Amcar Div., ACF Industries

AMCAR DIV., ACF INDUSTRIES AMCAR Division, ACF Industries, Inc. and Brother- hood of Railway Carmen of the United States and Canada, Lodge No. 365, AFL-CIO-CLC; Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 27, AFL-CIO; International Brotherhood of Electrical Workers, Local No. 1, AFL-CIO; International Association of Machinists and Aero- space Workers, District No. 9, AFL-CIO; Interna- tional Brotherhood of Firemen, Oilers and Mainte- nance Men, Local No. 6, AFL-CIO. Case 14-CA- 8980 August 2, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 23, 1977, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, AMCAR Divi- sion, ACF Industries, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I we agree with the Administrative Law Judge that the 6-month period of limitations under Sec. 10tb) of the Act did not commence to run against the Union until the end of September 1975. at which time the Union knew or had reason to know that the Employer was subcontracting its trailer hitch work. The Employer is estopped from asserting a 10(b) defense, because its fraudulent concealment of vital information from the Union caused the latter to sleep while its opportunity to seek a legal remedy was slipping away. We cannot permit the Employer to benefit from the specific unfair labor practice which the Act explicitly empowers us to remedy. Don Burgess Construction Corporation d/b/a Burgess Construction and Donald Burgess and Verlan Hendrix d/b/a V & B Builders, 227 NLRB 765 (1977); Avila Group, Inc., 218 NLRB 633 639(1975). DECISION HERZEL H. E. PLAINE, Administrative Law Judge: Respondent, a manufacturer of railroad cars and equip- ment, has been charged with violations of Section 8(a)(5) and (I) of the National Labor Relations Act, as amended (the Act) for failing to notify and bargain with the Charging Party (the Union) regarding Respondent's subcontracting of railroad car trailer hitch production work allegedly accompanied by layoffs of bargaining unit employees who had performed such work, and for refusing to provide the Union with information concerning the subcontracting after the union requests for information, commencing December 30, 1975. In an unrelated matter, Respondent is further charged with violating Section 8(aX)(5) and (1) of the Act in refusing the Union's request to see or obtain a copy of a handwriting analysis prepared for and utilized by Respondent in connection with its dis- charge of employee Ruffin, which discharge is the subject of a pending grievance filed by the Union.' Hearing of the case took place in St. Louis, Missouri, on June 7 and 8 and July 7 and 8, 1976. However, it was not until approximately the resumption of the second half of the hearing in July 1976 that General Counsel and the Union learned of the nature and extent of Respondent's subcontracting for trailer hitch components and parts, after Respondent complied with my order enforcing General Counsel's subpena for the information (see report by Respondent dated June 15, 1976, G.C. Exh. II). The exhibit, and evidence related to it, showed that the subcontracting began in March 1974, with the bulk of the subcontracts let in the second half of 1974 and a few let in early 1975, with delivery and completion in some instances as late as 1976; and layoffs of the hitch department production employees principally in the second half of 1974 and early 1975. While the complaint had alleged, in paragraph 8, failure and refusal to bargain concerning the subcontracting from July 1, 1975 (the outer calendar limit of the 6-month limitation period under Section 10(b) of the Act), General Counsel over objection of Respondent moved at hearing on July 7, 1976, to amend and backdate the claimed violation commencing July 1, 1974, contending that Respondent's alleged concealment, and the Union's al- leged lack of knowledge, of the subcontracting tolled the statute of limitations. It was agreed that I would, in this Decision, rule on the motion to amend paragraph 8 of the complaint and the limitation issue. On the issues, apart from the dispute on the limitation matter, General Counsel and the Union rely on the statutory duty of the employer to notify and bargain with the Union concerning subcontracting that affects the status and work of bargaining unit employees; whereas Respon- I The Union filed its original charge on December 30. 1975. and amended charges on January 28 and March 17. 1976. The original complaint issued on February 25, 1976, was amended on April 8. 1976, and a further amended complaint was issued on May 26. 1976. 231 NLRB No. 20 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent contends the statutory duty does not apply here. General Counsel and the Union also rely on the statutory duty of the Employer to supply the Union with requested information concerning subcontracting; whereas Respon- dent contends that its limited responses to the Union were adequate, and the longer and more detailed review (obtained by subpena, supra) was not required of it. On the Ruffin discharge matter, General Counsel and the Union rely on the statutory duty of the Employer to supply information enabling the Union to process a grievance; whereas Respondent contends the Union has no need for the item of information requested. Counsel for all three parties have filed briefs. Upon the entire record of the case, including my observation of the witnesses and consideration of the briefs and arguments, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a New Jersey corporation authorized to do business in Missouri, with the principal office and plant of the AMCAR Division in St. Louis, Missouri, the only plant involved in this case. At the plant, Respondent has been engaged in the manufacture, sale, and distribution of railroad freight cars and related products. In calendar year 1975, a representative period, Respon- dent manufactured, sold, and distributed, at its St. Louis plant, products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from the plant to points outside Missouri. As the parties admit, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. As the parties also admit, the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations Respondent's St. Louis plant is an enormous plant, comprising 35 buildings on 50 acres. Respondent manufac- tures, at the St. Louis plant, railroad boxcars and flatcars. For the flatcars that carry (piggyback) the trailers of tractor-trailer trucks, it also manufactures trailer hitches. The trailer hitch is a triangular-shaped device made of steel which, when in use, is installed on the flatcar, one at an end and another in the center of the flatcar, and serves as a simulated fifth wheel that locks into the end of the trailer that is normally attached to the tractor. The trailer hitches have been made in a section of department 125, also known as the wood erection depart- ment, which makes other components of railroad cars (such as bridge plates) in various areas of the department. Respondent has produced, since at least the 1960's, five models of trailer hitches, models A, 2, 3, 4, and 5. Respondent began production of the latest one, model 5, at the end of 1972. The several models are essentially alike, 2 All of the foregoing information was supplied by Respondent's principal witness, Edwin Meacham, who was superintendent of trailer hitch production for the principal period in issue in this case; corroborated and supplemented by Herbert Goodrick, the Union's business agent and differing only in dimensions of certain parts of compo- nents, and are produced in an identical manner by the same classifications of employees using the same equip- ment, except that the jigs (also called fixtures), for assembly of the components of the hitch (such as the base plate, vertical strut, diagonal strut, and head) and for assembly of the completed hitch, differ in size because of the dimensional differences among the models. Respondent has produced two or more models simulta- neously, and at the same time has produced additional components and parts for all of the models, as and after each model came into being, since it had a flow of so-called jobbing orders from customers for replacement compo- nents and parts for worn out or damaged hitches. Respondent has produced, in its plant with its own employees, all of the (fabricated) parts, components, and completed hitches for all five models, and has also produced the various jigs for assembling the different model components and final assemblies. The parts are made from raw steel by the fabrication department, where they are punched, formed, and sheared. From fabrication the parts are moved to the hitch area or areas of department 125, where the assembly of parts into compo- nents and the assembly of components into completed hitches are performed. The main work in assembly is performed by welders who place the parts, and later the components, in suitable jigs for tack welding and final welding. Some of the work is also performed by employees classified as fitters, tackers, and drill press operators. The jigs used in assembly are made in Respondent's tool and die shop. As of the time of hearing, Respondent had on hand, either in place or in plant storage easily accessible for use, all of the equipment, including jigs, necessary for making all five models of hitches, their components, and parts. 2 In the course of production of trailer hitches and hitch components over the years, Respondent used as many as three full shifts of employees per day. In fact, said Union Agent Goodrick, in 1966 he worked as an employee of Respondent on the third shift of the hitch section. In the period 1973-75, when Superintendent Meacham super- vised the work, Respondent did not go beyond operating two full shifts per day for the hitch section. B. The Union Relationship Since 1943, the five locals of Railway Carmen, Boiler- makers, Electrical Workers, Machinists, and Firemen, identified in the caption of this case, have constituted the jointly certified bargaining representative of the production and maintenance employees of Respondent's St. Louis plant. According to Union Agent Goodrick, who since January 1972 has been the spokesman for the union negotiating committee and for administration of the collective-bargaining contract (see fn. 2, supra), at full capacity in the past the bargaining unit comprised 1,750 employees, whereas the present total is down to 1,000 employees. spokesman in contract negotiations and administration of the collective- bargaining contract, who had formerly worked in the plant from 1965 to 1972, including a period in the hitch section. 84 AMCAR DIV., ACF INDUSTRIES The current collective-bargaining contract runs for 3 years from September 22, 1975, to September 21, 1978. (See C.P. Exh. I.) The predecessor 3-year contract (1972-75) expired May 2, 1975, following which the Union went on strike, which did not end until the effective date of the current contract, September 22, 1975. The parties stipulat- ed that neither the present nor the previous contract contained any reference to subcontracting. In this connec- tion, Union Agent Goodrick testified that the next previous 3-year contract (1969-72), which expired in May 1972, had a side letter dealing with subcontracting. In negotiating the 1972-75 contract, the side letter was discussed. According to Goodrick, Respondent's negotiating chairman, Fred Smitzel, stated that the parties did not need the letter because it required the Respondent to notify and bargain with the Union regarding subcontracting, that Respondent had a statutory obligation to do that, and hence putting the letter or its substance into the contract would add nothing. On obtaining legal advice, said Goodrick, Smitzel's statement appeared to be true, and the Union agreed to deleting the side letter from the then new contract (1972- 75). Union Agent Goodrick further testified that, with regard to maintenance subcontracting, Respondent always noti- fied him if subcontracting was contemplated and provided the opportunity for mutual discussion. Typically, said Goodrick, Respondent's manager of industrial relations would call the Union beforehand, and not infrequently, as a result of the discussions, would decide there was no need to proceed with the plan for subcontracting the mainte- nance; whereas at other times it would appear there was a need to proceed with the subcontracting, and Respondent would proceed. However, said Goodrick, there never was any notifica- tion to him or the Union by Respondent, and he was never aware, of any production subcontracting. Specifically, in connection with the hitch components and parts subcon- tracting upon which Respondent embarked in 1974, as revealed at the hearing, Respondent's production manager, Robert Saybert, who was directly responsible to the plant manager, admitted that there was no contact with the Union in deciding to contract out the work, nor was there any discussion, among those responsible, of getting in touch with the Union. C. The Hitch Subcontracting Not only was the Union given no notice of the 1974-75 subcontracting, let alone opportunity to consult or bargain concerning it, but even Respondent Superintendent Meacham, in charge of trailer hitch and components production, was unaware of it, as he conceded on cross- examination. He explained that later and eventually he became aware of the subcontract purchases listed in Respondent's report of them. (G.C. Exh. I I.) Superintendent Meacham entered department 125 and the supervision of hitch production in January 1973. Production of the new model 5 had begun at the end of 1972, said Meacham, and when he came into the depart- ment Respondent was producing about 5 to 10 model 5 hitches per day. Because of increased demand, production was increased to 25 to 30 model 5's per day in the January- March 1973 period, so that production was at 30 rrodel 5's per day by April 1973. Because the demand was higher, Meacham said he recommended expansion in space and equipment, which recommendation was adopted. With expansion completed by August 1973, the quota went to 50 model 5 hitches per day. The hitch area went on two shifts and also worked Saturdays, so that the quota was actually 300 hitches for a 6-day week. There were 50 to 60 employees on each shift, embracing welders, fitters, tackers, drill press operators, and painters. However, said Superintendent Meacham, by the end of 1973, the department was not meeting the 50-per-day production quota, and he asked Plant Manager Harrison for better support from the fabrication department in getting parts, and for additional lift truck service in moving fabricated parts into, and moving completed subassembly work through, the hitch department. Meacham testified that he got the better and additional support, so that by April 1974 the department was meeting its 50-per-day quota, or 300 model 5 hitches per week. Starting in May 1974, said Superintendent Meacham, in an attempt to avoid the Saturday overtime, the hitch section was cut back to a 5-day 40-hour week, but continuing the two full shifts as before. The quota of 300 model 5's per week remained the same, but this required a production quota of 60 per day. While the 60-per-day quota was not reached, nevertheless actual production went to between 52 and 55 per day in the 5-day week, said Meacham. This situation continued through October 1974. In November 1974, as the result of cancellation of purchase orders for model 5, according to Superintendent Meacham, the production quota was reduced to 30 model 5's per day, largely for stockpiling for future sales. The second shift was essentially eliminated except for a skeleton group of six to eight employees, said Meacham. The production of model 5 continued at this pace through March 1975, when it was stopped, and the department made only components for several models. On direct, Superintendent Meacham testified that in the period January 1973-March 1975, while the department was producing model 5 under his supervision, there was no other production of complete hitches of other models. With his memory jogged under cross-examination by General Counsel and the Union, Meacham remembered that production of model 4 hitches continued through Decem- ber 1974 contemporaneously with model 5 production. Again, on direct, Superintendent Meacham talked of demands on the department to produce components of some of the older models, particularly models A and 2, and the difficulty he had because of the concentration on production of model 5 hitches. He described some feeble attempt on two or three Saturdays to set up the model 5 production area for production of the older model components, and the waste of time on the Saturdays of changing some of the equipment for the purpose and changing back for the Monday resumption of model 5 production-which, of course, made such a scheme impractical. However, on cross-examination he was re- minded and he remembered that, throughout the whole period of his supervision, model A and model 2 compo- nents were made contemporaneously with models 5 and 4 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production, including some of the kinds of components that were on the subcontracted list (G.C. Exh. 11) and some that were not. Though he had not been involved in, or aware of, the subcontracting of hitch components and parts that com- menced in March 1974, Superintendent Meacham was Respondent's principal witness for the justification of the subcontracting. There were 14 groups of subcontracts (grouped by subject and contractor) totaling 35 subcon- tracts, the first let on March 25, 1974, the second on June 14, 1974, the next 29 in the period between July I and December 31, 1974, an additional 2 subcontracts in January and March 1975, and the last 2 in May and August 1975, when the plant was on strike. Meacham contended that in each case there was a lack of capacity in Respondent to get the work done in-plant. By lack of capacity, said Meacham, he referred to four variables affecting capacity, i.e., manpower, space, equip- ment, and fabricated parts. Notwithstanding his claims on direct examination concerning the particular absences of one or more of these variables in analyzing the alleged necessity for the 14 groups of subcontracts, the claims largely collapsed on cross-examination, except for the last 2 subcontracts in May and August 1975 when the plant was immobilized by the strike of the employees. Thus, Superintendent Meacham conceded that manpow- er was no problem at any time. In fact, as hereinafter detailed, layoffs were taking place in the period of the subcontracting. Meacham admitted that bargaining unit employees had in the past done all of the operations involved in the subcontracted work including fabrication, sawcutting, and machine beveling of parts, and assembly, welding, hotpress, drilling, and painting of components. Superintendent Meacham also conceded that Respon- dent had the equipment, including electric power and air, and the space to do the subcontracted work. The summer 1973 expansion of hitch and hitch component production had given department 125 additional space for hitch production, beyond its original area, in two buildings, and had provided additional equipment. There had been no subcontracting in 1973. And, by summer 1974, there was further additional unused space and equipment, including power and air, in the adjacent St. Louis Car Company facility, which Respondent leased, suitable for hitch and hitch component production (testimony of Production Manager Saybert and Union Agent Goodrick). Meacham conceded that, even without this additional space, the space that was being used for hitch and component production could have been rearranged to accommodate the production needs (without subcontracting), and that rescheduling to do older model components on a weekly basis rather than a Saturday-only basis would have avoided the impractical and aborted Saturday-only experimenta- tion. Respondent had all of the jigs (or fixtures) for all hitch and component production, either in use or in plant storage; indeed, even loaned some of its jigs and dies to the subcontractors, according to Superintendent Meacham. In the matter of the fourth variable-fabrication of parts-Superintendent Meacham testified that the fabrica- :' Transfers to other departments or jobs are significant because they frequently involve "bumping" rights and resulting layoffs of the junior tion department had all of the equipment and know-how to produce, as it had in the past, but that he did not know what their problem was and why he was not getting needed parts from the fabrication department. He said manage- ment told him fabrication was running at full capacity, but he did not know how many employees the fabrication department had on its three shifts. Production Manager Saybert, who said that he was responsible to see that the fabrication department produced the parts, testified that the Respondent was loaded with orders for boxcars; that in March 1974 the fabrication department was working around the clock 6 and sometimes 7 days per week, though he did not know how many employees were involved; that the fabrication department concentrated on producing parts for the 2 models of boxcars and the model 5 hitch; and that Respondent ended up subcontracting parts for the other models of hitches because the volume required was not as large as for either the model 5's, which had a quota of 300 per week, or for the boxcars, which had a quota of 16 per day. On cross-examination Production Manager Saybert, who had conceded that he did not know how many employees were involved in the three shifts of the fabrication department, further admitted that sometimes the depart- ment worked only two 10-hour shifts, and that when it ran three shifts it used only 10 employees on the third shift and there was plenty of unused equipment. Union Agent Goodrick supplied more definitive information, that was not contradicted. He testified that, in 1974, whenever the first two shifts of the fabrication department were at full capacity each shift had about 100 employees. The third shift seldom worked, and when it worked it had at most eight employees. The equipment used on the first two shifts was unused when the third shift did not operate, and most of the equipment was unused when the third shift operated with the skeleton staff of up to eight employees. The equipment included unused shears, punches, presses for fabrication, and burning equipment. D. The Effect on Employment Like Production Manager Saybert, Industrial Relations Manager (for the St. Louis plant) Albert Finkelstein came in with no figures or records on plant employment. Nevertheless, he testified categorically and misleadingly (see table below) that there were no layoffs of department 125 welders in the March through May 2, 1975, period (the strike began May 2) and no layoffs of welders in the balance of 1975 after the strike (which ended September 22). Union Agent Goodrick was able to produce layoff and transfer 3 figures from old records, supplied by Respondent to the Union as layoffs and transfers occurred, beginning with September 1974 through November 1975. Goodrick emphasized that these were probably incomplete and may have been less than actual totals because of difficulty he had in locating the papers. The authenticity of the papers and the figures shown thereon was agreed to by Respon- employees bumped to make places for the transferees. The net effect of the transfers and bumping is a reduction in bargaining unit employment. 86 AMCAR DIV., ACF INDUSTRIES dent, and Goodrick testified from them without the need for putting the papers into evidence. As a result it appeared that there were at least the following layoffs or transfers from department 125: HoYr Laid off Transferred 9/74 4 welders 1 fitter 10/74 3 welders 1 fitter 11/74 11 welders 1 welder from Dept. 104 4/ 2 fitters 1 tacker 2 drill press operators 12/74 8 welders 1 fitter 1 fitter 1 tacker 2 drill press operators from Dept. 115 5/ 1/75 1 welder 1 drill press operator from Dept. 117 6/ 2/75 1 welder from Dept. 106 7/ 3/75 39 welders 3 welders 1 welder from Dept. 104 8/ 7 fitters 1 fitter from Dept. 104 4 tackera 6 drill press operators from Depc. 115 9/ 4/75 1 welder 1 fitter 9/75 22 welders 13 welders from Dept. 125 who were working in Dept. 106 1 welder from Dept. 106 4 welders from Dept. 104 10/ 1 fitter 1 fitter from Dept. 115 11/ 10/75 2 welders 1 welder from Dept. 104 12/ 11/75 1 welder from 2 welders Dept. 104 13/ Recapitulating, at the least there would appear to have been, in the period from September 1974 through Novem- ber 1975, layoffs of 113 welders (91 of whom were direct 4 He would have been a potential welder for use in department 125, said Goodrick. and bumping nghts between departments 104 and 106 and department 125 are the same. ' According to Goodrick. drill press operators in departments 115 and 117 have done and do drill work on trailer hitch parts. 6 See fn. 5, rupra. 7 See fn. 4, supra. 8 See fn. 4, supra. " See fn. 5. supra. 0' See fn. 4. supra. layoffs from department 125, 13 were previously from department 125 working in a related department when laid off, and 9 were from related departments) and transfers of 5 department 125 welders; layoffs of 16 fitters (14 of whom were direct layoffs from department 125, and 2 were from related departments) and transfer of I department 125 fitter; layoffs of 6 tackers from department 125; and layoffs of I I drill press operators (2 of whom were direct layoffs from department 125, and 9 of whom were layoffs from related departments). It would also appear that, of the total, 100 layoffs and 4 transfers occurred in the November 1974-April 1975 period, and 46 layoffs and 2 transfers occurred in the September 1975-November 1975 period.'4 While it was not clear that all of the employees in department 125 and the related departments, who were laid off or transferred to other jobs in those periods of time, were necessarily engaged in trailer hitch or hitch compo- nents production, it was clear that among them were the employees laid off or transferred when the two shifts of 60 employees each, or a total of 120 employees, who were engaged through most of 1974 in trailer hitch and components production, were reduced near the end of 1974 by half. (Superintendent Meacham thought it was accom- plished by practical elimination of the second shift except for six of eight employees; Union Agent Goodrick said it was by reducing each shift to half its size.) And clearly among them was the further group of employees laid off or transferred at the end of March 1975, when all model 5 production was terminated, reducing the approximately 60 employees engaged in trailer hitch or component assembly to 5 employees (as both Meacham and Goodrick testified). Goodrick further testified that these five remaining employees were welders engaged in welding of replacement components for various models and that, after the May 2- September 22, 1975, strike the five welders were reduced to one. Union Agent Goodrick testified, without contradiction, that he inquired of Superintendent Meacham concerning these major layoffs from the hitch section as they occurred, and was told each time that sales were off and production was being reduced. Goodrick said he had no reason to disbelieve what he was told. In connection with his similar inquiry when the work force was ultimately reduced to the one employee, Goodrick was told that sales for hitches had completely dissolved and there was not any work. Meantime, as already noted, throughout this period and starting even earlier in March 1974, Respondent was letting the described 35 subcontracts for trailer hitch components and parts and was receiving the completed components and parts throughout the period and beyond, in some cases in 1976. Admittedly, Respondent had not notified the " According to Goodrick, department I I5 fitters, like welders, have the nght to available work in other departments. 12 See fn. 4, supra. 3 See fn. 4, supra. 14 There was an indication that some of the September 1975 layoffs. immediately following the return from the strike on September 22, may have resulted because, in addition to the strikers, all persons in layoff status prior to the stnke were also called back to insure an adequate work force, and there were some immediate returns to layoff status in September where it was thought there was an excess of needed manpower. 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of the subcontracting or discussed it or its effect on the employees in any manner with the Union. Union Agent Goodrick testified that he first became aware, in December 1975, that some production subcon- tracting of hitch components and parts had been going on. On December 15, 1975, said Goodrick, employee Odie Daniels, who was a steward in department 125, came to him and reported that the last and lone hitch welder working on hitch components, employee John Fredericks, was being removed from his job on hitch components, and that, on inquiry by Daniels of Foreman Barker, Daniels was told that the vice president and general manager of the division, O'Hara, had decided to "farm out," or subcon- tract, the work. Employee Daniels confirmed this report in his testimony. Goodrick asked Daniels for evidence that subcontracting was going on. Employee Daniels had acquired some information at the end of September 1975, after the strike ended September 22, and again in mid-December after his conversation with Goodrick. To get the information, Daniels had to go outside department 125 and the hitch section because, as Superintendent Meacham testified, the components that came from subcontractors were trucked to a receiving dock and taken to the jobbing order warehouse. In this connection, Meacham also testified that the components when delivered by the subcontractors were already finished with a prime coat of red lead type primer, in the same manner and color as Respondent's hitch section finished components, so that they were not identifiable as prepared outside the plant unless in the shipping they bore tags identifying the vendor. Nevertheless, by going out on the receiving dock and talking to truckdrivers and examining tags on incoming merchandise, employee Daniels was able to gather and give Union Agent Goodrick information concerning several kinds of trailer hitch components that had been received at the plant from Kemco Tool, Detroit Tool, and Valley Heat Treatment Co.'5 Union Agent Goodrick telephoned Industrial Relations Manager Finkelstein on December 16, 1975, and asked if Respondent was subcontracting production work in the hitch section. Finkelstein said he was not aware of any, but he would investigate.' 6 1, Employee Daniels testified that he gave the information to Goodnck in December 1975 after Goodrick's request. Daniels also testified that, although he had seen some of the evidence after the stnke ended September 22. 1975, he had asked Superintendent Meacham about it in connection with the lack of hitch work, but had not reported at the time to Goodrick because, said Daniels. while Meacham admitted that there had been some hitch work contracted out he also said that more would not be contracted out. Meacham claimed that Daniels asked him in early 1975, prior to March 1975. about getting back some of the previously subcontracted hitch components work to keep work in the department. However. I do not credit Meacham's claim respecting the time, and I credit Daniels' version because, as already noted. Meacham exhibited a poor memory and needed constant jogging of it to recall salient facts, and by his own admission. discussed presiously, was not aware of the subcontracting in early 1975. Meacham also claimed that he talked to employee Jerome Borders, who was a union committeeman of the wood car shop, about March 1, 1975, concerning getting back subcontracted hitch work in department 125; but Borders testified that he never discussed hitch subcontracting with Meacham, rather that, in September 1975, he discussed with Meacham bringing back some of the boxcar work from Respondent's steel plant. to Goodrick then called Superintendent Meacham and asked him if any hitch work had been subcontracted. Meacham told him there had been some subcontracting of struts and heads for model 5 hitches. Union Agent Goodrick called again on Industrial Relations Manager Finkelstein on December 19, 1975, and Finkelstein said that he learned that some hitch work had been subcontracted out. Goodrick said the Union expected compensation to employees for loss of work and earnings, and Finkelstein told Goodrick there would be no compen- sation. Goodrick said he would go to the Board with the matter and filed a charge in this case on December 30, 1975. At the same time, he also made a written demand on Finkelstein for information on Respondent's subcontract- ing of the previous 2 years.17 E. Respondent's Duty To Bargain Over Subcontracting It was established supra, without dispute, that Respon- dent neither notified nor bargained with the Union concerning the decisions to subcontract the trailer hitch component and parts work set out in the 35 subcontracts described in General Counsel's Exhibit 11, and that Respondent neither discussed nor bargained with the Union about the effect of the subcontracting upon bargaining unit employees. Likewise, it was established that the hitch component assembly operations and parts fabrication that Respondent subcontracted in 1974 and 1975 had been performed by bargaining unit employees, and that significant reductions in the number of hitch and components assembly jobs took place in the plant in November-December 1974, March 1975, and September- October 1975. Absent a collective-bargaining contract or, as here, absent a provision of such a contract on the subject of consultation and bargaining by the employer with the Union over subcontracting decisions, the employer is under a statutory obligation to give notice and bargain over subcontracting that results in displacement of bar- gaining unit employees by contractor employees doing the same work, Fibreboard Paper Products Corp. v. N.LR.B., 379 U.S. 203, 210 (1964), affg. 138 NLRB 550 (1962); unless, as set out in Westinghouse Electric Corporation which it had been moved. For reasons already noted, I do not credit Meacham's claim. and credit Borders' testimony. i' Finkelstein claimed that a year earlier, in late 1974 or early 1975. he had discussed with Shop Steward Daniels bringing back to department 125 subcontracted trailer hitch work to preserve the work of the welders in the department. Daniels denied ever discussing hitch subcontracting with Finkelstein, and testified that he talked to Finkelstein in December 1974 or January 1975 about getting back for the welders in department 125 work on boxcar parts that had been transferred to the steel plant, work that had nothing to do with hitches. In view of Finkelstein's faulty recollection of crucial matters, already demonstrated, and his contradictory assertion, infra, that he did not become aware of subcontracting of hitch work until after Goodrick's first call in December 1975, I do not credit Finkelstein's claim, and credit Daniels' testimony on this subject. I? Finkelstein conceded the correctness of the interchange between him and Goodrick, though he thought it occurred a few days earlier, on December 11, 1975. He added that he told Goodnck that the only subcontracting concerning trailer hitches was done a year ago (which was not true, since subcontracting continued with contracts let in 1975. see G.C. Exh. II1), and that Respondent had no intention of doing any more hitch subcontracting. 88 AMCAR DIV., ACF INDUSTRIES (Mansfield Plant), 150 NLRB 1574, 1577 (1965), there is shown the exonerating effect, cumulatively, of five factors. Thus, unilateral subcontracting without notice to and bargaining with the union would be valid if the subcon- tracting (I) is motivated solely by economic considerations, (2) comports with the employer's customary business operations, (3) does not vary significantly in kind and degree from past practice, (4) has no demonstrable adverse impact on employees in the unit, and (5) follows an opportunity by the union to bargain about changes in existing subcontracting practices at previous general bargaining sessions. In this case, Respondent's subcontracting of hitch work did not comport with Respondent's customary business operations and past practice, within the meaning of Westinghouse criteria (2) and (3) above, since bargaining unit employees had previously performed all of the fabrication and assembly operations involved in the production of trailer hitch components as well as final assembly of the hitches. There was no evidence of any prior subcontracting of hitch work, though Respondent had made hitches and their parts and components continuously since at least the 1960's. The Union had never been informed, and was not aware, of any prior production subcontracting by Respondent and, significantly, Respon- dent had previously established the practice of bargaining with the Union over subcontracting of maintenance work. The evidence established that in the triennial contract negotiations between Respondent and the Union, the Union had not relinquished its statutory right to bargain over subcontracting; indeed, Respondent's chief negotiator had acknowledged Respondent's statutory obligation to notify and bargain regarding subcontracting in the negotia- tions preceding the 1972-75 contract, and had suggested that accordingly there was no need for such a contract provision, a position the Union accepted. In the negotia- tions preceding the current 1975-78 contract, the Union was unaware of any production subcontracting, and Respondent had failed to inform the Union of the hitch subcontracting in which it was even then engaged. In these circumstances, it can hardly be said that the Union had a reasonable opportunity to bargain about changes in the existing subcontracting practices, within the meaning of Westinghouse criterion (5) above. Moreover, contrary to Respondent's argument, the fact that the collective-bargaining contract contains a manage- ment rights or recognition clause (here art. III of C.P. Exh. I), providing that the methods, processes, and means of manufacturing are solely and exclusively the responsibility of the employer, does not constitute a waiver of the Union's statutory right to bargain over subcontracting, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UA W) [Gener- al Motors Corporation] v. N.L.R.B., 381 F.2d 265 (C.A.D.C., 1967), cert. denied 389 U.S. 857 (1967); 18 nor does compelling an employer to bargain about a decision to subcontract abridge the freedom of the employer to 11 The court in that case held that though the only purpose of the subcontracting out of hitherto bargaining unit work was economic, to reduce costs, the subcontracting had a substantial adverse impact on the employees (see Westinghouse cnterion (4) above), because while the six employees affected were transferred to similar jobs elsewhere in the plant, manage his business. The employer's obligation to bargain does not include the obligation to agree, but solely to engage in a full and frank discussion with the collective- bargaining representative in which a bona fide effort will be made to explore possible alternatives, if any, that may achieve a mutually satisfactory accommodation of the interests of both the employer and the employees. If such efforts fail, the employer is free to make and effectuate his decision. Ozark Trailers, Incorporated and/or Hutco Equip- ment Company and/or Mobilefreeze Company, Inc., 161 NLRB 561, 568 (1966); Town & Country Manufacturing Company, Inc., Town & Country Sales Company, Inc., 136 NLRB 1022, 1027 (1962), enfd. 316 F.2d 846 (C.A. 5, 1963). Respondent's contention is that the hitch component subcontracting was economically motivated and necessary because Respondent did not have the capacity to produce at the same time both the Model 5 hitch and the components for the earlier models in the period of its undisclosed subcontracting. The record refutes this argu- ment. Respondent had the demonstrated capacity to produce several complete hitch models simultaneously, as well as the components for other models. It had expanded its hitch production facilities, including space and equipment, prior to embarking on the bulk of the series of subcontracts. The equipment was easily moveable, and was interchangeable and adaptable for use on all models of hitches and components except for the jigs; but Respondent had all of the jigs at hand for all models and components. Indeed, Respondent loaned its own hitch production equipment to subcontractors for their use in assembly of subcontracted components. There was evidence of additional space and equipment (both for fabrication and assembly) that was not used, and of neglect or failure to make certain rearrangements of space, equipment, and time that would have provided greater facility and capacity for greater simultaneous production of the components of the several models as well as completed model 5 hitches. Respondent made no argument about the availability of manpower to do all of the hitch-related work at the plant with bargaining unit employees, and there could be none, considering the substantial reductions in the number of hitch-related jobs and the corresponding layoffs and transfers of unit employees, and considering also Respondent's demon- strated ability to operate two or three shifts in the hitch section. All of these facts, in combination, suggest the lack of economic necessity for the hitch component subcon- tracting that took place and an absence of such necessity within the meaning of Westinghouse criterion (1). With regard to Westinghouse criterion (4), Respondent's subcontracting of the hitch work had a significant adverse and detrimental impact upon the employees of the bargaining unit. In the period in which Respondent engaged in the subcontracting of hitch work and the receipt of subcontracted components, the bargaining unit employ- ees engaged in hitch assembly and production underwent substantial layoffs, plus transfers to other work, that in the change diminished by six the whole number of jobs performed by the bargaining unit, and the employer's failure to give notice and consult with the union was a refusal to bargain in violation of Sec. 8(aXS) and (I) of the Act, 381 F.2d at 266. 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD succession reduced their number from approximately 120 to 60 to 5 to 1. While the drop in orders for model 5 was no doubt the cause of the elimination of many of the jobs, illustrative of the adverse impact of the subcontracting was the situation in November-December 1974. In that period when approximately 60 hitch section employees were either laid off or transferred, Respondent entered into at least six hitch component subcontracts involving a total of more than 5,550 man-hours of work.19 Even assuming that Respondent's alleged economic motivation for subcontracting was legitimate, that would not have excused Respondent from the duty to notify and bargain with the Union where, as here, the subcontracting diminished the number of jobs performed by the bargain- ing unit employees, International Union (UA W) v. N.L.R.B., supra at 266; Brown Transport Corp., 140 NLRB 954, 956-957 (1963), enfd. (remedy modified) 334 F.2d 243 (C.A. 5, 1964); Jack L. Williams, D.D.S., d/b/a Empire Dental Co., 211 NLRB 860, 867-868 (1974). The Board in Westinghouse said that the criteria, exempting an employer from the obligation to bargain over subcontracting, must be met cumulatively, 150 NLRB at 1477; perhaps, as was said later, "more or less cumulative- ly," Empire Dental Co., supra at 867, may be more accurate. However, in this case, none of the criteria has been met.20 Hence, evaluating the record as a whole, Respondent had a duty to notify and bargain with the Union before subcontracting its hitch-related work, and had a continuing duty to bargain with the Union over the effects of that subcontracting on the bargaining unit. By its failure to satisfy these obligations, Respondent violated Section 8(a)(5) and (1) unless, as considered below, the violations were barred by the statute of limitations. F. The 10(b) Limitation was Tolled Respondent contends that since the original charge in this case was filed with the Board on December 30, 1975, any complaint and violation thereunder based on subcon- tracting and failure to notify and bargain about it that occurred prior to June 30,1975, is barred by the limitation of Section 10(b) of the Act providing that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge." At the start of the hearing, the complaint was limited to allegations of violation within the calendar 6-month period prior to the filing of the charge. Thus, paragraph 8 of the complaint alleges that since on or about July 1, 1975, Respondent failed and refused to bargain with the Union by, unilaterally and without prior notice and bargaining, subcontracting bargaining unit production work, and failing and refusing to negotiate and bargain with the Union concerning the effects of such subcontracting on the employees of the bargaining unit. m1 See G.C. Exh. II, item 10, let November 5, 1974, 241 estimated man- hours; item I, no. 3, let December 4, 1974, 963 estimated man-hours; item 2, no. 3, let December 4, 1974, 2,220 estimated man-hours; item 3, no. 2, let December 3, 1974, 1,297 estimated man-hours; item 7, no. 2, let December 26, 1974, 544 estimated man-hours; item 9, let December 27, 1974, 289 estimated man-hours-total 5,554 estimated man-hours. 20 Respondent rests its claim for exemption from the statutory duty, to Midway through the hearing, after my enforcement of, and Respondent's compliance with, General Counsel's subpena for information concerning the subcontracting, General Counsel and the Union learned, for the first time, of the nature and extent of Respondent's subcontracting for trailer hitch components and parts. Up until then the disclosure had been refused by Respondent. It was disclosed that 35 subcontracts had been let, the first 2 in March and June 1974, the last on August 26, 1975, the bulk or 29 between July I and December 31, 1974, and the remaining 3 in January, March, and May 1975, respective- ly. It was also disclosed that completion and deliveries of the subcontracted components and parts continued through the second half of 1974, 1975, and 1976. (The principal layoffs and transfers of hitch section and hitch work-related employees occurred in the last part of 1974 and early 1975, with some additional layoffs and transfers in late 1975.) Following these disclosures General Counsel moved to amend the complaint to backdate paragraph 8, alleging the violation since on or about July 1, 1974 (in place of July 1, 1975). I1 reserved decision, which I resolve now in light of the record made and the applicable law. I agree with General Counsel that, not only was the Union unaware of the subcontracting while it went on, but that Respondent concealed the subcontracting from the Union. Indeed, the concealment was so complete that even Respondent's man in charge of hitch and hitch component production, Superintendent Meacham, was unaware that it was going on, and only learned about it later. As Production Manager Saybert indicated, management chose not to let the Union know as the subcontracts were let. And, in the contract negotiations for the current collective- bargaining contract, that began in March 1975 and continued through the strike of May-September 1975, Respondent did not inform the Union of its hitch subcontracting. When in 1974 and 1975, hitch section and related employment dropped, Respondent told the Union only that orders were decreasing. Concealment from the plant employees affected was not difficult, because delivery and storage of the subcontrac- tor's completed trailer hitch components were made at the jobbing orders warehouse, a part of the plant separate from department 125. Department 125 was where Respondent operated its section for hitch and hitch component assembly. By delivery of the subcontracted components and parts to the jobbing orders department, which was a sales department for parts and components of hitches and boxcars, the subcontracted items were obviously destined for direct sales to customers outside the plant, or for stockpiling awaiting such orders, rather than for use in the hitch section. In any event, the subcontracted components were delivered to Respondent in a finished form that was indistinguishable from components made by Respondent's hitch section. give notice and bargain over subcontracting, on cases where the Board found no loss of jobs or other substantial adverse impact upon unit employees' terms and conditions of employment, e.g., Superior Coach Corporation, 151 NLRB 188 (1965); General Tube Company, 151 NLRB 850 (1965); The Fafnir Bearing Company, 151 NLRB 332 (1965); Union Carbide Corporation, Carbon Products Division, Clarksburg Works, 178 NLRB 504 (1969). These cases are not apposite to the situation in this case. 90 AMCAR DIV., ACF INDUSTRIES Actual knowledge that Respondent was doing some hitch component subcontracting came, and was first chargeable to the Union, at the end of September 1975, after the over-4-month strike ended. At that time, by chance, Union Steward Daniels, outside his department 125, came across some components tagged with the names of subcontractors and made inquiry of Superintendent Meacham. Meacham admitted to Daniels that some subcontracting had been done but assured him it was over and that the work would come back to the hitch section of department 125.21 Daniels did not report the information to the Union at the time. However, in mid-December 1975, he did report to the Union when he learned from his foreman that Respondent planned to close down the remainder of its hitch assembly and component assembly work and subcontract out any needs. When Union Agent Goodrick confronted Industrial Relations Manager Finkel- stein on the subject, Finkelstein denied any knowledge of past subcontracting and only admitted later that there had been some, after Goodrick had already obtained a partial admission from Superintendent Meacham. Even then, in late December 1975, Respondent continued to be secretive and refused to supply the actual information, a condition that continued into the middle of the hearing of the case in mid-1976. In my view there was deliberate concealment by Respondent of the subcontracting from the Union, particu- larly at the times in 1974 and 1975 when knowledge would have counted most in terms of an effective union right to discuss with Respondent, and attempt to persuade it of, alternate means of doing the work before it was subcon- tracted out. It is true, as Respondent argues, that normally a complaint predicated on unfair labor practices that occurred before the 6-month limitation period is time- barred, Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et al. [Bryan Manufacturing Co.] v. N.LR.B., 362 U.S. 411, 416-417 (1960). But Bryan recognized, 362 U.S. at 429, fn. 19, that adoption of the 6- month period of limitations was criticized by opponents of the legislation as the shortest statute of limitations known to the law and was resisted on the ground that it gave "unjust assistance to employers or unions which commit those types of practices which are easily concealed and difficult to detect" (citing the pertinent legislative history), and that, in the case before it, "It need hardly be pointed out that we are not dealing with a case of fraudulent concealment alleged to toll the statute." As pointed out in Atlantic City Electric Company v. General Electric Company, 312 F.2d 236, 239 (C.A. 2, 1962), the Supreme Court has from earliest times held that "all federal limitation statutes are subject to the doctrine of fraudulent concealment, so that . . . 'the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing.' " The doctrine is part of an equitable principle applicable to statutes of limitations, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232-234 (1959), holding that lulling 21 Respondent's claim that at least by early 1975 two employees, Union Steward Daniels and Union Committeeman Borders, knew about the subcontracting was based on discredited testimony of Superintendent Meacham and Industrial Relations Manager Finkelstein, discussed supra. 22 See also N.L.R.B. v. Shawnee Industries. Inc.. Subsidiary of Thiokol of the affected party into a false sense of security tolled the limitation provision of the Federal Employer's Liability Act. And silence, even if it were not active deceit, may be sufficient to toll the limitations period of the applicable statute, J. Ralph Saylor v. Thayer Lindsley, 391 F.2d 965, 970(C.A.2, 1968). In keeping with these principles, the Board has consist- ently held that the 6-month period of limitations prescribed by Section 10(b) does not begin to run on an alleged unfair labor practice until the person adversely affected is put on notice, actually or constructively, of the act constituting the unfair labor practice, Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB 222, 227 (1974), involving an 8(bXI)(B) violation where the employee was unaware of the union fine levied before the calendar 10(b) period and became aware within the period when a court suit to collect the fine was filed.2 2 The rule has been applied in 8(aX5) and (I) cases involving, as here, undisclosed subcontracting. Avila Group, Inc., 218 NLRB 633, 639 (1975), holding that the 10(b) limitation did not run until the union became aware, and involving unilateral changes in working conditions; Rus- sell-Newman Manufacturing Company, Inc., 167 NLRB 1112, 1115 (1967), enfd. 406 F.2d 1280 (C.A. 5, 1969), holding that the 10(b) limitation did not begin to run until the employees were informed of the change; Southeastern Michigan Gas Company, 198 NLRB 1221 (1972), affd. 485 F.2d 1239 (C.A. 6, 1973), holding that the 10(b) limitation did not begin to run until the employees were made aware of the discontinuance of benefits. The rule is particularly apt where employers are legally obligated to give notice and bargain over subcontracting. Unless the 6-month statute of limitations is tolled, absent notice to or knowledge of the union concerning the subcontracting-which, as seen here, may be readily concealed from the union-employers can avoid the legal obligation to bargain over subcontracting by arranging for receipt of the subcontracted materials more than 6 months after subcontracts have been let, thereby avoiding discov- ery of the subcontracting and responsive action by the concerned union within the 6-month calendar period.2 3 Accordingly, because Respondent concealed, and the Union had no notice of, the hitch components and parts subcontracting by Respondent, or no actual or construc- tive knowledge of any part of it until the end of September 1975, I find that the 6-month period of limitations under Section 10(b) of the Act did not commence to run against the Union until the end of September 1975. The Union's charge of December 30, 1975, was timely filed in relation to the undisclosed subcontracting in 1974 and 1975, and I will grant General Counsel's motion to amend and backdate paragraph 8 of the complaint to July 1, 1974. Respondent's violation of Section 8(aX5) and (1), for failure to give notice to and bargain with the Union concerning its hitch component and parts subcontracting Chemical Corporation, 333 F.2d 221. 224 (C.A. 10. 1964). where the court agreed with the Board that the 10(b) limitation period begins when the facts of a discriminatory hinng policy first became known to an applicant. 23 In the case at bar, a majority of the hitch component subcontracts were not completed within 6 months of their being let. 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since July 1, 1974, was not barred by the limitation period of Section 10(b) of the Act.24 G. Respondent's Obligatiohs To Supply Subcontracting Information After Union Agent Goodrick became aware in Decem- ber 1975 that there had been some hitch-related subcon- tracting by Respondent, he made a request of Respondent in writing on December 30, 1975, (G.C. Exh. 2), for information covering the subcontracting of bargaining unit work during the previous 2 years. In meetings and by correspondence thereafter in early 1976, (see G.C. Exhs. 3 and 5), Goodrick narrowed the request to production subcontracting (as distinct from maintenance subcontracting); and asked for the number of man-hours required to perform the subcontracted projects, and the dates for completion and utilization of the subcontracted work. As Lawrence Heptig, Respondent's director of labor relations, conceded, Respondent first refused to furnish any hitch subcontracting information and, after the filing with the Board of a charge on the subject by the Union, ultimately provided the Union on March 12, 1976, with only a reference to six hitch component contracts com- pleted or still open in the period September 22, 1975, to January 22, 1976.25 The result was that, as later revealed, the Union was given no inkling of the bulk of the hitch- related subcontracting that took place in 1974 and 1975 and no information whatsoever on the number of man- hours needed to perform any of the subcontracted hitch- related work or on the dates of delivery or use of the components or parts. The Union has a statutory right, arising out of the employer's duty to bargain in good faith,2 6 to obtain from Respondent upon appropriate request information relevant and reasonably necessary to the Union's discharge of its duties and responsibilities in representing the employees of the bargaining unit. These duties and responsibilities relate to the Union's functions in contract negotiations, and in labor-management relations during the term of a contract, which include the processing of grievances and the bringing of charges under the Act. It was a violation of Section 8(a)(5) and (1) of the Act for Respondent to refuse to furnish the Union with the subcontracting information that was necessary to the proper discharge of its duties as bargaining representative. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). 24 General Counsel has suggested that, alternatively, even without tolling the statute of limitations, Respondent's subcontracting of the hitch component work constituted an actionable breach of the Act because it was, in practical effect, a single course of conduct, effectuating a complete elimination of all trailer hitch-related bargaining unit jobs. Hence, though the subcontracting decisions, and the more significant aspects of their impact on the unit, fell outside the 6 months immediately prior to the filing of the December 30, 1975, charge, the performance by the subcontractors continued into and throughout that 6-month period. As a result, Respon- dent's unilateral subcontracting continued to have an impact on the bargaining unit, and Respondent's statutory obligation to bargain over the subcontracting remained in effect and was breached in the 6-month calendar period preceding December 30, 1975. I have not found it necessary to deal with this alternative theory. 25 Labor Relations Director Heptig said he picked September 22, 1975, as the starting date, because it matched the starting date of the current In this connection, the subcontracting information was properly requested by the Union, and was relevant2 7 and essential to intelligent and proper performance of the Union's representative obligations and of its duty to protect its statutory right to bargain over Respondent's subcontracting of bargaining unit production work. With- out the information concerning the subcontracting, includ- ing the number of man-hours required to perform it and the dates of completion and utilization of the subcontract- ed hitch components, the Union could not accurately evaluate the effect and impact of Respondent's subcon- tracting on the bargaining unit, Vertol Division, Boeing Company, 182 NLRB 421, 425-426 (1970); and, in that regard, the Union was entitled to the subcontracting information for the requested 2-year period, Trustees of Boston University, 210 NLRB 330, 333 (1974). Respondent violated Section 8(a)(5) and (1) of the Act by its initial refusal to provide any, and by its delay and only partial compliance in providing some, of the required subcontracting information to the Union. Utica Observer- Dispatch, Inc., 111 NLRB 58, 63-64 (1955); Ohio Medical Products, Division of Air Reduction Company, Inc., 194 NLRB 1, 6 (1971). The fact that Respondent ultimately furnished the pertinent material under subpena at the hearing does not render moot or excuse the violation. H. Respondent's Obligation To Supply Grievance- Related Information Unrelated to the violations growing out of the subcon- tracting was the discharge of employee Jerome Ruffin. Employee Ruffin was accused by Respondent of having falsified two sickness and accident claims. Ruffin denied guilt and reported to Union Agent Goodrick, on March 1, 1976, that he had been suspended subject to discharge on February 27, 1976. Because Ruffin denied guilt of the alleged falsification, Goodrick filed a grievance on his behalf with Respondent. On March 5, 1976, Industrial Relations Manager Finkelstein held a meeting in his St. Louis plant office, where employee Ruffin and Union Agent Goodrick, among others, attended. Finkelstein read the charge against Ruffin, and Goodrick entered a denial. Goodrick asked for and was given copies of the two alleged claims made by Ruffin. He asked for copies of the returned checks relating to the claims and was told they were in New York City. He asked if there was a handwriting analysis of the signatures on the claims and checks. Finkelstein said that collective-bargaining contract and therefore made the job of giving the information "manageable." Respondent in its bnrief claimed that the Union wanted the subcontracting information only for the purpose of contract negotiations in 1978, when the present contract expires; hence the refusal to supply it and limiting the pretrial response to information since September 22, 1975. The claim was without substance, as made clear in Goodrick's December 1975 exchange with Finkelstein demanding a compensatory remedy for the past violations and the Union's confirmation in writing of January 28, 1976, G.C. Exh. 4, demanding bargaining about the past subcontracting and its effect on the bargaining unit employees. z6 The Timken Roller Bearing Company v. N.L.R.B., 325 F.2d 746. 751 (C.A. 6, 1963), cert. denied 376 U.S. 971 (1964). 27 Relevance is determined under a broad discovery-type standard based on the probability that the desired information is relevant, N.LR.B. v. Acme, 385 U.S. at 437-438; Curriss-Wright Corporation Wright Aeronautical Division v. N. LR. B., 347 F.2d 61, 68-69 (C.A. 3, 1965). 92 AMCAR DIV., ACF INDUSTRIES Wells Fargo had done such an analysis for Respondent. Goodrick asked for a copy of, or to be shown, the analysis. Finkelstein said the analysis was in New York City. Finkelstein then dealt with the grievance by converting the suspension of Ruffin into a discharge, effective forthwith. On March 8, 1976, Goodrick asked Finkelstein again for copies of the checks and the handwriting analysis. Finkelstein said he would supply copies of the checks but that Industrial Relations Director Heptig had ordered that the Union could not have the handwriting analysis. Goodrick told Finkelstein that Ruffin continued to deny signing the claims and that the Union needed the analysis to help determine the merit of employee Ruffin's position and whether to proceed with arbitration of his grievance. Union Agent Goodrick repeated this statement in a confrontation with Industrial Relations Director Heptig 3 days later on March 11. Heptig, who said that he had ordered the analysis and had it in his possession in February 1976, testified that he understood that the Union wanted to see the handwriting analysis in order to decide whether or not to go to arbitration with Ruffin's grievance. Nevwrtheless, said Heptig, he refused to let the Union see it or have a copy of it, and he told Goodrick that Respondent intended to use the analysis in the arbitration if the Union pursued arbitration. The Union protected Ruffin's right to arbitration by giving timely notice, but the arbitration had not proceeded at the time of the hearing, apparently for lack of agreement on an arbitrator. Nevertheless, the evidence was clear that Respondent had obtained and used the handwriting analysis prior to employee Ruffin's discharge on March 5, 1976, and intended to use the analysis against Ruffin should an arbitration proceeding be held, but refused to permit the Union to see the analysis. "The grievance procedure is ... a part of the continuous collective bargaining process." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). And it is the duty of the employer to supply such information as may be potentially relevant and useful to the Union's effective and intelligent evaluation and processing of grievances, regardless of the actual merits of the grievance as might later be determined in an arbitration proceeding, N.LR.B. v. Acme Industrial Co., 385 U.S. at 438. As the Court said, such requirement upon the employer is "in aid of the arbitral process. Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through arbitration, the system would be woefully overbur- dened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim." Ibid. Moreover, the Union's right to the information is not defeated because the Union might have acquired similar information through an independent course of investiga- tion, as Respondent appears to suggest, The Kroger Company, 226 NLRB 512 (1976). Accordingly, since the handwriting analysis is relevant to the Union's evaluation of the merits of employee Ruffin's grievance, and Respondent has used it to substantiate its discharge decision and intends to use it similarly if the Union proceeds to arbitration, the Union was legally entitled to a copy of the analysis. Respondent's refusal to supply it was a violation of Section 8(a)(5) and (I) of the Act. CONCLUSIONS OF LAW 1. By unilaterally subcontracting bargaining unit pro- duction work on trailer hitch components and parts without prior notice to the Union and without affording the Union an opportunity to bargain over the subcontract- ing decisions or the effects of the subcontracting on bargaining unit employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX)(S) and (1) of the Act. 2. By failing and refusing to furnish the Union the information reasonably requested and relevant to the Union's discharge of its responsibility concerning Respon- dent's subcontracting of said production work, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (I) of the Act. 3. By refusing to provide the Union with a copy of the handwriting analysis which Respondent caused to be prepared with regard to its discharge of employee Jerome Ruffin and which was relevant to the Union's processing of the grievance on his account, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 4. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In respect to Respondent's unlawful unilateral subcon- tracting of trailer hitch related work, Respondent will be ordered to bargain with the Union over its continuing effects on the bargaining unit, and to cease and desist from further subcontracting without prior notice to and bargain- ing with the Union. In order to restore the status quo ante, Respondent will be required to: (1) Reinstitute its subcontracted operations to the extent it has or will have customer orders for sale or repair of trailer hitches or components or parts, or uses or will use such products in its completion or repair of railroad flatcars. In this connection, it is noted that the subcontract- ing did not appear to be motivated by economic reasons and there should be no material hardship on Respondent, since it also appears that Respondent has all of the equipment, and the space, to reactivate its hitch assembly section and any related parts fabrication. (2) Reinstate to their former or substantially equivalent positions employees discharged or laid off as a result of the hitch-related subcontracting and make them whole for any loss of earnings. Backpay shall be based on earnings which each such employee would have normally received between the date of discharge or layoff and the date of reinstate- ment, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), with interest at 6 percent in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Give notice of, and bargain over, future subcontract- ing.2 8 In respect of Respondent's refusals to supply the Union with the lawfully requested information concerning sub- contracting and the processing of the Ruffin grievance, Respondent will be ordered to cease and desist from such refusals and, affirmatively, to comply with such requests, and in that connection to supply the Union with a copy of the handwriting analysis concerning employee Ruffin. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 29 Respondent AMCAR Division, ACF Industries, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Unilaterally subcontracting bargaining unit work without prior notice to and bargaining with the Union. (b) Failing or refusing to supply the Union with lawfully requested information concerning subcontracting, process- ing of grievances, and like matters pertaining to the Union's participation in administering the collective-bar- gaining contract or in collective-bargaining negotiations. (c) In any like manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Reinstate the trailer hitch and hitch components assembly operation and parts fabrication previously per- formed by its employees represented by the Union, to the extent that Respondent has customer orders, or will have customer orders, or stockpiles, for sale or repair of trailer hitches or components or parts, and uses or will use or stockpiles for use such products in its completion or repair of railroad flatcars. (b) Offer to those employees who were discharged or laid off as a result of the subcontracting of the trailer hitch related work immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by him in the manner set forth in the section above entitled "The Remedy." (c) Bargain collectively with the Union as to any continuing unremedied effects on the bargaining unit as a result of the unlawful subcontracting of the hitch-related work not remedied by the preceding subparagraphs (a) and (b) of this paragraph 2, with respect to wages, hours, and other terms and conditions of employment. (d) Give notice to the Union and bargain collectively with it concerning any future subcontracting of work performed by bargaining unit employees, unless specifical- ly provided otherwise by the collective-bargaining contract between the Union and Respondent. (e) Comply with lawful requests of the Union for information concerning subcontracting, processing of grievances, and like matters pertaining to the Union's participation in administering the collective-bargaining contract or in collective-bargaining negotiations. (f) Upon request, furnish the Union with a copy of the handwriting analysis of employee Jerome Ruffin. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to ascertain the amount of backpay due and other redress under the terms of this Order. (h) Post at its St. Louis, Missouri, plant copies of the attached notice marked "Appendix." 30 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 28 On the restoration of the status quo ante, see Fibreboard Paper Products Corp., 138 NLRB at 554-555, affd. 379 U.S. at 208, 215-217; Town & Country Manufacturing Company, Inc., 136 NLRB at 1028 31; Florida-Texas Freight, Inc., 203 NLRB 509, 511 (1973), enfd. 489 F.2d 1275 (C.A. 6, 1974). 29 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. :.o In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the National Labor Relations Act: WE WILL NOT, unilaterally, and without prior notice to and bargaining with the Union, subcontract bargain- ing unit work. WE WILL NOT fail or refuse to supply the Union with lawfully requested information concerning subcontract- ing, processing of grievances, and like matters pertain- ing to the Union's participation in administering the collective-bargaining contract or in collective-bargain- ing negotiations. WE WILL NOT in any like manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the National Labor Relations Act. 94 AMCAR DIV., ACF INDUSTRIES Because the Board found that we unlawfully subcontracted bargaining unit production work and unlawfully failed and refused to honor proper union requests for information covering the subcontracting and covering an unrelated grievance concerning employee Jerome Ruffin, WE WILL reinstate the trailer hitch and hitch components assembly operation and parts fabrication previously performed by bargaining unit employees, to the extent that we have customer orders, or will have customer orders, or stockpile, for sale or repair of trailer hitches or components or parts, and use or will use or stockpile for use such products in completion or repair of railroad flatcars. WE WILL offer to those employees who were discharged or laid off as a result of the subcontracting of the trailer hitch related work immediate reinstate- ment to their former or like jobs and give each of them backpay with interest for any loss of earnings suffered. WE WILL bargain with the Union as to any continuing unremedied effects of the unlawful subcon- tracting on the bargaining unit employees not remedied by reinstatement of the hitch work and reinstatement of the discharged or laid-off employees with backpay. WE WILL give notice to the Union and bargain collectively with it concerning any future subcontract- ing of work performed by bargaining unit employees, unless it is otherwise specifically provided in the collective-bargaining contract. WE WILL comply with lawful union requests for information concerning subcontracting, processing of grievances, and like matters pertaining to the Union's participation in administering the collective-bargaining contract or in collective-bargaining negotiations. WE WILL furnish to the Union, upon its request, a copy of the handwriting analysis of employee Jerome Ruffin. AMCAR DIVISION, ACF INDUSTRIES, INC. 95