Chesapeake and Potomac Telephone Company

CHESAPEAKE AND POTOMAC TELEPHONE COMPANY 225 Chesapeake and Potomac Telephone Company and tions Workers of America, AFL-CIO (the Union), a Communications Workers of America, AFL- complaint issued on July 3, 1980, alleging that Respond- CIO, Case 5-CA-11932 ent Chesapeake and Potomac Telephone Company vio- lated Section 8(aX)(5) and (1) of the National Labor Rela- November 21, 1981 tions Act, as amended, 29 U.S.C. §151, et seq., by refus- ing to furnish to the Union certain information concern- DECISION AND ORDER ing pending arbitration. Respondent denied that it violat- BY MEMBERS FANNING, JENKINS, AND ed the Act in any manner and set forth numerous affirm- ZIMMERMAN ative defenses including, inter alia, the untimely filing of the charge under Section 10(b) of the Act, and the past On June 10, 1981, Administrative Law Judge practice, waiver, estoppel, and the burden of complying Benjamin Schlesinger issued the attached Decision with the Union's request. in this proceeding. Thereafter, Respondent filed ex- Upon consideration of the entire record in this pro- ceptions and a supporting brief,' the General Coun- ceeding,' including my observation of the demeanor of the witnesses, and the briefs submitted by the General sel filed cross-exceptions and a brief in response to Counsel, Respondent, and the Union, I hereby make the Respondent's exceptions, and the Charging Party following: Union filed a brief in opposition to Respondent's exceptions. FINDINGS OF FACT AND CONCLUSIONS OF LAW Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I. JURISDICTION tional Labor Relations Board has delegated its au- I find, as Respondent admits, that it is a New York thority in this proceeding to a three-member panel. corporation engaged in the installation and maintenance The Board has considered the record and the at- of communications services at its Washington, D.C., lo- tached Decision in light of the exceptions and cation. During the 12 months preceding the issuance of briefs and has decided to affirm the rulings, find- the complaint, a representative period, Respondent had ~2 an cncusosfheAdiisraiv Lw gross revenues in excess of $I million and purchased and ings,2 and conclusions of the Administrative Law received from points located outside the District of Co- Judge and to adopt his recommended Order. lumbia goods and services valued in excess of $50,000. I ORDER conclude, as Respondent admits, that it is an employer engaged in commerce and in operations affecting com- Pursuant to Section 10(c) of the National Labor merce as defined in Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- I further find and conclude, as Respondent admits, that lations Board adopts as its Order the recommended the Union is and has been a labor organization within the Order of the Administrative Law Judge and meaning of Section 2(5) of the Act. At all times material hereby orders that the Respondent, Chesapeake herein, Respondent has recognized the Union as the ex- hereby orders that the Respondent, WChesapeake hclusive collective-bargaining representative of its em- and Potomac Telephone Company, Washington, ployees in a unit appropriate for collective bargaining D.C., its officers, agents, successors, and assigns, consisting of all nonsupervisory and nonconfidential em- shall take the action set forth in the said recom- ployees employed in various job classifications by Re- mended Order. spondent at its Washington, D.C., Virginia, West Virgin- ia, and Maryland facilities. The agreement in effect at the Respondent has requested oral argument. This request is hereby times pertinent to this proceeding contained a detailed denied as the record, the exceptions, and the briefs adequately present the three-step procedure, followed by arbitration, for the res- issues and the positions of the panies. ' Respondent has excepted to certain credibility findings made by the olution of employees' grievances. Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- II. THE ALLEGED UNFAIR LABOR PRACTICES bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. A. The Facts Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In late 1978, 3 employee Dennis Henson was suspended The Administrative Law Judge found that an early 1979 letter from for 2 days for his use of an "improper tone of voice" the Union to Respondent stated that the Union did not engage in prearbi- tration discovery. However, no such statement appears in the letter. This when speaking with one of Respondent's customers. apparently inadvertent error does not affect our decision. Henson grieved his suspension and, following the failure of Henson's immediate supervisor to remove the suspen- DECISION ' Certain errors in the transcript are hereby noted and corrected. STATEMENT OF THE CASE I Only the Union has the right to file grievances, and only certain grievances may be arbitrated. BENJAMIN SCHLESINGER, Administrative Law Judge: I Despite the fact that this proceeding was exhaustively litigated, there This proceeding was heard by me in Washington, D.C., does not appear in the record the date when the underlying alleged disci- pline occurred. Nonetheless, the parties, in their equally exhaustive briefs, on January 26-27, 1981. Based on an unfair labor prac- have stated that the discipline took place in or about the time indicated, tice charge filed on February 15, 1980, by Communica- which I have accepted as fact. 259 NLRB No. 30 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion, the grievance was appealed to the second step. missed the Union's complaint, the Union filed the unfair There, and on or about December 19, 1978, Michael M. labor practice charge which initiated this proceeding; re- Agnew, the executive vice president of the Union's scheduled the arbitration for hearing on September 4, Local 2336, pressed Henson's claim and, during discus- 1980; still later, on June 9, 1980, renewed its request of sion with Edison, a representative of Respondent, re- Respondent for the same material; and finally refused to quested various documents. He was permitted to examine hold the arbitration hearing pending the disposition of (but not allowed a copy of)4 all documents pertaining to the instant proceeding. Respondent's actions, both positive and negative, con- cerning Henson; and Edison read to him (Agnew was B. Credibility not allowed to read it himself) the policy guide that Re- spondent used to discipline Henson. Agnew asked There is one factual finding supra, which deserves whether Respondent's records showed that any other some discussion, that is, whether in the second and third employee had been suspended for the same offense. steps, union representatives requested documents pertain- Edison replied that she did not know of any and would ing to the discipline of other employees for the offense of not supply a list of names of such employees in any which Henson was accused. Despite the testimony of event. The second-step conference ended without agree- Agnew and Sangmeister, Respondent claims that the ment on the underlying grievance. Union's minutes of the grievance meetings show no such At the third-step conference held on February 13, demand for information. Respondent's minutes also con- 1979, Charles Sangmeister, a union staff representative, tain no such reference. was the Union's chief spokesman. During the course of Respondent contends, therefore, that the testimony the meeting, because Respondent's representative stated was fabricated. Its argument is not without some appeal, that it was standard policy to suspend emoloyees for especially because the Union did not immediately file an using an improper tone of voice, even for the first time, unfair labor practice charge against Respondent. Howev- Sangmeister asked Respondent's supervisors to produce er, Respondent's argument might have been persuasive Respondent's policies showing that employees guilty for had one of Respondent's eight representatives at the two the first time of usinq an improper tone of voice had to grievance meetings testified in supoort of Respondent's be suspended and for the names of those employees who position. However, not one of them testified at the hear- had been similarly suspended. Respondent's representa- ing. No excuse for their nonappearance was presented, tive stated that he did not have the names of persons dis- and I infer from their absence that they would not have ciplined and would not produce them if he had. supported Respondent's present contentions. Golden State On February 14, 1979, the Union filed its demand for Bottling Co., Inc., d/b/a Pepsi-Cola Bottling Company of arbitration, there being a time limit of 2 weeks to do so Sacramento v. N.L,R.B., 414 U.S. 168, 174 (1973); Inter- after the parties failed to agree in the third step. At that national Union, United Automobile, Aerospace and Agricul- point, as has been customary in the handling of these dis- tural Implement Workers of America (UAW) [Gyrodyne putes, the Union's attorney assumed control of the griev- Co. of America], 459 F.2d 1329, 1335-39 (D.C. Cir. 1972); ance. In reviewing the files, Attorney Michael A. Fred Stark and Jamaica 201 St. Corp., Inc. and Jamaica Murphy realized that his information was insufficient to 202 St. Corp., Inc., 213 NLRB 209, 214 (1974), enfd. 525 permit him to make a judgment as to whether to arbi- F.2d 422, 431 (2d Cir. 1975), cert. denied 424 U.S. 967 trate Henson's grievance, settle it, or withdraw it. Be- (1976). Because the minutes were neither verbatim nor cause he failed to receive a favorable response to his re- recorded by professional note takers, because of the pos- quest of Respondent for information, he issued on Octo- sibility that the discussions at the time of the requests by ber 10, 1979, two subpenas, signed by the designated im- Agnew and Sangmeister were proceeding so rapidly that partial and union arbitrators, 5 one requiring Respondent no scrivener was able to record the requests, and because to produce, prior to the arbitration, the "name of each of my conclusion that the testimony of Agnew and Sang- employee fired, suspended, or given a final warning meister was not so improbable or unreliable that it solely for an improper tone of voice toward a customer should be discredited, I find that the demands for the in- during the last five years." On October 11, 1979, Re- formation were, in fact, made as they related.6 spondent's legal department responded that it would "not honor such a request since we view it as pre-arbi- C. Discussion tration discovery. As you well know, it has never been our practice to engage in such discovery prior to an arbi- N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967), tration hearing." the Supreme Court held that the duty to bargain in good The arbitration hearing was scheduled, delayed, and faith includes the obligation of an employer to disclose postponed, from time to time, on request of the Union, to its employees' collective-bargaining representative which in December 1979 sought unsuccessfully to en- force its subpena in the United States District Court for 6 Respondent contends that grievances were always held "open" await- the District of Columbia. After the district court dis- i aurae o a poinformation not supplie by Respondent to the Union. Tha is accurate to a point, that is, when Respondent agreed to supply the re- quested information, which it has not done in the instant proceeding. 4See Communications Workers of America, AFL-CIO. Local 1051 v. That Sangmeister. when given documents by Respondent relating to the N.L.R.B., 644 F.2d 923 (Ist Cir. 1981). Henson grievance after arbitration had been filed for, did not protest Re- 5 The arbitration provision provides for a tripartite arbitration panel; spondent's failure to produce the names of other employees similarly dis- one arbitrator chosen by the Union; one, by Respondent; and the third, ciplined is not persuasive. Sangmeister had already been advised that his by the two parties' designated arbitrators. request would not be honored. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY 227 such material as is relevant and reasonably necessary to suspended for a similar offense became critical to the permit the representative to administer the terms and Union. If the material requested by the Union had been provisions of the agreement. See also Trustees of Boston produced prior to the Union's demand for arbitration, University, 210 NLRB 330, 333 (1974); Montogmery Ward such documents may have supported the Union's claim & Co., Incorporated, 234 NLRB 588, 589 (1978). In Acme, of disparate treatment and could have been submitted to the material was requested to permit the representative the arbitrator. In essence, any request by an employee's to determine whether to pursue a grievance to arbitration, representative for information prior to the arbitration and Respondent would be hard pressed to argue that, if demand constitutes prearbitration discovery, albeit that such were the purpose of the demand herein and this the request is also motivated by the representative's proceeding arose prior to the Union's demand for arbi- desire to determine whether to proceed to arbitration. tration, it would not be obliged to submit to the Union The Union's requests for the same information after such material as it had. Bsuch matetrespondental as complaintIinessenet had. filing for arbitration attempt to fulfill the very same func- But Respondent's complaint, in essence, is that once tions enabling the Union to "decide what role it will tions, enabling the Union to "decide what role it will arbitration was requested hy the Union, the Union was arbitration was requested hy the Union, the Union was seek to play," Florida Steel Corporation v. N.L.R.B., 601 no longer deciding whether the grievance was meritori- seek to play," lorida Stel Corporation v. N-LR.B 601 ous. Rather, it had already made that determination and F.2d 125, 128 (4th Cir. 1979); that is, whether arbitration was now seeking to use its demand to prove its case- is worthwhile if the Union cannot prove its claim of dis- that is, the Union's request is actually one for prearbitra- parity. If it cannot, testified Union Attorney Murphy, the tion discovery, which Respondent contends is permitted grievance might well have been withdrawn, as other of neither by law nor by logic nor by public policy. Prior the Union's grievances have been withdrawn within sev- decisions, however, do not support Respondent's claim. eral weeks of the scheduled arbitration hearing. Re- It has been held numerous times that the duty to supply spondent argues that making it supply the requested ma- information extends to a request for material to prepare a terial would destroy the ease and informality of arbitra- grievance for arbitration. The Fafnir Bearing Company, tion proceedings, would unnecessarily delay the arbitra- 146 NLRB 1582, 1586 (1964), enfd. 362 F.2d 716, 721 (2d tion hearing, and would wrongly inject the Board into Cir. 1966); St. Joseph's Hospital (Our Lady of Providence the arbitration process, in which it has no expertise. Unit), 233 NLRB 1116, 1119 (1977); Designcraft Jewel In- However, these contentions have essentially been an- dustries, Inc., 254 NLRB 791 (1981); The Kroger Compa- swered by the Supreme Court in Acme Industrial Co., ny, 226 NLRB 512 (1976); Fawcett Printing Corporation, 355 U.S. at 438-489, as follows: 201 NLRB 964, 972-973 (1973); Metropolitan Life Insur- ance Company, 150 NLRB 1478, 1485-86 (1965); Cook Far from intruding upon the preserve of the arbi- Paint & Varnish Co. v. N.L.R.B., 648 F.2d 712, 712-716 trator, [the production of the requested documents (D.C. Cir. 1981).' herein would be] in aid of the arbitral process. Arbi- So many of the arguments made by Respondent are tration can function properly only if the grievance answered in one or more of these decisions that it is procedures leading to it can sift out unmeritorious really unnecessary to proceed through the list of Re- claims. For if all claims originally initiated as griev- spondent's claims. Suffice it to say, the list of the Union's ances had to be processed through to arbitration, grievance was that Henson, even if he did use an im- the system would he woefully overburdened. Yet, proper tone of voice, should not have been suspended that is precisely what the respondent's restrictive for 2 days, because no other employee had been similarly view would require. It would force the union to disciplined, and that Henson's offense warranted at most take a grievance all the way through arbitration a warning under Respondent's policy of progressive dis- without providing the opportunity to evaluate the cipline." Thus, whether other employees had not been merits of the claim. I Both of the decisions on which Respondent places principal reliance "Arbitration," as used in the above quotation, means are distinguishable. In Tool & Die Makers' Lodge 7& IAM (Square D. Company], 224 NLRB 11 (1976). the Board dismissed the 8(b)(3) com- the "arbitration hearing." Until the hearing commences, plaint because there had been no showing that the requested documents were the arbitrator's sole function is to schedule a time and relevant. In Sinclair Refining Company, 145 NLRB 732 (1963), the com- date for the hearing. It is the hearing which the Supreme plaint that the employer had refused to produce documents prior to arbi- Court believed might be avoided by the exchange of in- tration was dismissed as moot since the arbitration had already been held and the employer produced the requested documents at the arbitration. formation so that those grievances which had no merit The Board noted, nonetheless, that the employer had not met its bargain- might be withdrawn. Accordingly, I conclude that, ing obligations when it refused the union's request which was relevant to unless Respondent's affirmative defenses are meritorious, the union's responsibility "in policing or administering a contract. or ad- justing a grievance ... " (Id. at 733.) Respondent has violated Section 8(a)(5) and (1) of the I Respondent's personnel department guide G-805 (guide) provides Act by failing to comply with the Union's request for in- that there are four distinct types of disciplinary measures of ascending de- formation. grees of severity: (I) reprimands; (2) warnings: (3) suspensions; and (4) dismissals. It is recommended, but not required, that discipline must follow that order and that, generally, employees should be suspended only after reprimand and warnings have been tried to no avail. Further, Personnel Department-Labor Relations Staff." The fact that Respondent supervisors are advised that the discipline they mete out should be impar- contends herein that its discipline of Henson did not follow a "cookie tial, take into consideration all the facts and circumstances of the case, cutter" approach, but was based solely on the facts of Henson's offense is and "be consistent with the penalties assigned for similar behavior situa- not to the point. Transport of New Jersey, 233 NLRB 694 (1977). The re- tions in the past. Data on previous, similar cases can be obtained from the quested information was necessary to the union's case. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Respondent's Defenses demanded, and Respondent complied therewith, a copy of certain training material that employee Herbert had 1. Past practice used in instructing other employees so that the Union Respondent contends that the past practice under its could prove that she was entitled to a management dif- agreements with the Union mandates a finding that the ferential. In November 1979, Respondent made available complaint herein be dismissed. It cites a 1953 arbitration to the Union's attorney, prior to the scheduled arbitra- award, in which an arbitrator disposed of the Union's tion, the personnel and medical files of Denise Thomp- motion for Respondent's production of documents in ad- son, so that "the parties can reach an understanding as to vance of the hearing by noting that he had no right, whether or not this will actually be heard." prior to the opening of the hearing before him, to require Respondent contends generally that the production of such production; but he did require the production of material to the Union's attorneys has been merely a certain requested material at the hearing which is the matter of "professional courtesy," but no explanation has procedure which Respondent claims is the only proper been given why "professional courtesy" cannot consti- course of action herein. Respondent further contends tute a past practice. If, in fact, counsel for Respondent that it has never permitted prearbitration discovery, has and the Union have been regularly exchanging material, not allowed for depositions of witnesses (although there a practice which Respondent concedes in its orief was does not appear from the record that the Union ever re- engaged in "in order to save time at the beginning of the quested depositions), and has consistently rejected the hearing," that is as much of a practice affecting the Union's attempts to obtain interrogatories (no examples rights of employees covered by the collective-bargaining were given). Specifically, Respondent points to (1) a No- agreement as any other practices concerning terms and vember 20, 1978, request by the Union for information conditions of employment. concerning a grievance involving employees Lamp and Specifically, Respondent takes issue with the General Bragg, which request was rejected by Respondent on Counsel's and the Union's contentions concerning November 21, 1978; and (2) a union letter in early 1979 Critchfield and Shacreaw.'O As to the former, Respond- stating that it did not exchange witnesses' lists or engage ent explains that the material consisted of after-acquired in prearbitration discovery.9 documents which had not heen discussed with Respond- The General Counsel and the Union rely, however, on ent during the three-step grievance procedure and that it Respondent's practice, at least from 1971, of supplying felt it was necessary to disclose the material to the Union personnel files to the Union for its inspection (and some- to avoid a claim of surprise. Curiously, it also argues in times copies thereof), a practice which since 1974 has its brief that it supplied the information to the Union to been incorporated in the collective-bargaining agree- persuade it to withdraw the grievance, a result which ments. Further, they note that, in four grievance pro- happily was accomplished. The upshot of Respondent's happily was accomplished. The upshot of Respondent's ceedings, copies of documents other than personnel files argument, therefore, is that it will supply information have been supplied by Respondent. In 1973, in a griev- when it feels that it will lead to the avoidance of an arbi- ance involving employee Critchfield, who was terminat- ed as a result of making personal telephone calls from tration hearing, but it will not comply with a union re- customers' telephones, Respondent's investigation after quest, even though the Union's object may be the same. " the Union had requReted arbitration revealed additional Further, I find no logical distinction in the fact that the violations by the employee. It consulted with the Union's material turned over in the Critchfield grievance was ac- counsel, who had thought that the employee's offense quired after the Union had filed for arbitration. The fact had been his first, and it turned over the new material to remais that Respondent furnished the materal while a union counsel, as a result of which the grievance was grievance was pending arbitration. withdrawn from arbitration. In early 1979, in a grievance I similarly reject Respondent's contention regarding involving employee Shacreaw, who was terminated be- Shacreaw, as to whom it claims that Virginia law re- cause she could not perform her work resulting from an quired it to exchange medical records regarding a work- on-the-job injury (according to the Union) or from a pre- men's compensation claim. Murphy testified that Sha- existing ailment (according to Respondent), the Union creaw's compensation claim had heen disposed of and demanded, and Respondent supplied, a copy of Sha- whatever state requirement had existed was no longer creaw's medical files. In that same grievance proceeding, applicable. Respondent's defense that there was a past Respondent also requested various documents from the practice forbidding the exchange of information after ar- Union and, when the Union did not comply, filed an bitration had been filed for must be rejected; it appears unfair labor practice charge alleging that the Union vio- lated Section 8(b)(3) of the Act by failing to supply "in- o0 Respondent's compliance with the Union's requests in the Herbert formation relevant and necessary to [Respondent's] ... and Thompson grievances is unexplained. . .In the Thompson grievance, Respondent's attorney suggested that he preparations for the arbitration." In mid-1979, the Union would continue to supply information to the Union in advance of the hearing "in order to facilitate the Union's preparation for an arbitration i Respondent's assistant vice president for personnel, Albert Sears, tes- hearing [which procedures . . . will obviate the need to involve arbitra- tified that Respondent has never honored any written request by the tors in pre-hearing matters." Union for records prior to an arbitration hearing. I discredit his testimo- 12 Respondent's brief also argues that "under established Bell System ny for two reasons: first, because there is documentary testimony to the and C & P policy, employees are entitled to a release of their medical contrary; second, because of the thoroughness of the presentation of Re- information upon signing the proper authorization form." Respondent's spondent's case, I am persuaded that all written evidence of past practice brief cites no page references, and I find no record support for this asser- was submitted at the hearing, and there is no more. tion. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY 229 that the past practice was quite to the contrary. '3 Fur- to pursue a grievance to arbitration. Nor does the inclu- thermore, Respondent's alleged reliance on the 1953 arbi- sion of the Union's right to obtain copies of employees' tration award is misplaced. The arbitrator there did not personnel records exclude the Union's right to ohtain decide when the Union was entitled to obtain the re- other information necessary to make a judgment whether quested documents, but whether the Union was entitled to proceed to arbitration. California Portland Cement to them. Indeed, he stated that he was entitled to rule on Company, supra; Globe-Union, Inc., 233 NLRB 1458, 1460 the question only when the arbitration hearing formally (1977). Indeed, the impact of the AAA rules upon the commenced. The actual past practice of the parties is rights of the Union to receive documents prior to an ar- more persuasive than the almost 30-year-old award. bitration hearing was never discussed by the parties to the collective-bargaining agreement. Finally, Respond- 2. Waiver ent's attempt in the Shacreaw grievance to obtain materi- Respondent's position with respect to the Shacreaw al from the Union prior to the arbitration, its filing of an grievance is also relevant to its claim of waiver, because, unfair labor practice charge when the Union did not with respect to Shacreaw, Respondent's labor relations comply with its request, and its November 1979 letter to general counsel, Dworski, testified to "our contract was the Union in connection with the Thompson grievance superseded by state law and we had a duty in fact to that it would continue to afford the Union complete give the medical file to Shacreaw."' 4 Why that duty was access to all relevant documents to facilitate the Union's not waived, as Respondent contends in this proceeding, preparation for arbitration hearings belie Respondent's because the collective-bargaining agreement provides for argument that it thought that it was the written under- the supply to the Union only of personnel records and standing of the parties to the collective agreement that for the conduct of arbitration hearings in accordance the right to obtain material had been waived.'6 with the Voluntary Labor Arbitration Rules of the American Arbitration Association (AAA rules), is 3. Collateral estoppel wholly unexplained. I conclude that the Act and the de- The Union's proceeding in the United States District cisions of the Board and the courts interpreting the Act Court does not have any binding collateral estoppel are at least as worthy of yielding to as is the Virginia effect on the instant dispute. Read in the best light for statute, and that the Act was specifically incorporated in Respondent, the court's decision held only that there was the agreement, by operation of the agreement itself. no right under the United States Uniform Arbitration In any event, assuming that Dworski's explanation of Act to require the production of documents prior to the the Shacreaw incident was not definitive, Board law is arbitration hearing. It is not clear, however, that this clear that any waiver of the riqhts granted by the Act holding was anything more than dicta, because the court must be clear and unequivocal."5 Westinghouse Electric noted that it had no in personam jurisdiction because of Corporation, 239 NLRB 106, 110 (1978), enfd. as modified the Union's failure to serve a summons, as required by 648 F.2d 18 (D.C. Cir. 1980); California Portland Cement rule 4 of the Federal Rules of Civil Procedure. In no Company, 101 NLRB 1436, 1438-39 (1952); Hekman Fur- event can the court's decision be read as a finding that niture Company, 101 NLRB 631 (1952), enfd. 207 F.2d the Act does not permit the production of the supenaed 561 (6th Cir. 1953). See also Florida Steel Corp. v. material. That was neither relied on by the Union, nor N.L.R.B., supra at 129-130; Timken Roller Bearing Co. v. raised by Respondent, nor adjudicated by the Court,l 7 N.L.R.B., 325 F.2d 746, 751 (6th Cir. 1963); Communica- which has no jurisdiction under the Act to make a bind- tions Workers, Local 1051 v. N.L.R.B., supra. I cannot ing determination that Section 8(aX5) has or has not been find such a waiver herein. Although the procedural violated. is rights in the conduct of the arbitration hearing may be governed by the AAA rules, there is nothing therein " Respondent argues that, by reason of its past practice, the Union's which abolishes the rights for the production of material right to information has also been waived. I have previously found that which the Union may find necessary to decide whether the past practice has been that Respondent has supplied such information. In any event, a waiver by virtue of past practice must be equally "clear and unmistakable." Native Textiles, 246 NLRB 228 (1979). Respondent 3 There is no evidence that the Union ever turned over material to and unmistakablt the Union made no attempt2 after the 1953 arbitration Respondent; rather, the record indicates that the Union always refused to award, to change the arbitration clause of the collective-bargaining agree- do so. Whether this is equitable, or what the effects of the Union's ac- ment, thus demonstrating that the award barred, and the Union under- tions are, I withhold judgment because the matter is not before me. It stood that it barred, prearbitration discovery. Even if the Union had at- should be restated that the right of grievances and arbitration is a unilat- tempted to change the arbitral provision, and had been unsuccessful. eral one. Only the Union may grieve, and only as to specific matters. Board law still would have found no waiver. The Proctor & Gamble Man- Only the Union is concerned with the ultimate decision of whether to ufacturing Company, 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th process a grievance to arbitration. Cir. 1979); The Timken Roller Bearing Company, 138 NLRB 15, 16 '" Art. 15 of the applicable collective-bargaining agreement provides in (1962). part as follows: "' Collateral estoppel applies only to "situations where the matter Should any Federal or State law or the final determination of any raised in the second suit is identical in all respects with that decided in court of competent jurisdiction or any proclamation or order having the first proceeding." Commissioner of Internal Revenue v. Sunnen. 333 the force of law at any time affect the provisions of this Agreement, U.S. 591, 597-598 (1948). such provision shall be construed as having been changed to the " In support of its position, Respondent cited N.L.R.B. v. Walter E. extent necessary to conform to such law or decision. Heyman, d/b/a Stanwood Thriftmart, 541 F.2d 796 (9th Cir. 1976), for the 1i This assumes, arguendo, that the Union's right to information to proposition that "the grant of jurisdiction under Section 301 gives the enable it to fulfill its duties as a collective-bargaining representative may district courts the powers necessary to enforce judgments and makes be waived. See N.LR.B. v. Magnavox Company of Tennessee, 415 U.S. those judgments binding through the doctrines of res judicata and collat- 322, 325 (1974). Continued 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Bad faith spondent's refusal to comply with the subpena request, standing alone, and without reference to any other refus- Nor may it fairly be said that the Union exhibited bad standing alone, and without reference to any other refus- faith, as claimed by Respondent. It is true that, in one in- al, was a denial to the Union of information necessary to stance, the Union applied to the impartial arbitrator, ex enable it to decide whether to proceed to and prepare pane, for a postponement of the arbitration hearing and for the arbitration hearing. See N.L.R.B. v. Preston H. that the Union attempted to delay the holding of the Haskell Company, 616 F.2d 136, 140-142 (5th Cir. 1980). hearing until it was satisfied that it had a reasonable case The Board's theory of "continuing violations" has to present. But that has no bearing on whether the Union been upheld by many circuit courts of appeals. Interna- was sincere in its efforts to obtain material which it be- tional Union, United Automobile, Aerospace and Agricul- lieved relevant to prove Henson's claim that his suspen- tural Implement Workers of America, AFL-CIO v. sion constituted disparate discipline, a claim which Re- N.L.R.B., 363 F.2d 702, 706-707 (D.C. Cir. 1966); spondent contends is made by the Union in 80 percent of N.L.R.B. v. Joseph T. Strong, d/b/a Strong Roofing and the arbitration hearings and which appears, on the basis Insulating Co., 386 F.2d 929, 930-931 (9th Cir. 1967), re- of this record, to be a relevant and material consideration versed on other grounds 393 U.S. 357 (1969); J. Ray for disposition by the arbitration panel.' Moreover, McDermott & Co., Inc. v. N.L.R.B., 571 F.2d 850, 858 there are a number of expenses which the Union sought (5th Cir. 1978); N.L.R.B. v. Basic Wire Products, Inc., 516 to avoid and which would appear to justify the Union's F.2d 261, 267-268 (6th Cir. 1975). But its support has actions if it could not prove disparity-the expenses of been far from universal. N.L.R.B. v. Serv-All Co., 491 the arbitration, the hearing room, attorney's fees, and the F.2d 1273, 1275 (10th Cir. 1974); N.L.R.B. v. McCready witnesses, not the least of whom was Henson, who at the and Sons, Inc., 482 F.2d 872, 875 (6th Cir. 1973); time of the hearing was employed in California. The N.L.R.B. v. Field & Sons, Inc., 462 F.2d 748, 750-755 Fafnir Bearing Company, 146 NLRB at 1587. (Ist Cir. 1972); (rationale questioned in McCready); Gen- I am persuaded that the Union desired to represent eral Marine Transport Corporation v. N.LR.B., 619 F.2d Henson and to pursue his grievance, if a reasonable claim 180, 186-188 (2d Cir. 1980). It is clear that, until this could be made. I find no bad faith on its part. conflict is resolved by the Supreme Court, I must apply 5. Section 10(b) Board law and dismiss the instant defense. Capitol Foods, Inc. d/b/a Schulte's IGA Foodliner, 241 NLRB 855, 856 Respondent claims that the Union's charges were un- (1979). timely under Section 10(b) of the Act because the al- leged violation arose in December 1978, at the second- 6. Burden step grievance meeting or, at the latest, on February 13, 1979, at the third-step grievance meeting; and the charge Dworski testified that he was advised by his legal staff was filed more than a year later. However, within the 6 that compliance with the Union's demand would require months prior to the charge, the Union had served its sub- going through the personnel records of all employees in- pena request" 2 for the same doouments that it sought volved with customer handling to determine whether before, albeit for an additional reason. In the grievance anyone had ever been disciplined for an offense similar step meetings, it requested the material in order to decide to that which Henson had been accused of. He stated whether to pursue the grievance to arbitration. The that there is no listing or central record of such offenses object of the subpena request was the same and was to and that warnings might not show in files in any event, prepare for the arbitration if the information supplied by because oral final warnings are not necessarily recorded. Respondent supported the Union's claim. The violation On the other hand, Respondent has a policy, in line of Section 8(a)(5) and (1) found herein is a continuing with its progressive discipline standard, that if a supervi- violation, because Respondent has refused to bargain; sor desires to determine the type of disciplinary action that is, it has refused to give to the Union the documents required for a particular infraction, the supervisor is to necessary for the Union to make a judgment whether to call Respondent's labor relations department, which will proceed to the formal arbitration hearing and to prepare advise it of the type of disciplinary action that has been for that arbitration. Board law holds that each request administered in the past based on records the department for information and each denial by Respondent constitute keeps for similar instances. Respondent's guide requires a separate and independent violation of the Act. Ocean that all warnings be recorded in detail. Further, in the Systems, Inc., 227 NLRB 1593, 1594, fn. 5 (1977). Re- third-step grievance procedure, Respondent's representa- tive advised the Union that Respondent always gave a 2- eral estoppel in such forums as the NLRB." The court there made clear, day suspension for the offense Henson was accused of however, at 800, that: "Were the Board to have found unfair labor prac- tices extrinsic to the collective bargaining agreement ... the Board And, just a week before the hearing herein, Sangmeister would properly be operating solely within its own jurisdictional authori- represented the Union in yet another grievance meeting ty," and no resjudicata effect need apply. where the issue presented was a suspension for a first of- '' This finding is made solely for the purposes of this proceeding. The panel, if the Henson case is finally arbitrated, has full latitude to dispose fense. Respondent's representatives stated that they of the disparity issue, which the panel may find is irrelevant. checked with the labor relations department and ascer- 0 Respondent takes no issue with the fact that the request for docu- tained that other employees had been suspended for simi- ments was made by subpena, rather than in any other manner, noting that lar offenses. Finally, Dworski admitted that Respondent "there is no legitimate distinction" in the manner of making the request and that, in the words of Respondent's brief, "A rose by any other name maintains a summary of discipline, with broad categories is still a rose." of dismissals and suspensions. There are, therefore, suffi- CHESAPEAKE AND POTOMAC TELEPHONE COMPANY 231 cient indicia that there are such records which may be restricted the Union's right to other information. Not- easily gathered by Respondent. withstanding that this defense was not specifically raised I am not persuaded that the search for the records will in Respondent's answer, it is clear that this information be as difficult as Dworski contended. First, I find that his related to the Union's administration of its internal affairs principal concern was with the general doctrine of prear- and had nothing to do with either grievance matters or bitration discovery and not with the burden thereof. with documents which the Act requires to be furnished. Indeed, he related that it was not particularly the Furthermore, this article was never referred to by Re- Union's demand for 5 years of records which primarily spondent in limiting the Union's right to information. In concerned him. It was the principle of discovery which the Denise Thompson grievance proceeding, Respondent was troublesome, and a demand for any shorter period of stated that it would review the Union's request for infor- time would have been equally offensive. Second, his tes- mation utilizing the standards of the Act. In settling an timony concerning what was in Respondent's files was 8(a)(5) charge arising out of Respondent's failure to general, vague, secondhand, and contradictory, in that he supply copies of documents requested by the Union, Re- also testified that Respondent also maintained a general spondent agreed to furnish such documents "when such discipline summary, which he thought did not include information is relevant to a pending grievance"-without warnings, but contained broad categories of dismissals any reference to article 6. Finally, Respondent's principal and suspensions. My impression is that, with the care ex- negotiator testified that the only provision of the agree- hibited in the hearing of this proceeding, Respondent ment which had a bearing on the Union's right to infor- possesses and maintains more easily accessible records mation prior to an arbitration hearing was that concern- than Dworski was willing to admit, especially in light of ing the AAA rules. I conclude that Respondent's conten- Respondent's documented policy. Third, this impression tion has no merit. is further supported by Dworski's letter, dated July 25, 1980, in which he complained to the impartial arbitrator CONCLUSIONS OF LAW of the Union's request, noting, in part, that "some of [the information] is simply not available to" Respondent, By virtue of the foregoing, I conclude that Respond- which indicates that other of the information is available, ent, by not furnishing the requested material, violated without undue burden. Section 8(a)(5) and (1) of the Act. Respondent's activities Finally, I reject Respondent's claim that the Union, by set forth in this section II, occurring in connection with making inquires of its members and leaving messages on its operations described in section 1, above, have a close, its telephone, may obtain the same information that Re- intimate, and substantial relationship to trade, traffic, and spondent is withholding. The Board has held that the commerce among the several States and tend to lead to union may not be subjected "to a burdensome procedure labor disputes burdening and obstructing commerce and of obtaining desired information where the employer has the free flow thereof. the information available in a more convenient form." The Kroger Company, 226 NLRB at 513; Pacific THE REMEDY phone and Telegraph Company, 246 NLRB 327 (1979); Having found that Respondent has engaged in and is N.L.R.B. v. Borden, Inc., 600 F.2d 313, 318 (Ist Cir. engaging in unfair labor practices within the meaning of 1979). Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom. I shall also recommend that Respondent, upon request, furnish the Union with a During the course of the hearing, Respondent raised list of the names of each employee fired, suspended, or other defenses which, by reason of their absence from its given a final warning solely for using an improper tone brief, have apparently been abandoned. Because Re- of voice toward a customer during the last 5 years. In spondent is not restricted from pursuing these defenses, this regard, the Union contends that all it is looking for should exceptions be filed to this Decision, I note that I is the same kind of information that Respondent would am singularly unpersuaded that, merely because the show to its own supervisor who was attempting to Union filed for arbitration the Henson grievance, the decide what kind of discipline should be imposed on an controversy lost its character as a grievance. There are employee such as Henson. It is not the intention of this too many references to "grievance" in the article of the Decision to require Respondent to search through thou- agreement concerning arbitration to hold otherwise (i.e., sands of files. On the other hand, Respondent should "In any grievance arbitrated," "grievances which are ar- make reasonable efforts to comply with the Union's re- bitrable," and "The decision of the umpire will resolve quest and, if there is still a claim of burden, attempt to the grievance"). Respondent knows this is so; for, when reach some accommodation with the Union so that infor- it filed an unfair labor practice charge against the Union mation is supplied. If there is still further dispute, that in the Shacreaw matter, it complained that the docu- may be resolved in the compliance stage of this proceed- ments it sought were "relevant and necessary to the ing. Food Employer Council, Inc.. et al., 197 NLRB 651 Company's processing of the grievance and its prepara- (1972). tions for the arbitration." The Union has requested the imposition of costs and Respondent also impliedly contended that article 6 of attorney's fees, under Tiidee Products, Inc., 194 NLRB the agreement, requiring Respondent to furnish monthly 1234 (1972), and Hecks, Inc., 215 NLRB 765 (1974). I certain information pertaining to employees' names, ad- find that Respondent's claims are not so frivolous and dresses, job classifications, wages, and dues deductions, lacking in merit as to warrant this relief. Finally, the 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union also requests that the recommended Order should notice, on forms provided by the Regional Director for direct Respondent to furnish copies of all relevant infor- Region 5, after being duly signed by Respondent's au- mation requested concerning the processing of a griev- thorized representative, shall be posted by Respondent ance at any stage of the grievance and arbitration proc- immediately upon receipt thereof, and be maintained by ess. This requested relief in haec verba is obviously too it for 60 consecutive days thereafter, in conspicuous broad and may well impinge upon the jurisdiction of the places, including all places where notices to employees arbitrator at the actual hearing. are customarily posted. Reasonable steps shall be taken Upon the foregoing findings of fact, conclusions of by Respondent to insure that said notices are not altered, law, and the entire record, and pursuant to Section 10(c) defaced, or covered by any other material. of the Act, I hereby issue the following recommended: (c) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what ORDER2 ' steps Respondent has taken to comply herewith. The Respondent, Chesapeake and Potomac Telephone Company, Washington, D.C., its officers, agents, succes- sors, and assigns, shall: NOTICE To EMPLOYEES 1. Cease and desist from: POSTED BY ORDER OF THE (a) Refusing to bargain collectively with Communica- NATIONAL LABOR RELATIONS BOARD tions Workers of America, AFL-CIO by refusing to fur- An Agency of the United States Government nish it with information that it requests which is relevant and reasonably necessary to the processing and evalua- WE WILL NOT refuse to bargain collectively with tion of grievances and preparing them for arbitration. Communications Workers of America, AFL-CIO, (b) In any like or related manner engaging in conduct by refusing to furnish it with information that it re- in derogation of its statutory duty to bargain in good quests which is relevant and reasonably necessary faith with the Union, and in any like or related manner to the processing and evaluation of grievances and to the processing and evaluation of grievances and interfering with, restraining, or coercing employees in preparing them for arbitration. the exercise of the rights guaranteed them in Section 7 of WE WILL NOT in any like or related manner the Act. . . . engage in conduct in derogation of our statutory 2. Take the following affirmative action which is nec- duty to bargain in good faith with the Union, and in essary to effectuate the policies of the Act: any like or related manner interfere with, restrain, (a) Furnish the Union with a list of the names of each any like or related manner in the exercise with, restrain, employee fired, suspended, or given a final warning or coerce our employees in the exercise of the solely for using an impropered, suspended tone of voice toward a cus- rights guaranteed them in Section 7 of the National tomer during the 5 years preceding and inclusive of Oc- WE WIL furnish the Union with a list of the WE WILL furnish the Union with a list of the names of each of our employees fired, suspended, or (b) Post at its Washington, D.C., facility copies of the given a final warning solely for using an improper attached notice marked "Appendix."2 Copies of said tone of voice toward a customer during the 5 years preceding and inclusive of October 10, 1979. 2L 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 find- CHESAPEAKE AND POTOMAC TELEPHONE ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and COMPANY become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 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."