The American Oil Co.

AMERICAN OIL CO. 29 The American Oil Company, a Texas Corporation and Oil, Chemical and Atomic Workers International Union, Local No. 9-449, AFL-CIO. Case 23-CA-2103. April 18, 1967 DECISION AND ORDER On September 22, 1966, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and Respondent filed cross-exceptions with a brief supporting its cross-exceptions and answering the General Counsel's exceptions. The National Labor Relations 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 Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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. description of the outside contracts, in addition to those listed in the charge."' The charge listed 18 alleged instances of work performed by "outside" contractors, and further alleged that "The Union has made repeated efforts to secure information on these contracts," particularly specifying that a request for information had been made by the Union's workmen's committee to the Respondent on April 1, 1965, which assertedly had been refused. Respondent's original motion to dismiss the complaint for failure to state a cause of action was denied by Trial Examiner Lindner, and the Board thereafter denied Respondent's request for permission to appeal specially from this ruling and from the denial in part of Respondent's motion for a Bill of Particulars. Respondent's second motion to dismiss the complaint on grounds previously stated in its original motion, and for the additional reason that the General Counsel's Bill of Particulars assertedly did not comply with the Trial Examiner's order, was denied at the hearing by me. See Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61, 72-73 (C.A. 3, 1965). This proceeding was heard by me at Texas City, Texas, on June 14, 15, and 16, 1966, upon the issues raised by the complaint of the General Counsel and the answer of the Respondent admitting some of the allegations of the complaint, but denying the commission of any unfair labor practices. Upon denial of its motion to dismiss made at the conclusion of the General Counsel's case, the Respondent rested its case, without presentation of evidence. Upon the entire record; including my observation of the witnesses, and after due consideration of the arguments made on the record by the parties, and the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: The complaint in this matter, issued on February 21, 1966, upon charges filed on July 16, 1965, alleges that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to furnish the Charging Party, herein called the Union, upon request, information relating to the terms and conditions of Respondent's contracts with contractors whose employees were performing work normally and regularly performed, or capable of being performed, by Respondent's employees in a collective-bargaining unit represented by the Union. In accordance with an order of Trial Examiner Lindner, the General Counsel furnished Respondent with a Bill of Particulars enumerating 64 "dates (or approximate dates) of the Union's requests for data together with a brief I Trial Examiner Lindner ordered that the particulars be "furnished" to the Respondent on or before May 27, 1966 The General Counsel mailed the Bill of Particulars on May 26, but they were not received by Respondent until May 31, 1966 I rejected Respondent's argument, in a motion to dismiss, that General Counsel's action did not comply with the Trial Examiner's Order Under Sec 102 113 of the Board's Rules and Respondent , a Texas corporation , is engaged at Texas City, Texas, in the manufacture and sale of petroleum products, in the course of which, during a recent annual period , Respondent sold and shipped in interstate commerce from its Texas City refinery products of a value in excess of $50,000. It is admitted and I find that the Respondent is engaged in commerce within the meaning of the Act. > II. LABOR ORGANIZATION It is admitted and I find that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The General Counsel does not here attack the right of the Respondent to unilaterally subcontract work without Regulations, Series 8, as amended, service is complete upon deposit in the mails Further, no showing of prejudice because of late delivery was made 2 In accordance with the stipulation of the parties G C Exh 1(Y), submitted since the close of the hearing, is received in evidence 164 NLRB No. 7 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining with the Union over these matters in advance. He does contend that the Respondent, by allegedly refusing to supply certain data with respect to such contracts to the Union, has prevented the Union from fulfilling its statutory obligation to the employees it represents, and, in particular, has prevented the Union from policing the "Contract Work" provision of the collective-bargaining contract between the Respondent and the Union, thereby violating the Act. Specifically, the General Counsel urges that the information requested was necessary in order that the Union be able to intelligently determine whether to file grievances initially under the contract, and thereafter to determine whether to press such grievances to arbitration.3 Further, the General Counsel argues that the statutory obligation of the Union to represent employees "includes the duty to remedy unfair labor practices, as well as to police a collective bargaining contract," and therefore, the Union is entitled to the information sought, in order td determine whether charges should be filed in the future with the Board, where it may find that Respondent's subcontracting of work violates the principles laid down by the Board governing such matters. Respondent's position, in essence, is, first, that there is no substantial evidence that the Respondent refused to furnish the Union "relevant" information properly requested; secondly, that since there is no contention that Respondent had any obligation to bargain with the Union concerning the subcontracting of work, there can be no duty to give information concerning those matters, so that "What is really asserted is a floating right of continuous discovery, not for the purpose of bargaining or administering the collective agreement, but rather for the purpose of finding and prosecuting unfair labor practices"; and lastly, that the parties have fully negotiated concerning subcontracting of work and spelled out their obligations in the collective agreement, and therefore "the Board must, in light of the national labor policy embodied in Section 203(d) of the Labor Management Relations Act in favor of voluntary arbitration, defer to the arbitration process agreed upon by the parties for interpreting their agreement." SECTION 8-CONTRACT WORK It is the intention of the Company to provide full and regular employment for its employees at all times. In accordance with that intention , the Company will make every reasonable effort to use its available working force and equipment in order to avoid having its normal work performed outside. The agreement also contains a comprehensive grievance and arbitration procedure, set forth in article XVI, which provides, in pertinent part (sections 2 and 3 .of article XVI) that, ". . . should any difference arise between the Company and any employee or group of employees covered by the Agreement as to the meaning and application of the Agreement, or should a grievance arise . the procedure for settlement shall be as follows:" Then follows a multistep procedure, providing at the first level for presentation of the grievance to the foreman, or the foreman and department head jointly, with the requirement that where the grievance is presented in writing, the answer must be made in writing within 5 days. Thereafter, if no settlement has been reached at the first level, either the aggrieved employee or the workmen's committee of the Union may submit the grievance in writing to the plant manager. Grievances submitted to the plant manager are considered at meetings of workmen's committee and management of Respondent held regularly on the first and third Thursdays of the month. The plant manager is required to render a written decision on such grievances within 5 days after such joint meeting. Any grievance involving the interpretation or application of the agreement, which is not satisfactorily settled by the decision of the plant manager, may be taken to arbitration by either the Union or the aggrieved employees. Respondent also refers in its brief to certain other provisions of the agreement, which are not necessary for the decision of the issues involved. The Genesis of the Issues The Collective- Bargaining Agreement The current collective-bargaining contract between the Respondent and the Union, which became effective July 1, 1964, continues in effect through December 31, 1966.4 Among its terms, the provision most directly involved in this proceeding is section 8 of article IV, which states: S The Regional Director originally refused to issue complaint in this matter because investigation had shown that the subcontracting involved had not "resulted in a significant detriment to bargaining unit employees since there has been neither layoffs nor a reduction in the amount of their regular or overtime hours", and further that all such subcontracting had resulted in grievances , and in one case an arbitrator had held "that the Employer's subcontract is privileged under the terms of the contract " Upon appeal, the General Counsel agreed that there was insufficient basis for alleging that the Respondent had violated the Act by unilaterally subcontracting out work, in the absence of a showing of detriment to the employees, but deemed the Respondent "to have breached its duty to bargain by withholding from the Union requested information concerning the Although the language of the charge and the findings of the Regional Director referred to in footnote 3 indicate that there may be considerable background for the present dispute, the General Counsel presented no evidence on the matter. It is assumed that the parties have had collective-bargaining relationships for a considerable period of time from the complexity and sophistication of the current agreement, as well as the fact that one of the terms and conditions of these subcontracts which the Union required in connection with its duty to process grievances under its contract " " The pleadings establish that at all times material to this proceeding the Union has been the exclusive representative for the purposes of collective bargaining , within the meaning of Sec 9(a) of the Act, of the following employees, who constitute an appropriate unit within the meaning of Sec 9(b) of the Act All employees engaged in the operation and maintenance of the Respondent's Texas City, Texas, refinery , excepting clerical, office, technical or research , plant protection employees, and supervisors as defined in the Act I so find The collective- bargaining agreement between the Respondent and the Union covers this bargaining unit AMERICAN OIL CO. 31 witnesses testified to having been a shop steward for 16 years. It is further assumed that the Respondent has had some past practice of subcontracting work which has been the subject of negotiation between the parties from the fact that the matter is treated in the agreement.5 Other than this, the record contains no evidence that Respondent was engaged in subcontracting out work or that there had been any refusal by Respondent to provide information as to the processing of grievances prior to approximately the first of April 1965. Billie Jones, Jr., an employee, who was chairman of the workmen's committee during 1965, was asked whether, as a representative of the committee, he had any conversations with the management of Respondent concerning the subcontracting of work, "prior to June 16, 1965" (the date of the first "subcontracting" grievance placed in evidence), and, in answer, referred to only one conversation with Kirchhoff in March or April 1965. The pertinent part of that testimony of Jones is as follows: I told Mr. Kirchhoff that we would like to know the contractors that was coming into the plant that was subcontracting, we wanted to see the contract, we wanted to know the condition of these employees coming into the plant to perform the work that we considered our normal work. This was at one meeting. And Mr. Kirchhoff informed me that he would give me an answer at a later day. It was approximately two meetings later-it may have been the next meeting, but I think it was two meetings later they came back and told us they were denying us the right to see contracts of these subcontractors that was coming in the plant.6 As will be discussed further hereinafter, there is no evidence that the Union thereafter brought this subject up again at a joint workmen's committee-management meeting, although at least 86 grievances were thereafter filed involving subcontracting, a substantial number of which were taken up by the Union and Respondent at joint workmen's committee and management conferences. The Processing of Grievances Concerning Subcontracting at the Foreman Level The General Counsel introduced 86 grievances into evidence submitted by an employee or employees in the bargaining unit, complaining, in one form or another, that the Respondent had given out work to a contractor which should have been performed by unit personnel. The earliest grievance is dated June 16, 1965, and the latest, April 19, 1966. Fifty-nine of these grievances are dated in 1965. These numbers, however, bear no necessary relationship to the amount of subcontracting involved, since in some cases more than one grievance refers to the same piece of work or project, or a number of grievances may refer to repeated instances of the same kind of work. Thus, there are 3 grievances, filed by different departments, concerning the repair of one truck, and there are at least 18 grievances, bearing different dates, complaining of 18 different occasions on which Respondent is alleged to have had valves reconditioned by an outside contractor-possibly the same contractor in each case. For the most part, the written grievances, though brief, are detailed and specific as to the work complained of, and the dates or time at which it was performed. With respect to many of these grievances, it appears that the union shop steward, or the complaining employee, did not request information from the Respondent at the foreman level, although in some such cases information or assistance may have been requested with respect to other or related grievances. In some cases the only request made was for permission to investigate the complaint, which request appears to have been frequently granted by the foreman. On one occasion shown by the record in which permission to investigate the grievance personally was denied, Shop Steward Gutierres testified that the supervisor gave him the information upon which he proceeded to file a written grievance. In the words of Gutierres, the supervisor told him, "that they contracted with the Nunez Construction Company to move the whirley crane from the T-head at No. 1 dock and replace it with the large berth crane .... And he also stated that the reason they used the Nunez Construction Company was because they thought it would be faster, since we would have to take the cherry picker7 from our refinery down there and a truck to do this work, and our people were tied up on other work."" In another case, as previously noted, three grievances were submitted to Respondent from three different S In his brief, General Counsel attempts to establish this background by asserting that since the chairman of the Union's workmen's committee "guessed" that there were 150 subcontracting cases awaiting arbitration at the end of 1965, and since General Counsel placed in evidence only 59 grievances filed in 1965, therefore, "the problem of contracting out obviously has a relevant history predating June 16 [1965] " In addition, General Counsel relies upon the alleged instances of subcontracting of work set forth in the charge, but not proved at the hearing I have given no weight to these contentions, in the absence of an offer of more probative evidence, or some explanation for the failure to produce it 6 In his opening statement, the General Counsel asserted that Jones' request was for "all contracting in the past, all contracting now, all contracting in the future." However, as noted above, no evidence was adduced with respect to any subcontracting past or current at the time of the request Moreover, the thrust of General Counsel's arguments are to the effect that Respondent violated the Act by failing to supply the requested information in the future, so that the Union could "intelligently determine whether to file a grievance initially and thereafter whether to press such a grievance to arbitration," thus preventing the Union "from policing the `Contract Work' provision," and precluding it "from evaluating grievances filed by its stewards . . " On the basis of this record it is found that the request was for future subcontracts and the Respondent's refusal was to supply copies of these in the future 7 "Cherry picker" is a slang expression for a particular type of crane See "Webster's Third New International Dictionary" (Unabridged, 1961). 8 Gutierres' written grievance with respect to this instance, which is illustrative of the grievances filed generally with respect to the subcontracting issue, is as follows On Tuesday, November 9, 1965, about 2:00 P.M Nunez Construction hooked onto and moved the Whirlette Crane from No. 1 dock, and replaced same with the Barge Berth Crane, using their crane to make the switch They finished the job at 6.30 P.M This work has historically been performed by plant forces We contend this is in violation of the interpretation and application of the current working agreement, and further that it should have been performed by the Rigging Division personnel, and that we each be compensated 7-1/2 hours at time and one-half our rate of pay for this violation 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departments, dated the same day, concerning the repair of a truck. Two of these, set forth in General Counsel's Exhibits 36 and 49, complained of the installation of a rear bumper on the truck by an outside contractor. The other, General Counsel's Exhibit 69, complained of bodywork and repairs which allegedly should have been done by plant forces. Shop Steward Morse testified that he filed an oral grievance with his foreman with respect to the installation of the bumper, and received an answer from the foreman's superior, as stated by Morse, that "he was denying the oral grievance and explained it was part and parcel of a complete overhaul job which included quite a bit of work. I can't itemize it all. But it included the bumper, and I believe painting and there was quite a bit of mechanical work done on the truck. I can't verify how much work. I didn't have a list .... I asked him the price of the bumper job and he told me it was ten dollars." Morse made no further requests for information and proceeded to file a written grievance, General Counsel's Exhibit 49. Although no testimony was offered with respect to the processing at the foreman's level of the grievances contained in General Counsel's Exhibits 36 and 69, a copy of the foreman's written answer to the grievance set forth in General Counsel's Exhibit 36, referring to the installation of the bumper, was received in evidence, which reads, in pertinent part: The Work complained of was properly contracted since it is part of a major overhaul on the gasoline- diesel oil truck. Furthermore, the personnel of the Welding Division were fully and regularly employed during the period that major overhaul was being completed. There was no contract violation . Therefore your grievance is denied. As previously noted, a considerable number of the grievances in this matter allege that Respondent had contracted out the reconditioning of valves instead of having plant forces do this work. It appears that these grievances arose from observation by the shop stewards and employees that valves were being unloaded at the plant from trucks bearing the name of "Elliott Valve Company." These valves bore tags or were otherwise identified as reconditioned. Shop Steward David Schoeffler testified that he counted the valves as they were being unloaded and inspected the tags identifying the valves as "reconditioned." Schoeffler and employee Henry Welch, who is also a shop steward, spoke to the assistant superintendent of the mechanical department, Paul Stewart, about this. Since the versions of the two men concerning this conversation do not exactly coincide, only so much of their testimony at is consistent with the following findings is credited. After Schoeffler and Welch told Stewart that they were there to find out the reason the Respondent was 9 The same answer was later given Welch by the machine shop foreman in answer to his question as to why the Respondent was contracting out this work IU Thus, Welch testified that, after Stewart stated that he did not believe he had any information on how many valves were going out of the plant and coming back in, " I said, `Well , now, if you are selling this stuff as scrap iron , you are bound to be weighing it' .. And he said they were And I said, `Where is it contracting out the repair of these valves, Stewart stated that the valves were not being contracted out, but were being sold to Elliott as scrap iron.9 He further said that Elliott was well equipped to repair the valves and could do the work fast. Implicit in the testimony, and confirmed by other evidence, is that part of the arrangement between the Respondent and Elliott also involved the purchase of reconditioned valves from Elliott. Schoeffler and Welch expressed their disbelief that valves were being sold as scrap iron, and asked Stewart to advise them of the number of valves "going out of the plant and coming back in." Stewart said either that he was unable to or would not tell them. It would further appear from Welch's testimony that the men placed considerable emphasis on being advised as to the details of the sales to Elliott, that is, the valves "going out of the plant"' 0-possibly because they felt able to ascertain the valves received at the plant from Elliott from their own observations. Since the General Counsel did not offer any of the written responses made by the foremen to these grievances, it is impossible to have a fully rounded view of the processing of the grievances at this first level. In this instance, however, Welch did acknowledge, on cross- examination , that he had received from the foreman an answer to one of these grievances stating that "Purchase [of] reconditioned valves instead of new valves is not a violation of the contract, therefore your grievance is denied." Welch further affirmed that he had heard-most probably at a workmen's committee meeting-that Respondent's position was that it was selling valves to Elliott at scrap prices and the valves thereupon became Elliott's property; that the Respondent also purchased reconditioned valves from Elliott "at predetermined prices." Shop Steward Jack Hoogterp filed five written grievances concerning work done on Respondent's property by other than plant employees. Prior to submitting these grievances, Hoogterp asked a number of foremen or department supervisors questions concerning the date these activities started, how many people were' being used on the job, and what these people were doing. He was given the approximate date and was informed that exact information was not available, since the matter was being handled by the engineering department. Hoogterp was further advised, in his words, that "this did not come under my craft work," and that the number of men being used on the job was up to the contractor. He was, however, given permission to check on the job, and it appears that on at least one occasion he was accompanied on such an inspection tour by the foreman. Shop Steward Ray Gist, being aware, according to the written grievance he filed, that 96 gauges had been returned to Respondent's warehouse on July 10, after being repaired by an outside contractor, asked his foreman why this had been done, Gist testified that the foreman ,replied, "that was the way Mr. Nelson and Mr. Pierce .wanted it." Nothing more appears. weighed, on their scales 9' And he said no, at Schwartz or whoever it is, Just over here, that deals in scrap iron . and 1 said, `Well, they are bound to have some record on it ' And he said, `Well, now, they may be sending the weights to the warehouse And so I said, `You can probably get it from them ' He said, `Well, we are going to do very little or no bookkeeping on this ' And so I said, when we got ready to leave, I said, `Are we going to get this information or not 'And he said, `No ". AMERICAN OIL CO. 33 This material well illustrates, and largely exhausts, the evidence submitted with respect to the processing of the subcontracting grievances at the foreman level. Two other matters involving testimony by shop stewards, however, require comment at this point. The General Counsel argues, upon a showing That a number of shop stewards were aware of Respondent's refusal to honor Jones' request for copies of all subcontracts, that the shop stewards were restrained from seeking information from foremen, feeling it to be futile.[' However, it is difficult to perceive how the failure of shop stewards to investigate grievances at the foreman level, if that occurred, could be excused by the refusal of the Respondent some months before to produce documents, which would normally be inapplicable to the processing of these grievances at the first step, in any event. Indeed, the record as a whole does not demonstrate any particular hindrance to the proper investigation of grievances by the shop stewards, considering the level on which they were operating, the complexity of the problem, and the very small likelihood that this sort of grievance could be settled at this level. Although the record shows an uneven response to queries for information-probably due to the particular shop steward and foreman, as well as the particular problem involved-it is far from leaving a conviction of frustration of the shop stewards in the p. per performance of their functions. The numbers and detail of written grievances submitted, in addition to the evidence set forth, are strong evidence to the contrary. Lastly, there are a number of instances of conclusionary testimony by shop stewards to the effect that they received no information from Respondent concerning subcontracting grievances. I believe that this testimony is entitled to little or no weight. In a case of this character, the value of the information received (or not received) can be judged best in respect to the specific requests for information, or lack thereof. Discussions of Grievances at the Joint Workmen's Committee Management Level At least 59 grievances alleging improper subcontracting out of work were filed from June 16, 1965, to the end of that year. Most, if not all, of these grievances were discussed at the regular joint meetings of the Workmen's Committee and management under the collective- bargaining agreement. However, there is no evidence that the Union at any time, with the exception of one occasion in December 1965, asked to be supplied with any records pertaining to a specific grievance under discussion in a joint workmen's committee-management meeting. Billie Jones' testimony establishes that in December 1965, during one such joint meeting, the parties discussed the grievances previously noted involving the installation of a bumper on one of Respondent's trucks by an outside repairman. When Jones disputed Respondent's claim that the cost of repairing the bumper was $10, and asked to see the records, he was told that he could not see them. Other than this, Jones' testimony was to the effect that no other requests were made of Respondent for information. His further conclusionary testimony that he received no information with respect to these matters has been considered in this light. Indeed, his testimony that he received no information from Respondent, taken in its broadest sense, is not credited. In the absence of evidence of a general refusal to cooperate on Respondent's part, it is highly unlikely that the Union obtained no information from the discussion of a large number of grievances of this sort. The fact that some information was obtained is borne out by the testimony of Shop Steward Dearinger, who stated that while he was unable to find out from his foreman the reason that certain work had been contracted out, he was informed of the Respondent's reasons at one of the joint meetings of the workmen's committee. Shop Steward Welch, as previously noted, also indicated that, at one of these meetings, he was advised of Respondent's position with respect to obtaining valves from Elliott Valve Company. No evidence was submitted with respect to discussion at this level of the grievances filed in 1966. It was, however, stipulated that of the grievances received in evidence, a great many are awaiting arbitration, or are "tied to" grievances that are awaiting arbitration. Conclusions It is now well established that a labor organization obligated to represent employees in a bargaining unit with respect to the terms and conditions of their employment is entitled, upon appropriate request, to such information from the employer as may be reasonably necessary to the proper execution of that obligation. And the right to such information exists as well as for the purposes of administering a collective-bargaining agreement after it has been negotiated, as for the purposes of negotiating the agreement in the first instance. As the Board has stated, "The employer's duty, in either instance, is predicated upon the need of the union for such information in order to provide intelligent representation of the employees." See F. W. Woolworth Co., 109 NLRB 196, 197, enfd. 352 U.S. 938 (1956). While the limits of this right to information, and the correlative duty to supply it, have not as yet been fully defined, and although some variation appears in the description of the criteria to be applied, all of the cases considering this issue, either in their facts or their rationale, indicate, as the Board stated in Woolworth, that the right to the information arises out of a "need" for it shown by the circumstances of the particular situation. While it is often stated that the information sought must be "relevant," more than abstract relevance is required. The fact that the information will be merely "helpful" is not enough. See Puerto Rico Telephone Company v. N.L.R.B., 359 F.2d 983, 986 (C.A. 1, 1966); General Aniline and Film Corporation, 124 NLRB 1217, 1219. Where the information sought covers the terms and conditions of employment of employees within the bargaining unit, thus involving "the core of the employer- employee relationship," no specific showing of relevance or necessity is normally required; but where the request is for information with respect to matters occurring outside the unit, the employer's obligation to comply is raised only where the union involved, "by reference to the circumstances of the case, as an initial matter, demonstrate[s] more precisely the relevance of the date it desires." See Curtiss-Wright Corp. v. N.L.R.B., 347 F.2d 61, enfg. 145 NLRB 152. " In two instances, the General Counsel obtained testimony from shop stewards that such was their mental condition In one instance the testimony was stricken on motion of Respondent The remaining testimony, of an unexpressed mental condition not substantiated by objective circumstances, is not entitled to and has not been given any probative weight 34 DECISIONS OF NATIONAL In Curtiss-Wright Corp., 145 NLRB 152,156-157, where the information sought concerned work being performed by employees outside the bargaining unit, as is the situation in the present matter, Trial Examiner Reel summarized the applicable principles, in a decision adopted by the Board, as follows (footnote and citations omitted): The Union is charged with the statutory duty of representing the employees in the bargaining unit. In the exercise of that duty, it has a right to information as to wage rates, job descriptions, and similar matters which is relevant, or reasonably necessary, in the discharge of its bargaining obligation. In my view, its right to such data turns, in the final analysis, not on whether the employee to whom the data refers is in the unit, but on whether the data itself is relevant or related to the Union's role as bargaining representative. This is not to say, however, that the employee's inclusion or exclusion from the unit is irrelevant in determining whether the data is relevant. Stated simply, I believe that there is a presumption of relevance when the data covers employees within the unit, and that no such presumption exists when the employee is outside the unit. In International Telephone & Telegraph Corporation (ITT Federal Laboratories), 159 NLRB 1757, a recent case, also involving the right of a bargaining representative to information about employees outside the bargaining unit, the Board, referring to Trial Examiner Reel's discussion, part of which is quoted above, stated that: "The Union's right to such data ... turns not on whether the employees to whom the data refers are in a unit, but on whether the data itself is necessary and relevant to the Union's role as bargaining representative." [Emphasis supplied.] Cf. Goodyear Aerospace Corporation, 157 NLRB 496. Among the several cases which have involved the right of a bargaining representative to extraunit information and the correlative duty of the employer to supply it, the present matter is particularly notable in its lack of a relevant context giving rise to the request for information and by which its necessity can be judged. At the beginning of the hearing the General Counsel advised that, quite apart from any other matter, he considered that the allegations of the complaint stood or fell on Jones' request for, and Respondent's refusal to supply information in March or April 1965. This instance then forms not only the beginning, but a crucial part of our inquiry. At the outset, it may be noted that the actual refusal of Respondent was quite narrow: a refusal to make available in the future all copies of subcontracts entered into which involved unit work, or, it may be inferred, which might do so. While the General Counsel at one point in his argument described the Union's request as a desire "to know who is coming in that gate," the Respondent's reply, in literal terms, was merely a refusal to promise to supply the Union with copies of documents, in the future, containing the terms of Respondent's relationships with subcontractors, when and if they occurred. It is further clear that the request for information here, as in Curtiss-Wright Corp., supra, concerned work that might be performed by nonunit employees and possibly 12 The point, however, was clearly in the mind of the court in Curtiss-Wright Corp. v. N.L.R.B., supra, as evidenced by the court's statement that (347 F.2d at 69), "Although it may be argued that information which would shed light on whether the LABOR RELATIONS BOARD affecting the unit. Here, however, we are left solely to speculation as to the circumstances giving rise to the request, as well as to the Union's need for the subcontracts, as such. It may be suspected, although there is no probative support in the record for so finding, that the request was rooted in previous difficulty with the Respondent over subcontracting. The Union so claimed in its charge in this matter, but, as has been previously noted, the General Counsel concedes that as to those prior instances of subcontracting set forth in the charge no violation of the Act occurred. In addition, and, more important, there is no evidence in this record that the Respondent had previously ever refused to submit to the Union relevant and necessary information concerning subcontracting when requested. On the basis of this record, therefore, it appears that the General Counsel here seeks a ruling that, as a matter of law, per se, on the basis of the contract language alone, the Union is entitled to copies of all subcontracts involving, or which might involve, unit work without reference to the circumstances involved, or indication of a particular need for such documents in respect to a particular dispute. N9 decision of the Board or the courts, so far as I am aware, supports such a position. 12 Indeed, the cases cited above lead to the quite contrary conclusion that it must be shown by the attendant circumstances that the information sought was "necessary and relevant" to the Union's statutory functions before the employer's refusal to supply the information sought becomes unlawful. See also N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 153-154 (1956). In Acme Industrial Company, 150 NLRB 1463, enforcement denied 351 F.2d 258, cert. granted 383 U.S. 905, upon which the General Counsel relies, the Board held merely that with respect to grievances already filed, protesting the removal of machinery and subcontracting of work, the specific information sought "was necessary in order to enable the Union to evaluate the grievances filed and to determine whether those grievances were meritorious, and whether to press for arbitration." In Acme, the requests were not only specific and pertinent, but were clearly founded on actions of the employer which provided a basis for the information sought. The lack of such specificity or the failure to show good cause for information sought, has been held not to raise an obligation on the employer's part to supply the information requested. See Curtiss-Wright Corp., supra at 156-157. On the basis of this record, therefore, and for the reasons stated, it must be held that Jones' request in March or April, alone, did not, per se, raise an obligation to furnish the information requested, and that the Respondent's limited refusal at that time did not violate the Act. At the most, Jones' request was for a commitment to future action with respect to a proper subject of collective bargaining. However, since the request, as such, involved modification of the existing collective-bargaining agreement, prior to the date set for reopening of its terms, Respondent had no obligation to agree. See Section 8(d) of the Act. Thereafter, so far as this record shows, no further integrity of a bargaining unit, itself, was being eroded by an employer is presumptively relevant, we need not reach that question for, as the Trial Examiner found, the Union has successfully demonstrated the relevance of the data requested." AMERICAN OIL CO. 35 effort was made to negotiate the issue. Indeed, there is no substantial evidence in this record that the Union thereafter requested that copies of subcontracts between Respondent and other employers alleged to be doing unit work be made available to it. There is further no merit to the argument of General Counsel that the Respondent is obligated to furnish the Union with copies of such subcontracts in order that the Union may determine for itself whether the Respondent may, in the future, violate the Act by not informing the Union of such subcontracts and bargaining with the Union concerning them, in advance. Conceding the duty of the Union to protect the rights of the employees under the Act,13 such a duty is encompassed within, and is not separate from its obligation to represent the employees in the bargaining unit generally, and stands on no higher or different plane than that general duty. Indeed, since it is conceded that Respondents s subcontracting in the past has not violated the Act, there is no reason to anticipate that it will do so in the future, or that it would effectuate the policies of the Act to give the Union here special means of spying on the Respondent's future activities in that regard.14 Further, as was indicated by the General Counsel at the hearing, the evidence in support of the complaint is not much advanced by the testimony of the shop stewards in respect to their processing of the grievances in this matter. In his brief, General Counsel argues that the failure of the shop stewards to make "formal requests for information," was occasioned by knowledge of Jones' previous unsuccessful attempt to obtain information, and the futility of their own experiences in processing grievances at the foreman level. However, this record, as previously discussed, would hardly justify a finding that Respondent's limited refusal of Jones' request, standing alone, made subsequent approaches to Respondent for relevant information futile. Nor, for reasons previously stated, does it appear that Respondent dealt in bad faith with the shop stewards, or that the shop stewards were improperly hindered in the performance of their functions in representing the employees or administering the bargaining agreement, or filing adequate grievances. In any event, as a practical matter, it would be unrealistic to expect grievances of such complexity to be settled at the foreman level. However, one would expect such grievances to be discussed at the joint workmen's committee-management level, where a meaningful exchange of information and position is possible. However, with the exception of two, possibly three, isolated instances, the record is void as to the discussions which took place at those meetings. Indeed, the record does not even show the Respondent's written replies to the grievances filed. It is incredible that no information was sought by the Union with respect to these grievances, or that Respondent stated no position with respect to them, at these meetings, but, with few exceptions, the record does not show otherwise. In these circumstances, I am compelled to infer either that the Union sought no information, and therefore raised no obligation on Respondent's part, or that the information sought was generally supplied. I find support for this latter observation from the fact that in one case in which the Union requested information during one of these meetings that Respondent refused to supply, evidence of the instance was proffered. In that instance, Jones' testimony establishes that when, in December 1965, the question of the cost of installing a bumper on Respondent's truck by an outside repairman became a matter of dispute between the Union and the Respondent, the Union was refused access to records relating to Respondent's contention that this part of the repair work cost $10. In this instance the request for information was clearly relevant, its disclosure might well have assisted in disposing of two grievances, and the failure to disclose the information was, technically, a violation of Section 8(a)(1) and (5) of the Act. However, on this record, I cannot find that this instance standing alone, in the course of processing 86 grievances, would justify the issuance of a remedial order. Not only is the evidence sparse and unsatisfactory with respect to the discussion of this matter, but it is also clear that the "bumper" grievances were but a minor part of the overall repair of a truck which was the subject of a larger grievance, apparently now noted for arbitration. There is no evidence that the Union requested, or that Respondent refused to provide relevant information as to the larger grievance. In the special circumstances of this case, I find that it would not effectuate the policies of the Act to issue a remedial order in this matter. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act 2. Respondent has engaged in no unfair labor practices warranting the issuance of a remedial order. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 11 But see International Telephone & Telegraph Corporation, supra, particularly the Board's reservations with respect to the matters set forth in In 4 therein 14 1 do not wish, however, to be understood as agreeing with Respondent's argument that the Union should be refused information on the ground that this would amount to an unwarranted right of "discovery " The argument begs the issue If the information sought is shown to have a legitimate relevance to the Union's statutory function of representing the employees in dealing with the employer , it should not be refused on the ground that the employer may be disadvantaged by disclosure of the facts because the employees' representative is thereby informed See NLRB v Yawman & Erbe Manufacturing Co , 182 F 2d 947,949 (C A 2, 1951), Metropolitan Life Insurance Company, 150 NLRB 1478 , 1485-86 298-668 0-69-4