Gulf States Asphalt Co.

GULF STATES ASPHALT CO. Gulf States Asphalt Company and Teamsters Freight and Tank Line Employees Local 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 23-CA-3200 September 12, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 2, 1969, Trial Examiner Anne F. Schlezinger issued her 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, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the exceptions and the brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Respondent is engaged in the manufacture of asphalt and asphalt products in Beaumont, Texas, the only portion of its operations involved in this proceeding. Teamsters Freight and Tank Line Employees Local 988, hereinafter called the Union, has represented the Respondent's plant employees and truckdrivers since 1960, and at the time of the events material herein a collective-bargaining agreement existed between the parties containing grievance and arbitration provisions. The Respondent utilizes the services of employees of a subcontractor, Staff Employees, Incorporated, (hereinafter called Staff), who are not included in the bargaining unit or represented by the Union.' On July 3, 1968, the parties met to discuss a number of grievances which had been presented by the steward at the first step of the grievance procedure. The parties successfully resolved all but two of the grievances, these being (1) three The parties stipulated at the hearing that at times material to the complaint employees of Staff performed unit work. Counsel for the Respondent stated at the hearing that he did not know if a contract existed which governed the use of the subcontractor's employees, but that Staff employees were used "when needed " Counsel for the Charging Party agreed with this description of the arrangement. 405 individual complaints by employees in the bargaining unit that they had been deprived of overtime work on Saturday, June 15, 1968, that such work had been assigned to Staff employees, and that the grievants were entitled to overtime pay for the overtime work by Staff employees on that date. and (2) that Staff employees were not being paid the wage rates specified in the collective-bargaining agreement.' Having obtained no satisfaction from the Respondent with respect to these grievances, the Union, by letter dated July 19, 1968, informed the Respondent of its intent to proceed to arbitration under specified provisions of the collective-bargaining agreement. Later in July the Respondent advised the Union's representative that the three individual grievants had worked an enormous amount of overtime during the week ending June 14, 1968, and that the grievants were not entitled to pay for June 15. The Respondent, accordingly, denied that grievance, and denied the second grievance on grounds that the Respondent paid Staff, Inc., more than the contract rate, but would not require Staff to pay its employees the rates specified in the contract. On September 6, 1968, the Respondent, in writing, advised the Union that the grievance on overtime was denied, without reciting the reasons therefor. A few days later the Respondent advised the Union's representative that the grievance had been denied because the grievants had worked so many overtime hours during the week ending June 14 as to render them physically unable to perform the Saturday work. Thereafter, on September 13, 1968, the Union requested that the two grievances be arbitrated.' On October 4. 1968, the Union directed a letter to the Respondent in which it referred to the two pending grievances and requested that the Respondent accord the Union the privilege of examining the Respondent's records for the preceding 5 months with regard to (1) all overtime of employees in the bargaining unit, (2) all overtime of Staff employees on the dates and classifications worked, and (3) the amounts paid Staff for all employees in each classification. The Union requested that access to this data be granted during the week beginning October 7, 1968. At some time prior to November 19, 1968, the Respondent advised the Union that it had no obligation to furnish the 5 months' data, and no obligation to open its books for the Union's inspection. On November 19, 1968, the Union advised the Respondent by letter that it had filed a charge relating to the Respondent's refusal to comply with the Union's October 4 request to furnish certain The General Counsel did not allege , and makes no contention , that the Respondent was obligated to furnish data to the Union on the rates of pay according to Staff employees The record reveals that , following the designation of an arbitrator on October 25 , 1968, by the Federal Mediation and Conciliation Service, an arbitration hearing was scheduled for January 19, 1969, but was postponed by agreement of the parties 178 NLRB No. 63 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material data which the Union needed to carry out its statutory function as bargaining representative in connection with a current grievance, as well as to police the contract and to evaluate the overtime situation for purposes of future bargaining." The letter also advised the Respondent that the Union's request was a continuing one. At no time has the Respondent supplied the data requested by the Union, nor has the Respondent at any time allowed the Union access to its records for the purpose of obtaining the data requested. The Trial Examiner found that at some point after July 3, 1968, probably about July 30, the Respondent furnished the Union with the number of hours worked by the three grievants during the week ending June 14, 1968, and with the number of hours worked during the same week by three employees of Staff who were given the overtime assignment on June 15, 1968.5 Although the record is not clear on what date prior to October 4, 1968. the Respondent furnished this limited information to the Union, the record does reflect that it was again made available to the Union on or about October 16, 1968, in conjunction with the Respondent's oral denial of the Union's October 4 request. The Trial Examiner found that the Union's letter of October 4 expressly limited the purpose for which the information was sought to the handling of the two grievances filed against the Respondent, and that the Union's letter of November 19, 1968, was an attempt, in conjunction with the charge to broaden the request made by the Union since it asserted for the first time the Union's need for intormation "for policing the contract" as well as "for purposes of tuture bargaining." The Trial Examiner concluded that the Union's request for data was in fact limited to data pertaining to the two grievances, and that the Respondent had satisfied its obligation as to both by furnishing the Union with the hours worked by the 3 unit employees and the 3 employees of Staff during the week ending June 14, 1968. Finding additionally that the Respondent has asserted its willingness to supply the Union with any information relevant to the administration of the existing agreement or the negotiation of a new one, the Trial Examiner recommended that the complaint be dismissed We do not agree. In denying the overtime grievance, the Respondent asserted that the griev ants, having worked an excessive number of hours during the week, were physically unable to work overtime on the weekend. It then became appropriate for the Union, in deciding whether to pursue the matter through additional steps of the grievance machinery, to weigh the merits of the reason asserted in the denial, and to determine the frequency with which the problem had occurred in the past. This assessment was difficult for the Union to make. Although the grievances as written indicated that unit employees had priority over Staff employees as to overtime, and although the Company had conceded that the "contention of the contract was correct," the contract itself says nothing about maximum numbers of hours that an employee may work," the circumstances under which the Company may select Staff employees to perform unit work. nor the basis on which overtime assignments are to be made.' In evaluating these grievances, and preparing a response to the Company's claim, it became necessary for the Union to consider past practice, and to determine whether physical incapability due to excessive hours. as asserted by Respondent, was not belied by workloads performed by employees in the past. Similarly, any inquiry into established practices regarding physical incapability of unit employees for the particular jobs in question would logically take into consideration the restrictions, if any. as to hours, under which Staff employees had worked, since they were to perform the same jobs as unit personnel. The Respondent did not refuse to grant access to its records on the grounds that the information sought covered too great a period of time or that it would impose too great a burden. Instead, it merely questioned the relevance of the information, and maintained that it had satisfied its obligation. Having asserted physical incapacity in denying the grievances, the Respondent was obligated to supply all relevant data in support of that assertion.' Even within the limited scope of the issues posted by the particular overtime grievances before it, the Union's request for access to overtime records of both Staff and unit employees for the 5 months previous was for information relevant, material, and necessary to enable it to decide whether, on the one hand, past overtime assignment practices cast sufficient doubt on the Respondent's asserted justification and the problem presented by the grievances was sufficiently recurrent to warrant proceeding to arbitration, or whether, on the other hand, it should drop the grievances.' Accordingly, we find that by failing to furnish or allow access to data pertaining to the overtime hours worked by unit and Staff employees during the 5-month period preceding October 4, 1968, such information being relevant to the pending overtime grievances, the Respondent violated Section 8(a)(5) and (1) of the Act.'" 'The complaint states merely that the information was requested ' in connection with the processing of grievances and the proper administration of [the Union' s] collective bargaining agreement 'The grievants worked, respectively , 63 1/2. 87 1/4, and 63 3/ 4 hours during the week ending June 14, 1968 , and the three employees of Staff worked, respectively , 44 1/2, 47 3/ 4, and 46 1 / 2, including the hours worked on Saturday 'Although ICC regulations were apparently mentioned in an earlier conversation between representatives of the parties, the Respondent did not mention such regulations in its later denials of the Union's request 'rhe contract contains only a general provision regarding the "equitable" distribution of overtime among unit employees 'See 15 L R B v Truitt Manufacturing Co. 351 U S 149 'N L R B v Acme Industrial Co., 385 L S 432 "in view of our disposiuon of this issue, a majority of the panel finds it GULF STATES ASPHALT CO. 407 THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused the Union's request for disclosure of overtime data regarding unit and Staff employees which was sought for the purpose of processing a grievance under the provisions of the collective bargaining agreement, including the pursuance of said grievances to arbitration, we shall also order that the Respondent furnish the Union with information as to overtime relevant and necessary to assist the Union in appraising the merits of grievances to which the overtime information relates. ADDITIONAL CONCLUSIONS OF LAW 1. By failing and refusing on or about October 4 and at all times thereafter to furnish the Union with overtime data regarding unit employees and the employees of Staff Employees, incorporated, for its use in processing a pending grievance, 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. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Gulf States Asphalt Company, Houston, Texas, its officers, agents. successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to bargain collectively with Teamsters Freight and Tank Line Employees Local Union 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as exclusive bargaining representative of all employees in an appropriate collective bargaining unit by failing and refusing to furnish the Union with relevant overtime data regarding unit employees and employees of Staff Employees, Incorporated, for its use in evaluating unnecessary to decide whether the Respondent's letter of November 19, 1968. was restricted by previous communications between the parties, or whether the Respondent was obligated to furnish the information requested in connection with the broader purposes therein stated Chairman McCulloch believes that the November 19 letter lays a new and proper foundation for the Union's right to the requested information, in that n asserts that the date was needed for the purpose, inter alia, of policing iu collective-bargaining agreement with Respondent lie thus finds that the Respondent's continued refusal to supply the information after receipt of the November 19 letter lends additional support to the conclusion that Respondent violated Sec 8(a)(5) and processing grievances. (b) In any like or related manner interfering with the efforts of the Union to bargain collectively with it on behalf of the employees in the appropriate unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Furnish to the Union, as exclusive collective bargaining representative of all employees in the appropriate collective-bargaining unit, overtime data regarding unit employees and employees of Staff Employees, incorporated, heretofore requested by the Union, for its use in evaluating and processing grievances. (b) Post at its Beaumont, Texas, plant where notices pertaining to plant employees are customarily posted, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. 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 23, in writing, within 20 days from the receipt of this Decision and Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be. and it hereby is, dismissed insofar as it alleges violations of the Act not herein found. APPENDIX NolicF '10 ALI, EMPLOYEES Pursuant to the Decision and Order 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 furnish to Teamsters Freight and Tank Lines Employees Local 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of our employees in an appropriate unit, overtime data relating to unit employees and employees of Staff Employees, Inc , heretofore requested by the Union for the purpose of assisting it in processing and evaluating grievances contesting the assignment of overtime work to the employees of a subcontractor rather than unit employees WE WILL NOT in any like or related manner interfere with the efforts of the Union to bargain collectively in behalf of the employees in the appropraite unit. GULF S'iATFS ASPHALT COMPANY (Employer) Dated By (Representative) (Title) 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296. TRIAL EXAMINER'S DECISION ,STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Based upon a charge filed on November 20, 1968, by Teamsters Freight and Tank Line Employees Local 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, referred to herein as the Charging Party or the Union, the Regional Director of the National Labor Relations Board for Region 23 (Houston, Texas) issued a complaint and notice of hearing dated December 24, 1968. The complaint alleges that Gulf States Asphalt Company, herein called the Respondent, has violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to furnish information requested by the Union. In its answer, duly filed, the Respondent admits certain facts set forth in the complaint, but denies that it has committed any unfair labor practice. Pursuant to notice, a hearing was held before me at Beaumont, Texas, on February 5, 1969. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Subsequent to the hearing, the General Counsel and the Charging Party each filed a memorandum and the Respondent filed a brief, all of which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation duly organized under and existing by virtue of the laws of the State of Texas, maintains its principal place of business at Houston, Texas. The Respondent is engaged at its place of business in Beaumont, Texas, the only plant involved in this proceeding, in the manufacture of asphalt and asphalt products. During the past year, which period is representative of all times material herein, the Respondent manufactured and sold products valued in excess of $50,000 which were shipped from the Beaumont plant directly to points outside the State of Texas. The Respondent in its answer admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED The Respondent in its answer admits, and I find, that Teamsters Freight and Tank Line Employees Local Union 988, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The only issue in this proceeding is whether the Respondent's refusal to furnish certain information to the Union was violative of Section 8(a)(5) and (1) of the Act. The Union, which was certified in 1960 as the representative of the Respondent's employees in a unit including plant employees and truckdrivers, has been the contractual representative of such unit since then. It was stipulated at the hearing that the Respondent at all times material has obtained additional employees as needed to perform unit work from Staff Employees, Incorporated, a subcontractor, referred to herein as Staff. The Union's collective-bargaining agreement with the Respondent in effect at the time of the hearing' contained grievance and arbitration provisions. In accord with these provisions, a meeting was held at the plant on July 3, 1968, at which the Respondent's principal representative was Ford, vice president for production, and the Union was represented by Null, president of the Union, whose office is in Houston; Peveto, the Union's business representative for the Beaumont area; and Beloney, the shop steward. Those at the meeting discussed a number of grievances which had been presented by the steward at the first-step level, and reached agreement on all but two issues. The first of these two issues related to three individual grievances. The written Grievance Reports, signed by employees Beloney, Donald, and Lovett, and each also signed by Beloney as steward, assert that overtime work was performed on Saturday, June 15, 1968, by Staff employees Green, Synett, and Berry, which should have been offered to the grievants. Beloney in his Grievance Report asks to be paid overtime for the number of hours Green worked on that day, Donald for the hours Synett worked, and Lovett for the hours Berry worked.' The second issue involved the question of Staff employees being paid less than the contract rate when performing unit work for the Respondent. Null, the only witness called by the General Counsel, testified that he learned at the July 3 conference that Beloney had previously discussed this matter with the Respondent, but no written grievance had been prepared. Null also testified that there was a lengthy discussion of both issues at the July 3 meeting; that, as to the first issue, "The question during this meeting was in regard to a violation of the contract"; that, as to the second issue, "I asked the Company to pay all of the employees as per the contract"; and that Ford finally stated that he would, after consulting Company counsel, give the Union an answer on both issues. On July 19 Peveto sent the following letter to the Respondent: This is to inform you that Local Union 988 is filing an arbitration against your company under Article 1 (Recognition), also Article 4 (Classification and Wage Rates), Section 2, and Appendix A of the existing agreement. As you recall in our meeting the 3rd. of July, 1968, Mr. Tom Null and myself with the committee met with you and discussed with you about your company using Staff employees to do the work covered by this agreement at 'The agreement was effective by its terms until April 1, 1969. The Respondent at the time of the hearing herein had received notice from the Union of the reopening of the agreement. 'The record does not show the basis on which each grievant determined his Staff counterpart GULF STATES ASPHALT CO. a lower rate than the contract calls for. If there is any other information concerning this matter, please contact me at my office in Beaumont ... Null, who did not know of Peveto's letter until some time after it was sent, testified about a conversation with Clinton, the Respondent's counsel, which Null thought took place possibly in the latter part of July. According to Null, Clinton stated, with reference to the work week ending Friday, June 14, that "there had been an enormous amount of overtime worked, hours worked, there was some in excess of ICC regulations"; Clinton expressed surprise about the grievances in view of the "excessive hours" the grievants worked that week and denied the grievances on that basis;' and he, Null, told Clinton that ,,at all times the complaint was that Staff people had worked on Saturday, the regular people had not been called for this work," and that he wanted the Respondent to pay the three grievants for the hours worked that Saturday by the Staff men. They also discussed the second issue, as to which Clinton told Null that although the Respondent paid Staff more than the contract rate, the Respondent would not require Staff to pay its men the contract rate. Clinton sent a letter on September 6 to Peveto, with a copy to Null, which stated as follows We wish to advise your Local Union that our client. Gulf States Asphalt Company, does not agree in view of the circumstances and the provisions of the current Agreement between the Company and your Local Union to pay the Truck Drivers any additional compensation for Saturday, June 15, 1968, nor does our client agree to require Staff (overload) to pay their employees the same wage rates as are being paid by the Company to employees working under the terms of the current Agreement. In view of the above both of the grievances of your Local Union are denied. A few days after September 6, Null testified, he had a conversation with Clinton in which Clinton, while agreeing that Null's "contention of the contract" was correct, maintained that the three grievants were not physically able to perform the work on Saturday because of the excessive number of hours they had already worked that week, that this was his reason for denying the grievances, and that an arbitrator would agree with this position. There was also discussion of the second issue, which Clinton likewise denied. Null wrote to Clinton on September 13 as follows: Pursuant to your letter of September 6, 1968 . this will advise you that we are at this time requesting that these issues be settled by arbitration in accordance with Article 13 of the current agreement. 1. A violation of Article 1. Company is working employees under our agreement, who receive less than the wages set out in our agreement. We are Requesting that all employees be paid in accordance with our agreement 2. Violation of Seniority On June 15, 1968 the Company worked three (3) men from staff and should have worked Lesly W. Beloney, Leroy Donald and Henry Lovett. Our claim is for time worked by the three men from staff at time and 'Each of the three written Grievance Reports bears the Respondent's undated typewritten notation that, "In checking our contract we see no violation of agreement, therefore, we see no justification for this grievance." 409 one-half. I shall be in contact with you to work out arbitration procedure. On October 4, 1968, Null sent the following letter to the Respondent. Reference to the two (2) grievances tiled against your company by Local Union 988. 1 am requesting the privilege for Mr. J. O. Peveto to examine your records for the past five (5) months in regard to all overtime of employees in the bargaining unit at Beaumont, all overtime of staff employees on the dates and classifications worked, and the amounts paid staff for all employees in each classification. We would like for this opportunity to be during the week of October 7, 1968.. . Null testified that the reason for this letter "primarily was to evaluate these grievances to determine the cause of the statement Mr. Clinton made to me, because of them not being physically able, to determine whether or not this particular week was a rare and unusual week, or whether it was something that they did habitually week after week." This reason, however, was not conveyed to the Respondent. It is clear that at some point Clinton gave Null the information as to the number of hours worked by each of the three grievants during the week in question , and also the hours worked by the three named Staff employees that week , including the hours they worked on Saturday. Null testified that he received this information at some unspecified date considerably after October 4. When asked if the Respondent's representatives at the July 3 meeting might have mentioned the hours worked , Null replied, "I don't recall of them giving me that information"; and when asked if Clinton might have given him the information at an earlier date than long after October 4, Null replied , "I don't believe he did as I recall." Clinton made notes at the time of some of his conversations with Null, but these notes were apparently rather cryptic. Clinton testified , on the basis of his notes and his recollection , that he gave Null the information about the hours in a conversation on July 30. and that in another conversation, which Clinton thought was on October 16 . he was "almost positive" he restated the information about the hours. I found both Null and Clinton credible witnesses. Null's memory as to dates, however, was shown to be, as he admitted , very vague. whereas Clinton' s memory for dates, although apparently also vague, was assisted somewhat by his notes On the basis of all the evidence. I find that the information as to the hours worked was furnished to Null on or about July 30.' There is no dispute as to the content of the information that Clinton gave Null, which showed , as to the grievants, that through Friday of the week in question Beloney worked 63 1/2 hours, Donald 87 1/4, and Lovett 63 3/4, and, as to the Staff" employees, that Green worked 44 1/2 hours that week including 6 on Saturday , Synett 47 3/4 hours including 11 1 /2 on Saturday, and Berry 46 1 /2 hours including 6 on Saturday.' 'I he General Counsels memorandum asserts that "the proffered information, whenever given, was at most a partial ofler " and that "The date on which it was given becomes immaterial " 'The collective bargaining agreement provides for a 40-hour week for plant employees and a 58-hour week for drivers, but it expressly does not guarantee this many hours for either category It also provides for payment of time-and-a-half for drivers after 58 hours a week, but Clinton stated that overtime is in fact paid by the Respondent on a daily basis in accord with applicable Federal law 410 DECISIONS OF NATION AL LABOR RELATIONS BOARD Null admitted that when this information was given to him, he agreed with Clinton that the number of hours worked by the grievants that week was "rather high." He testified further that, when Clinton asserted that the Respondent had no obligation to furnish the 5-month data requested to the October 4 letter or to open its books to make this information available, he, Null. merely made reference to what Clinton had said about the physical condition of the grievants.' He admitted that he did not offer any reason for wanting the broader information, and that, "Following that conversation there was no further oral or written requests." Thereafter Null discussed the matter with the Union's attorney. who. based on this discussion, drafted for Null's signature the charge herein alleging a refusal to bargain since on or about October 4, 1968, and a letter to the Respondent dated November t9, 1968, enclosing a copy of the charge, and stating as follows. . The charge relates to your refusal to furnish certain material data which this Union needs to carry out its statutory function as bargaining representative in connection with a current grievance, as well as for policing the contract and evaluating the overtime situation for purposes of future bargaining. You will recall that 1 wrote you on October 4, 1968, requesting that Mr. Peveto he allowed to examine your records for the prior five months on overtime. Our request was to check overtime worked by all employees in the bargaining unit and by Staff Employees for the said period. We also requested access to data that would show the overtime every Staff Employee worked in each bargaining unit classification for the period. . Clinton . . . subsequently orally refused to allow this Union access to the records requested. His position was that the Company was not obligated to furnish this material to the Union or grant the Union access to its records In the conversation he did give me information concerning overtime of the three grievants and three Staff Employees However, in addition to limiting this oral information to the six people, he also limited the information to one week's time We disagree with your attorney's refusal to make the requested data available to the Union and his stated reasons for the refusal. We believe that the Labor-Management Relations Act requires you to grant the Union access to material data which is wholly in your custody and control. when it is needed in connection with the Union's policing of its contract, processing a grievance, or preparing for intelligent and informed bargaining. We think our request falls into all of these catagories [sic] and you should understand that it is a continuing request... . Clinton, in a reply dated November 27. stated that all the data pertinent to the two grievances had been furnished, and that the additional information sought was not relevant thereto. At some point in their discussion, Null and Clinton agreed to submit the issues in dispute to an arbitrator. They also agreed that Null should obtain a list of arbitrators from the Federal Mediation and Conciliation Service. Null wrote a letter on September 27 requesting 'Null, questioned by both the General Counsel and the Charging Party about this conversation , maintained that his part in the conversation was limited to reminding Clinton of the latter 's arguments that "the people were not physically able on this particular week to do this work on this particular Saturday," and that the Respondent "would not agree to pay these claims which was in regard to their physical ability for this one week." such a list, which was submitted, and Null and Clinton agreed on one of the arbitrators on the list. Null thought this was in November, but the letter from the Mediation Service designating the arbitrator on whom they had agreed is dated October 25. The arbitration hearing was scheduled for January 1969 but was postponed by agreement of the parties. The complaint alleges that. "Since on or about October 4, 1968 and November 19, 1968, and at all times thereafter, the Union has requested Respondent to furnish to it in connection with processing of grievances and the proper administration of its collective bargaining agreement with Respondent, data relating to the amount of overtime worked by all employees in the unit . and by the employees of a subcontractor of Respondent engaged in work similar to that of the employees in the above described unit for the five month period immediately preceding the date of the request,"' and that the Respondent' s refusal since October 4 to furnish such data constituted an unlawful refusal to bargain. The Respondent maintains that the Union's letter of November 19 was a sell-serving document that sought to enlarge the scope of the Union's October 4 request, which was to examine the Respondent's records for information related only to the two grievances, that the Respondent furnished all the data relevant to these grievances; and that the Respondent, as it asserted at the hearing and to the General Counsel prior to the hearing, stood ready at all times to furnish any data relevant to the administration or renegotiation of the contract whenever the Union made a proper request therefor. Concluding Findings As noted above, the complaint alleges that the Union, on October 4 and November 19, sought certain information "in connection with processing of grievances and the proper administration of its collective bargaining agreement." The October 4 letter, however, expressly limited the purpose for which the information was sought to "Reference to the two (2) grievances filed against your company ... " If the Union was seeking the information for a broader purpose, there was ample time between July 3 and October 4 to formulate and express such purpose, but this was not done Moreover, the basis for the Union's request was not broadened in any of the discussions with the Respondent. In fact, as Null testified, there was no further request, orally or in writing, after October 4. The letter of November 19, which for the first time asserted the Union's need for the information "for policing the contract" as well as "for purposes of future bargaining," was not itself a request for information It was rather an attempt, in stating the issues raised by the enclosed charge. to broaden the request made by the Union on October 4 on which the charge was expressly based. I find, on the entire record, that the Union's request was in fact limited to data pertaining to the processing of the two grievances. 'The General Counsel states in his memorandum "It should be noted at the outset that the General Counsel does not allege that Respondent has an obligation to furnish data as to rates being paid subcontractor employees The Complaint alleges only that Respondent violated the Act by refusing to provide the Union with information as to overtime hours for the five-month period previously referred to. The complaint also does not allege the Union's need for this information "for purposes at future bargaining; one of the needs asserted in the Union's lettci of November 19 GULF STATES ASPHALT CO. The first grievance , involving the three individual grievants, did not attack the Respondent' s use of Staff employees , a long-standing practice, nor complain of the use of Staff employees during the week in question The only dispute raised by these grievants pertained to the assignment of three Staff drivers on Saturday , June 15, and the only remedy requested was that the three grievants be paid overtime for the number of hours Staff men worked that Saturday . The Respondent rejected these grievances on the basis that the grievants , after working 63 1/2, 87 1/4, and 63 3/4 hours respectively through Friday of that week , were not in physical condition safely to drive a truck an additional 6 to ll 1/2 hours on Saturday, and that the Staff employees who drove the trucks on Saturday had worked a total of considerably fewer hours that week even after the inclusion of the Saturday hours. In view of the narrow issue drawn by the nature of these individual grievances and the basis on which they were rejected, I find that the Respondent has satisfied its obligation to furnish the Union with information that was relevant and "necessary in order to enable the Union to evaluate intelligently the grievances filed."' The Union requested the same data -hours worked by unit and Staff employees over a period of 5 months-in regard to the second grievance, in which the Union was demanding that Staff employees be paid the contract wage rate. The Respondent informed the Union that it paid Staff more than the contract wage rate, but it refused to furnish the 5-months data requested by the Union or to open its books to the Union for this purpose. The Staff employees were employees of a subcontractor, not of the Respondent; they were not represented by the Union nor covered by the collective bargaining agreement; the Respondent paid Staff, as it told the Union, more than the contract rate; there is no evidence that the subcontract with Staff, which was in effect for a considerable period, ever resulted in unit employees working less than a full week, which for the drivers was 58 hours; and the Union was seeking the information not for its bearing on the wage rates of unit employees but in order to compel the application of the contract wage rate to the employees of a subcontractor. In the particular circumstances of this case, I find that the Respondent's obligation to furnish the additional information requested by the Union in connection with the second grievance has not been established! 411 Furthermore, both the Union and the Respondent referred to the grievances as questions of contract violation; they agreed to submit these questions to arbitration, and, at the time of the instant hearing, they had taken steps to accomplish this purpose. Finally. pursuant to the Union's reopening notification, the parties were scheduled to renegotiate their collective bargaining agreement. The Respondent has asserted at all times that it would furnish any relevant information in its control which is requested by the Union in connection with the administration of the existing agreement or the negotiation of a new one.10 Accordingly. on the basis of the entire record, I find and conclude that the General Counsel has failed to establish by a 'preponderance of the evidence that the Respondent's refusal to furnish information requested by the Union constituted a refusal to bargain in violation of Section 8(a)(I) and (5) of the Act." I shall therefore recommend dismissal of the complaint. Upon the foregoing findings and conclusions and the entire record in this case, I make the following: CONCLUSIONS OF Low 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 The General Counsel has failed to establish by a preponderance of the evidence that the Respondent engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint herein be dismissed in its entirety. 'See N L R.B v. Acme Industrial Co, 385 U S 432 'See Southwestern Bell Telephone Company, 173 NLRB No 29, The American Oil Companv: l63 NLRB No. 7 "I find unwarranted, in the circumstances of this case, the General Counsel's reference to this assertion as a "resort to scmantical technicalities " "See, e g , Southwestern Bell Telephone Company. 173 NLRB No 29, The American Oil Company, 164 NLRB No 7, Sinclair Refining Company, 145 NLRB 732, International Telephone and Telegraph Corp v N L R B, 382 F 2d 366 (C A 3 ) (section entitled "Failure to Disclose Blanket Seniority Information as to Non-Unit Employees")