisgyer in Hilton Hotels Corporation dbla Statler Hilton Hotel, 191 NLRB 283, 288: As a general rule, a labor organization may waive its statutory right to be notified and consulted concerning a contemplated change in working conditions. Such a waiver, however cannot be lightly inferred but must be clearly and unmistakably evidenced either in terms of the parties' bargaining contract or in the nature of the prior contract negotiations. Silence in the consum- mated agreement following discussions of a controver- sial subject does not necessarily meet the waiver test. And as the Board stated in The Press Company. Incorpo- rated, 121 NLRB 976, 977 978 (1958): It is well established Board precedent that, although a subject has been discussed in precontract negotiations and has not been specifically covered in the resulting contract, the employer violates Section 8(a)(5) . . . if during the contract term he refuses to bargain. or takes unilateral action with respect to the particular subject, unless it can be said from an evaluation of the prior negotiations that the matter was "fully discussed" or "consciously explored" and the union "consciously yielded" or clearly and unmistakably waived its inter- est in the matter. The governing collective-bargaining agreement contains no provisions which explicitly restrict or attempt to regulate the conditions under which the Employer may contract out covered work. Nor is there language contained therein which nullifies the Union's statutory right to notice and advance consultation, "a provision . . . normally implied in an agreement by operation of the Act itself."8 As for the negotiating history, the record merely discloses that during contract renewal sessions in 1969, 1971, and 1977 the Union proposed bans on the subcontracting of' unit work. The proposals were discussed, though opposed9 by Respon- dent, and later dropped by the Union prior to entry of each successive collective-bargaining agreement. Contrary to Re- 'See AMCAR Division, ACF Industries, 231 NLRB 83, 89 (1977). I N.L.R.B. v. Perkins Machine Company, 326 F.2d 488. 489 (Ist Cir. 1964). 'The nature of the discussions is not clearly delimited b the record. 264 EQUITABLE GAS COMPANY spondent's view, a union's unsuccessful effort to obtain con- tract revisions imposing restrictions upon subcontracting greater than the duty of notification and consultation em- bodied in the Act is not tantamount to a "conscious yield- ing." The more likely interpretation is that in receding from a demand for more comprehensive restrictions and joining an ultimate settlement of negotiations, the Union elected to rest upon its lesser statutory rights.' ° In sum, the Union's demands in past negotiations did not supplant the employ- ees' right to the services of their representative with respect to Respondent's removal of unit work by sudden, unprece- dented, unilateral action. Accordingly. I find that Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally contracting out the work of its remittance clerks without affording the Union prior notification and an opportunity to bargain with re- spect to its decision in that regard. Next arises the question of whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide to the Union, upon request, both a copy of its agreement with the Mellon Bank cost data pertinent thereto. In this connec- tion, under established policy. "an employer violates Sec- tion 8(a)(5) of the Act by refusing, during the term of a collective-bargaining agreement, to furnish information re- quested by the Union if such information is relevant to a grievance or to the administration or policing of the agree- ment." See Puerto Rico Telephone Company v. N.L.R.B., 359 F.2d 983, 986 (Ist Cir. 1966). By way of defense to its admitted refusal to furnish such information. Respondent contends that the requested information was not relevant to the performance of the Union's obligations as bargaining representative. Having concluded that the contracting out of remittance work was subject to a duty to bargain in good faith, it follows that the information sought by the Union was relevant to an assessment of alternatives in the context of such negotiations and indeed to determine the degree to which future contract protection might be necessary to avert further similar incursions." The fact that the Com- pany did not inform the Union that the work was awarded to the bank on the basis of cost considerations is immate- rial. Whatever the Company relied upon in taking this step it is difficult to imagine that cost and its interrelationship with savings was a totally alien factor. In any event, any such claim by the Employer is worthy of appraisal through good-faith discussions with the Union after disclosure of all facts permitting fair evaluation. An unconfirmed self-saving stance that cost was not a factor is no substitute for disclo- 10 The fact that the Union was afforded an opportunity during contract negotiations to bargain with respect to subcontracting. though relevant to an assessment of whether the Wesinghouse (Mansfield Plant) decision is control- ling, does not independently satisfy Board requirements for a "waiver" of statutory rights. Here, that decision has been deemed inapposite on other grounds. ' It is noted that although the Mellon Bank had only partial capacity at the time to perform other clerical functions such as keypunch and posting. other banks have this capability, and is not beyond possibility that the Mel- lon Bank may broaden its technology to handle such matters and that this was within contemplation The fact that the Company disavows an intention under its arrangement with the bank to make further inroads on the unit does not oblige the Union to accept such representation without opportunity to evaluate it in the light of withheld relevant information. sure absent convincing collateral evidence that this was in fact the case.' In sum, the Union's request for a copy of the Mellon contract and any relevant cost data wth respect thereto car- ried a "probability that desired information was relevant, and it would be of use to the Union in carrying out its statutory duties and responsibilities." See N.L.R.B. v. Acme Industrial C(o. 385 U.S. 432. 437 (1967). Accordingly, I find that Respondent violated Section 8(a)(5) and ( 1) of the Act by refusing to furnish the requested information. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally subcontracting unit work without affording to the Union as the exclusive representative of employees in the appropriate unit advance notice and an opportunity to consult and by refusing, upon request, to provide the Union with a copy of its agreement with the Mellon Bank and other pertinent cost data. 4. The unfair labor practices found above are unfair la- bor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THI REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent shall be ordered to bargain collectively with the Union concerning its decision to contract unit work for performance by the Mellon Bank and to provide Respon- dent with a copy of its agreement with said bank as well as any related cost data pertaining thereto. Counsel for the General Counsel also urges that Respondent be ordered to rescind its agreement with the Mellon Bank and to restore the status quo in the treasury department to conditions ex- isting prior to Respondent's elimination of said work and to offer the employees displaced thereby their former positions as remittance clerks, without prejudice to their seniority and/or other rights and privileges. In the circumstances, it is considered that such a remedy would impose a dispropor- tionate burden upon Respondent in relation to the redress necessary to effectuate statutory policies. In this connection it is first noted that the refusal to bargain herein produced neither layoffs nor loss of earnings. It occurred against a bargaining history, which though lengthy, was apparently ': Such evidence was available in Southwestern Bell Telephone Companv. 173 NLRB 172 (1968), where an 8(aX) allegation based on the failure to supply cost information pertaining to subcontracting was dismissed. In that case the subcontracting itself was not challenged. it was restricted to "peak loads," and had been resorted to only "because its employees were too busy and could not handle the work." Furthermore. while the information re- quested was in aid of union efforts to grieve the subcontracting. the Board viewed the provisions of the contract to which the gnevances related as failing to reveal that cost data was enshrouded with a "probability of rel- evance. 265 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free of discord. Indeed, the Union's posture with respect to the variant forms of subcontracting engaged in by Respon- dent over the years was manifested as no more than a sin- cere interest in being afforded the opportunity to compete against outside contractors on the basis of the economic merits. On balance it would seem both fair and more com- patible with continued harmony to assure the Union the opportunity to develop its position on the Mellon arrange- ment on the basis of facts supplied by Respondent, enabling it to assess whether it is in a position to compete for this work and, if so, to propose an economically feasible alter- native. Beyond that, to require as a precondition to good- faith bargaining recission of Respondent's subcontract is viewed as an inappropriate exercise of remedial authority. Upon the foregoing findings of fact, conclusions of law. and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDERS The Respondent, Equitable Gas Company, Pittsburgh. Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing or refusing to bargain collectively by unilater- ally and without prior notice and affording an opportunity to consult to the exclusive representative of employees in the appropriate unit subcontracting the work of said em- ployees. 3 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 findings, 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. (b) Failing or refusing, upon request, to supply the exclu- sive representative of' employees in the appropriate unit in- formation relevant and necessary to the performance of its obligations as employee representative. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action found necessary to effectuate the policies of the Act: (a) Furnish to the Union a copy of its contract with the Mellon Bank pertaining to remittance work and any related cost data and afford the Union an opportunity to bargain with respect thereto. (b) Give notice to the Union and afford the latter an opportunity to bargain collectively with respect to any deci- sion to subcontract work historically performed by employ- ees in the appropriate bargaining unit. (c) Post at its facilities in Pittsburgh, Pennsylvania. cop- ies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's autho- rized representative, shall be posted by it immediately upon receipt thereof and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. "In the event that this Order is enforced b a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 266