Magma Copper Co.

MAGMA COPPER CO. 329 Magma Copper Company, San Manuel Division and United Steelworkers of America, Local No. 937, AFL-CIO-CLC. Case 28-CA-2853 January 10, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 17, 1973, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and supporting brief, and the General Counsel filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. However, for reasons discussed below, we do not adopt the rationale set forth in his Decision. As more fully set forth in the attached Decision, Respondent and the Union have maintained a collective-bargaining relationship for approximately 14 years. During this period, the Union, as certified representative of Respondent's production and main- tenance employees, and Respondent have engaged in contract negotiations which have resulted in at least five successive contracts, including the current 3-year contract executed on July 28, 1971. At each of these negotiations, the Union has requested the names and addresses of unit employees, the Respondent has consistently refused to supply the Union with such information, and the record shows that the Union has continued to make similar requests periodically throughout each such contract term for the past 10 years. The existing contract between the parties is silent on the subject of names and addresses but includes the following language: The parties specifically waive any rights which either may have to bargain with the other during the life of the continuing Agreement or any matter pertaining to rates of pay, wages, hours of employment or other conditions of employment. This case arose when, after entering the current contract, the Union again requested that Respondent supply it with the names and addresses of employees in the collective-bargaining unit and Respondent refused to comply. The Union now claims that it needs the unit employees' names and addresses in order to perform its duty properly as collective-bargaining agent of all of Respondent's unit employees and to comply with a Board order issued in a prior case 1 involving two of Respondent's employees. Respondent does not con- tend that in a proper case such information is not relevant to a union's representation of employees, but it argues that this is not such a case. The Administrative Law Judge concluded that Respondent, by refusing to furnish the Union with the requested information, violated Section 8(a)(5) and (1) of the Act. As indicated above, we agree with his conclusions but not his reasons therefor. The Respondent contends, primarily, that by the terms of the current contract the Union has waived its right to the names and addresses of unit employees. Like the Administrative Law Judge, we reject this argument. Although it is well recognized that a labor organization may, for reasons of its own, relinquish its right to such information, an alleged waiver based on contract negotiations must be supported by clear and unmistakable evidence.2 The Board has also held that, although a subject has been discussed in precontract negotiations and has not been specifically covered in the resulting contracts, the employer violates Section 8(a)(5) of the Act if during the contract term he refuses to bargain with respect to the particular subject, unless it can be said from an evaluation of the prior negotiations that the matter was fully discussed or consciously explored and the union consciously yielded its interest in the matter.3 The record here is devoid of any evidence which would warrant finding such a waiver or conscious yielding. A list of employees' names and addresses is clearly not a matter pertaining to the negotiation of new "rates of pay, wages, hours of employment or other conditions of employment," to which the disputed clause is directed, and the evidence before us indicates that the Union's objective was not to effect a change in the agreement, but rather to fulfill its statutory obligation to administer the agreement on behalf of all unit employees. Further, it is clear that at all times the Union continued to request that information, having repeatedly asked for it during the term of each contract. Accordingly, we find that i United Steelworkers ofAmerica, Local No 937 AFL-CIO-CLC(Magma insufficient to support Respondent's claim that furnishing the Union with a Copper Company), 200 NLRB No 8 We agree with the Administrative Law list of names and addresses of all unit employees would result in harassment Judge that unlike the situation in Shell Oil Company v N L R B, 457 F.2d of and possible violence to those employees 615 (C A 9), denying enforcement of 190 NLRB 101, cited and relied on by 2 American Cyanamid Company, 185 NLRB 981 the Respondent, the unfair labor practice findings in this prior case are s Hilton Hotels Corporation d/b/a Stotler Hilton Hotel, 191 NLRB 283 208 NLRB No. 53 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neither the express language of the current contract clause itself nor the conduct of the Union constitutes an unequivocal waiver. Having found no waiver, the Administrative Law Judge was of the view that the Supreme Court's holding in Wyman-Gordon 4 is dispositive of this case and that in light of the decision (that a union is entitled to the names and addresses of unit employ- ees prior to the holding of a scheduled Board election), a fortiori an exclusive bargaining repre- sentative is entitled to such a list without explora- tions of relevancy and necessity for that information. The General Counsel requests that the Board consider also the cases cited and relied on by him in support of his contention that the Respondent's refusal was unlawful,5 while the Respondent argues that Wyman-Gordon is inapplicable and that the criteria established by the cases relied on by the General Counsel have not been met here. We agree with the General Counsel that under the holdings of the cases cited by him it has been established that the Union herein was entitled to the information it sought and that the Respondent therefore violated the Act in refusing to supply it .6 In the Standard Oil and United Aircraft cases supra, among others, both the Board and the courts found violations of Section 8(a)(5) in the failure of the respondents to satisfy the unions' requests for such information when it had established that the infor- mation was relevant to the unions' performance of its role as bargaining representative. The determination as to whether an employer is required to supply a list of names and addresses of unit employees was based on consideration of such factors as the size of the unit ; the rate of turnover; the nature of the contractual union-security clause, if any; the union's ability to reach member and nonmember employees, both at the plant and at their homes, including the effectiveness of any steward system, and the use of bulletin boards; and the availability of the informa- tion to the employer. In Standard Oil and United Aircraft, the employers were required to furnish the list in view of such facts as the relatively low union membership in the unit, the absence of a union- security clause in the collective-bargaining agree- ment, the residential dispersion of the unit employees over a wide geographic area, the apparent ineffec- tiveness of the steward system, the lack of adequate exposure of unit employees to union bulletin boards, the inefficiency of handbilling efforts, and the ability of the company to compile the list with relative ease. 4 N L R B v Wyman-Gordon Co, 394 U S 759 5 Standard Oil Company of California, Western Operations, Inc, 166 NLRB 343, 344-345, enfd 399 F 2d 639 (C A 9), Prudential Insurance Company of America, 173 NLRB 792, 793, enfd. 412 F.2d 77 (C A 2); United Aircraft Corporation, 181 NLRB 892, 903, enfd 434 F.2d 1198 (C A 2), The parallel between the facts of Standard Oil and United Aircraft and this case is readily apparent. Thus, here, as in Standard Oil and United Aircraft, the Union had a relatively low membership in the unit, having as members approximately 60 percent of the employees in the bargaining unit, thereby leaving a very substantial minority of nonmembers to whom the Union owed the duty of fair representation. In this case also the contract did not contain a union- security clause, Arizona being a right-to-work State. Further, as in Standard Oil and United Aircraft, here the employees' residences were dispersed over several counties, rendering personal contacts with employees at their homes practically impossible; the record shows that some employees lived as far away as 90 miles from Respondent's facilities. Here, too, the alternative means of communicating with employees available to the Union were inadequate. There is undisputed testimony in the record that the Union did attempt to distribute its literature on the public highway and roads leading to and from Respon- dent's facilities but that this practice was "hazard- ous" since many on-coming cars did not stop and the distributor was forced to dodge them to avoid personal injury. Further, since there were usually employees from seven different units emerging from Respondent's gates, it was extremely difficult for the distributor to determine who were members of the bargaining unit. Also, as in those cases, bulletin boards were an inadequate means of communicating with unit employees. Here, the record discloses, the Union was assigned four bulletin boards at Respon- dent's facilities for a total of 2,250 employees. Although the Union requested that it be permitted to augment this means of communication by distribut- ing leaflets on Respondent's premises, Respondent refused to grant such permission. In addition, the Union was unable to communicate effectively with unit members via the grievance machinery, it appearing from the record that Respondent refused to permit the Union to use its own grievance forms which contained a space for the grievant's address; instead, Respondent insisted upon use of Respon- dent's forms which do not contain the home address of the grievant. Thus, unless a grievant initiated communication with the Union, the Union had no way of communicating with him with respect to his grievance. Finally, the Administrative Law Judge found that Respondent had an annual turnover rate of between 1,560 and 2,080 employees, 80 percent of whom are estimated to be union members and that Shell Oil Company, 190 NLRB 101 , and Food Employer Council, Inc, 197 NLRB 651 5 Therefore, we do not adopt or pass upon the Administrative Law Judge's rationale based either on the principle of Wyman-Gordon or his evaluation of inherent inequities of this situation MAGMA COPPER CO. Respondent did not notify the Union of new hires or furnish it with their addresses. Consequently, the Union could not maintain a current list of unit employees, unless they became union members. But, as mentioned before, a substantial number of hires never joined tFe Union. Finally, the Respondent here possessed the information, and there is no indication that its compilation would be unduly onerous. In view of these circumstances, we find that the General Counsel has demonstrated that the informa- tion requested was both relevant and necessary to the Union in the performance of its statutory obligations and that adequate alternative means of communica- tion with unit employees were not available. As we have already rejected the contentions that the Union waived its right thereto or is likely to engage in harassment of the employees, we find that Respon- dent's refusal to furnish such information constitutes a violation of Section 8(a)(5) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Magma Copper Company, San Manuel Division, San Manuel, Arizona, its officers, agents , successors, and assigns, shall take the action set forth in the said recommend- ed Order. DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge: Upon a charge filed on March 16, 1973. by United Steelworkers of America, Local No. 937. AFL-CIO-CLC, herein called the Union, against Magma Copper Company, San Manuel Division, Respondent herein, the Regional Director for Region 28 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on April 19, 1973, against the Respondent E lleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C., 151, et seq. ), herein called the Act. In its duly filed answer the Respondent, while admitting certain allegations of the complaint denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Tuscon, Arizona, whereat all parties were present, represented and i See Bishop and Mateo, Inc, d/h/a Walker's, 159 NLRB 1159, 1161 Y 200 NLRB No 8 3 The following is the unit of employees found to be appropriate for the purposes of collective bargaining: All production and maintenance employees at the Employer's San Manuel, Arizona, operations, including all heavy equipment operators, mobil crane operators, crane car operators, universal equipment operators, shovel operators, drag line operators, turner dozer operators, 331 provided full opportunity to call and cross-examine witnesses, to present oral argument, and to file beefs. Briefs were filed by Respondent and counsel for the General Counsel on June 18 and 25, 1973, respectively. Upon consideration of the entire record, including the briefs filed with me, and upon my observation of the witnesses appearing before me,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF THE RESPONDENT'S BUSINESS It has been found by the Board, based upon data supplied to it identical to that supplied in this record, that this Respondent, as it admits in its answer, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I accordingly conclude and find such to be the status of the Respondent in this case. 11. THE LABOR ORGANIZATION INVOLVED It is submitted by all parties, as has previously been found by the Board (supra ), that the Union is a labor organization within the meaning of the Act. I accordingly conclude and find such to be the Union's status here. III. THE UNFAIR LABOR PRACTICE A. The Facts The Union, as the certified representative of the Respondent's production and maintenance employees and numerous categories of equipment operators3 at the San Manuel Division, has engaged in contract negotiations with Respondent for at least the past 14 years and in this period has entered into at least five successive collective agreements including the current one executed on July 28, 1971, and presently in force until July 1, 1974. In the course of each of the negotiations that resulted in these contracts, including the most recent negotiations, the representatives of the Union have requested that Respon- dent supply it with the names and addresses of the current members of the bargaining unit, but on each occasion the request has been refused .4 Respondent does supply it with a seniority list on a semiannual basis, but it will not provide a periodic list of new hires. Of the estimated 2,250 employees in the bargaining unit, 1,385 are members of the Union and have authorized that their dues be checked off pursuant to the terms of the contract. It is estimated that the rate of employee turnover at Respondent's plant, and mine, is from 30 to 40 employees per week, or between 1,560 and 2,080, annually. It is estimated that 80 percent of these, between 1,250 and 1,664, are members of the Union. Employees file an application for employment prior to hire. This form requires the applicant's address and this is bulldozer operators, cat operators, cat and carryall operators utilized at quarry operations. hoistman (large), hoist operators (large). mine hoistmen and hoist operators , end load operators , compressor opera- tors at the compressor house, equipment operators designated as blade operators, tractor operators, and Haugh loader operators All assayers in the Laboratory and Sample Preparation Department . The testimony of Personnel Service Manager David C. Ridinger and the Union President Frank Salas, Jr 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frequently his 'residence prior to moving into the area of Respondent's facility. However, at the beginning of each year another form is distributed to all employees requiring information for so-called emergency purposes, and in- cludes the employee's present address. All are required to submit this information and as of the date of the trial of this matter only 216 had not complied with the current request.5 Included on this information form was the statement: THE ABOVE INFORMATION IS CONFIDENTIAL AND FOR COMPANY AND EMERGENCY USE ONLY. it will not be used for income tax deduction purposes or for change of status pertaining to the group insurance plan. Respondent's personnel manager was not familiar with the procedure followed by the payroll department in the filing of reports and the submission of payments to the United States Bureau of Internal Revenue and to the Social Security establishment. I do, however, take official notice of the well-established fact that employers are required to report the earnings of each of their employees and to deposit with the respective agency any tax or contribution withheld. In this regard I likewise take official notice of the fact that the Bureau of Internal Revenue Forms W-2 and W-4 and Social Security Form 914, Employer's Quarterly Tax Return, each require the individual's name and his present address. At no place in the record does it appear that Respondent fails to comply with these official requirements. In Case 28-CB-648 it was found by the Board (200 NLRB No. 8) that the Union had violated Section 8(b)(1)(A) of the Act by the refusal of a steward to process grievances for two employees, Ray Stephenson and George Glass,6 because they were not members of the Union. By these two refusals the Administrative Law Judge conclud- ed and the Board affirmed that the Union had thereby restrained and coerced the employees in the exercise of their statutory rights. No other misconduct was involved. As a consequence of the Union's violation of the Act the Board ordered it to mail copies of a "Notice to Employees" to each employee in the bargaining unit. In its effort to comply with the Board's directive and for other stated reasons the Union once more requested of Respondent that it provide them the names and addresses of the unit employees. The following letter was sent to Respondent: February 9, 1973 Mr. D. C. Ridinger Manager of Personnel Services Magma Copper Company San Manuel Division P.O. Box "M" San Manuel, Arizona Dear Mr. Ridinger: We hereby request that the Company furnish the Union with a list of names and addresses of all employees in the bargaining unit represented by the United Steelworkers of America at the San Manuel, S It was speculated at the trial that this group might include the 130 to 180 employees involved in the monthly turnover rate. Arizona operations of the Company. The reasons for this request are as follows: First, the information sought is essential to the proper performance of the Union's duty as collective bargaining agent for all employees in the unit. There are many court cases and NLRB decisions, including a recent one involving this Local, which hold that the Union has a statutory duty fairly to represent all unit employees whether or not they are members of the Union. It is now impossible for us to fulfill this statutory obligation because we do not even know who the non-members are, or even if we were aware of their identity, how to contact them. Without the requested list, the Union cannot advise all unit employees of the benefits provided by the contract or their rights thereunder. At the same time, the list would enable the Union to communicate effectively with all employees in the unit to obtain information, investigate employee complaints, and secure the employee participation necessary to proper administration of the contract and grievance processing thereunder. In the future this communications channel would make it possible for the Union, in advance of negotiations, to solicit the assistance and participation of all unit employees in formulation of bargaining goals. Finally, our need for the names and addresses underscored by the large number (perhaps as many as 1000) of non-members, the frequency of employee transfer between our bargaining unit and units represented by other unions at the San Manuel operations, and the wide geographic area in which unit employees reside. While the above is itself sufficient justification for our request, there is a second reason. It stems from the recent NLRB case involving this Union, United Steelworkers of America Local 937 (Magma Copper Company, 200 NLRB No. 8. As you may know, the National Labor Relations Board there found that our Union committed an unfair labor practice by failing to process the grievances of employees George Glass and Ray Stephenson because they were not members of the Union. By order of the NLRB in that case the Union is required to ". . . Mail a signed copy of (a notice to employees and members) to all employees in the bargaining unit." Inasmuch as we do not know the names and addresses of unit employees who are not members of the Union, we cannot comply with the NLRB order unless we are provided with the requested information. This is another reason why we have come to you. For your information, we have notified the Albu- querque Regional Office of the NLRB that the Board's order directs us to send the designated notice to all employees and that we intend to do everything in our power to comply therewith. In truth there is now a dispute over the question of mailing to non-members. We wish to advise you however that the Union is not prepared to ignore the clear mandate of the National 6 Glass appeared as a witness in Respondent's behalf in the instant proceeding MAGMA COPPER CO. 333 Labor Relations Board even if it should turn out that the Albuquerque Regional Office is willing to do so. We would appreciate receiving the list of names and addresses by March 12, 1973. If for any reason this date imposes an impossible burden on the Company, the Union will be more than happy to discuss an extension. Sincerely yours, Frank Salas, Jr. President Local 937 UNITED STEELWORKERS OF AMERICA In refusal Respondent sent the following response: March 3, 1973 It is true, of course, that union representatives did request the names and addresses at the negotiation session, as frequently had been done before . But to constitute an effective waiver clause which relieves a party of further bargaining the Board requires that the negotiations which give nse to the alleged waiver be examined to determine whether there was a conscious exploration of the matter waived and that the waiver be clear and unmistakably shown.? Such a waiver can never be inferred lightly and, in this instance I find nothing to support an inference of any strength. I accordingly reject the Respondent's contention. Respondent further claims that the reason for the Union's request was to comply with the Board's Order in Case 28-CB-64I and that official determination that the requirements of the order had been satisfied has obviated any need for the information for the purposes requested. On the contrary, the record is replete with credited United Steelworkers of America testimony that the names and addresses of the unit AFL-CIO-CLC, Local No. 937 employees were being requested by the Union periodically P. O. Box 336 for the past 10 years. Furthermore , and more specifically, Oracle, Arizona 85623 the February 9 letter of request (supra ) states as its first Attention: Frank Salas, Jr. Gentlemen: Your letter of February 9, addressed to Mr. D. C. Ridinger, has been referred to this office. This is to advise that Magma does not wish to comply with your request for names and addresses of all employees in the United Steelworkers of America bargaining unit at San Manuel Division. Yours truly, John S. Wise General Manager B. Respondent's Defenses Respondent claims that by the terms of the current contract the Union has waived its right to the names and addresses of unit employees. After the Union had requested the information during the 1971 negotiations and was refused, the following language appeared in the executed contract: The parties specifically waive any rights which either may have to bargain with the other during the life of the continuing Agreement or any matter pertaining to rates of pay, wages, hours of employment or other conditions of employment, except as provided in the Slotting Clause. Contrary to Respondent's assertion in its brief the Company did not offer to give the negotiating history of the above provision. What it did seek in the course of counsel's interrogation of Personnel Service Manager Ridinger was a statement on the record of the provision itself; and it was ruled that the document in evidence would speak for itself. I reaffirm this ruling. Otherwise nothing was said of the scope of the quoted waiver clause or of negotiations leading to its adoption. reason for requesting the information that "the informa- tion sought is essential to the proper performance of the Union's duty as collective bargaining agent for all employees in the unit." Only after elaborating on this reason does the Union cite the efforts at compliance with the Board's Order as a reason for the requested informa- tion . I accordingly reject this contention of Respondent as contrary to the documentary evidence in the record. Next Respondent claims that the background leading to the request establishes a strong antiunion feeling through- out the plant with resulting coercion and harassment, as found by the Board in Case 28-CB-641. Thus, according to Respondent, to furnish the names and addresses of all unit employees would lead to further harassment and possible violence. A study of the record and a reading of the Board's and Administrative Law Judge's findings and conclusions in Case 28-CB-641 (200 NLRB No. 8) clearly persuades me that Respondent hyperbolizes. In that case one union steward was found to have unlawfully refused to process the grievances of two employees, one being employee George Glass. This, it was found, restrained and coerced employees in the exercise of rights of self-organization and representation guaranteed them by the Act. It would take a most active imagination to translate this variety of "coercion" into the horrendous sort described by Respon- dent as "harassment," or such that would lead to "possible violence." Certainly there is nothing in the overall context of either or both cases to suggest such a likelihood. There is, of course, the testimony of employee Glass who admitted to hostility towards the Union; and certainly on the basis of the earlier case , with some justification. During an intermission at the instant trial Glass stated in a conversation with counsel for the General Counsel that "the Union would crucify you if they had the opportunity, and they will," referring to himself and fellow employees. I am not disposed to accept this statement of a disgruntled former union member as the sole evidence of impending harassment and possible violence should the Union secure 7 Tide Water Associated Oil Co, 85 N LRB 1096 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit employee addresses; and especially do I so conclude when the statement was uttered by a man whose address was admittedly always known, to the Union. When reminded that the Union already had his address, Glass testified, "Yes, but I feel that if the Union wants something from George Glass, they come to George Glass and get it and that's my prerogative to give it to them." It would appear, then, that Glass, unlike Respondent, was standing more on the principle involved than upon "further harassment and possible violence." Respondent also based its refusal to supply addresses upon the assurance of confidential treatment it had given its employees, the administrative burdens involved in providing the information, and the availability to the Union of other means of communication with the unit employees. In view of the conclusions which follow I reject these as well. C. Analysis and Ultimate Conclusion At the outset it is to be noted that this dispute concerns not the organization of employees but rather the effective administration of a collective agreement executed in their behalf. In the area of organizing it has become established law that a union is entitled to the names and addresses of unit employees for the purpose of enlisting their vote in a scheduled Board election being held to determine the Union's representative status .8 Certainly, then, the Union's interest in the identity and the whereabouts of these very people cannot be said to have diminished or become less significant after it has been selected by them and certified by the Board as their exclusive bargaining representative. To reject such an a fortiori conclusion would seem to defy commonsense. I have been referred to considerable authority on this subject but, as noted above, I deem the Supreme Court's decision in Wyman-Gordon to be dispositive. Therein the Court considered the validity of the Board's requirement that in a representation proceeding the employer furnish to the unions involved in the Board-conducted election a list of names and addresses of its employees who could vote in the election, so that the .unions could use the list for election purposes. In approving the application of this requirement the Court commented upon the Board's wide discretion to insure the fair and free choice of bargaining representatives, stating (394 U.S. at 767): The disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. [Emphasis supplied.] The cases cited to me in both support of and opposition to the legitimacy of the Union's request either antedate or fail to consider the Supreme Court's decision noted above. The Court, to repeat, holds that the Board's obligation to provide a free and fair election assumes the employer's obligation to disclose employee names and addresses, and for the stated reason that this provides the Union the same access to the electorate as the employer already has' Certainly this requirement has no less efficacy when the 8 NLRB v Wyman- Gordon Co, 394 U.S 759 ( 1969); Excelsior Underwear Inc, 156 NLRB 1236 "electorate" has been transformed by majority vote and Board certification into the Union's constituency . In view of the sheer logic thus flowing from the Court's decision I find it unnecessary to rely for support of the Union's request upon Standard Oil Company of California, Western Operations, Inc., 166 NLRB 343, enfd. 399 F.2d 639 (C.A. 9, 1968), or upon Prudential Insurance Company, 173 NLRB 792, enforced 412 F.2d 77 (C.A. 2, 1969), both of which antedate Wyman-Gordon. In both cases the Board and the courts considered in detail the requirement of the relevancy and necessity of the information requested by a union, a well-established cnteria,9 and concluded that the names and addresses had such relevancy and necessity. Similarly, I find United Aircraft Corporation, 434 F.2d 1198 (C.A. 2, 1970) unnecessary as support, although it too supported the Board's order. The United States Court of Appeals for the Second Circuit, while citing the Wyman- Gordon decision in support of its agreement with the Board, did not discuss it in detail and proceeded to extensive considerations of the relevancy and necessity of the requested unit employee names and addresses . Finally I have been referred to Shell Oil Company v. N.L.R.B., 457 F.2d 615 (1972), wherein the United States Court of Appeals of the Ninth Circuit refused to enforce the Board's order (190 NLRB 143) which required the employer to honor the union's request for unit employee names and addresses . Here the court considered the impelling reasons for requiring the production of the information requested, including its relevancy and necessity , and relied heavily upon the cases cited above, albeit I have found it unnecessary to do so here . But there was a significant distinction. The court in Shell Oil was fully justified in exploring as it did all considerations of relevancy and necessity concerned with the furnishing of employee names and addresses. For there, unlike here, the certified bargaining representative had recently engaged in a strike against the employer where there had been considerable mass picketing, individual employee harassment, and attendant violence, not only during the strike but thereaft- er. So aggravated was the situation that injunctive relief was sought and obtained . Even against such a background the employer did not refuse outright, as here (supra ), but offered alternative suggestions and arrangements for the production of addresses which would provide adequate safeguards to nonunion employees and still satisfy the union's legitimate needs. The union there rejected, as a matter of principal, alternatives to an outright production of the information requested. In this context the court stated its conclusion, thus (457 F.2d at 620): To the extent that the Board's decision reflects a determination that there was not a clear and present danger of violence and harassment, it is not supported by substantial evidence on the record as a whole. As noted above, the stipulation of the parties and Forrester's uncontradicted testimony established that there was such a danger. This case, heavily relied upon by Respondent, has no 9 N L R. B v Acme Industrial Co , 385 U.S 432 (1967) MAGMA COPPER CO. 335 application here where there has never been shown to be a clear and present danger of harassment and violence. Respondent has sought to create that illusion by the language of its brief, but the facts in the record offer no support whatever. All the record does show is two former union members being refused the union grievance process by a union steward, and an intemperate remark uttered by one of these at the time of the trial, followed by his admission of hostility to the Union and his acknowledge- ment that the Union always had the address which he so vigorously would deny to it. This is not the clear and present danger of harassment and violence contemplated by the court in Shell Oil, and I accordingly reject its relevance here. Quite apart from the consideration of precedent consid- ered heretofore, a review of the record herein and a studied consideration of the context of Respondent's refusal to supply the Union with unit employees' names and addresses persuades me that it has not only failed in its statutory bargaining obligation in that respect, but it has manifest inherent bad faith in the process. The State of Arizona is a right-to-work State where the advantages of continual union security are not available to a bargaining agent. Accordingly, the Union is continually in the same posture as a labor organization in the midst of an organizing campaign. This is best illustrated by the proportion of members to total employees in the unit (1,385 members to 2,250 total employees in the unit), and by the high turnover factor of between 1,560 and 2,080 per year, 80 percent of whom were estimated to be union members. Under such circumstances the Union, if it is to continue to bargain for the employees as their majority representative without challenge to its majority status, must continually engage in recruitment and further organizational activities. For not only does its membership continually deplete, but Respondent by refusing to notify it of 'new hires, and by limiting the opportunities of solicitation on company property, effectively threatens the Union's survival as bargaining representative. Certainly, then, if the Supreme Court's assessment of a union's organizational rights has validity when no representative status is yet in existence, it has equal force where, as here, Respondent consciously deprives the representative of "the right of access to employees that management already possesses." I am disposed to find and conclude that Respondent by the further strategem of refusing the needed names and addresses manifested an attitude of bad faith not consonant with its obligation. To summarize, then, I conclude and find that Respon- dent, by refusing to provide the Union access to the unit employees by the means of their names and addresses, places the Union in the ridiculous position of not knowing and not being able to locate those whom it is charged with representing by the mandate of the Board's certificate. This not only impedes the Union from fulfilling its legal obligation to provide a fair and equal representation of its constituents, be they members or not,10 but it places its 10 See N L R B v Mansion House Center Management Corp, 473 F 2d 471 (C A 8, 1973) 11 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, continued representative status in jeopardy and could well deprive the employees of the bargaining rights to which they are all entitled. I accordingly conclude and find that by all of the foregoing Respondent has refused to bargain with the employees in the unit found appropriate by the Board and has thereby violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent herein 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 commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to grant the Union access to the names and addresses of the employees in the bargaining unit, I shall recommend that it cease and desist therefrom. Affirmatively I shall recommend that it make this information available to the Union forthwith and that it post appropriate notices of its compliance with the Board's order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i ORDER" Magma Copper Company, San Manuel Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withholding the names and addresses of employees in the bargaining unit from United Steelworkers of America, Local No. 937, AFL-CIO-CLC, the certified bargaining representative of its employees in the following unit found appropriate by the Board for the purposes of collective bargaining: All production and maintenance employees at the Employer's San Manuel, Arizona operations, including all heavy equipment operators, mobil crane operators, crane car operators, universal equipment operators, shovel operators, drag line operators, turner dozer operators, bulldozer operators, cat operators, cat and carryall operators utilized at quarry operations, hoist- man (large), hoist operators (large), mine hoistmen and hoist operators, end load operators, compressor opera- tors at the compressor house, equipment operators designated as blade operators, tractor operators, and Haugh loader operators. All assayers in the Laboratory and Sample Preparation Department. . . . conclusions , and recommended Order herein shall, as provided by Sec 102 48 of the Rules and Regulations , be adopted by the Board and become Its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights guaranteed them by the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Supply forthwith the aforesaid Union the current address of each employee in the bargaining unit set forth above. (b) Post at its San Manuel, Arizona, facilities and townsite copies of the attached notice marked "Appen- dix." 12 Copies of the notice on forms provided by the Regional Director for Region 28, after being duly signed by the Respondent, be posted immediately upon receipt thereof in conspicuous places in the locations designated above and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps it has taken to comply therewith. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT withhold the names and addresses of employees in the bargaining unit from United Steel- workers of America , Local No. 937, AFL-CIO-CLC, the certified bargaining representative of our employees in the following unit found appropriate for the purposes of collective bargaining: All production and maintenance employees at the Employer's San Manuel, Arizona operations, including all heavy equipment operators, mobil crane operators, crane car operators, universal equipment operators, shovel operators, drag line operators, turner dozer operators, bulldozer operators, cat operators, cat and carryall opera- tors utilized at quarry operations, hoistman (large), hoist operators (large), mine hoistmen and hoist operators, end load operators, compressor operators at the compressor house, equipment operators designated as blade operators, tractor operators, and Haugh loader operators. All assayers in the Laboratory and Sample Prepara- tion Department ... . WE WILL supply the aforesaid Union with the address of each employee forthwith. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by the National Labor Relations Act. All of you, our employees, are free to remain, withdraw, become, or refrain from becoming members of United Steelworkers of America, Local No. 937, AFL-CIO-CLC, or any other labor organization. Dated By MAGMA COPPER COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building, U.S. Courthouse P. O. Box 2146, 500 Gold Avenue, S. W., Albuquerque, New Mexico 87101, Telephone 766-843-2582.