Southwestern Bell Telephone Co.

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 Industrial 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."