Western Massachusetts Electric Co.

WESTERN MASSACHUSETTS ELECTRIC CO. 607 Western Massachusetts Electric Company and Local 455, International Brotherhood of Electrical Work- ers, AFL-CIO. Cases 1-CA-10287, I-CA-10848, and 1-CA-11056 March 11, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 3, 1976, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions, a supporting brief, and a brief supporting parts of the Decision. Later, the Respondent filed a motion to remand Case 1- CA-10287 and the General Counsel filed a brief in opposition thereto. Subsequently, all parties entered into a joint stipulation and filed a motion proposing settlement of that case. 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, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. In Case 1-CA-10848, the Administrative Law Judge found that the information requested by the Union was relevant and necessary to permit intelli- gent bargaining on the Union's proposal to limit the subcontracting of unit work. We agree. However, we also are of the view that the same information is necessary for the Union's administration of the contract. Accordingly, we shall provide in our order that such information, upon request, shall be made available. In Case 1-CA-10287, the Administrative Law Judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally terminating its Employee Appliance Purchase Plan. As a part of his Order and remedy, the Administrative Law Judge i Unlike our dissenting colleague, we agree with the Administrative Law Judge's finding that the Respondent did not violate Sec. 8(a)(5) of the Act by refusing to furnish the Union information regarding the East Springfield Service Center As the Administrative Law Judge found , the East Springfield Center opened in October 1969 and there were four bargaining unit janitors at the center at that time . At the same time, however, the Respondent informed the Union that it intended to use the employees of a subcontractor to perform the janitorial work at the center. With the introduction of subcontractor employees, the original work area, in which the unit janitors worked, decreased . Also, almost as soon as the center opened, there developed a practice by which the subcontractors performed work in the tiled areas 228 NLRB No. 66 recommended inter alia that the Respondent (a) reinstate the plan and (b) make the employees whole for any losses they incurred as a result of the Respondent's action. The Respondent filed excep- tions to the Decision and filed a motion to remand Case 1-CA-10287 for the taking of additional evidence. The General Counsel filed opposition to the motion. Subsequently, however, the parties entered into stipulation and a joint motion to settle the matters involved in Case 1-CA-10287. By the stipulation, the Respondent withdraws its exceptions filed in Case 1- CA-10287, its motion for remand, and the General Counsel withdraws his opposition. The parties further move that the Board adopt the Administra- tive Law Judge's findings, conclusions, remedy, and recommended Order in Case I-CA-10287 except to the extent that his recommended Order required reinstatement of the Employee Appliance Purchase Plan. The parties have agreed that the payment of the amount of $15,000 shall be deemed to make the employees whole for losses resulting from the termination of the Plan. The Board, having considered the matter, is of the view that the parties' joint stipulation will avoid further litigation and effectuate the purposes of the Act. Therefore, the joint motion regarding Case I- CA-10287 as described above is hereby granted. Accordingly, the Administrative Law Judge's Deci- sion and recommendations are hereby revised to reflect the same. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Western Massachusetts Electric Company, Spring- field, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 455, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, by failing or refusing to supply the Union with information relevant and necessary to the performance by the Union of its obligation to negotiate a collective- while the unit janitors did the cement floor areas. Edward W. Collins, the Union's business manager, admits that this rough functional distinction had been in existence since 1970 or 1971. Thus, while unit janitors may have performed, for a brief period of time, the work performed by subcontractor employees, such appears to have been done only during a transitional period. Accordingly, since the Union wished to limit, and sought information only with regard to, work "normally performed" by bargaining unit members, we find the Administrative Law Judge was correct in dismissing the allegation of the complaint regarding the refusal to supply information concerning the East Springfield Service Center since the work inquired of there had not been "normally performed" by bargaining unit members. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement as exclusive bargaining repre- sentative of a unit of employees of the Respondent and to administer any contract agreed to by the parties. (b) Refusing to bargain collectively with the Union by unilaterally terminating the Employee Purchase Plan without adequate notice and opportunity with respect thereto being afforded the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action found necessary to effectuate the policies of the Act: (a) Upon the request by the Union, furnish to it the cost, in dollar amounts, paid to subcontractors performing work presently performed by employees of Respondent employed in the unit represented by the Union which unit appears in section III of the Administrative Law Judge's Decision, and other information for the administration of any contract agreed to by the parties. (b) Make whole the employees in the aforesaid appropriate unit for any monetary losses they may have suffered by reason of Respondent's unilateral termination of the Employee Appliance Purchase Plan, in the manner set forth in the joint motion and stipulation by the parties. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its places of business, where notices pertaining to employees in the unit are customarily posted, copies of the attached notice marked "Ap- pendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all 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. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting in part : Contrary to my colleagues, I would find that Respondent violated Section 8(a)(5) by refusing to furnish the Union with information as to dollar amounts paid to subcontractors and the hours worked by the subcontractors with respect to unit janitorial work at Respondent's East Springfield Service Center. The majority's finding is premised upon the determination that the work performed by the janitorial subcontractors was not bargaining unit work and therefore did not encroach on work performed by unit janitors. An examination of history of the East Springfield Service Center, and the collective-bargaining relationship between the parties, establishes that the janitorial work at the facility was clearly unit work. When the East Springfield facility opened in 1969, the janitorial work was performed by four unit janitors who were transferred to the new facility. Thereafter, Respondent advised the Union that it was going to subcontract out some of the janitorial work on a trial basis. As a consequence of the subcontracting, the number of unit employees at the facility diminished from four to two.3 Thus, the statement by the Administrative Law Judge that the bargaining unit janitors never performed the work performed by the subcontractor employees at the facility is plainly erroneous. Furthermore, at no time did the Union agree that the janitorial work at the facility would no longer be considered unit work. In fact, prior to the 1975 negotiations, the Union at various times demanded the return of certain janitorial work. It is also significant that Respondent did not claim, until the 1975 negotiations, that the work of the janitorial subcontractors at the East Springfield facility was not unit work. In view of the foregoing, I must conclude that (1) the Union never waived its claim that the work at the East Springfield facility was unit work, and (2) the considerations which the majority relies on to find that Respondent violated Section 8(a)(5) by refusing to furnish to the Union the costs, in dollar amounts, paid to subcontractors performing work performed by employees of Respondent employed in the unit, are applicable to the work performed by janitorial subcontractors at the East Springfield facility. The General Counsel is correct in contending that these amounts are needed, as in other situations, in order to estimate whether unit employees could perform in economic competition with subcontractor employ- ees, and I would find the violation. 2 In the event that this 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." 3 Apparently, the two unit employees generally work in areas having nontiled floors. There are, however, tiled areas in which unit janitors work. WESTERN MASSACHUSETTS ELECTRIC CO. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found after a hearing that we violated Federal law by refusing to divulge certain information to the Union, has ordered us to post this notice: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT refuse to bargain in good faith with Local 455, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, by (a) failing and refusing to supply the Union with information relevant and necessary to the Union's performance of its obligation to negotiate a collective-bargaining agreement as exclusive bargaining representative of a unit of our employees; (b) unilaterally terminating our Employee Appliance Purchase Plan without notice and opportunity to bargain with respect thereto being afforded the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL, upon request by the Union, furnish to it the cost, in dollar amounts, paid to subcontractors performing work presently per- formed by our employees in the unit represented by the Union and furnish information necessary for the Union's administration of any collective- bargaining agreement reached. WE WILL make whole the employees in the said unit for any loss they may have suffered by reason of our unilateral change in terminating the plan. WESTERN MASSACHUSETTS ELECTRIC COMPANY DECISION STATEMENT OF THE CASE 609 ROBERT W. LEINER, Administrative Law Judge: Upon charges and amended charges filed in the above cases on December 4, 1974, and July 2 and August 15, 1975, the General Counsel, on November 4, 1975, issued a second order consolidating cases, amended complaint, and notice ,of hearing.' Respondent duly filed its answer on November 13, 1975. The amended complaint was further amended at the hearing. The complaint, as ultimately amended, alleges violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, in two respects: (1) on or about September 6, 1974, by unilaterally canceling or suspending Respondent's Employee Appliance Purchase Plan for employees, without due or proper notice to the Union and without otherwise affording the Union a reasonable opportunity to intelligently bargain over the decision and effects thereof on unit employees; and (2) by refusing, commencing on or about June 2, 1975, and thereafter, to furnish the Union with information and data to enable the Union to negotiate a new collective -bargaining agreement, sand/or to enable it to administer a collective-bargaining agreement and intelligently represent employees in a bargaining unit, particularly showing the (a) dollar am- ounts paid to subcontractors who performed or engaged in bargaining unit work for Respondent during the period of the expiring contract term (1973-75); (b) the total number of man-hours of janitorial, custodial, or related work performed or engaged in by subcontractors for Respondent at its East Springfield, Massachusetts, service center location; and (c) the total dollar amounts paid to subcontractors during the aforementioned period for such work. Respondent, admitting certain allegations of the complaint, denied that the Union's purposes in obtaining ,such information was to enable the Union to negotiate a new collective-bargaining agreement and/or to enable it to administer a collective-bargaining agreement and intelli- gently represent employees of the unit. Respondent denies having unilaterally canceled or suspended the Employee Appliance Purchase Plan, denies having refused to furnish information to the Union in violation of the Act and, in substance, denies violation of Section 8(a)(1) and (5) of the Act, as alleged. The matter was heard before me on November 25 and 26, 1975, and January 7-9, 1976. On March 12, 1976, I received briefs from the General Counsel and Respondent. The briefs thoroughly analyzed 'the matters alleged in the complaint and heard before me, 'were of particular help in the resolution of the allegations This third charge supported the inclusion , in General Counsel's second consolidated amended complaint , of an allegation relating to the unlawful interrogation of an employee of Respondent, Jessie L Hernandez, outside the presence of a representative of the Charging Party, Local 455, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter called the Union. The matter was litigated at the hearing in November 1975. On March 15, 1976, General Counsel submitted a motion to dismiss the complaint insofar as this allegation was concerned , asserting that Respon- dent and Hernandez had entered into a non-Board settlement which, according to General Counsel, "sufficiently remedied" the allegation of the complaint. The General Counsel asserted that Respondent and the Charging Party were advised of his motion andjoined therein. The motion is hereby granted and the complaint, insofar as it alleges unlawful interroga- tion of Jessie L. Hernandez, is dismissed. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint, and were relied upon in the preparation of this Decision. Upon the entire record in this case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, Respondent admits, and I fmd that Respondent at all times material herein has been a Massachusetts corporation whose principal office and place of business is in the city of Springfield , Massachu- setts, where it is a public utility engaged in the manufac- ture, sale, and distribution of electric power and related products . Respondent annually, as a public utility, derives gross revenues in excess of $250,000 and annually purchas- es and has delivered to its Springfield , Massachusetts, and other Massachusetts facilities goods and materials valued in excess of $50,000 transported to said Massachusetts facilities from States other than Massachusetts. Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 It. THE LABOR ORGANIZATION INVOLVED Local 455, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union , is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Respondent expressly admits this allegation and I so fmd. III. THE UNFAIR LABOR PRACTICES The above alleged unfair labor practices are completely disparate, without relation to each other, and will be treated separately. 2 Respondent admits that the following named persons are supervisors within the meaning of Sec. 2(11) of the Act and agents of Respondent. Carol) Caffrey, director of industrial relations ; and Donald E. Riga, manager of personnel. s The Appliance Purchase Plan was available to employees of Respon- dent other than those represented by the Charging Party. 4 The complaint alleges, Respondent's answer admits, and I find that the following unit constitutes a unit appropriate for collective bargaining within the meaning of Sec. 9(b) of the Act- Spr,ngrield Area. All employees of Respondent in its underground, overhead , stock, trouble, maps and records, street-lights, transportation, and mainte- nance departments, ,janitors, metermen, servicemen, meter-readers, area maintenance operators, assistants and apprentices in the City of Springfield, Massachusetts ; all operating employees including electrical maintenance and other maintenance employees at the West Spnngfield generating station ; operators and station apprentices at the Cobble Mountain Substation ; area operators and control center operators and assistants in the Springfield area Franklin-Hampshire Area. All employees of Respondent in its line departments at Greenfield, Hampshire, East Hamilton, South Deerfield and Gardner Falls, including linemen, troublemen, groundmen, truckdnvers, cable slicers A. Background The complaint alleges that on or before September 6, 1974, Respondent, in violation of Section 8(aX5) and (1) of the Act, unilaterally canceled or suspended the Employee Appliance Purchase Plan (herein called the Plan ), a benefit of Respondent flowing to employees3 in the unit4 repre- sented by the Charging Party, without due or proper notice to the Union and without affording it a reasonable opportunity to bargain over the effects on the unit employees of the unilateral change. Respondent, as above noted, denies the allegation and interposes four affirmative defenses : (1) the Union waived its right to bargain collectively regarding the Employee Appliance Purchase Plan and/or, in the alternative , Respondent did bargain with the Union concerning its decision to temporarily suspend the plan; (2) under the Collyer doctrine, a decision of an arbitrator with respect to the Employee Appliance Purchase Plan that it is not arbitrable under the collective- bargaining agreement disposes of the matter (Collyer Insulated Wire, 192 NLRB 837 (1971)); (3) the Employee Appliance Purchase Plan is not a "condition of employ- ment" within the meaning of Section 8(aX5) and 8(d) of the Act; and (4) by its very terms, the Employee Appliance Purchase Plan gives Respondent the option to terminate the Plan at any time. Respondent is one of several operating companies wholly owned by Northeast Utilities Company , a common corporate parent employing 7,500 employees whose princi- pal office is in Berlin, Connecticut .5 One of the subsidiaries of Northeast Utilities is Northeast Utilities Service Compa- ny, which, on this record, is an unincorporated enterprise whose function is to perform services, including labor relations services, for the operating companies . For about 35 years, the Union has been the certified bargaining representative in substantially the entire unit described above. The record shows that each of the operating subsidiary corporations of Northeast Utilities has had some type of appliance purchase plan since at least 1940. Under the and helpers and metermen , meter clerks, stock clerks at Greenfield, Hampshire and East Hamilton, all automobile mechanics, floormen and building janitors at Greenfield service building; all meter readers, servicemen at Greenfield, Hampshire and East Hamilton, mainte- nancemen, maintenancemen's assistants and apprentices and area maintenance operators, assistants and apprentices working out of the Greenfield service building, headgate operators at headgates and hydro-operators assistants and apprentice in # I Station at Turner Falls and Gardner Falls station; and all employees at Cabot Station including operators, auxiliary operators and station apprentices; exclusive of trouble and meter district employees , radio interference employees and line department clerks. Berkshire Area: All employees of Respondent in its line department at Pittsfield, including linemen, troublemen, groundmen, cable slicers and helpers, metermen, area maintenance operators, assistants and apprentice, maintenancemen and assistants, stockroom and garage employees, janitors and utility maintenance men, meter readers and servicemen. The above-appropriate unit excludes: all office clerical employees, professional employees, guards, superintendents, assistant superinten- dents, executives, draftmen , laboratory employees and all supervisors as defined in the Act. S About 2,900 employees in the operating companies are represented by locals of the International Union, of which Local 455 is one. WESTERN MASSACHUSETTS ELECTRIC CO. 611 Plan, an employee, whether in or outside the unit, desiring to buy an appliance listed in the Plane first obtains authorization from a company supervisor and then is permitted to purchase the appliance from a vendor of his choice at the best price. Respondent would then be obligated to pay the vendor directly, finance the purchase for the employee free of charge, arranging by payroll deductions over a period of years to pay the vendor the principal and interest for the appliance. No collective-bargaining agreement between the parties made mention of the Plan and, as Respondent points out, the Plan itself was never discussed in negotiations between the parties for the purposes for collective bargaining. Respondent also notes that a letter of agreement in the 1963 collective-bargaining agreement was appended at the Union's suggestion. Respondent prepared a list of agree- ments previously unexpressed in any contract, which list was included in the letter agreement (Resp. Exh. 3) containing the statement that: It is the purpose of this letter to confirm all of the unwritten understandings which had been reached between the Company and the Union over the period of the last several years. It should be noted that the Employee Appliance Purchase Plan was not included in this letter and the Union never requested that the Plan be included as part of any agreement. By memoranda emanating from the parent company, Northeast Utilities, the Plan without consultation with the Union was changed in each of the subsidiary corporations in February 1971 by the deletion of "specials" 7 (Resp. Exh. 6); in June 1972 by the deletion of the coverage of certain items including oil burner equipment and by the addition of others; and in February 1974 by the elimination of all appliances and financing previously relating to conversion of employees' homes to the use of electrical heat. The retiord is uncontradicted that the Plan was instituted by Respondent's parent, was introduced into the operating companies at a time when it was believed desirable by the parent to promote the sales of electrical energy, and encourages Respondent's employees to buy electrical appliances. The Plan has been listed as one of the Company's "employee benefits" available to both prospective unit and nonunit employees and such characterization occurred in a company leaflet distributed to employees in June 1973 during an election among Respondent's clerical employees whom the Union was organizing. None of the changes, in 1971, 1972, or 1974, as above noted, were discussed with the Union prior to the changes nor was the Union consulted on the changes. However, in each case, the Respondent notified the Union of the changes in the Plan. The change in February 1974, the elimination of allowances and financing for electric residential heating, brought a response from the Union. The president of the Union filed a grievance with regard to the change in the coverage of the Plan. While the exact problems and 6 G.C Exh. 6 lists the items of electrical appliances which are the subject of the Plan, including air-conditioners , refrigerators, fans, table appliances, etc The Plan provides a limit of $1,000 of indebtedness at any one time. arguments relating to the disposition of the grievance are not clearly a matter of record, General Counsel concedes that the Union apparently became convinced of the merits of the company action and withdrew the grievance. In the collective-bargaining negotiations in May and June 1975 (the current collective-bargaining agreement between the parties covering the period of 1973 through 1975 expired on July 1, 1975), the Company proposed amending the grievance procedure to avoid (a) grievances on tuition reimbursement among its employees; and (b) grievances on the Employee Appliance Purchase Plan, similar to the above grievance filed in 1974. The Union refused to agree to limit the scope of the grievance procedure. Rather than change the language of the grievance procedure, however, the Union proposed that a letter of agreement deal with the matter, which letter would be incorporated into the collective-bargaining agreement. The agreement was reached and a memorandum of understanding placed in the collective-bargaining agree- ment for the year of 1975-76 (G. C. Exh. 3). By this agreement, the parties stipulated that the Employee Appliance Purchase Plan, inter alia, was not part of the collective-bargaining agreement and was therefore not subject to grievance and arbitration. This 1975 memoran- dum of agreement, however, by consent of the parties, in no way affected Respondent's actions in 1974, which follow. B. Bargaining Sessions On Monday, September 2, 1974, Donald E. Riga, Respondent's manager of personnel, who is charged with administering the collective-bargaining agreement for Respondent and who participated in the 1975 collective- bargaining negotiations, telephoned Edward Collins, busi- ness manager of the Union, and told him that he wished to have a meeting with him at 8:30 a.m. on Friday, September 6. Collins asked Riga what was to be discussed and Riga refused to tell him the subject matter of the meeting. As scheduled, the meeting occurred at the Company's East Springfield service center on September 6, 1974, at 8:30 a.m. Riga told Collins that, effective September 9, the Plan would be suspended. Collins told Riga that the Union was not happy, especially because the Company knew of its decision on September 2 and kept the Union in the dark as to the subject matter of the meeting until that very moment on September 6. Riga told Collins that the subject matter of the meeting had to remain secret or else the employees would have run out and charged a lot of money on the Plan, by buying up appliances, if they had any inkling of the fact that the Plan would be suspended. Riga stated that Respondent would post a notice on the company bulletin boards on the following Monday, September 9, that the Plan had been suspended. At that point Riga handed Collins a copy of the Plan with the word "suspended" printed across the top, along with the date September 6 (G.C. Exh. 6). Collins testified that, although Riga said that the Plan was suspended as of September 9, he stated that the Plan 7 "Specials" are Respondent's purchases from manufacturers at low prices of electric appliances, which low prices are passed along to employees. 612 DECISIONS OF NATIONAL was already actually suspended. Collins asked Riga to reinstate the Plan immediately, but Riga refused. When Collins requested to know how much money was tied up in the Plan, Riga said a great deal of money. Riga denied that the Plan was "terminated" and stated that, if the economic climate improved, the Plan could be reintroduced. Riga stated, however, that the chances of reintroduction were "very slim," and that the Plan had been put into effect when it was desirable to promote the sale of electrical appliances. At the present time, with the shortage of electrical energy, Respondent was afraid of public criticism of promotion of the sale of electrical appliances on an interest-free basis. Collins testified that, at the September 6 meeting, the Company did not ask the Union for any suggestion or alternatives, nor did the Union make any suggestions to the Company. The Union wanted only the reinstatement of the Plan. On September 17, 1974, the Union filed a grievance over the suspension of the Plan. On September 30, 1974, the Company and the Union met to discuss the grievance which had been filed. Prior to September 30, Respondent did not notify the Union that it was contesting the arbitrability of the grievance. Thereafter it did. The uncontradicted evidence shows that Respondent's director of industrial relations, Caroll Caffrey, received a memorandum from the parent company's vice president, Pearson, dated September 5, 1974, instructing him to suspend the Plan. As pointed out by the General Counsel, the Pearson memo directed Riga to instruct company personnel to refuse approval of any employee loan applications "effective at once." In fact, on September 6, 1974, Riga told the Union, as of that date, the Plan could no longer be used by employees and that he had no authority to reinstate the Plan. After the September 30, 1974, meeting to discuss the grievance, the Union moved the grievance to arbitration. By letter of October 29, 1974, Respondent took the legal position that the grievance was not arbitrable under the terms of the collective-bargaining agreement which posi- tion it maintained in the entire arbitration process and which it maintains today. On December 4, 1974, the Union filed the first of the charges supporting the present consolidated complaint. On January 21, 1975, Respondent notified the Board's Region- al Office that the merits of the grievance were not arbitrable, but indicated its willingness to go to arbitration for the sole purpose of litigating the question of arbitrabili- ty. On January 24, 1975, the Regional Director of the Board advised the parties that pursuant to Board's Collyer policy8 he was deferring the matter to the parties' grievance-arbitration machinery. The arbitration was held 11 Collyer Insulated Wire, 192 NLRB 837 (1971). 9 Inland Steel Co v N L R B., 170 F 2d 247 (1948), cert denied 336 U.S. 960, W W Cross and Company, Inc v N L.R B, 174 F 2d 875 (C.A. 1, 1949) 10 In pertinent part, Sec 8(d) provides that. where there is in effect a collective-bargaining contract covering employees the duty to bargain collective)y shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification - (I) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof.. . LABOR RELATIONS BOARD on July 9, 1975, and Respondent maintained its position that the grievance, as submitted by the Union, was not arbitrable under the terms of the contract. The Union contended that Respondent had unilaterally changed terms and conditions of employment without first bargaining to Impasse. The arbitrator held that the grievance submitted to arbitration was not properly a matter of contractual interpretation nor was it the intent of the parties to submit the matter to arbitration. Rather, the arbitrator held that the matter was one intended by the parties to be resolved by the Board rather than by an arbitrator (Resp. Exh. 9). On August 8, 1975, the Union, by its attorney, notified the Regional Director of the Board of the arbitrator's award and the ruling that the matter was not arbitrable. The Regional Director thereafter issued complaint in this matter. Analysis and Conclusions In its brief and at the hearing, General Counsel took the position that the Employee Appliance Purchase Plan was a benefit (emolument) which constituted "wages within the meaning of Section 8(d) and 9(a) of the Act"; 9 that, whatever the original definition of "wages" within the statutory obligation of an employer and labor organization to bargain under Section 8(d) and 8(a)(5), that obligation had been defined by Board gloss of "wages" to include, inter alia, a free investment service, Seattle-First National Bank, 176 NLRB 691 (1969); and an employee gas discount in heating their homes, together with an allow- ance to conversion with the use of gas, Central Illinois Public Service Company, 139 NLRB 1407 (1962), enfd. 324 F.2d 916 (C.A. 7, 1963). General Counsel takes the position that Respondent's unilateral discontinuance of the Em- ployee Appliance Purchase Plan constituted a prima facie violation of Section 8(a)(5) and (1) because the statutory bargaining duty imposes upon employers the obligation to notify and bargain prior to changing or altering existing wages and other terms and conditions of employees within the ambit of Section 8(d)10 of the Act, N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). With regard to the obligation to bargain and not to change a term or condition of employment where there exists a current collective-bargaining agreement, General Counsel points to Seattle-First National Bank, 176 NLRB 691, 693 (1969), and McCall Corporation, 172 NLRB 540 (1968), as standing for the proposition that a contrary conclusion is not required because contracts between the parties had not expressly referred to the Employee Appliance Purchase Plan or because the plan had not historically been the subject of collective bargain- (2) offers to meet and confer with the other party for the purpose of negotiating a new contract ... containing the proposed modification. . (4) continues in full force and effect ... all the terms and conditions of the existing contract ... . WESTERN MASSACHUSETTS ELECTRIC CO. ing between the parties. I agree. General Counsel further argues that, even if there had been a failure to refer to the Plan as a company benefit, that would not mean that the benefit is not covered by the obligation to bargain imposed by Section 8(a)(5) and 8(d) of the Act, Seattle-First National Bank, supra at 693; but where, as here, Respon- dent had effectively advertised the Employee Appliance Purchase Plan as a company benefit, such express refer- ence to the benefit constitutes some evidence that Respon- dent considers the Plan to be a part of the employee wages. Seattle-First National Bank, supra at 693, citing N.L.R.B. v. Central Illinois Public Service Co., supra; Southland Paper Mills, Inc., 161 NLRB 1077 (1966). I agree and conclude that the plan is prima facie "wages" within the meaning of Section 8(d) and 8(a)(5) of the Act and that a unilateral change by Respondent violates the Act. As above noted, the Company defends on the grounds (a) that the plan is not a mandatory subject of bargaining in that it is not a term or condition of employment within the meaning of Section 8(d) of the Act, citing Fibreboard Paper Products Corp. v. N.LRB., 379 U.S. 203, 223 (1964), and Mr. Justice Stewart's statement whereby it was his opinion, inter alia, with regard to the purpose of Section 8(d) of the Act, that "those management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employ- ment security should be excluded from that area." Respondent cites G & W Electric Specialty Company, 154 NLRB 1136 (1965), for the proposition that a mandatory subject of collective bargaining, within the scope of Section 8(a)(5) and 8(d) of the Act, relates only to working conditions and the employment relationship. Further, noting that the protection afforded employees under Section 7 of the Act to engage in "concerted activities for ... mutual aid and protection" is much broader than an employer's obligation to bargain under Section 8(d) of the Act, Respondent cites G & W Electric Specialty Co., supra, for the proposition that there the Board rejected a Trial Examiner's findings that a credit union involved a term or condition of employment subject to mandatory bargaining under Section 8(d) of the Act. From the analogy of the credit union, Respondent suggests that the Plan should not be included within the scope of the mandatory subjects of bargaining announced by the Board in its decisions with regard to the scope of Section 8(d) of the Act. In support thereof Respondent notes that for 30 years, on this record, the parties themselves did not consider the Plan to be a condition of employment; that, from its inception, Respondent altered and amended the Plan unilaterally without objection from the Union except for the single grievance filed in 1974 which was rejected by Respondent and dropped by the Union. Thus, according to Respon- dent, the clear practice of Respondent, recognized by the Union, was to make unilateral changes where necessary to adjust the Plan to changing conditions. In addition, Respondent points to the fact that the memorandum agreement signed in 1962 by the parties was ii Sec . XXIX of the collective-bargaining agreement which expired June 30, 1975, and the agreement in effect for the period of July 1, 1975, through July 1, 1976, contains the following provision: During the term of this Agreement neither party shall request the 613 for the purpose of protecting and preserving for union members, or at least employees covered by the collective- bargaining agreement, the concessions gained by the Union from Respondent over the years. Those concessions included meal allowances, protective clothing, free replace- ment of tools, and overtime compensation for employees temporarily assigned to do other work. By not including the Plan in that memorandum agreement, which was subsequently included in the 1963 collective-bargaining agreement, the omission indicated that the Union consid- ered the Plan to be under the absolute control of Respondent. Finally, Respondent argues that the Plan was never the subject of collective bargaining by the parties until 1975 when the parties executed an agreement whereby the Union agreed that the Plan was not a part of the agreement and was not subject to grievance and arbitration. From this, and the above other factors, Respondent argues that the parties never considered the Plan to be a subject of bargaining and never treated it as a subject of bargaining during all the years of negotiation. Respondent's second defense is that, assuming that the Employees Appliance Purchase Plan is a mandatory subject to bargain within the meaning of Section 8(d) of the Act, the Union waived any right to bargain about the suspension of the Plan. Respondent points to the fact that the Union never complained or grieved over the many unilateral changes which Respondent instituted in the past with regard to the Plan and by failing to challenge these changes or the existence in the Plan of the right to terminate or revise it as circumstances warrant, such conduct constituted acquiescence by the Union which was tantamount to a waiver. Avco Manufacturing Corporation, (Lycoming Division), 111 NLRB 729 (1955); Speidel Corporation, 120 NLRB 733 (1958); The Berkline Corpora- tion, 123 NLRB 685 (1959). Furthermore, Respondent argues that by execution of the memorandum of May 1962 (Resp. Exh. 3), after the Union expressed concern that unwritten employees' rights should be set forth in writing, and with the omission of the Plan, this constituted an express waiver of the Union's right to bargain over the suspension of the Plan. In addition, Respondent points to the existence of a "zipper clause" in the collective-bargaining agremeent which expired on July 1, 1975.11 Lastly, in support of its argument of waiver, Respondent suggests that there is an equitable estoppel working against the Union by virtue of the clear practice of the parties that led Respondent to believe that it could lawfully exercise unilateral rights over the Plan, including its total suspen- sion. It supports this theory by showing that the prior practice was to give Respondent complete unilateral control over the Plan; the Union never protested, prior to 1974, Respondent's alteration of the Plan; the Union never sought to include the Plan in the collective-bargaining agreement, never sought to bargain about the Plan, and permitted the execution of the memorandum of agreement other party to bargain with respect to any change of the provisions of this Agreement or of any other matter that might add to the provisions of this Agreement, and neither party shall have any obligation to negotiate or bargain with the other party with respect to the same. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1962 listing previously unwritten employee benefits, without including the Employee Appliance Purchase Plan, and agreed to a "zipper clause." Respondent argues that to permit the Union to escape from its position of having waived its right to bargain over the change or suspension of the Plan or to prevent working of an estoppel herein would be highly unfair and inequitable because it would permit a finding that Respondent was guilty of an unfair labor practice, subjecting Respondent to thousands of dollars in liability which, because of the actions and failures to act by the Union, it would not have incurred. Respondent takes the further position that, even assum- ing that Company was obligated to bargain over the suspension of the Plan, the parties bargained to impasse and the Company's action occurred only thereafter. Respondent also argues that Section 10(b)12 of the Act prevents consideration of the merits of the allegation of its alleged unlawful unilateral suspension of the Plan because the 6-month period should run from the time that Respondent was obligated to bargain over alteration or suspension of the Plan which commenced on February 4, 1974, when Leonard C. Hood, an employee filed the grievance regarding the Company's discontinuance of the heat allowances for installation and conversion rather than from the time that Respondent suspended the Plan on September 6, 1974. Finally, Respondent argues that the Board is barred from considering the unilateral suspension of the Employee Appliance Purchase Plan because the arbitrator ruled the matter to be nonarbitrable. Respondent, while granting that "ordinarily" the Board takes consideration of a charge after a determination of nonarbitrability by the arbitrator, nevertheless argues that, in the instant case, the finding of nonarbitrability by the arbitrator resolved a basic fact "critical to the determination of the unfair labor practice charge." That critical resolution was that "Plan" was not subject to the grievance and arbitration provision of the contract. Respondent further argues that, inasmuch as the contractual language of the arbitration machinery extends to "any difference, dispute or grievance ... regarding any matter" (G.C. Exh. 2),13 the conclusion is inescapable that the parties agreed to foreclose bargaining over the Plan. Respondent's conclusions in its brief is that: The suspension of the Plan is nonarbitrable because the parties had argued that the Company had the exclusive right to manage it. If it were otherwise, the broad contractual language necessarily would apply to make this "dispute" arbitrable. Under these circum- stances, it is submitted that it would better effectuate the purposes of the Act for the Board to give final and binding effect to arbitrator Summer's finding that the suspension of the appliance purchase plan was not arbitrable. 12 In substance, Sec 10(b) of the Act provides that no complaint should issue based upon unfair labor practice occurring more than 6 months prior to the firing oany f the charge with the Board. 13 The grievance and arbitration procedure under the contract includes a no-strike clause relating to "any difference, dispute, or grievance between the Employer and the Union regarding any matter, there should be no suspension of work There follows a three-step grievance procedure ending, in the third step, with arbitration. G.C. Exh 2, the 1973- 75 collective-bargaining agreement between the parties. At the hearing, counsel for Respondent conceded that he was not interposing an economic defense with regard to the alleged unilateral action. He stated that Respondent kept secret the reason for the meeting on September 6, in fear of a so-called run-on-the-bank by employees. In the bargain- ing of September 6, it appears that Respondent alleged that $1 million in capital was tied up in financing the Plan. Whether this was on a systemwide basis, or restricted only to Respondent, is unclear on this record. I conclude and find, as alleged in the complaint, that Respondent on or about September 6, 1974, unilaterally canceled the Plan without proper notice to the Union and without affording it an opportunity to bargain over said suspension, all in violation of Section 8(a)(5) and (1) of the Act. It should be noted that, when the Union rejected the grievance on alteration of the Plan relating to Respon- dent's financing of electric heating conversion filed by employee Hood in February 1974, Respondent told the union representatives (Hood and Collins) why Respondent was rejecting the grievance. Riga told them that the allowances were being discontinued because Respondent was no longer in the incentive program to promote the sale of electric home heating. The grievance was not, apparent- ly, rejected on the ground that it pertained to a matter over which Respondent was not obligated to bargain or involved a matter over which Respondent had complete and unilateral rights to change. In the case at bar, the Plan has been in existence for more than 35 years. According to Respondent, the use of the Plan by unit employees causes Respondent to tie up large sums of capital through borrowing or otherwise. The Plan is not only included in a long list of items announced as "employee benefits" of Western Massachusetts Electric Company,14 but it is also uncontradicted that the employee benefits list was given to Collins by Riga while the Union was organizing a group of clericals in an NLRB election. Riga sent the listed benefits to Collins when Riga was at a meeting of employees that the Union was trying to organize and Riga was using the list to demonstrate that the Respondent was a good company to work for and had distributed the list of benefits to employees during the organizational campaign. In N.L.R.B. v. Central Illinois Public Service Company, 324 F.2d 916 (C.A. 7, 1963), the Board, with court approval, held that a gas discount was "an emolument of value" which accrued to "employees out of their employ- ment relationship." The court upheld the Board's finding that the unilateral discontinuance of this discount violated the employer's obligation to bargain with the union with respect to wages, hours, and other terms and conditions of employment. In that case, the gas discount had been in existence for 36 years and permitted employees to purchase at a one-third discount. In Seattle-First National Bank, 176 14 The employee benefits in G. C. Exh. 5 include II paid holidays, vacations, accident pay, sickness disability plan, time off for death in the family, grievance procedure for nonunion employees, life insurance, death benefit plan, retirement program , major medical plan, dental insurance plan, travel accident insurance, maternity leave-of-absence, credit union, education aid program, physical examination plan, Christmas bonus, Sunday premium, shift premium, double-time pay for Sunday work, etc. WESTERN MASSACHUSETTS ELECTRIC CO. 615 NLRB 691, 692, citing Central Illinois Public Service, supra, favorably, the Board, adopting the decision of the Trial Examiner, noted the respondent's unsuccessful contention that a 28-year-old free investment service was not regarded or treated by the parties as an employee benefit. In the case at bar, the Employee Appliance Purchase Plan is listed by Respondent as an employee benefit. As above noted a contrary conclusion is not required by the fact that the collective-bargaining agreements between the parties have not expressly referred to the Plan or that the Plan has not historically been the subject of bargaining between them. Seattle-First National Bank, supra; McCall Corporation, supra. As noted in Seattle-First National Bank, supra, controlling effect cannot be accorded to the fact that, in certain cases (N.L.R.B. v. Central Illinois Public Service Company, supra; Southland Paper Mills, Inc., 161 NLRB 1077; Westinghouse Electric Corporation, 156 NLRB 1080 (1966)), the employer never referred to the emolument or benefit in communicating with its employees or potential employees. It is unnecessary to cite further cases or analyze the Board's position with regard to the question of what constitutes wages within the meaning of Section 8(d). See the recent The Capital Times Company, 223 NLRB 651 (1976). With regard to Respondent's citation of G & W Electric Specialty Co., 154 NLRB 1136, 1137, suffice it to say that it does not stand for the proposition for which the Respon- dent cited same, i.e., the Board rejected the Trial Examin- er's finding that a credit union involved a term or condition of employment of a kind subject to mandatory bargaining under Section 8(d) of the Act. In fact, the Board expressly held that, for purposes of that case, it was unnecessary to adopt the Trial Examiner's suggestion that the credit union involved a term or condition of employment subject to mandatory bargaining under the provisions of Section 8(d) and Section 9(a) of the Act.15 1. Therefore, contrary to Respondent, I conclude that the benefits flowing from Respondent to its employees under the Plan constitute "wages" and the suspension or termination of the Plan is thus a mandatory subject of bargaining within the meaning of Section 8(d) and 8(a)(5) of the Act. 2. I further conclude that Respondent's action with regard to the Plan amounted to a unilateral discontinuance or termination of the plan. The memorandum from Vice President R. H. Pearson of Northeast Utilities Service Co. to all holders of Respondent's policy and procedure memoranda, including Caffrey and Riga, notes that the Plan has been suspended, effective "September 9, 1974." Pearson's memorandum is dated September 5, 1974, and thus, as General Counsel argues, it is not unreasonable to believe that the decision embodied in Pearson's memoran- dum was made on or before September 5, 1974. The memorandum continues by directing that instructions be 15 In G & W Electric Specialty Co, supra, the Board held (Member Jenkins dissenting in part), that a violation of Sec. 8(a)(1) of the Act occurred with the discharge of an employee for soliciting signatures to a petition against the employer's administration of a credit union . The Board held that all that was necessary to decide in that case was whether the employee was engaged in "concerted activity" for the purpose of mutual aid or protection of employees, within the meaning of Sec. 7 of the Act, and issued "effective at once that no additional Employee Appliance Purchase Certificates . . . may be accepted or approved by those persons presently authorized to do so in your department or section." Lastly, the memorandum notes that the supervisor should be aware of employees attempting to unlawfully use the plan and closes by stating: "All employees under your supervision should be made aware that the plan has been suspended and no further employee purchases will be authorized ." The memoran- dum opens by noting that the Company is attempting to reduce expenses and to use available cash for essential company expenditures. Riga then telephoned Collins on September 2, advising him of a meeting for September 6. Respondent states that the secrecy was based upon its fear that there would be a "run-on-the-bank" if information leaked to employees that the Plan was going to be suspended. At the meeting, Riga told Collins of the financial straits of the Company, in terms of tying up capital and the need to use capital for other purposes and that the plan would be suspended . Riga had,no authority to reinstitute the plan and Riga told Collins that even as of September 6, rather than on the official date of suspension on September 9, no applications for using the Plan would be accepted. It seems to me that there can be little argument that, as of September 6, the Plan was terminated and that it makes no difference whether the word "suspended," "terminated," or "eliminated" is used. What Riga was doing, contrary to Respondent's argu- ment that he was bargaining on September 6, was merely relaying a message from Caffrey and Pearson to the Union. That message was that the Plan was terminated. Thus, there was no bargaining session within the usual meaning of that term but merely an effective and reasonable place to make an announcement of an end result . For want of a . better term, the expression fait accompli will do as well as any other to describe Respondent's action. See Kroehler Mfg. Co., 222 NLRB 1269, 1271 (1976). The unilateral act of changing, withdrawing, and terminating the Plan violated Respondent's obligation under Section 8(a)(5) of the Act for the Employer to notify and bargain with the Union over any such change, at least to the point that the impasse before the change can be implemented . N.LR.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736. The same case stands for the proposition that Respondent's good faith and the existence of economic reasons or conditions motivating the unilateral change or the change itself are not defenses to a unilateral change in terms and conditions of employment without consulting and bargaining with the Union to impasse before such change is implemented. Accord: Kroehler Mfg. Co., supra. Further, I agree with General Counsel that Allied Products Corporation, 218 NLRB 1246 (1975), supports the assertion that even a unilateral suspension, rather than termination, of the mandatory subject of bargaining without notice and bargaining to impasse with the labor organization violates whether he was discharged therefor . It was unnecessary to determine , in that case, whether the credit union involved a term or condition of employment within the meaning of Sec. 9(a) and Sec. 8(d) of the Act. It goes without saying, based upon this decision, that Sec. 7 rights accorded to employees appear to be of greater breadth than the rights on which labor organizations and employers are required to bargain within the meaning of Sec. 8(d) and 8(a)(5) of the Act. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(5) of the Act. The fact that the Plan was never the subject of bargaining is not significant . Gas Machinery Company, 221 NLRB 862 (1975). 3. Respondent argues that, in any case, the Union's conduct over the years has amounted to a waiver of any right to bargain with regard to suspension of the Plan. In substance, Respondent points to the fact that over the years Respondent has made various changes in the plan. Thus, from time to time, Respondent eliminated from the Plan and changed the Plan with regard to various items. The short answer is that to establish "waiver" and "estoppel" seems to me to require a greater factual matrix than present here. The Union's acquiescence in minor changes in no way presents a "waiver," a doctrine which, under Board rules, requires clear evidence . Kroehler Mfg. Co., supra. Moreover, the 1974 grievance regarding Re- spondent's elimination of conversion to electric heat brought no argument of "waiver" from Respondent. See Gas Machinery Co., supra. Similarly, the existence of the "zipper clause" affords Respondent no effective support for "waiver." The right to refuse to discuss modification of an existing agreement refers to terms and conditions integrated and embodied in a writing, not to matters not reduced therein . Tide Water Associated Oil Company, 85 NLRB 1096, 1098 (1949). A waiver of statutory rights will not be inferred from the mere absence from the contract of specific reference to a subject protected by the Act, or because the contract contains a management prerogatives clause, or because the Union failed during contract negotiations to obtain contract protection of its statutory rights. The Bunker Hill Company, 208 NLRB 27, 33 ( 1973), and cases cited therein. Cf. Proctor Manufacturing Corporation, 131 NLRB 1166, 1168 (1961). Here there was no bargaining on the matter, much less affirmative evidence that, during bargaining, the parties had discussed and explored the Plan and that the Union had "consciously yielded." Proctor Manufacturing Corp., supra. Thus, there is no predicate to which the "zipper clause" could attach. 4. The defenses of economic necessity and the bona fides of economic distress, as excuses for unilateral change in this mandatory subject of bargaining, have been rejected by the Board. Kroehler Mfg. Co., supra,; N.L.R.B. v. Katz, et al., 369 U.S. 736. 5. The Collyer defense is without merit. To hold, as Respondent suggests, that an arbitrator's decision of nonarbitrability should lead to deferral is unsupportable. For the paramount precondition to deferral is that the issue presented to the Board be one which has been considered in the non-Board proceeding. Joseph T. Ryerson & Sons, Inc., 199 NLRB 461, 462 (1972); International Union of Elevator Constructors, Local No. 1, AFL-CIO (New York Elevator Manufacturers' Association), 214 NLRB 257 (1974). Here the arbitrator concurred in Respondent's argument and did not pass on the merits of the submission, holding the matter nonarbitrable under the contract. Thus it cannot be said that the basic issue of unfair labor practice was decided by the arbitrator. This is a condition precedent to deferral. Electronic Reproduction Service Corporation, 213 NLRB 758 (1974); Versi Craft Corpora- tion, 221 NLRB 1171 (1975). In passing, it should be noted that the unilateral termination of the Plan seems to have been caused by Respondent's desire to save money rather than energy. Certainly there was no overwhelming necessity , National Terminal Baking Corp., a Subsidiary of Kosher Kitchens, Inc., 190 NLRB 465 (1971 ), or emergency condition. N.L.R.B. v. Cone Mills Corporation, 373 F.2d 595 (C.A. 4, 1967). Respondent's refusal to furnish information to the Union regarding subcontracting C. Background Paragraph 11 of the second amended complaint alleges, in substance, that Respondent, during collective bargaining for a new contract, violated Section 8(a)(5) and (1) of the Act in refusing to furnish the Union with the following information: (1) the dollar amounts Respondent paid to subcontractors who performed or engaged in bargaining unit work for Respondent during the contract term of the immediately preceding expired collective -bargaining agree- ment (July 1, 1973, through July 1, 1975); and (2) the total hours of janitorial, custodial, or related maintenance work performed or engaged in by subcontractors for Respondent at its East Springfield, Massachusetts, service center, and the total dollars amount paid to such subcontractors during the aforementioned period for such work. The Union alleges that Respondent violated its statutory bargaining obligation because this information was to be used by the Union to : (a) negotiate a new collective- bargaining agreement commencing July 1975; (b) enable it to administer its collective-bargaining agreement, and (c) intelligently represent unit employees. The facts regarding the Respondent's refusal to divulge the above-mentioned information to the Union are not in substantial dispute . The Union and Respondent have engaged in collective bargaining for approximately 35 years, during which time Respondent has continuously subcontracted out work which was performed by unit employees. At the present time, Respondent continues to subcontract out such work. The record shows that, in the past, the Union with minimal success has attempted to limit, during collective bargaining, the extent to which the Union could use subcontractors. It is unclear as to what specific actions and when such actions occurred in this regard. There is also no dispute that the one restriction on Respondent's right to subcontract appears in the 1973-75 bargaining agreement and is known to the parties as the "Berkshire Restriction." This restriction on subcontracting is limited to the laying, cutting, and preparation of cable conduit ends for collar couplings in connection with the installation of underground conduit in the Berkshire area (G.C. Exh. 2). Other than this restriction, Respondent regularly subcontracts work which involves the same work as that regularly performed by unit employees. This work includes (1) overhead line work, (2) underground excava- tion; (3) installation of underground line and related facilities ; (4) janitorial work (East Springfield Service Center); (5) tree trimming work; and (6) overhead transmission lines. The Company has engaged in the practice of using "mixed crews," i.e., where employees of WESTERN MASSACHUSETTS ELECTRIC CO. 617 subcontractors and unit employees work side by side performing the same work on the same job. Employees of the Employer are often experienced in work performed by subcontractors. The evidence shows that, in 1973, there were 518 employees in the collective-bargaining unit represented by the Union. In May 1975, when collective-bargaining negotiations began, there were 485 unit employees. In September 1975, there were 457 unit employees. In May 1975, at the beginning of collective-bargaining negotiations, Union Agent Keilty asked a company official (Caffrey, director of industrial relations) whether Respon- dent, which planned to lay off approximately 700 employ- ees over the entire multicorporation system, had finalized the number of employees to be laid off. This question was posed because, sometime preceding May 1975, there was a demotion of approximately 21 out of 30 unit employees in the appliance service department. This demotion did not entail the actual layoff of the employees, but caused the employees, under the terms of the collective-bargaining agreement,16 to "bump" other employees. Shortly thereaf- ter, Caffrey told the union that there would be 13 to 18 further reductions in bargaining unit personnel over the life of the collective-bargaining agreement.l7 As above noted, the Union is the collective-bargaining representative of essentially a production and maintenance unit of employees in various areas in western Massachu- setts, including the Springfield area. Respondent, by a duly filed answer, admits that the Charging Party is the statutory representative in the Springfield area of all of Respondent's janitors in said area. The Springfield Service Center, opened in October 1969, amalgamated several physically separated departments under one roof. In the physically separated departments prior to opening the facility, there were five janitors. With the opening of the facility, one janitor retired, four unit janitors were actually employed in the service center, and, over the years, the number of unit janitors was decreased to two. When the Springfield Service Center opened, Respondent told the Union that it intended to use employees of a subcontractor to perform janitorial services at the service center. Respondent said that the janitorial subcontractor was to be brought in for a "trial period" to determine if it would be more economical to do the work with the subcontractor. While the record shows that, during collective bargaining in June 1975, the Union insisted that the janitorial work performed by the subcontractor remain bargaining unit work, the Union never requested of the Employer that the employees affected by the cutback in the appliance service department be given the work performed at the East Springfield Service Center by employees of the subcontrac- tor. Moreover, the Union never requested or proposed in the 1975 collective-bargaining negotiations that the mainte- nance work performed by employees of subcontractors be assigned to employees in the bargaining unit. As the 16 The layoff or "bumping rights," which are actually furlough provi- sions, were in the 1973-75 collective-bargaining agreement (G.C. Exh. 2) and in the current collective- bargaining agreement for the period 1975-76 (G C. Exh. 3) 17 The figure of 13 to 18 is derived from the testimony of the Union's business agent and chief witness, Edward W. Collins, Jr. Caffrey testified that he said that 10 to 12 bargaining unit employees might be laid off during number of unit janitors shrank from four to two, the evidence shows that the original work area in which the unit janitors worked decreased. As of the present time, employees of the janitorial subcontractor clean the offices and other areas in the service center which have tiled floors; the bargaining unit janitors clean the truck bays, the garage area, and principally those areas where the floors are not covered by tile but are cement floors. As General Counsel notes, there is an exception to the above distinction in that unit janitors work in tiled areas in the storeroom office and in the garage superintendent's office, which are tiled areas. In the collective-bargaining negotiations which began in May 1975 and concluded with the signing of a collective- bargaining agreement (covering the period 1975-76) on July 3, 1975, Respondent refused to divulge the informa- tion requested by the Union (hours worked by the subcontractor janitor employees and the cost of such work) on the ground that the janitorial work performed by the subcontractor's employees was not unit work. At an unspecified time prior to the 1975 collective-bargaining negotiation, the Union requested the Company to give some of the subcontractor's janitorial work at the service center to unit employees. It appears that, on one occasion, the Company did honor the Union's request. However, the return of this work did not have the effect of increasing the number of unit janitors or reducing the amount of work performed by the subcontractors.18 It was only in the 1975 negotiations that Respondent first took the position that the janitorial work performed by subcontractors was not unit work. It should also be noted that, on various occasions during the contract term of the expired contract (1973-75), Business Agent Collins mentioned to Respon- dent's personnel manager, Donald Riga, that Respondent should not use subcontractors while Respondent was reducing the number of unit employees. Union Agent Collins also testified that, commencing in or about 1974, union members advised the Union that they were not getting overtime because a subcontractor was performing unit work. As an incident of their regular work erecting and constructing electric lines, unit linemen engage in tree trimming work but Respondent often subcontracted out tree trimming, not as an incident to erection of electric lines, but as part of a process of clearing areas of trees which interfered with transmission lines. In the early fall of 1974, the Union discussed with Respondent the possibility of using unit employees to do tree trimming work instead of subcontracting the work out. This occurred because the Union anticipated, by that time, a reduction in the number of employees in the unit because of the Company's austerity program and its desire to eliminate unit jobs. Respondent and the Union entered into an agreement whereby the Company agreed to put on a tree trimming crew made up of employees of the the year 1975-76. Unlike the "bumping" in the appliance service depart- ment, wherein 21 out of 30 bumped employees did not lose all employment, in the layoff of employees there was no assurance that this would be accomplished without putting the employees "on the street." rs The Union concedes that the increase in the number of unit janitors was not solely the result of the Union's expressing a desire to have unit employees perform the work. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining unit. It rented a large "chipper" and com- menced operating this tree trimming crew composed of unit employees on an experimental basis . Respondent halted the experiment in or about December 1974 or January 1975. In a meeting at the Treadway Inn, in or about March 1975, Respondent told the Union that the study of the use of unit employees failed to show that the unit employees could do the work more cheaply than the subcontractors. Donald Riga credibly testified that the trial crew of unit employees doing tree trimming work was not to determine if they could be used in lieu of subcontractor employees but rather whether the unit employees, not occupied in line work , could do tree trimming. Riga testified that so utilizing unit employees would be a method of keeping them on the payroll and working when their work as cable and conduit men did not require them to do those jobs. The Union urged the Company not to discontinue the crew of tree trimmers made up of unit employees, but the Company stated that, in addition to the fact that the unit employees could not do the work cheaper than the subcontractor employees, it did not intend to go into competition with subcontractors in that area or work. 1. The 1975 collective-bargaining negotiations The negotiations for the new contract to supersede the agreement expiring July 1, 1975, commenced on May 20, 1975. Other than the May 20 negotiating session, there were eight other negotiating sessions, seven of which were in June. It was in this first negotiating session that the Union inquired if there would be a further reduction in personnel. Respondent said that there would be approximately a dozen other reductions involving unit personnel over the life of the contract. At this first session, the Union and Respondent ex- changed proposals. Among Respondent's proposals was one to eliminate the Berkshire subcontracting restriction. Respondent stated that the existing restriction limited them and made the Berkshire operation less efficient and economical. Respondent had opposed and sought to rid itself of the restriction in previous years. 2. The June meetings At the June 2 collective-bargaining session, the Union submitted a proposal which would restrict Respondent from subcontracting at times when (a) unit employees were in layoff status, or (b) unit employees were deprived of a full workweek or of overtime (G.C. Exh. 8). When the Union's proposal to limit subcontracting was presented on June 2, the Union told Respondent that it was the Union's desire to have unit employees perform the work . Respon- dent said that it would consider the matter and respond thereafter. Respondent, however, did inquire whether the proposed limitation on subcontracting would apply even in the case of subcontracting for short duration . Respondent gave as an example the case where the subcontracting would last only 5 or 10 days. Collins, in behalf of the Union, said that the limitation on subcontracting would apply in that situation. Respondent answered that, if it would not be allowed to subcontract in such a situation, that would not be an efficient or economical way to run a business. Collins responded by saying that the obligation of Respondent to its own employees, especially those on layoff status, was greater than its obligation to subcontrac- tors. Collins testified that the principal reason why the proposal was submitted was because the Union anticipated further layoffs among unit employees. When Respondent argued that such a limitation on subcontracting was not an economical or efficient way to run a business, Collins answered that he believed that the unit employees could do the job much cheaper and better. In conjunction with the submission of the Union's proposal to limit subcontracting, the evidence shows, without contradiction, that the Union's negotiators, Keilty and Collins, requested from Carrol Caffrey, Respondent's director of industrial relations, information regarding the man-hours worked and the dollar amounts paid to subcontractors performing unit work over the life of the 1973-75 agreement. Caffrey recalled that the Union, in previous years, had stated that it was entitled to cost information on contractors. The Union, according to Caffrey, took the position that the Union was "entitled" to the information but did not advance reasons in support of this position. In fact, at one point the Union threatened to go to the Labor Board and file charges if the information was not forthcoming. Caffrey testified that this was not a new matter and in fact the Respondent had received such demands before. The evidence also shows that, while Collins did not flatly tell Respondent during negotiations that, if the cost information was divulged, the Union would make a proposal by which unit employees would do the work cheaper than subcontractors, Collins did testify that he told the Company that unit employees could do the work cheaper and better than the subcontractors. The record is unclear as to whether this statement by Collins directly accompanied the request for information or the submission of the Union's proposal to limit subcontracting. While Caffrey was confident in his testimony that the Union did not support its request for information by stating that it was needed to support the proposal to limit subcontracting or to support any other proposal, Caffrey stated that he was sure that, in the past, the Union probably did say that it could do the work cheaper than subcontractors. Caffrey testified that the Union said that it was entitled to the information regarding costs of the subcontractors doing unit work and the hours that they worked for "intelligent bargaining, under the law type of thing." Otherwise, Caffrey testified, there were no particu- lar reasons advanced or submitted in support of the request for this information. For instance, the Union never asked, whether in negotiations or outside the negotiations, for cost information on the use of subcontractors doing tree trimming. Nor were there any grievances filed in 1975 with regard to the use of subcontractors; nor did the Union ever complain that unit employees were telling the Union that they were not getting overtime because of the use of subcontracts; nor were there any grievances filed because of unit employees not receiving any overtime. Similarly, Respondent's manager of personnel, Donald E. Riga, testified that he did not recall if the Union gave reasons why it wanted to restrict subcontractors. He did, WESTERN MASSACHUSETTS ELECTRIC CO. 619 however, recall that the Union said it wanted and needed the information regarding costs of the subcontractors and hours worked in order to assist in negotiations. Riga testified, however, that, while Caffrey was the chief negotiator and spokesman for Respondent , both he and Caffrey knew that the information requested by the Union, with regard to the costs of subcontractors doing unit work and the hours their employees worked, was related to the Union's subcontracting proposal. Collins testified that, between June 2 and 24, there were only brief references in the several collective-bargaining sessions to the Union's proposal to limit subcontractors . Collins testified that the Union did not feel that it was in a position to even bargain over the matter until it obtained the information it sought. At the June 24 session, the Union again requested the information regarding costs and hours worked. The Company orally specified the hours worked by subcontrac- tors on unit work during the contract period , but refused to divulge the cost information . In addition, the Company refused to provide either the hours worked or the costs of janitorial subcontractors at the Springfield Service Center. With regard to Respondent's refusal to give the cost information, the company position was that the informa- tion "was not relevant." The Union told Respondent that it needed the cost information to "intelligently analyze" its proposal to limit subcontracting. Collins testified that the Union could not know what it really was talking about unless it knew how much Respondent was spending on various subcontracting jobs. Collins also testified that Respondent did not claim at any time that cost or economics were not a factor in its decision to subcontract a particular job. In a letter to Respondent dated June 26, 1975 (G.C. Exh. 9), the Union made a second request for (1) the dollars spent on subcontractors performing bargaining unit work and (2) the man-hours worked and dollars spent on janitorial subcontracting at the East Springfield Service Center. The Union requested that the Company supply this information by June 30 . At the June 30, 1975 , collective- bargaining session, the Union withdrew its proposal against subcontracting but told Respondent that it was not thereby ceasing its request for the information. At this meeting, Respondent withdrew its proposal to eliminate the ban on subcontracting in the Berkshire area. At the July 3, 1975, meeting, Respondent handed the Union a letter (G.C. Exh. 10) in which it stated that it had supplied the Union with man-hour information concerning subcon- tracting where the work was normally performed by bargaining unit employees but refused to give information regarding the cost of such outside subcontracting because it was "not material to negotiations." The letter stated that the refusal was not "based on economic reasons." On cross-examination, Respondent's director of industri- al relations, Caroll Caffrey, testified as follows: Q. (By Mr. Steiglitz) Let me show you General Counsel's No. 10 (showing document to the witness). A. Yes. Q. Now, was that-the reasons stated in this letter the same reasons given to the Union during negotia- tions, as to why the Company refused the information requested? A. Generally, except expanded a little bit that we subcontract for many reasons besides cost. Q. Besides cost? A. Yes. Respondent's Position: East Springfield Service Center Regarding the East Springfield Service Center, as above noted, Respondent refused to provide either the hours worked or the cost of subcontracting the janitorial work. Respondent's position was that the information requested was not irrelevant, which was the position that it took with regard to costs of subcontracting generally , but that the janitorial work performed by subcontractors in the service center was not unit work . This was the first time that the Company took that position. Respondent asserts that subcontractors at the service center historically performed work in the tiled floor areas while unit janitorials did the cement floor areas. Collins admitted that this rough functional distinction had been in existence since 1970 or 1971 but maintained that the janitor work at the service center remained bargaining unit work. Collins also told Respondent that the Union could do the work cheaper than the subcontractors' employees since the subcontractor had four or five employees working 3 to 4 hours a day and that the Union could do the work cheaper with one full- time unit employee. In this connection, Collins credibly testified that he told Respondent's personnel manager, Donald Riga, not only that the janitorial work at the service center remained bargaining unit work and that merely because the work had been subcontracted did not change that fact, but also that, when the Company opened the East Springfield Service Center in October 1969 Respondent had told the Union that the subcontracted janitorial work was being done on a "trial basis" to determine whether or not it was more efficient and economical to do the work with subcontractors . Collins admitted, however, that the subcontractors who started working at the service center on a "trial basis" ended up staying at the service center. As above noted, on June 30, the Union withdrew its proposal to limit subcontracting and Respondent withdrew its proposal to eliminate the ban on subcontracting in the Berkshire area. At the July 3 meeting, the parties reached agreement on a new contract (G.C. Exh. 3) for the period July 1975 through July 1976. Positions of the Parties ; Positions of the General Counsel The General Counsel argues that the issues of cost and of using subcontractors, as opposed to employees, were raised and discussed at the bargaining table and in previous negotiations between the parties . Thus, General Counsel points to the fact that, in the past, the Union raised the issue of cost when seeking to restrict Respondent's subcontracting and took the position that it could do the work cheaper than the subcontractors. From this, General Counsel argues that the cost factor was on the table and under consideration by both parties while discussing 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subcontracting in the 1975 negotiations. In particular, General Counsel states that, in the 1975 negotiations, the parties discussed and argued the question of whether unit employees performed the work of tree trimming more economically than subcontractor employees. In addition, the Company's own Berkshire proposal (the proposal to eliminate the restriction on using subcontractors in the Berkshire area) necessarily raised the question of whether it was cheaper for the Company to use subcontractors. Further, the General Counsel points to the fact that the proposal by the Union to restrict subcontracting necessari- ly contains within it the issue of the cost of using subcontractors as against the cost of using unit employees. By repeating in the negotiations that unit employees could do tree trimming, janitorial work, and other work cheaper than subcontractors, the Union necessarily raised the issue of cost and the economic desirability of using unit employees as opposed to subcontractors. General Counsel points to the fact that Respondent told the Union that, in subcontracting out work, cost was one of the reasons it subcontracted out the work. Lastly, General Counsel notes that during the negotiations , as opposed to Respondent's position at the hearing, Respondent did not tell the Union that cost and economic considerations were not factors in the Company's subcontracting out unit work. In this regard, the most that Respondent stated was that the cost of outside contracting was "not material to negotiations" (G.C. Exh. 10). According to General Counsel, this is not the equivalent of stating that cost was not a consideration in Respondent's decisions to subcontract unit work. General Counsel asserts that the reasons the Union needed the information were either expressly communicat- ed to the Company or were otherwise fully known to the Company without direct communication during collective- bargaining sessions or otherwise. Among these reasons was the fact that the dollar amount paid to subcontractors was needed in order for the Union to engage in intelligent contract negotiations in that such cost information was intimately related to, and part of, its proposal to restrict the Company's ability to subcontract unit work. General Counsel points to the fact that Riga and Caffrey conceded that they realized that the Union sought costs in order to support its proposal to limit subcontracting. General Counsel also points to the fact that the Union made a proposal to expand the number of jobs into which unit employees could "bump" in case of decrease in job opportunities in the unit. While it is true, as Respondent contends, that Respondent granted some relief in this area by expanding the number of jobs into which furloughed employees could "bump," General Counsel states that, in negotiating on this point, cost information would be relevant. The relevance would be that, if cost information had been supplied, and demonstrated a poor likelihood of bringing in greater work to unit employees from the subcontracting area, the Union could be more persistent in its demands for more job opportunities in the furlough expansion proposal rather than attempting to limit subcon- tracting. Apart from the necessity of receiving information on cost for purposes of contract negotiation, the General Counsel also stated that the Union needed this information for purposes of contract administration and properly repre- senting unit employees. In view of the contract provision relating to bumping rights, promotions, layoffs, and transfers, and in view of the anticipated constriction of unit jobs because of the recession, the Union needed cost information in order to advise the unit members of their rights with regard to unit work which was being subcon- tracted out. The deprivation of unit work, overtime, and promotion, and similar elements derived from the loss of unit work were all matters which the Union saw that it reasonably would be confronted with, given the economic conditions requiring the restriction of unit work and the Company's promise to lay off more unit employees. Thus, since Respondent admitted that cost was one factor in subcontracting out unit work, the cost information was essential to the Union in order to enable it to intelligently evaluate the situations which would arise from continued subcontracting in the face of the diminution of unit work. With regard for the need for cost information related to Respondent's subcontracting (at the East Springfield Service Center) of janitorial work, without the information on hours and cost with regard to janitorial subcontracting, the Union had no idea as to the extent of janitorial work available; nor could it evaluate whether the amount of such work was sufficient to warrant any attempt in the future to obtain janitorial work for its members . Since Respondent had admitted that hours worked-information it gave with regard to all other subcontracting-was relevant to the Union in estimating how many jobs were available for unit members (by dividing total man-hours of subcontracting by the number of hours for a particular job), the Union needed the hours to evaluate the availability of jobs. Thus, General Counsel argued that, if such hour information was admittedly relevant to other subcontracting situations, it was also essential and relevant to determine the center's janitorial subcontracting situation. Similarly, the dollar amounts were needed, as in other situations, in order to estimate whether unit employees could perform in econom- ic competition with subcontractor employees. Respondent's Contentions The Union's overall request for cost information on subcontracting is immaterial In the first place Respondent argues that the Union's request for cost information on subcontracted unit work is moot in the face of Respondent's specific denial that its decision to subcontract unit work was based on cost or inability to pay. Thus, Respondent states that the Union had no need for such information unless and until it was required to overcome a denial by Respondent of its proposals on such a ground, i.e., cost or inability to pay. Respondent's second ground of defense is that the Union failed to support its request for the information in collective-bargaining sessions or otherwise ; and thus, neither by the Union's direct statements nor by the context of negotiations or otherwise was Respondent apprised of the relevancy of the Union's request. As an overall defense to the request for information relating to all subcontractors (except the subcontracting of janitorial services at the East Springfield Service Center), Respondent notes that it WESTERN MASSACHUSETTS ELECTRIC CO. willingly supplied the Union with information of hours worked by all other subcontractors, thus enabling the Union to bargain intelligently and effectively. Respondent concludes that, since the Union acknowledged that its proposals with respect to limiting subcontracting and expanding the "bumping" opportunities were for the purpose of securing more jobs for bargaining unit employ- ees, and since Respondent voluntarily submitted the information regarding hours worked by subcontractors, the Union was "armed" with information upon which it could judge whether its proposals in these areas were worthy of pursuit. In support of its contention that the Union failed to prove the relevance of the cost of subcontracting, Respon- dent makes the following arguments: (1) the Union, aside from testifying that it was "entitled" to the information regarding hours and cost of subcontractors, never did submit the reasons for its request; and (2), assuming arguendo that the Union told Respondent that the information was necessary to support its claim that the Union could do the work more cheaply than could contractors, such a plea would not place an obligation on Respondent to supply the information based on the cost or plea of inability to pay. The result is not changed, according to Respondent, by evidence that agents of Respondent, during negotiations or immediately prior thereto in 1975, told the Union that (with regard to the tree trimming experiment and Respondent's proposal to elimi- nate the ban on subcontracting in the Berkshire area) the use of unit employees in tree trimming and the failure to use subcontract employees on conduit work in the Berkshire area were not "economical or efficient." Respon- dent argues that these remarks to Respondent 19 do not constitute a claim by Respondent of an inability to pay. Third, according to Respondent, none of the circumstances known to Respondent at the time of the request for information during the collective-bargaining sessions casts any additional light on the relevance of information on the cost of subcontracting to the Union's ability to bargain effectively. It points to the fact that there was no pending grievance concerning subcontracting nor were there any grievances relating to lack of overtime filed during the entire term of the 1973-75 collective-bargaining agreement. Thus, Respondent argues that, aside from its proposal to eliminate the ban on subcontracting at the Berkshire area, the only other proposal relating to subcontracting was the Union's proposal to restrict subcontracting (G.C. Exh. 8); and with regard to this proposal, designed to preserve work for unit employees, Collins testified that he needed the information if the Company adopted a position claiming that it was not cheaper to do the work with unit employees but rather cheaper to do the work with subcontractor employees. Thus, Respondent asserts that the Union wanted the cost information regarding subcontractors "in anticipation of a rejection of its subcontracting proposal on grounds of financial inability." Thus, Respondent urges that the relevancy of the requested information must turn only on Respondent's rejection of the proposal based upon 18 Contrary to counsel for Respondent , I credit Caffrey's testimony that Respondent did make these statements with regard to both tree trimming 621 cost or inability to pay, and since there was no such rejection the requested information was not relevant. Fourth, with respect to tree trimming, Respondent states that it could not have been apprised that the request for the information related to the tree trimming experiment because there was no grievance filed with respect thereto nor, more important, was there any discussion about tree trimming during the negotiations. Fifth, while the Union alleged that it needed the information regarding cost of subcontracting because of the anticipated layoffs, Respondent asserts that the layoff of employees bore no relation to the cost of subcontracting because of Respondent's specific denial that it employed subcontractors for reasons of cost. Moreover, there was no showing that the anticipated reduction in employee personnel would cause employees in the unit to lose employment. B. The Refusal To Furnish Information Regarding Hours Worked by Employees of Subcontractors and Dollar Amounts Paid to Subcontractors Performing Janitorial Work at the East Springfield Service Center With regard to Respondent's failure and refusal to furnish the Union with hours worked by the subcontractors at the East Springfield Service Center and the cost of such work, Respondent asserts that there was no obligation to furnish such information because the work performed at that site by the subcontractors was not "bargaining unit work." Respondent states that it is undisputed that, since the opening of the service center in 1969, part of the janitorial work had been performed by subcontractors, the subcontractors being responsible for the same area within the center during the entire period. Respondent points to the fact that at no time during the 1975 negotiations did the Union submit a proposal whereby the work at the service center, in whole or in part, would be performed by unit employees instead of employees of subcontractors. More- over, the evidence shows that at no time since 1969 did the Union ever propose that the work in the service center of a custodial or maintenance nature belong to the bargaining unit. Finally, Respondent argues that Respondent was not required to furnish the Union with hours worked by the subcontractor employees performing janitorial work at the service center because the Union either already had this information or readily had the means to acquire the information. On this last point, the General Counsel, anticipating this defense, asserts that at no time prior to the hearing did Respondent claim or tell the Union that the Union could readily obtain the information on its own; nor did Respondent ever indicate that ready accessibility of the information was the basis for its refusal to furnish the information. The General Counsel alleges that the refusal to furnish the information on hours based upon the above ground was pretextuous. In addition, the General Counsel asserts that the information was not readily accessible to the Union. and the proposal to eliminate the ban on subcontracting in the Berkshire area. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions Company, 104 NLRB 318 (1958). See Ohio Power Co., 216 NLRB 987 (1975). Regardless of the existence of the terms of any collective- bargaining agreement, except for a lawful waiver therein, a collective-bargaining representative has the obligation to police the enforcement of employees' rights under the National Labor Relations Act, Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967), as cited in Ohio Power Co., supra, and has the independent obligation as collective-bargaining representative to preserve employment standards and opportunities within the collective-bargaining unit, Ohio Power Co., supra. In this regard, preservation or diversion of work usually performed in a bargaining unit is the subject matter of mandatory bargaining under the Act, Rockwell-Standard Corporation, etc., 166 NLRB 124, 132 (1967), enfd. 410 F.2d 953 (C.A. 6, 1969); Fawcett Printing Corporation, 201 NLRB 964,970 (1973). The test of the bargaining representative's "need" for such information is satisfied by showing in a case before the Board of "probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities." N.LR.B. v. Acme Industrial Co., supra at 437; Brooklyn Union Gas Co., supra. The evidentiary standard is of a discovery type. This discovery-type standard decides nothing about the merits of the Union's claims, since eventual and proper resolution of such claims against the Union would clearly not be precluded by the Board's threshold determination concerning the potential relevancy of the requested information, Acme, supra, 385 U.S. 432 at 438. Lastly, it is also clear that subject to this standard, "probable" or "potential" relevancy, the employer is not relieved of its obligation to supply information to the exclusive bargaining agent even though it relates to nonumt employees, Rockwell Standard Corp., supra, Cur- tiss-Wright Corporation v. N.LRB., supra, Goodyear Aero- space Corporation, 157 NLRB 496 (1966). Though a union need not make a special showing of relevancy and necessity to obtain information about employment of employees within the bargaining unit, where the request for information concerns matters outside the bargaining unit, as in the case at bar, the union must ordinarily demonstrate more precisely the relevancy of the data requested. Vertol Division, Boeing Company, supra at 425. Thus, in Vertol the respondent argued that, in the circumstances of that case, it had no obligation to inform the union of maintenance subcontracts which might involve bargaining unit work where the union had not established a particular need for such documents in respect to a particular dispute. In Vertol, the Administrative Law Judge cited a similar argument made in International Telephone & Telegraph Corporation (ITT Federal Laborato- ries), 159 NLRB 1757 (1966), where the union had requested the seniority data of out-of-unit employees who might have the right to thereafter displace unit employees under the terms of the collective-bargaining agreement. In rejecting the employer's contention that it had no obliga- tion to supply the information pertaining to nonunit 20 employees, the Board stated (159 NLRB at 1759): A. Relevance and Necessity of Cost of Subcontracting Generally In Vertol Division, Boeing Company, 182 NLRB 421, 425 (1970), the Board, in adopting the Administrative Law Judge's statement of underlying rules, accepted his state- ment that it is now well established that a labor organiza- tion, obligated to represent employees in a bargaining unit with respect to the terms and conditions of their employ- ment, is entitled, upon appropriate request, to such information from the employer as may be relevant and reasonably necessary to the proper execution of that obligation. And the right to such information exists as well for the purposes of administering a collective-bargaining agreement after being negotiated as for the purposes of negotiating the agreement in the first instance. The employer's duty, in either instance, is predicated upon the need of the Union for such information in order to provide intelligent representation of the employees. F. W. Wool- worth Co., 109 NLRB 196, 197 (1954), enfd. 352 U.S. 938 (1956). While the limits of this right to information and the correlative duty to supply it have not been fully defined as yet, all of the cases considering the issue indicate, as the Board stated in Woolworth that the right to the informa- tion arises out of a "need" for it shown by the circumstanc- es of the particular situation. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); The American Oil Company, a Texas Corporation, 164 NLRB 29 (1967). The General Counsel need not make a showing that the information sought is certainly relevant or clearly dispositive of the basic negotiating issues between the parties. If the information is of probable or potential relevance , there is an obligation on the employer to provide it. The Brooklyn Union Gas Company, 220 NLRB 189 (1975). It has long been 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 related to the Union's bargaining or contract administration of grievance respon- sibilities, may or may not be relevant depending on the circumstances. Southwestern Bell Telephone Company, 173 NLRB 172 (1968); Curtiss-Wright Corporation, Wright Aeronautical Division v. N.LR.B., 347 F.2d 61 (C.A. 3, 1965), enfg. 145 NLRB 152 (1963); Sylvania Electric Products, Inc. v. N.LR.B., 358 F.2d 591 (C.A. 1, 1966), enfg. 154 NLRB 1756 ( 1965), cert. denied 385 U.S. 852 (1966). In addition, the collective-bargaining agent has a legal obligation to the employees that it represents to do so thoroughly and with due diligence. For breach of its obligation in this regard, a bargaining representative may be guilty of an unfair labor practice , Miranda Fuel Co., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963); liable in a suit for damages Vaca v. Sipes, 386 U.S. 171 (1967); subject to injunction, Steele v. Louisville & Nashville Railroad Co., et al., 322 U.S. 192 (1944); or having its certification as representative revoked Hughes Tool 20 As noted in Brooklyn Union Gas Co, supra, relevance is not limited by the boundaries of the bargaining unit, General Electric Company, 199 NLRB WESTERN MASSACHUSETTS ELECTRIC CO. 623 The Union's right to such data, however, turns not on whether the employees to whom the data refers are in a unit, but rather on whether the data itself is necessary and relevant to the Union's role as bargain- ing representative. Where, as here, the requested information relates to the possibility of unit job displacement by nonunit employees, we do not see how the Union could properly detect infractions of the contract or institute grievances in order to protect the rights of unit employees improperly or adversely affected by such transfers unless it were given the requested information. However, in I.T. & T. Corporation v. N.L.RB., 382 F.2d 366, 372 (C.A. 3, 1967), the court of appeals reversed, holding that though there was no obligation to provide such information in the circumstances there present- where harm to unit employees was merely speculative- when employer action made displacement of union employees imminent, rather than theoretical, the union was entitled to such information about nonumt employees "in order that it may detect possible contract violations and, if appropriate, institute grievance procedures." The operative facts in the case at bar 1. At the outset of negotiations, Union Bargaining Agent Kielty inquired of Respondent whether the number of employees (predicted to be about 700 throughout the Massachusetts and Connecticut system of which Respon- dent was a part) who would be laid off had been finalized with respect to Respondent itself. It would be recalled evidence showed that, in 1974, the president of Respon- dent's parent company, Northeast Utilities, estimated that approximately 700 employees would be either laid off or that the jobs would be discontinued. In response to Kielty's question, the director of Respondent's labor relations, Carol Caffrey, stated that there would be about a dozen employees whose jobs would be eliminated. 2. The evidence is uncontradicted that Caffrey could not guarantee that, in the diminution of jobs, there would be no actual layoff. 3. Respondent and its parent had announced a general cost cutting program to save Respondent money. In consequence thereof, Respondent had decided to unilater- ally discontinue its Employee Appliance Purchase Plan, supra, as a cost-cutting device. 4. In 1975, the appliance service department had been decreased a total of 21 out of 30 jobs. The employees were bumped into other categories and not actually put out on the street. 5. Assuming, contrary to the position of General Counsel, that Respondent, pursuant to its letter of July 2, 286 (1972). The employer's obligation to furnish information regarding nonunit matters has been extended to the employer's nonumt employees at another plant, Hollywood Brands, Inc, 142 NLRB 304 (1963), nonunit salaried technicians, Goodyear Aerospace Corporation, 157 NLRB 496 (1966), and wages paid to supervisors, Northwest Publications, Inc, 211 NLRB 464 (1974) 21 With regard to the Union's obligation to support its request for information by reasons showing relevancy, it is unnecessary to judge the sufficiency of the request for information by virtue of the communications from the Union to Respondent alone As found in Ohio Power Company, 216 1975 (G.C. Exh. 10), by informing the Union that costs of outside contracting were not material to negotiations, was alleging that its subcontracting was based on elements other than cost, and notwithstanding that, at the bargaining table, Respondent never took the position that it refused to give cost information to the Union because of an inability to pay or because cost was not "material" to the subcontracting, Respondent's director of industrial rela- tions, Carol Caffrey, nevertheless explicitly testified that cost was a factor in some subcontracting. 6. Respondent's agents Riga and Caffrey both knew that the Union's request for hours and cost information were related to the Union's subcontracting proposal. 7. The record is uncontradicted that, on various occasions, the Union, whether in the collective-bargaining negotiations or immediately before, told Respondent that the unit's employees could perform work cheaper than the subcontractor's employees. This related to both the tree trimming experience in 1974-75 and, at the collective- bargaining table, with regard to Collins' assertion that one full-time unit employee could perform the work of the three to four part-time employees of the subcontractor at the East Springfield Service Center.21 For all of the above-cited reasons, I conclude that Respondent's first line of defense, that cost of subcontract- ing is irrelevant and that the Union never explained to Respondent the reasons for its request for the hours and cost to subcontractors generally, must fall. The above reasons demonstrate relevance. The Union explicitly notified Respondent that the Union was seeking to preserve unit jobs; that it was concerned with the announced layoffs; and that, at least in the janitorial area at the East Springfield Service Center and with regard to the tree trimming experiment, unit employees could perform the jobs more cheaply than could the employees of subcontractors. In addition, the background facts of layoffs, of demotion, of Respondent's expressed desire to save large sums (including the cessation of the Employee Appliance Purchase Plan), and other announced curtail- ments by the president of Respondent's parent corporation - all of these factors, in conjunction with the proposal to limit subcontracting itself, adequately described the Union's proposition to Respondent to show that the cost of subcontracting and the hours of subcontracting and the desire to maintain unit jobs and prevent erosion and demotion were fully at issue at the bargaining table. I cannot accept Respondent's contention that the Union never explained the reasons for its request. Under the holding in Ohio Power, supra, the explicit statements by the Union apprised Respondent of the relevancy of the information, judged in the light of the entire pattern of facts available to Respondent. I cannot help but observe that Respondent, where there were going to be layoffs (or NLRB 987, 990, fn. 8 (1975), the adequacy of the request to apprise Respondent of the relevancy of the information must be judged in the light of the entire pattern of facts available to Respondent . Moreover, since the requests for information are still outstanding , and since the necessity, if any, to supply the information is not mooted by the execution of the 1975-76 collective-bargaming agreement (G.C. Exh. 3), Respondent was apprised at the hearing of the purposes for which the Union needed the information. Respondent's continuing failure to exceed these requests can no longer be attributed to inadequacy of communication. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at least no guarantee against layoffs and substantial attrition in the unit) and with the Union faced with a substantial economic recession, cannot reasonably take the position that it did not know that the requested informa- tion was relevant to and in support of the request to limit subcontracting submitted by the Union . Riga and Caffrey knew it. For its second line of defense, Respondent urges that, assuming, arguendo, that it was advised that the Union wanted the information to support its claim that it could do the work more cheaply than the subcontractors , this should not be construed as or be equated to a suggestion that Respondent pleaded an inability to pay, since Respondent specifically denied that it was refusing to divulge the subcontracting cost and hour information because of cost or an inability to pay. In this regard, Respondent relies on Southwestern Bell Telephone Company, 173 NLRB 172 1968); Century Electric Motor Company, 192 NLRB 941 (1971); and Ohio Power Company, supra. The cases are distinguishable. In Ohio Power, there was no employer statement that unit employees would be laid off. In Southwestern Bell Telephone, the employer voluntarily supplied the bulk of the material , but declined to provide information as to cost, accompanying its declination with the statement that costs were not a factor in the subcon- tracting. The Board consequently held that, since the information had no relevance to the dispute, there was no obligation to supply it. In any event, unlike Southwestern Bell Telephone, cost was a factor here. In addition, in Southwestern Bell Telephone, the conclusion was warranted that the respondent had determined that it lacked available manpower for reasons unrelated to cost so that information concerning subcontracting cost was not relevant to griev- ances challenging the decision to subcontract . In the case at bar, there is no suggestion that the reason for subcon- tracting was that Respondent lacked available manpower and would have to defer projects or subcontract. I thus consider Southwestern Bell Telephone distinguishable on its facts. Respondent's third line of defense appears to be that the facts of the case demonstrate that there are no circum- stances known to Respondent which show relevance of cost of subcontracting to the Union's ability to bargain effectively. That argument is refuted supra Having found that the information requested by the Union was relevant and was necessary to permit intelligent bargaining, and that Respondent was adequately advised of the relevance of the material to the proposal propounded limiting use of subcontracting, I conclude that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to supply the Union with this information . I necessarily found that Respondent did use cost as an element in subcontract- ing. Therefore, cost having been made relevant, it was under an obligation to substantiate its position and therefore should have divulged the information . N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956); cf. Southwestern Bell Telephone Co., supra. In view of my conclusion that the information regarding cost of subcontracting was relevant to the Union's proposal (G.C. Exh. 8) to limit subcontracting, I need not and do not pass on the General Counsel's further contentions that the information was also relevant to the Union's obligation to administer and police the collective-bargaining agree- ment and its obligation to properly represent unit employ- ees. B. Obligation To Supply Costs and Hours of Subcontracting at the East Springfield Service Center: Unit Work With regard to the obligation of Respondent to divulge costs of subcontracting and the hours of employees of subcontractors at the East Springfield Service Center, I find that the principles enunciated above do not oblige Respondent to divulge this information. It is only neces- sary to look at the proposal submitted by the Union (G.C. Exh. 8) in order to conclude that the requested information with regard to the cost of, and hours incurred in, the janitorial services at the East Springfield Service Center is irrelevant to any bargaining proposal of the Union, to administration of the contract, and to representation of unit employees. Indeed, there is no special need to know with regard to work performed by nonbargaining unit personnel. Thus, the Union's proposal to limit subcontract- ing, General Counsel's Exhibit 8, dated June 2, 1975, consists of the following language: The Company shall not contract out work normally performed by members of the bargaining unit while there are laid-off employees eligible for recall under the terms . . . of this Agreement . Furthermore, there shall be no work given to any contractor or subcontractor unless all employees covered by this Agreement are working a full week, including overtime for those employees in the department and classification(s) where the work is to be subcontracted. Respondent defends its refusal to divulge the informa- tion on the ground that this information is irrelevant because the work performed at the service center by the subcontractor employees was not "bargaining unit" work. Respondent's argument appears to be that, since bargain- ing unit employees had never been responsible for work performed in the cement areas, the request for information regarding the hours worked and the cost paid to subcon- tractors for this work was irrelevant. I disagree with this theory. The obligation to give information does not assume that Respondent must surrender its right to subcontract. Here, the obligation to supply the desired information would give the Union the opportunity to try to capture work which at least arguably could be performed by unit janitors at the East Springfield Service Center. This does not mean that the Respondent would be obligated to cease subcontracting the work of the cement areas and give that work to unit members ; but it would require Respondent to divulge information regarding cost so that the Union could at least make the argument that the work should not be subcontracted out. Obviously, from the above, the question of cost and hours of the subcontractor employees is clearly relevant and under ordinary circumstances I would recommend that it was an obligation within the meaning of Section 8(a)(5) and (1) of the Act for Respondent to divulge that information had there been a proposal by the WESTERN MASSACHUSETTS ELECTRIC CO. Union during bargaining which made that information reasonably relevant. Instead, however, the proposal made by the Union in the case at bar was that : "The Company shall not contract out work normally performed by members of the bargaining unit . . . ." In the present circumstances it is clear, as Respondent contends, that the bargaining unit janitors never performed the work performed by the subcontractor employees at the East Springfield Service Center . Since the Union's proposal is a limitation on subcontracting only with regard to work "normally performed by members of the bargaining unit" and since bargaining unit members never have performed the janitorial work performed by the subcontractor employees, it appears to me that the demand for information regarding cost and hours of the subcon- tractors' janitors is entirely irrelevant to the proposal propounded by the Union . It thus follows, it seems to me, that since the request for information is entirely irrelevant to the demand at the bargaining table Respondent is not under any obligation to supply such information . Had the demand been couched in other terms , a different result might follow. Thus, I conclude that the need for this information was not only shown to be irrelevant under the terms of the Union's own proposal , but no special circumstances were shown to support the need for information requested relating to employees outside the bargaining unit. Similarly, it is of no help to the Union that the collective- bargaining agreement speaks in terms of the Union representing "janitors" at the Springfield Service Center. Under the circumstances of this case, the janitors referred to would only be janitors who are members of the bargaining unit who traditionally perform bargaining unit work, i.e., the janitorial and custodial services in the nontiled areas. General Counsel argues further that , even if the informa- tion was not required for purposes of contract negotiations, it was necessary in order for the Union to adequately administer and police the collective-bargaining agreement and to exercise the Union's obligation to properly represent the unit employees. In this regard General Counsel cites Ohio Power Company, supra at 992 of the Administrative Law Judge's Decision for the proposition that the Union is entitled to information which would fully apprise it of subcontracting practices of an employer which not only concern unit work but where such practices "conceivably" affect jobs and work opportunities for unit employees. That case, however, concerned the union's obligation to police a collective-bargaining agreement and to negotiate a collec- tive-bargaining agreement relating to the rights of returned economic strikers. Moreover, in that case, although the employer subcontracted out work from time to time where the subject of the work had been performed by unit employees, the subcontracting was without prejudice to the employment of employees in the unit. In addition, the collective-bargaining agreement contained a provision whereby the respondent agreed neither to lay off or discharge employees covered by the contract due to work being subcontracted out. In that case, the union requested information concerning the extent of subcontracting but, as the Administrative Law Judge held, the request did not 625 include the cost of subcontracting as was the case in Southwestern Bell Telephone Co., supra. Thus, not only is Ohio Power distinguishable from the instant case in the sense that in that case there was a contractual prohibition against subcontracting which would affect the work of unit employees , but there was no request for cost information and, unlike the instant case, the union was concerned about the extent of the employer's subcontracting as it affected the rights of returned economic strikers . Thus, where Administrative Law Judge Charles W. Schneider stated (at 992): ". . . it is conceiv- able that the subcontracting of work performable within the unit might constrict the possibilities of employment within the unit, including the possibilities of promotion of unit employees," his reference in that case was to future subcontracting out of work where it had not been previously performed, or where it encroached upon the work of unit employees. In the instant case, the work performed by the subcontractors ' janitors never en- croached on work performed by unit janitors. Therefore, unlike Ohio Power, where the subcontracting might affect the right to work and the seniority of returned economic strikers, in the case at bar there was no possibility of encroachment. Thus, as in the case of irrelevance concern- ing the need to be informed with regard to contract negotiation, I find that the information would be here irrelevant with regard to the policing or administration of the collective-bargaining agreement or the rights of employees in the unit. In view of my conclusion that the information with regard to cost and hours of subcontractor janitors at the East Springfield Service Center is irrelevant and that Respondent is under no obligation to supply this informa- tion to the Union, it is unnecessary for me to consider or analyze Respondent's assertion that the material was either in the possession of the Union or easily obtainable by the Union. On the basis of the foregoing findings of fact , I conclude that the information requested by the Union of Respon- dent immediately before and at the collective-bargaining sessions commencing May 1975 is relevant and essential for the performance of the obligations of the Union as bargaining representative of employees of Respondent, and to enable it to engage in collective bargaining with Respondent. It is further found that the communication as a whole between Respondent and the Union in connection with the collective-bargaining proposal advanced by the Union reasonably apprised Respondent as to the relation- ship between the proposal and the request for information regarding the cost and hours of subcontractor employees other than the work performed by subcontractor janitors at the East Springfield Service Center. It is further found that by failing and refusing to provide the information with regard to General Counsel's Exhibit 8, the hours and cost of subcontractors , other than at the East Springfield Service Center, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and refused to bargain collectively with a representative of its employees, and that by such conduct Respondent violated Section 8(a)(1) and (5) of the Act. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further conclude that the aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifically, I will recommend that Respondent reinstate the Plan and make its employees whole for any benefit lost by virtue of Respondent's violation of the Act. The difficulty of discovering employees, if any, who would have purchased appliances and the computations involved therein should not prevent issuing an order necessary to prevent the wrongdoer from enjoying the fruits of his unfair labor practice and gaining undue advantage at the bargaining table. Computation, if necessary, may await a backpay proceeding. See Gas Machinery Company, 221 NLRB 862 (1975); Central Illinois Public Service Company, 139 NLRB 1407, 1419 (1962). Any loss of money occasioned thereby shall be accompa- nied by interest at 6 percent, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The posting of an appropriate notice will also be recommended. CONCLUSIONS OF LAW 1. Western Massachusetts Electric Company, Respon- dent herein, is now, and at all material times herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 455, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, is now, and at all material times herein has been , a labor organization within the meaning of Section 2(5) of the Act. 3. The employees employed by Respondent in the unit described in section III of this Decision constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union, at all material times herein, has been and is the exclusive bargaining representative of all the employees in the appropriate unit described above, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally, and without prior notice to or negotiation with the Union, terminating on September 6, 1974, the Employee Appliance Purchase Plan, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By failing and refusing since June 2, 1975, upon request, to furnish to the Union the costs, in dollar amounts, paid to subcontractors performing work per- formed by employees of Respondent employed in the unit, above described, represented by the Union, Respondent violated Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not violated the Act in any respect other than that specifically found. [Recommended Order omitted from publication.]