PPG Industries, Inc.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PPG Industries, Inc. and International Chemical Workers Union, Local 45, AFL-CIO. Case 6- CA-12727 March 26, 1981 DECISION AND ORDER On June 10, 1980, Administrative Law Judge Charles M. Williamson issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed limited cross-exceptions and a brief in support thereof and in partial support of the Administrative Law Judge's Decision. The Board has considered the record and the at- tached 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. The complaint herein alleges that the Respond- ent failed to bargain collectively by refusing to fur- nish the Union with certain work evaluation re- ports, called rating sheets, and related documents concerning temporary summer employee Emily Mitchell, whose premature "release" for unsatisfac- tory job performance the Union is attempting to grieve. The Respondent concedes that it refused to fur- nish the requested information, contending that the information sought is not relevant to the Union's responsibilities as the statutory representative of the Respondent's production and maintenance employ- ees and further that, even if it were relevant, the Union has clearly and unmistakably waived its right to it. Specifically, as to relevancy, the Respondent as- serts that Mitchell's status as a temporary summer employee does not warrant her inclusion in the unit represented by the Union, that indeed no unit de- termination requiring the inclusion of temporary summer employees has ever been made, and there- fore that neither the information sought, involving the work performance record of a nonunit employ- ee, nor the tenure of that individual relates to mat- ters concerning which the Respondent has an obli- gation to bargain. The Respondent, in challenging the relevancy of the information sought, also as- serts that there is no showing that it relied on the documents in question in deciding to terminate Mitchell. Alternatively, the Respondent contends that the Union has waived whatever right it may have had to the requested information, as evidenced by the labor agreement applicable hereto and by the par- ties' conduct during their long history of collective bargaining. 255 NLRB No. 41 Having considered the broad standard of rel- evancy applicable to requests for information bear- ing upon the underlying grievance herein,' but without addressing the questions raised by the Re- spondent's "bargaining-unit" contention, the Ad- ministrative Law Judge held that the information requested by the Union is clearly relevant in this case. We agree. Moreover, our conclusion in this regard is not al- tered by the fact that, arguably, Mitchell and the other temporary summer employees would not have been included in the unit here involved, and therefore would not be covered by the labor agree- ment, as the Respondent asserts, were the Board to have initially passed on the matter in a determina- tion of the unit appropriate for the purposes of col- lective bargaining. For the parties have since evi- denced by their conduct their intention to treat temporary summer employees as if they were in- cluded, and we so find. Thus, as found by the Ad- ministrative Law Judge, the Respondent permitted the Union to meet with the newly hired summer temporaries, solicit their membership in the Union, encourage them to sign dues-checkoff authoriza- tions-indeed making payroll deductions when so authorized-and, finally, permitted the Union to represent temporaries in the prosecution of griev- ances.2 In these circumstances, we reject the Re- spondent's contention that the summer temporaries, who clearly perform work covered by the con- tract, are nevertheless excluded from the unit here in question, as evidenced by their failure to qualify for certain perquisites and fringe benefits enjoyed by others under the collective-bargaining agree- ment. Accordingly, we find that the information requested by the Union is relevant to matters con- cerning which the Respondent has an obligation to bargain. There remains only the question whether the Union has clearly and unmistakably waived its stat- utory right to the requested information.3 The Ad- See Safeway Stores. Inc.. 236 NLRB 1126 (1978), and the cases cited therein. 2 In addition to the Cross grievance, discussed infra, the record reveals that in 1975 the Union represented Steve McDiffitt, a temporary employ- ee, at a second-step hearing in connection with his grievances over a dis- ciplinary supension. Significantly, in neither case did the Respondent assert that the grievance was inappropriate because the grievant was out- side the bargaining unit. 3 We find no merit in the Respondent's additional argument that to re- quire the production of the requested rating sheets would contravene the Board's policy of discouraging unreasonably broad prearbitral disclosure. To the extent that the Respondent relies on Anheuser-Busch. Inc., 237 NLRB 982 (1978), in support of this argument, such reliance is mis- placed. In that case, the Board held that the statutory obligation to fur- nish information does not extend to requests for witness statements ob- tained during the course of an employer's investigation of employee mis- conduct. There is a fundamental difference between those statements and the information sought herein. In this case, possession of Mitchell's rating Continued PPG INDUSTRIES, INC. 297 ministrative Law Judge concluded that it had. In this respect, he found that in 1956, some 23 years prior to the events giving rise to this proceeding, the parties entered into an agreement, in settlement of a controversy concerning the discharge of a temporary employee, which in part provided that such employees shall have no recourse to the grievance and arbitration provisions of their labor contract. Inferentially, the Administrative Law Judge also found that this agreement was carried over, without any material modifications, into the parties' current contract. We disagree. Examination of the 1956 "settlement agreement," to which the Administrative Law Judge refers and upon which his findings and conclusions are based, establishes beyond doubt that the document in question is no more than an "Industrial Relations Report" prepared contemporaneously by an un- identified agent of the Respondent covering the "Regular Union-Management Semi-Monthly Meet- ing" held by the parties on August 21, 1956.4 The report summarizes discussions pertaining to a vari- ety of plant problems including one captioned: "Discharge of Plant Probationary Employees."5 Therein, the Respondent stated that a controversy had arisen over the "discharge" of one Cross (a temporary employee), with the Union taking the position that this individual should have been "re- leased" in accordance with contract provisions ap- plicable to probationary employees6 and not "dis- charged for just cause" under another provision of the agreement. 7 The report also stated that, al- though, in the future, the Respondent would proc- ess similar cases by "releasing" probationary (and temporary) employees under article XIII, marking their papers accordingly, it would not, in the case of Cross, reverse the action taken; namely, record- ing that individual as having been discharged for good cause under article VIII. The report does note that the Union did not grieve over the basic decision to terminate Cross. sheets would enable the Union to weigh the merits of her underlying grievance before deciding whether or not to pursue the grievance at all. This, obviously, would foster rather than diminish the integrity of the grievance and arbitration process. Accordingly, we find that the informa- tion here in question falls clearly within the ambit of N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967), and that, absent waiver, the Respond- ent has a statutory duty to furnish it pursuant to the Union's request. 4 There is no evidence that a copy of the report was ever tendered to the Union. s This portion of the Respondent's report is quoted in its entirety in the section of the Administrative Law Judge's Decision entitled "Analy- sis." Artn. XIII, sec. A, par. I(b), provides that: "The Company shall have the exclusive right during this probationary period to release from the payroll any such employee found unsatisfactory." I Art. Vil states that: "The Company retains the right to discharge or suspend all employees, but the Company shall not discharge or suspend any employee without just cause, and any such employee shall, at the time of his suspension or discharge, be given the reason therefor in writ- ing, and the Union notified of such action...." However, on the record before us, the reason for thus limiting the scope of the grievance remains a matter for speculation. Although the Respondent now contends that the Union's failure to grieve over the basic decision to let Cross go demon- strates that it waived that right during the give- and-take of bargaining, the Respondent's report is silent in this respect.8 While it is conceivable that the Union may have acquiesced in the Respond- ent's view that article XIII permits the release of probationary (and temporary) employees without recourse to the grievance and arbitration provisions of their collective-bargaining agreement, it is just as plausible that the Union pressed only for Cross' termination under less prejudicial conditions be- cause it viewed the evidence in its possession as warranting no further relief. Therefore even assum- ing that the Respondent's report contains no inac- curacies in the summary of what transpired be- tween the parties in connection with the Cross grievance, this evidence falls far short of establish- ing that, thereafter, the Union clearly and unmis- takably waived its right to grieve over the termina- tion of temporary employees or to obtain informa- tion relevant to such a grievance.9 Neither are we willing to view article XIII itself as a waiver of such rights in view of the broad ar- bitration provision applicable hereto, ° which per- mits arbitration of any grievance "involving alleged violations with respect to the application or inter- pretation of the terms" of the parties' collective- bargaining agreement. It is, of course, possible that Mitchell's grievance may be deemed not cog- nizable under the contract here involved in view of the language contained in article XIII, pertaining to the Respondent's "exclusive right" to release probationary employees; but that question concern- ing arbitrability is not one for this forum to decide. Indeed, as we stated in Safeway,'2 0 The Administrative Law Judge therefore errs insofar as he concludes that the Union agreed, much less contended, that temporary employees had no recourse through the Union in the event of their separation. 9 Similarly, the failure of the Union to grieve specifically over the ter- mination of probationary or temporary employees during the ensuing years would not cause us to reach a different conclusion, as the reasons therefor are likewise a matter for speculation. '0 Art. VII, par. I. of the parties' current collective-bargaining agree- ment states: Only grievances involving alleged violations with respect to the application or interpretation of the terms of this agreement may be submitted by either party to arbitration. The Arbitrator shall have no authority to add to, take from, change or modify any of the terms of this Agreement nor shall he have any authority in the making of a new Agreement " Cf. Boston Mutual Life Insurance Company, 170 NLRB 1672 (1968) wherein the Board found specifically that an arbitration provision "plain- ly restricts the arbitration coverage of the agreement to those employees who have completed their probationary period." '2 Safeway Stores. Inc., 236 NLRB 1126, fn. 1. PPG INDUSTRIES, INC. 297 _, _ 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . before a union is put to the effort of arbi- trating even the question of arbitrability, it has a statutory right to potentially relevant infor- mation necessary to allow it to decide if the underlying grievances have merit and whether they should be pursued at all. In sum, we find that the Union did not clearly and unmistakably waive its right to the information here in question and, accordingly, that by refusing to furnish such information to the Union pursuant to its request the Respondent failed to bargain col- lectively in violation of Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, PPG Industries, Inc., New Martinsville, West Vir- ginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Interna- tional Chemical Workers Union, Local 45, AFL- CIO, as the exclusive bargaining representative of its employees, by refusing to furnish it with re- quested information consisting of certain work evaluation reports, called rating sheets, and related documents pertaining to Emily Mitchell. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Furnish, upon request, to International Chemical Workers Union, Local 45, AFL-CIO, the work evaluation reports, called rating sheets, and related documents pertaining to Emily Mitch- ell. (b) Post at its New Martinsville, West Virginia, plant copies of the attached notice marked "Ap- pendix." 13 Copies of said notice, on forms pro- vided by the Regional Director for Region 6, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said 1A 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Chemical Workers Union, Local 45, AFL-CIO, as the exclusive bargain- ing representative of our employees, by refus- ing to furnish it with requested information consisting of certain work evaluation reports, called rating sheets, and related documents pertaining to Emily Mitchell. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, furnish to Interna- tional Chemical Workers Union Local 45, AFL-CIO, the work evaluation reports, called rating sheets, and related documents pertaining to Emily Mitchell. PPG INDUSTRIES, INC. DECISION STATEMENT OF THE CASE CHARLES M. WILLIAMSON, Administrative Law Judge: This case was heard before me at Wheeling, West Vir- ginia, on March 18, 1980, pursuant to a complaint and notice of hearing issued on October 31, 1979. The com- plaint was bottomed on a charge filed on September 10, 1979, alleging that PPG Industries, Inc., herein called Respondent, violated Section 8(aX1) and (5) of the Act by its refusal to furnish the Charging Party certain rating sheets maintained by its supervisory force concerning the job performance of temporary employee Emily Mitchell. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsell and Re- spondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation with facilities located in several States of the United States, is engaged I This term is used to designate counsel for the General Counsel. PPG INDUSTRIES. INC. 299 in the manufacture and nonretail sale of glass, paints, and related products. At all times material herein, Respond- ent, during the course of its operations, purchased goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Pennsylvania and the State of West Virginia, respectively, for use at its Pennsylvania and West Virginia facilities. During the same period of time, Respondent shipped goods and ma- terials valued in excess of $50,000 from its New Martins- ville, West Virginia, facility, which is the only facility in- volved in this proceeding, to points and places outside the State of West Virginia. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent admits, and I find, that the International Chemical Workers Union, Local 45, AFL-CIO, hereaf- ter designated the Union, is and has been at all times ma- terial herein a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICE A. Appropriate Unit The Respondent admits, and I find, that the Union has been, at all times material herein, the exclusive repre- sentative for purposes of collective bargaining of em- ployees in a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. The appropriate unit is as follows: 2 All of its production and maintenance employees at the Natrium Plant of P.P.G. Industries, Inc., Chemi- cal Division, New Martinsville, West Virginia, in- cluding janitors, cleaners, and laboratory employees (analysts and sample carriers) but excluding all fore- men, office clerical employees, plant clerical em- ployees, chemists, technicians, guards, professional employees and supervisors as defined in the Nation- al Labor Relations Act, as amended. B. The Discharge of Emily Mitchell and the Union's Request for Information On May 15, 1979, Emily Mitchell, daughter of an en- vironmental control specialist employed by Respondent, was hired as a temporary summer employee. Mitchell, a college student who planned to return to school in the fall, was assigned to Respondent's utility crew. At the time of hire, the Union was allowed to solicit member- ship from Mitchell and other summer temporary employ- ees. Mitchell opted to join the Union. Union dues and initiation fees were deducted from her paychecks. 2 There are minor variances between the unit as pled in the complaint and that set forth in the latest collective-bargaining contract between the Union and Respondent. See G.C. Eh. 2, art. II, p. 2. The parties agreed. at my suggestion, that the unit set forth in the collective-bargaining agreement should take precedence in the event the variances became ma- terial in the decision of the issues. The unit set forth above is the one in G.C. Exh. 2, art. II. I do not find the variances to be matters of sub- stance. Mitchell was hired under a temporary summer em- ployee program the Respondent has intermittently fol- lowed since the early 1940's. In the past 15 years, the practice has been to hire as summer temporary employ- ees only college students related to individuals working on a permanent basis at Respondent's plant. The posi- tions are divided between relatives of rank-and-file em- ployees and supervisory personnel. Article XIII,A,l(c) of the current collective-bargaining contract permits the hire of employees on a temporary basis between May 15 and September 15 of any year. Such temporary employ- ees must be apprised of their temporary status, indicated as "temporary" on the seniority roster, and are not per- mitted to bid on posted jobs. Any summer temporary employees who are transferred by Respondent from tem- porary to permanent status must be considered as new hires as of the date of the transfer. The Union must be notified of the transfer. (G.C. Exh. 2, art. XIII,A,l(c).) The significance of the transfer provision is found in General Counsel Exhibit 2, article XIII,A,l(a) and (b): I. Plant seniority of an employee is measured by years, months and days from the start of his con- tinuous service with the Company at its Natrium, West Virginia, plant. (a) New employees shall be considered as proba- tionary employees for a period of sixty (60) days of work and shall not be considered as having any se- niority until this period is satisfactorily completed, at which time seniority shall revert to his first day of work. (b) The Company shall have the exclusive right during his probationary period to release from the payroll any such employee found unsatisfactory. Respondent released Mitchell from its employ on July 6, 1979. 3 Following a telephone conversation with Mitchell, Local 45's then vice president, Melvin Montes, filed a grievance with the secretary of Respondent's director of labor relations on July 9, 1979. In pertinent part, that grievance (G.C. Exh. 3) states as follows: This grievance is being filed by Local 45, I.C.W.U., as per Article 8, paragraph 4, on behalf of Emily Mitchell who was discharged on Friday July 6. We believe this discharge was without "just cause" and is a violation of Article 8, paragraph 2. We also believe the Company's failure to give written notice of their reasons for this action to the employee and to the Union is a further violation of Article 8, paragraph 4. Article 8, paragraph 4, of the collective-bargaining agreement provides, inter alia, that disciplinary action taken against an employee "involving suspension and dis- charge" may be submitted at the second step of the 3 General Counsel contends in his brief that Mitchell was "terminat- ed." As will be seen, infra. the collective-bargaining agreement makes meaningful distinctions between "discharge" and "release." "Termina- tion" is nowhere used in that agreement in this context. PPG INDUSTRIES. INC. 299 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance procedure. Article 8,4 paragraph 2, which Montes alleged was violated by Mitchell's discharge, states as follows: 2. The Company shall not discharge, suspend, or discipline any employee without just cause, and any such employee shall, within twenty-four (24) hours of his suspension or discharge, be given the reason therefor in writing, and the Union notified of such action. If the Company determines that a meeting to review the incident is to be held, such meeting shall be held within ninety-six (96) hours of an alleged violation. .... If an investigation proves that a dis- charge was without just cause, Management shall reinstate said employee and pay full compensation at his regular rate for time lost and return to him all seniority rights; but if the investigation shows that the discharge should be converted into some lesser form of disciplinary action, the determination of any compensation for time lost should be discussed be- tween the Company and Union with an effort made to arrive at a mutually satisfactory settlement. Within forty-eight (48) hours after the close of a review meeting, or if no meeting is held, within ninety-six (96) hours of the suspension or discharge, the Union and the employee shall be given a writ- ten notification of the charges and action taken. On July 10, 1979, Montes called JoAnn McElway, the secretary to Respondent's director of labor relations, Fauber. He requested of McElway "any information, in- cluding rating sheets that the company had used in sus- taining the discharge of Emily Mitchell...." (Emphasis supplied.) McElway stated that she would pass the re- quest along to Fauber but that she "doubted seriously if we would get that information." 5 When Montes talked personally with McElway the next day, July 11, 1979, McElway told him that Fauber had decided not to give the Union the information. McElway asserted that Fauber had told her temporary employees were not cov- ered under the bargaining agreement. As a result of what McElway told him on July 11, 1979, Montes presented a written request on July 16, 1979, for information relating to Mitchell's case. This request was given to Respond- ent's officials, Richard Cole and Jim Fauber, at a meet- ing set up to determine the agenda for a regular union- management meeting to follow the next day. According to Montes neither Cole nor Fauber responded to the written request. This request (G.C. Exh. 4) states as fol- lows: 4 The contract employs Roman numerals and the grievance quoted above employs Arabic numerals to designate the respective articles of the contract. In the context of discussing the grievance, I will employ Montes' usage. I Rating sheets are kept by Respondent's supervisors on all employees. They contain supervisors' periodic comments and evaluations of employ- ee job performance. Mitchell's rating sheets were subpenaed and are in the record as G.C. Exh. 8(a)-(d). The sheets for temporary summer em- ployees are done on the same form as those for probationary and regular full-time employees as it is not worthwhile for Respondent to create a separate form for the temporary employees who are relatively few in number. For the Union to process and attempt to settle G-38 on behalf of Union member Emily Mitchell it is necessary that we be furnished any written mate- rial, such as work related rating sheets or anything else that may have been used to sustain her dis- charge. I made the request for these materials over the telephone to Jo Ann on July 10, 1979. This request was later denied. I am again making the request for information and ask that the Company please recon- sider its position. After further correspondence between the Respondent and the Union (G.C. Exh. 5) on the Mitchell case, Rich- ard Cole, Respondent's assistant director of employee re- lations, wrote then president of the Union local, Joe Wil- liams, on August 23, 1979 (G.C. Exh. 6): The purpose of this letter is to respond to your memo of August 8, 1979. It is the Company's position as authorized by the Labor agreement, for probationary employees and not restricted by it for temporary employees and heretofore accepted in practice, that an employee not having seniority status may be released any time at the Company's discretion. Additionally, that this exclusive right of management is not subject to review in the grievance procedure or arbitration. I trust this will clarify the Company's position and re- solve this issue. The record is clear that neither the rating sheets nor any other form of documentation having to do with Mit- chell's case has been provided the Union. C. Contentions of the Parties The General Counsel contends that the requested in- formation is relevant to Mitchell's grievance and arbitra- tion proceeding and that Respondent is therefore obligat- ed to provide it under principles established in N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 447-448 (1967), and Worcester Polytechnic Institute, 213 NLRB 306, 308 (1974). Respondent argues that the General Counsel has not met the burden of showing that the rating sheets are relevant to the Mitchell proceeding; that if ever the Union had a right to the information, that right has been waived; that a finding of violation of Section 8(a)(1) and (5) would necessarily result in a finding that temporary employees constitute a portion of the unit appropriate for purposes of collective bargaining and thus erode the principles of Section 7, 8, and 9 of the Act; and that there is no statutory duty on the part of an employer to turn over to a collective-bargaining representative, at its request, all evidence in its possession relating to a griev- ance which the collective-bargaining representative be- lieves may be "relevant." D. Analysis For the reasons set forth below, I find that the com- plaint must be dismissed because the Union waived its right to the production of the rating sheets and other PPG INDUSTRIES, INC. 301 documentation relating to Mitchell's release. This waiver occurred because the Union, in 1956, gave up its right to file grievances and proceed to arbitration in cases involv- ing summer temporary employees. An employer has a duty to furnish information to a collective-bargaining representative so that the repre- sentative can intelligently decide whether to proceed on a grievance. N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Safeway Stores, Inc., 236 NLRB 1126 (1978); Worcester Polytechnic Institute, 213 NLRB 306 (1974); The Timken Roller Bearing Company, 138 NLRB 15 (1962), enfd. 325 F.2d 746 (6th Cir. 1963). This duty is based on not only a policy that a party opponent is enti- tled to relevant information to evaluate its position, but also on the proposition that an exchange of information may eliminate nonmeritorious grievances. As the Su- preme Court has stated in the Acme case, supra: Arbitration can function properly only if the griev- ance procedures leading to it can sift out unmeritor- ious claims. For if all claims originally initiated as grievances had to be processed through to arbitra- tion, the system would be woefully overbur- dened. .... It [Respondent's refusal to provide rele- vant information] would force the Union to take a grievance all the way through to arbitration with- out providing the opportunity to evaluate the merits of the claim. The threshold decision as to the relevancy of the re- quested information is to be made by the Board. N.LR.B. v. Acme Industrial Co., supra; Tool and Die Makers' Lodge No. 78 of District No. 10 of the Internation- al Asssociation of Machinists and Aerospace Workers, AFL- CIO (Square D Company, Milwaukee Plant), 224 NLRB 111 (1976) (an 8(b)(3) case involving a Union's refusal to provide information but decided on ground that relevan- cy of desired information was to be determined by Board and not by subjective opinion of one of the parties.) The standard of relevancy is a broad one. Acme, quoting, 4 Moore, Federal Practice, Section 26.16[1], pp. 1175-76 (2d ed. 1957), makes it a "discovery type standard" based "upon the probability that the desired information was relevant. .. ." See Safeway Stores, Inc., 236 NLRB 1126, 1128 (1978), a discussion by Administrative Law Judge Russell L. Stevens affirmed by the Board. In the instant case this, "threshold decision" as to relevancy is not dif- ficult to make. The rating sheets involved are in evi- dence as General Counsel Exhibit 8(a)-(d). They contain supervisory comments on Mitchell's job performance which would clearly be relevant to a decision to end her employment. That Respondent has chosen, as a policy, not to use these documents in arbitration proceedings does not, as it argues in its brief, make their content irrel- evant. Respondent's argument makes one of the parties to a dispute the arbiter of relevancy. This proposition contradicts the teachings of the Acme and Tool and Die Makers' cases." Respondent's argument that Mitchell al- l Respondent did not make, nor have I considered, the argument that the grievance involved refers to Mitchell's discharge as failing to meet the "just cause" standard of the contract whereas Mitchell. as a summer temporary employee, may not have been eligible for the protections of ready knew and had conveyed to the Union the reasons for her severance is equally unavailing. AMCAR Division, ACF Industries, Inc., 231 NLRB 83, 93 (1977); The Kroger Company, 226 NLRB 512 (1976). The Union and Respondent dealt with the question of temporary and probationary employees in 1956. On July 27, 1956, temporary employees R. Lee Cross and Frank- lin Johnson were discharged by the Respondent. (Resp. Exh. 12.) Nothing further was heard of Johnson, but Cross wrote a letter to Respondent on July 28, 1956, protesting his discharge "which was given without ex- planation or just cause." (Resp. Exh. 9.) At a union man- agement meeting on August 9, 1956, the Union brought to the Respondent's attention the fact that Cross and Johnson were designated "discharged" at the time of their separation and that this procedure was improper under the then existing collective-bargaining contract. The Union contended "that plant probationary employ- ees who are separated from the payroll without recourse do not fall within the provisions of Article VIII, but rather fall within the provisions of Article XIII, Section A-l, a and b." (Emphasis supplied.) The Union then sug- gested that the "Company adopt the procedure of sepa- rating these people on the basis of 'release' and that the stamp quoting the provisions of Article VIII of the con- tract be remained from the separation papers on any such plant probationary employee so separated." Re- spondent stated that they were in basic agreement but wanted to check to determine "if this will in any way affect a separated plant probationary employee's unem- ployment compensation benefits." (Resp. Exh. 5, p. 2.) On August 21, 1956, the parties agreed on a procedure to be followed thereafter 7 (Resp. Exh. 6): DISCHARGE OF PLANT PROBATIONARY EMPLOYEES: (Re Vol. II, No. 40 August 9, 1956, page two.) It will be remembered that at the last regular meeting the Union said that our procedure of terminating plant probationary employees on a "discharge" basis was in conflict with Article XIII, Section A- l(a) and (b), of the Contract. It is their contention that termination of these employees should be on a "release" basis. It has been our past practice to sep- arate these probationary employees as "discharged." At the last meeting, the Company agreed to check with the West Virginia Unemployment Compensa- tion Bureau to determine whether change in termi- nology on separation papers would in any way affect the compensation benefits due these people. The Union at this time inquired as to our findings. The Union was told that separating plant probation- ary employees on a "release" basis and marking their papers accordingly will in no way affect these benefits. Consequently, in the future, when a new employee within his probationary period is found to the "just cause" standard. If Mitchell was not so eligible, information sought by the Union to evaluate "just cause" would be, strictly speaking, irrelevant As the argument depends on Mitchell's status-a result of col- lective bargaining-I believe it to be more appropriately cast in the form of discussion concerning waiver. ' The contemporary contract is in evidence as Resp. Exh. 7. Its rele- vant terms do not differ materially from the current contract. PPG INDUSTRIES, NC. 301 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be unsatisfactory, he will be separated as "released" and his papers marked accordingly. This controversy arose over the recent discharge of two young plant probationary employees. Their separation papers were marked "discharge" and the provisions of Article VIII, concerning recourse through the Union for discharge had been stamped on the papers. One of these young men, ex-employ- ee R. Lee Cross, took advantage of the citation of Article VIII, and filed a protest. The Union does not contend that we must process his grievance but states that we should mark his papers "released," without reference to Article VIII of the Contract. As mentioned in the foregoing paragraph, the Com- pany is willing to disregard its prior practice in this respect and will process future cases as suggested by the Union. However, the Company will not at this time reverse its position on the Lee Cross dis- charge. Matter closed. While the above discussions refer to "probationary" employees, other evidence makes it clear that Cross and Johnson were temporary employees of the same status as Mitchell. Respondent's witness Fauber so testified and I credit him. Additionally, Respondent Exhibit 8, the 1956 discharge slip of Cross, clearly shows him as a member of the Respondent's utility crew designated "Temp." (for temporary).8 Respondent Exhibit 10 is a letter written to Cross by Respondent's then Assistant to Director of In- dustrial Relations Albert E. Alba on August 6, 1956, 3 days prior to the August 9, 1956, meeting discussed above. Copies of this letter were sent to Union Official J. L. Batton who was present for the Union at the August 9 and 21, 1956, meetings between the parties. While Re- spondent Exhibit 10 implies in its first paragraph that Cross was in probationary status as of the time of his dis- charge, the third paragraph specifically identifies him as being "on temporary status." See also Respondent Exhib- it 12 where both Cross and Johnson, the two dischargees of July 27, 1956, are identified as "temporary employ- ees." Respondent's witness Fauber, when questioned about the simultaneous use in 1956 of the terms "probationary" and "temporary" to classify employee Cross, credibly testified: The temporary employees were, as now, on a temporary status and were not under probation and at that time 11956] if a temporary employee had his service terminated, he was classified as being dis- charged to the same extent that a probationary em- ployee could be discharged without recourse. [Em- phasis supplied.] This testimony was undenied and is consistent with the usage of the parties to the August 1956 conversations which group "probationary" and "temporary" employees (such as R. Lee Cross) in the same functional category under the collective-bargaining contract-those without "recourse through the Union for discharge. (See Resp. s The "discharge stamp" at which the Union took offense in the August 6, 1956. meeting appears on Resp. Exh. 8. Exh. 6.) I therefore find that in 1956 the parties (1) grouped together "probationary" and "temporary" em- ployees as regards their right to recourse through the Union in the event such employees should be separated from Respondent's employ; (2) the Union agreed (indeed, it contended) that employees in these categories had no recourse through the Union in the event of their separa- tion; and (3) employees in the "probationary" and "tem- porary" categories were to be "released" rather than "discharged," the difference in wording reflecting a real difference in the right under the contract to employ the grievance and arbitration procedures. These findings are consistent with the wording of the agreement between the parties which at article XIII, A(l)(b), refers to "re- lease" of probationary employees and at article VIII refers to "discharge" of employees. A contrary finding that temporary employees have re- course to the grievance and arbitration procedure would result in an anomalous situation whereby such temporary summer employees would possess rights under the con- tract in excess of regular long-term employees during the 60-day probationary period. While such a contract is not beyond the legal power of the parties to create, I find it exceedingly doubtful that they intended to create this result purely by verbal implication.9 Accordingly, I find that the Union, by its conduct at the August, 1956 meetings and subsequent collateral practice"' in regard to temporary and probationary em- ployees, clearly waived its right to contest Mitchell's separation under the grievance and arbitration provisions of the contract. Under these circumstances, I do not find that it will effectuate the policies of the Act to employ the coercions of Section 8(a)(1) and (5) to order a Re- spondent with a 36-year history of peaceful collective bargaining at this location to produce information con- cerning a subject so waived. Boston Mutual Life Insur- ance Company, 170 NLRB 1672 (1968). 9 The General Counsel addressed himself to this dilemma in his brief. He could only resolve it by denying that the 1956 negotiations between the parties left probationary employees without recourse to the Union in the event of their release. This cutting of the Gordian knot I find com- pletely contradictory to the undenied evidence of Resp. Exh. 6. The General Counsel also surmised that the wording of article XIII of the contract showed that Respondent's "exclusive right" to release probation- ers was limited by the phrase "found unsatisfactory." He then reasons that the inclusion of this limitation "implies" that any employee who feels it "has been violated" may protest through the grievance and arbitration procedure. I do not read "found unsatisfactory" as a limitation. Addition- ally, I find no evidence that the parties intended to set up two separate standards for "discharge" and "release" under the grievance and arbitra- tion procedure. one of "just cause" and the other of "satisfaction." Final- ly, the General Counsel's surmise ignores the Union's conduct in 1956 and the undenied fact that no grievance involving the release of a proba- tionary employee has ever been filed by the Union. lU It is well settled that in ambiguous contractual situations, the Board will look to collateral evidence of the intent of the parties. W-I Canteen Service. Inc., 238 NLRB 609 (1978). and cases cited therein (intent of no- strike clauses). PPG INDUSTRIES, INC. 303 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in the unfair labor practice alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.]