Clinchfield Coal Co.

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clinchfield Coal Company and Local Union 7950, United Mine Workers of America . Case' 5-CA- 15666 7 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON, AND' MEMBERS HUNTER-AND DENNIS On 20 April 1984 Administrative Law Judge William N. Cates issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations 'Board has delegat- ed its authority in this proceeding to a three- member panel.. The Board, has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by refusing to provide certain requested information to 'the Union. The judge found that the dispute was not an appropriate matter for deferral to arbitration and that the requested information was relevant and necessary to the Union's performance of its collective-bargaining responsibilities. The judge dis- missed the complaint, however, finding that several portions of the parties' collective-bargaining agree- ment established that the Union clearly and unmis- takably waived its statutory, right to the informa- tion it requested.2 We agree with the judge that deferral is inappro- priate in this case and that the requested informa- tion concerning the contracting out of maintenance or repair work customarily performed by unit em- ployees at the Respondent's central 'shop is relevant and necessary. Contrary to the judge, we find that the parties' contract does not establish that the Union waived its statutory right to request the in- formation from the Respondent. As stated by the judge, an employer has a statu- tory obligation to supply requested information which is reasonably necessary to the exclusive col- lective-bargaining representative's performance ' of t In sec IV,A, par 5 of his decision the judge refers to the' "National Bituminous Coal Wage Agreement of 1979 " The record shows that the agreement was executed in 1978 Also in sec IV,A of his -decision the judge found that "Fogg stated that although he may have mentioned one or two things he thought was being subcontracted out that he did not describe -at all the work at the step 2 meeting " The latter portion of the sentence should read Fogg "did not describe all the work at the step 2 meeting " 2 The contractual provisions relied on by the judge are set forth in Ap- pendix B its responsibilities. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). These responsibilities include the administration of the contract and the processing and evaluating of grievances. Thus, an employer is obligated to provide information requested for-the purpose of handling grievances. T.R. W., Inc., 202 NLRB 729 (1973); Safeway Stores, 236 NLRB, -1126 (1978). A union may contractually relinquish a statutory bargaining right if the relinquishment is expressed in 'clear and - unmistakable terms. - Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Timken Roller Bearing Co., 138 NLRB 15, 16 (1962). In Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1318 (8th Cii. 1979), the court stated..that "[f]or there to be a waiver of a right to-informa- tion, the language used must be clear and unmistak- able. Likewise, there must - be a conscious relin- quishment by the Union, clearly intended and ex- pressed to give up the right." The mere existence of a grievance procedure is not sufficient to consti- tute a waiver of a union's right to request informa- tion: Timken' Roller Bearing Co., supra; Hekman Furniture Co., 101 NLRB 631, 632 (1952). Reading article XXIII, section (c), and- article XXVII of the contract in conjunction, the judge concluded that all differences between the parties are to be resolved by the machinery of. the collec- tive-bargaining agreement. The judge noted that the Supreme Court in Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1974), broadly interpreted similar contractual language contained in the Na- tional Bituminous Coal Wage Agreement of 1968. In finding a waiver, the judge further relied on ar- ticle XXIII, section (e)'s provision for disclosure of information with respect- to grievances, and addi- tional contract language stating that the settlement of any dispute at any stage of the grievance proce= dure is final and binding on the parties.' We find that the language in the parties' contract does not constitute a clear and unmistakable waiver by the Union of its statutory right to request infor- mation. Article XXIII, section (c), does not address the Union's right to information in connection with the preparation and processing of grievances. Al-. though' the prefatory language in article XXIII, section (c), broadly defines the differences the par- ties shall strive to settle "at the earliest practicable time," the next sentence introduces the mechanics of the grievance procedure by stating that "[d]isputes arising under this Agreement shall be resolved as follows . . . ." The grievance proce- dure itself speaks of complaints filed by employees. The contract further provides that the mine com- mittee has the authority on behalf of the grievant 275 NLRB No. 189 CLINCHFIELD COAL CO 1-385 to settle or withdraw any grievance at step 2 or proceed to step 3. *The duties of the mine commit- tee,-however, are "confined to the adjustment of disputes arising out of this Agreement and that the mine management and the Employee or Employees fail to adjust."3 • Article XXVII does not mention the furnishing of information with respect to grievances. The bar- gaining history of this provision shows that it was adopted to set forth the parties' responsibilities re- garding work-stoppages. Article XXIII, section (e), contains a "full-disclosure" provision whereby the parties are obligated • throughout all stages of the grievance procedure to disclose to each other the facts and contractual provisions relied on. Howev- er, this clause applies only when the grievance' pro- cedure has been initiated, and requires the parties to disclose data in support of their own positions. The provision does not mention situations where ,a party is seeking to police the contract and obtain information from the other party to determine if a violation has occurred. That, in essence, is what the Union is attempting to do with respect to the Respondent's handling of repair and maintenance work. Based' on our review of the parties' collective- bargaining agreement, we are unable to find that it establishes a clear ana unmistakable waiver by the Union of its statutory right to. request information from the Respondent.4 We- find that the Union is entitled to the information it requested regarding the contracting out of repair and maintenance work, and we shall order the Respondent to pro- vide the Union-with the information in accordance with the complaint. - In Gatewdy Coal, supra, the Supreme Court concluded that the pre- sumption of arbnrabdtty announced in the Steelworkers Trilogy applies to safety disputes, and that the grievance and arbitration provision in the parties' contract encompassed the safety dispute involved in that case However, in Acme Industrial, supra, the Supreme Court stated that the employer's obligation to provide information that is needed by the bar- gaining representative presents different considerations, vis-a-vis, the policy of the Steelworkers Trilogy The Court held that the Board acted in accordance with the national labor policy favoring arbitration when it or- dered the respondent to furnish the union with information necessary to the policing of the contract ' 4 We note in this context that the Board has been reluctant to defer to arbitration issues raised by information requests in the process of resolv- ing grievances As stated in General Dynamics Corp, 268 NLRB 1432 fn 2 (1984) [T]he procedural issue of disclosure of the [information] is merely preliminary to the resolution of the parties' substantive dispute over the [issues raised by the grievances] In these circumstances, we find no merit in encumbering the process of resolving the pending grievances with the inevitable delays attendant to the filing, process- ing, and submission to arbitration of a new grievance regarding the information request Such a two-tiered arbitration process would not be consistent with our national policy favoring the voluntary and ex- peditious resolution'of disputes through arbitration Nor would it be consistent with prior Board decisions in this area See, e g , Safeway Stores, 236 NLRB 1126 fn 1 (1978), St Joseph's Hospital, 233 NLRB I 1116 fn 1 (1977) - AMENDED CONCLUSIONS OF LAW. Substitute the following for Conclusion of Law 3 and delete Conclusion of Law 4 of the judge's de- cision. _ "3. By refusing to furnish requested information regarding the contracting out of repair and mainte- nance work, the Respondent has engaged in unfair labor practices affecting ' commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act." THE REMEDY Having' found that the' Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. _ • ' The Respondent is' directed forthwith to turn over to the' Union 'the information -requested, 'as set forth in the complaint, in connection with the con- tracting out of repair and maintenance work. ORDER - The National Labor Relations Board orders that the Respondent, Clinchfield Coal Company, Dante, Virginia, its officers, agents, successors, and as- signs, shall - 1. Cease and desist from (a) Refusing to bargain with Local Union 7950, United Mine Workers of America, .as the exclusive bargaining 'representative of bargaining unit em- ployees, by refusing to furnish it with information that it requests which is relevant and reasonably necessary to the processing of grievances. (b) In - any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the 'policies of the Act. (a) Furnish, in timely fashion, to the Union, the information set forth in the complaint regarding the contracting out of repair and maintenance work. (b) Post at its facility, in Dante, Virginia, -copies of the - attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive' days in 5 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board '• - - "1386 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the . Respondent to ensure'that the notices are not' altered, defaced, or covered by any other material. (c) Notify the. Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 'APPENDIX A . NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has' found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local Union 7950, United Mine Workers of America, as the exclusive bargaining representative of the em- ployees in the bargaining unit, by refusing to fur- nish it with information that it requests which is relevant. and reasonably necessary for the process- ing of grievances., WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL furnish, _ in timely fashion, to the Union, the information ' -requested by the Union in connection with' the contracting out of repair and maintenance work.- CLINCHFIELD COAL COMPANY • APPENDIX B Article XXXIII, section (c) Grievance Procedure Should -differences arise between the Mine Workers and an Employer as to the meaning and application of the provisions of this Agreement, or should differences arise about matters not specifically. mentioned in this Agree- ment, or should any local trouble of any kind arise at the mine, an earnest-effort shall be made to settle such differ- 'ences at the earliest practicable time. Disputes arising under this Agreement `shall' be re- solved as-follows: --(I) -(1) The Employee will make his complaint to his im- mediate foreman who shall have the sdthority to settle the matter. The foreman will notify the Employee of his decision within ' 24- hours following the day when the complaint is made. Settlements or withdrawals at this step shall • not constitute a precedent in the handling of other grievances. (2) If no agreement is reached between the Employee and his foreman, the complaint shall be submitted,on the BCOA-UMWA Standard Grievance Form and shall. be taken up within five working days of the foreman's deci- sion by the Mine Committee and mine management. Where the committee consists of more than three (3) members, the Employer shall have the right to meet with a maximum of three (3) (to be chosen by the Mine Com- mittee). Within five working days after the complaint"is taken up by them, the committee and management will complete the standard grievance form and if the com- plaint is not settled, the grievance shall be referred to it representative of the UMWA district, designated by the Union, and a representative of the Employer. (3) Within seven working days of the time the griev- ance is referred .to them, the district representative and the representative of the Employer shall meet and review the facts and pertinent contract provisions in an effort to reach agreement. Members of, the Mine Com- mittee shall have the right to be present. No verbatim transcript of the testimony shall be taken. Neither the district representative nor the Employer representative shall be persons who participated in steps 1 or 2 of this procedure. (4) In cases where the district representative 'and the representative of the Employer fail to reach agreement, the matter shall, within 10 calendar days after referral to them, be referred to the appropriate district arbitrator who shall decide, the case without delay. Cases shall be assigned to district arbitrators in rotation. The parties agree that the expeditious processing of grievances is a major function of this Article, and that consolidation of cases before a single arbitrator can aid in achieving that goal, and where applicable, this procedure should be given serious consideration. Therefore, in order to expedite the processing of grievances awaiting arbitration, 'the parties may agree that grievances pending-'arbitration concerning the same -operation of the Employer for which an arbitrator has not been assigned, shall be assigned to a single arbitrator if such cases can be heard on the same day, at the same place. Hearings shall take place it a location mutually agreed upon by the parties. If the parties are unable to agree upon a hearing place, the umpire shall select-the place. At the earliest possible time, but no later than 15 days after referral to him, the arbitrator shall conduct a hearing in order to hear testimony, receive evidence, and consider arguments. In cases in which the parties have agreed that there is no question of fact involved in the grievance, the arbitra- tor may decide the case upon the basis of a point state- ment of the parties and such exhibits as they shall submit. The hearing shall be recorded by the arbitrator and shall be closed upon the completion of testimony. The arbitra- tor shall render his decision as soon after the close of the hearing as may be feasible To avoid delays in the issu- ance of decisions, post hearing briefs will not be permit- ted except in- cases where the arbitrator determines that such briefs are necessary for. a full understanding of the matter before him. If the. arbitrator is unable to make his decision within 30 days of the close of the hearing, he shall. promptly advise the parties of the reasons for the delay and the date when his decision will be submitted. The arbitrator's decision shall be final and shall govern CLINCHFIELD COAL CO . , 1387 only the dispute before him. Expenses and fees, incident to the service of an arbitrator shall be paid equally by the Employer affected' and by the UMWA district affect- ed. Article XXII, section (e) Earnest Effort to Resolve Disputes An earnest effort shall be made to-settle differences at the earliest practicable time Where an Employee makes a complaint during work time, the foreman shall, if re-, quested to do so, and if possible, consistent with continii- ous production, discuss the matter briefly on the spot At all steps of the complaint and grievance procedure, the grievant and the Union representatives shall disclose to the company representatives a full statement of the facts and the provisions of the Agreement relied upon by them. In the same manner the company representatives shall disclose all the facts relied upon by the company.- Article XXVII Maintain Integrity of Contract and Resort to Courts The United Mine Workers of America and the Employ- ers agree and affirm that, except as provided herein, they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the "Settle- ment of Disputes" Article of this Agreement unless na- tional in character in which event 'the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such dis- putes and claims through the machinery in this contract and by collective bargaining without recourse to the courts. The Employer, however, expressly authorizes the Union to seek judicial relief, without exhausting the grievance machinery, in cases involving successorship. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. The hearing in this case held January 10, 11, and 12, 1984, is based on an unfair labor practice charge. filed by Local Union 7950, United Mine Workers of America (Union)' on August 12, 1983,2 and' a complaint issued on October 13 on behalf of -the General Counsel of the National Labor Relations Board (Board) by the Regional Director for Region 5 alleging that Clinchfield Coal Company (Respondent) has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act (Act). Specifical- I granted the General Counsel 's unopposed motion at the trial herein to substitute in place of the Union at par 3 of the complaint the United Mine Workers of America, International Union, United Mine Workers of America, District 28, United Mine Workers of America, • Local Union 7950 The General Counsel asserted the substitution was necessary be- cause the International is a party to the collective-bargaining agreement as is the District and that the Local is an agent of the International and District in enforcing the agreement I shall refer to them collectively as the Union 2 All dates are 1983 unless otherwise indicated ly, the complaint alleges that the Respondent refused to bargain in good faith with the Union by refusing to pro- vide the Union certain requested and specified informa- tion necessary for the performance of the Union's func- tions as the exclusive collective-bargaining representative of certain of the Respondent's employees in an appropri- ate"unit for which the.Union was the exclusive represent- ative. Respondent filed a timely-answer which it amend- ed at trial in-which-it admitted various allegations of the complaint but denied the commission of any unfair labor practices within the meaning of the Act. On the entire record3 made in this proceeding, includ- ing • my observation of each witness who testified herein, and after due consideration of briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I., JURISDICTION Respondent; a Virginia corporation with an office and place of business - in Dante, Virginia, is engaged in the mining and processing of bituminous coal at various mines and preparation plants in the States of West Vir- ginia, Kentucky, and Virginia. During the calendar year ending December - 31, -1982, Respondent, in the course and conduct of its business, sold and shipped from its Virginia facilities products,. goods,. and materials valued in excess of $50,000 directly to points outside the State of Virginia. Respondent admits and I find that it is-an employer engaged in-commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION It is admitted, the record- reflects, and I find that the Union is, and at all times material has been , a labor orga- nization within themeaning of Section 2(5) of the Act. III. APPROPRIATE BARGAINING UNIT The complaint alleges, the parties admit, and I find that the following- employees constitute a unit appropri- ate for collective bargaining within the meaning of Sec- tion 9(b) of the Act: - • All employees of Respondent engaged in the pro- duction of coal, including removal of overburden and coal waste, preparation, processing and clean- ing of coal and transportation ' of coal (except by waterway or rail 'not owned by Respoident), repair and maintenance work normally performed, at the mine site or at a central shop of Respondent and maintenance of gob,piles and mine roads, and work customarily,related to.all of-the above. I grant the General Counsel's unopposed - motion to substitute a cor- rect ;and complete copy.of G C Exii -12 for the copy previously intro- duced at the trial - _ - • - . ' 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent, a division of the Pittston Company, is engaged in the mining, processing,'and preparation of bituminous coal. At material times herein, the Clinchfield Division of Respondent operated at least 12 underground coal mines,4 two strip mines-Sycamore No.-4 and Syca- more No. 5,5-three-preparation plants,6 three direct ship- ment docks, a central shop, central laboratory, and vari- ous engineering support facilities. - - ,The central shop- has been operated for an extended number of years.? It was originally located at McClure, Virginia, and employed approximately 40 employees at that location The central shop primarily rebuilds, re- pairs, and performs maintenance work on mining equip- ment, machinery, and related items: From the earliest days of the central shop, similar type work has been con- tracted out by the Respondent- to outside contractors. Contracting out and work jurisdiction at the shop have been a matter of concern between the parties for a number of years. - On October 16, 1975, the parties (Local Union 9750 along with District 28 and Respondent) entered into a local or side agreement pertaining to the central shop (R. Exh. 5). The. agreement came about as a result of griev- ances arising at the central shop concerning work being "sent to -outside shops." By the terms of the agreement the central shop employees would work 8 hours per shift day instead of -7-1/4 hours and they would work every other Saturday. The Union in turn agreed to drop cer- tain work jurisdiction grievances and to go along with the agreement until a new shop was placed in oper- ation.8 • On July 11, 1977, the Respondent notified the Union in writing that the local agreement of October 16, 1975, would, in accordance with the terms of that agreement, be terminated 'in 30 days (R. Exh. 5). The central shop employees returned to working the normal 7-1/4 hour workdays. At approximately this same time frame Re- spondent moved into its new facility which had addition- al equipment' and a larger work area. The work force grew to its current strength of approximately 90 employ- ees and 13 supervisors. The central shop at its current lo- cation has 10 departments.9' . " The 12 underground mines are McClure No 1, McClure 2, Moss No 4, Moss No 4-A, Moss 4-D,• Lamber Fork, Open Fork, Maple House, Splash Dan, Kilgore Creek, Hurricane, and Wilder 3 A third strip mine Sycamore No 6 went out of existence approxi- mately 1 month prior to the Respondent in •1979 The Sycamore mines are within the geographic area serviced by the central shop and the cen- tral shop has performed some,repair work for the Sycamore mines . - 6 The three plants are Moss No I preparation plant, Moss No, 3 prep- aration plant,'and McClure River preparation, plant. 7 Current Shop-Foreman Lee Monday commenced work at the shop in 1948 and became foreman in 1958 8 Around the first of 1976 the Respondent discontinued alternating Sat- urday work and the Union filed grievances concerning the discontinu- ance of the work The grievances were thereafter arbitrated and the Union was awarded two 8-hour shifts per each shop employee employed at the time (G C Exh 5) - e The 10 departments of the central shop are electric department, ma- chine shop,"supply department, hydraulic shop, components rebuilt, truck drivers, panel board department , and custodians Following the termination of the 1975 local agreement (R. Exh. 5), the Union again commenced to file griev- ances regarding work jurisdiction at the central shop Following the execution of the National Bituminous Coal Wage Agreement of 1979 (R. Exh. 3), which was execut- ed on March 25 of that year, a 5-day strike took place in part over work jurisdiction at the Respondent's central shop. Thereafter a second local agreement was entered into by the parties on June 9, 1978 (G.C Exh. 14). The terms of the agreement called for all central shop em- ployees to be on an 8-hour-per-day work shift and to work every other: Saturday. The Union agreed to with- draw all pending work jurisdiction grievances and agreed there would be no more work jurisdiction griev- ances filed, including but not limited to, grievances con- cerning contracting out repair work. The agreement was effective by its terms from. July 10, 1978, until March 27, 1981. During this period of time the Respondent con- tracted out similar work to that being performed at the central shop - The parties -honored the terms of the agree- ment at least until approximately mid-1982. In approxi- mately mid-1982 the Respondent informed the Union that Saturday 'work would be discontinued as a result of the closing of certain mines and a reduction in work 10 In late January 1983 the Respondent notified the Union that the hours of work for the 'central shop em- ployees would revert back to 7-1/4 hours per day and there would be no Saturday work. The Union informed the Respondent that it would be taking a "strong look" at any "farming out" of work. The above facts are not in dispute. The parties have been signatory to the National Bitu- minous Coal Wage Agreements (BCOA) for an extended period of time. The most recent BCOA agreement by its terms is effective from June 7, 1981, until September 30, 1984 (R. Exh.- 4). The employees of the central shop are represented by the Union and the 'work jurisdiction for the unit is set forth in the collective-bargaining agree- ment. Certain provisions of the most recent BCOA agreement are pertinent to the instant case. Those provi- sions are as follows . Article IA-SCOPE AND COVERAGE Section (a) Work Jurisdiction - The production of coal, including removal of overburden and coal waste, preparation, processing 'and cleaning of coal and transportation of coal (except by waterway or rail not owned by Employ- er), repair. and maintenance work normally per- formed at the mine. site or at a central shop of the Employer. and maintenance of gob piles and mine roads, and work customarily related to all of the above shall be. performed by classified Employees of the Employer covered by and in accordance with the.terms of this Agreement. Contracting, sub- contracting, leasing and subleasing, and construction 10 After May 1982 the Respondent shut down 27 percent of its oper- ations and laid off 30 percent (approximately 800) of its work force The Respondent shut down some of its large, older, inefficient, and unprofit- able mines CLINCHFIELD COAL CO 1389 work, as defined herein, will be conducted in ac- cordance with the provisions of this Article. Nothing in this section will be construed to di- minish the jurisdiction, express • or implied, of the United Mine Workers. Section (c) Supervisors Shall Not Perform Classi-' feed Work - Supervisory employees shall perform no classi- fied work covered by this Agreement except in emergencies, and except if such work: is necessary for the-purpose of training or.instructing classified Employees. When a dispute arises under this sec- tion, it shall,be adjudicated through the grievance machinery and - in such proceedings the following rule will -apply- the burden is on the -Employer to prove -that classified work has not been performed by supervisory personnel. Section 8(d) Management of the Mines The management-of the mine,.the direction of the working force and the right to hire and discharge are vested exclusively in the Employer. . Section (g) Contracting and Subcontracting - (2) Repair and Maintenance Work - Repair and maintenance work customarily performed by classi- fied Employees at the mine or central shop shall not be contracted out except (a) where the work is being - performed by a manufacturer or supplier under warranty, • or (b) where the Employer does not have available equipment or regular Employees (including laid-off Employees at the mine or central- shop) with necessary skills available ' to perform 'the work at the mine or-central shop: :(4) Where contracting out is permitted 'under this section, prior custom and practice 'shall not be'con- strued to limit in any way the Employer's choice of contractors - Article XXIII-SETTLEMENT OF DISPUTES Section (c) Grievance Procedure- Should differences arise between the Mine Work- ers and an,Employer as to the meaning and applica- tion of the provisions of this Agreement, or should differences arise about matters, not specifically men- tioned in this Agreement,. or should any local trou- ble of any kind arise at the mine, an earnest-effort shall be made to settle such differences at'the earli- est practicable'time.' ' Disputes arising under - this' Agreement' shall, be resolved as follows- - - (1) The Employee will make'his complaint to•his immediate foreman who shall have the authority to settle the matter. The foreman will notify the Em- ployee of his decision within 24 hours following the day when the complaint is made. Settlements or withdrawals at this step shall not constitute a' prece- dent in the handling of other grievances. (2) If no agreement is reached between the Em- ployee and his foreman, the complaint shall be sub- mitted on the BCOA-UMWA Standard Grievance Form and shall be taken up within five working days of the foreman's decision by the Mine Com- mittee and mine management. Where the committee consists of more than three '(3) members, the Em- ployer shall have the right to'meet with a maximum of three (3) (to be choseh by the Mine Committee). Within five working .=days after the complaint is taken up by them, the committee and management will complete the standard grievance form and, if the complaint is not settled, the grievance shall be referred to a representative of the UMWA district, designated by the Union, and a representative of the Employer. - (3) Within seven working days of the time the grievance is referred to them, the district represent- ative and the representative of the Employer shall meet and review the facts and pertinent contract provisions' in an effort to reach agreement. Members of the Mine Committee shall have the right to be present. No verbatim transcript of the testimony shall be taken Neither the district representative nor the -Employer representative shall be persons who participated in steps 1 or 2 of this procedure. (4) In cases where the district representative and the representative of the Employer fail to reach agreement, the matter shall,-within 10 calendar days after, referral to them, be referred to the appropriate district arbitrator who shall decide the case without delay. Cases shall be assigned to district arbitrators in rotation. The parties agree that the expeditious processing of grievances is a major function of this 'Artilce,"and, that consolidation of cases before a single arbitrator can aid in achieving that goal, and where applicable, this procedure should be given se- rious consideration. Therefore, in order to-expedite the processing of grievances awaiting arbitration, the parties may agree that grievances pending arbitration concern- ing the same operation of the Employer for which an arbitrator has not been assigned, shall be- as- signed to a single arbitrator if such cases can be heard on-the same day, at the same place. Hearings shall take place at a location mutually agreed upon by the -parties.. If the parties, are unable to agree upon a hearing place, the - upire , shall select the place. At the earliest possible time, but no later-than 15 days after referral' to him,-.the 'arbitrator shall conduct a, hearing-, in order to hear testimony,, re= ceive evidence and consider arguments: - In cases in which the parties- have agreed that- there is no question of fact involved in' the griev-". ance, the arbitrator may decide the. case upon the basis of a joint 'statement of the parties and-such ex- hibits as they shall' submit. The hearing shall be re- corded by the arbitrator and shall be closed upon the' completion of testimony. The arbitrator shall render his decision -as'soon after the; close of the - hearing as may be feasible To avoid delays-in the' 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issuance of decisions, post hearing briefs will not be permitted except in cases where the arbitrator de- termines that such briefs are necessary for a full un- derstanding of the matter before him. If the arbitra- tor is unable to make his decision within 30 days of the close of the hearing, he shall promptly advise the parties of the reasons for the delay and the date when, his decision will be submitted. The arbitra- tor's ecision shall be final and shall govern only the dispute before him. Expenses and fees incident to the service of an arbitrator shall be paid equally by the Employer affected and by the UMWA dis- trict affected. Section (d) Ten Day Limitation Any grievance which is not filed by the ag- grieved party within ten (10) working days-of the time when the Employee reasonably should have known it, shall be denied as untimely and not proc- essed -further. Section (e) Earnest Effort to. Resolve Disputes An earnest effort shall be made to settle differ- ences at the earliest practicable time. When an Em- ployee makes a complaint 'during work time, the foreman shall, if requested to do so, and if possible, consistent with continuous production, discuss the matter briefly on the spot. - At all steps of the complaint and grievance pro- cedure, the grievant and the Union representatives shall disclose to the company representatives a full statement of ,the facts and the provisions of the Agreement relied upon by them. In the same manner, the company representatives shall disclose all the facts relied upon by the company. Section (1) Waiver of Time Limits - By agreement the parties may-waive the time limits set forth, in each step of the grievance proce- dure (R. Exh. 4) . - On March 9, Local Union 7950 President Ray Fogg filed a class-action grievance concerning work jurisdic- tion of the central shop. - Fogg filed the grievance be- cause he had received reports from, several of the mines "that there was work leaving those mines that [was] nor- mally [and] customarily done at the central shop; " Fogg met with Central Shop Foreman Lee Monday on March 9 regarding the grievance. Fogg's undisputed ,testimony was that he told Monday. he had reports that work was leaving the mines and that he was going to file a work jurisdiction grievance. Fogg told Monday he had already typed the grievance out so that Monday could better un- derstand what he (Fogg) was grieving Monday told Fogg he could not resolve the grievance at his level but would forward it to .the next step of the grievance proce- dure. _ A step 2 meeting of Fogg's grievance was held on March 17 . (G.C. Exh. 10(a)). Those , present for the Union, in addition to Fogg, were Shop -Committee Chairman Orville Dingus and members Donald Hale and Jim Haroldson. The Respondent was represented by Central Shop Manager Thomas R. Hodge and Foreman Monday. Fogg testified he stated at the meeting that "there was trucks seen entering and leaving the mine sites, such as the McClure 1, McClure River Preparation Plant, Splash Dam, McClure 2, Moss 1• Preparation Plant and Moss 4-D Mines," and based on that he thought there was contracting out of repair work taking place. Fogg stated 'that although he may have mentioned one or two things he thought was being subcontracted out that he did not describe at all, the work at the Step 2 meeting.' i- Hodge told the committee he was unaware of any work that was customarily done by the central shop leaving the mine sites mentioned, or being repaired by outside shops Fogg did not,request any information at the step 2 grievance meeting nor was the grievance re- solved at that level. The written grievance by Fogg stated: The Clinchfield Coal Company is in violation of the National Bituminous Coal Wage Agreement of 1981, Article IA Section (A) Work Jurisdiction and Section (G) Contracting and Subcontracting and any other Article pertaining to this Grievance. The Company is sending repair and maintenance work out to nonunion repair shops and we have been cut back on our daily and weekly work sched- ule. We demand that we be made whole for, wages lost, and the practice of work being sent off by the Company cease immediately. The step 3 meeting on the Fogg grievance was held on March 24. Present for the Union were Fogg, Dingus, Hale, Haroldson, truckdriver Harold Dutton, and Union District 28 Vice President Don McCamey. Those present for the Respondent were Monday, Hodge, Moss 4-D Mine Superintendent John Boarder, Moss 4-D Division Manager Buck Couch, Moss 4-D Chief Electrician Tim Horn, Industrial Relations Manager Joseph Pendergast and his assistant Don Kennedy. i 2 Fogg's grievance was the second of two grievances discussed by the parties at the March 24 meeting. The grievance other than Fogg's was one filed by employee Michael Greear. Greear's grievance pertained to work jurisdiction at the central shop and specifically pertained to the repair of wall jacks from the Moss 4-D mine. The Union took the position on Greear's grievance that the employees in the central shop, should have performed the work on the wall jacks; however, the Respondent contended that the Union did not have jurisdiction because that work always had been performed by outside contractors. According to Fogg, whose testimony I credit, the Respondent also took the position that the work mentioned in Greear's grievance • was under warranty and the central shop did not have 11 Hodge testified Fogg was specifically concerned about motors at the Moss I preparation plant being possibly given to outside vendors as scrap and then repurchased as repaired units Hodge'stated Fogg also mentioned a motor for a• long-wall unit as another specific example of what he was referring to - 12 It appears that those individuals from the Moss 4-D mine did not remain for the discussion of the second grievance CLINCHFIELD COAL CO 1391 the necessary equipment to perform the repairs needed.' 3 In discussing the second grievance at the March 24 step -3 meeting Fogg did most of the talking for the Union since it was his grievance." Fogg stated his grievance was the same as Greear's except Fogg's griev- ance was broader. The Union's position at the meeting was that it had information work was being contracted - out which it was entitled to because it was work 'that was normally and customarily performed by employees of the-central shop and the Union stated it expected such work to be performed at the central shop.' 5 Fogg pro- ceeded to cite specific examples of where the Union be- lieved contracting out of work normally and customarily performed by the central shop employees had taken place 16 Fogg mentioned that no work was being re- ceived at the shop from the McClure River Preparation Plant. According to Fogg, the Respondent through Pen- dergast responded by stating that it was a new plant and maybe there was no work to do from it.' 7 Fogg stated that the central shop was not receiving any work from the Sycamore Strip Mines 4, 5, and 6 and that since they were in the Clinchfield Division of the Respondent, the Union should receive work from those strip mines 18 The Respondent took the position that the repair work at the Sycamore mines had previously been customarily and normally sent to outside contractors, therefore the central shop had no jurisdiction over the repair work. Fogg told the meeting that an outside contractor- Brooks Electric-had • picked up discarded electric motors at the Moss 1 preparation plant, and had then sold them back to the Respondent by use of purchase 1' Greear's grievance was taken to arbitration on July 15, and the grievance was sustained by Arbitrator Carl F Stoltenberg on October 10 (G C Exh 8) Fogg stated the Union found enough information on its own to take Greear's grievance to arbitration - 14 I have credited Fogg's version of the step 3' grievance meeting Fogg impressed me as a truthful witness and his testimony, when consid- ered in light of the entire record, is very logical and probable and it was in general supported by that of other witnesses called by the General Counsel In discussing the facts I shall further address credibility at those places where a conflict arises 15 McCamey and Dutton corroborated Fogg's testimony regarding the position taken by the Union at the step 3 meeting I do not credit Pender- gast's 'testimony that the Union's position was that since, work had slacked off that the central shop was entitled to all repair ork until it was working at full capacity again This position attributed to the Union by Pendergast does not appear to have been the Union's position over this history of its disputes with the Respondent regarding work jurisdic- tion at the central shop Additionally, Pendergast attributed the statement that the Union was entitled to all the work to at least one witness (De- Priest) who was not even present at the step 3 meeting , thus raising a question as to the accuracy of his recall with respect to discussions and positions taken at the meeting 'Further, Central Shop Manager Hodge testified that it was the Union's position at the meeting that it was enti- tled to work customarily performed by the central shop employees 16 I am persuaded that specific examples were raised early in the dis- cussion The Union had raised specific examples at the step 2 meeting, therefore, I do not believe Pendergast when he. testified that-the Union only cited examples after the Respondent insisted that it do so near the end of the meeting McCamey and Dutton both indicate Fogg cited ex- amples early in the meeting McCamey asserted it was the Union's prac- tice to state the charges at grievance meetings and have the Respondent thereafter responded to allegations made by the Union 17 It is noted that McCamey 's testimony that the plant was approxi- mately 3 years old was undisputed 16 As noted elsewhere in this decision the Sycamore mines were pur- chased by the Respondent in 1979 orders. The Union contended the Respondent was using purchase orders as a means of contracting out -work cus- tomarily performed by the central shop employees The Respondent took the position it service exchanged cer- tain items out and had been doing it for 35 years. The Respondent also contended it was cheaper at times to purchase new motors than to repair old ' ones.' Fogg raised the matter that the central shop had only received two motors from 'McClure 2 mine since it had been in operation. Fogg also stated at the meeting that'he had been informed by a unit member from the McClure River Preparation Plant that the Respondent was con- tracting with an outside contractor for the repair of "AC" motors with 30 or less horsepower rather than sending them to the central shop for repair Employee truckdriver Dutton, who visited the minesites once or twice per week as part of his regular job, testified with- out contradiction that he raised at the step 3 meeting the fact that he had seen jeep motors, electric motors, S&S' 9 scoop motors, S&S rear ends, S&S dropin units and scoop units from various minesites that were not brought into the central shop for repair A composite of the testi- mony of those present at the meeting establishes that the Union raised - other - incidents of contracting out repair work that it contended was customarily and regularly performed by the central shop. Other examples involved contracting out repair for a scoop, ' wheels for track equipment, jeep motors, Goodman motors, a low horse- power locomotive motor, a joy reel motor for a shuttle car, a 1000 horsepower motor and a Marietta Tram motor. - - - The Respondent was unable to respond to ' all the in- quiries made by the Union at the step 3 meeting. Pender- gast told the Union he would 'get back with them on those items in about a week's time. There was no written request for any information made at' the step 3 meeting. Further, I find the Union did not offer to settle the grievance at the step 3 meeting as testified to' by Pender- .gast. The entire record evidence in my_ opinion supports McCamey and Dutton's testimony on this-issue; there- fore, I credit their testimony that settlement was not dis- cussed at the step 3 meeting. Fogg credibly testified Pen- dergast did not get back with him the following week on the matters left unanswered at the'step -3 meeting 20' In the latter part of March or the first part of April Fogg hand-delivered a -written request for information to Pendergast at -Respondent's- personnel office in Dante, Virginia. No one was present other than' Fogg and 'Pen- dergast Fogg told Pendergast he needed the requested informatioii in order to process his grievance and the grievance would' be held in abeyance until - he received 'the information There was no discussion of the merits of 19 S&S is 'the trade name of a manufacturer of equipment used in mining coal - - 20 I credit Fogg's testimony not only because he impressed me as testi- fying truthfully on this matter but his testimony was supported by that of Central Shop Manager Hodge who testified that Pendergast never in- structed him to meet with Fogg except to relay some answers to Fogg's written request for information I, therefore, discredit Pendergast' s testi- mony that he got back with Fogg through Hodge with information the week following the step 3 meeting _ 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the grievance 21 Fogg's written request stated in perti- nent part: This is a formal request for information pertinent to the processing and orderly disposal of a class action grievance that is in process between the em- ployees of the Clinchfield Coal Co Central Shop and the management of said company. 1. Please furnish the names and addresses of all vendors or outside jobbers who do maintenance or repair work, of any kind, for the company and iden- tify the work they have done for the years 1982 & 1983. 2 Please furnish the names and addresses of all vendors or jobbers who • supply rebuilt parts or component parts (i.e.) electric motors, speed reduc- ers, pumps; etc., and identify the work they have done for yeas 1982 & 1983. 3. Please furnish the names and addresses of all vendors or jobbers who supply new parts used in the maintenance and repair of mining equipment used by the company and identify the parts so fur- nished this year. 4. Please furnish information showing which Clinchfield • Coal Co. mines or preparation plants farm our repair work and to whom it goes, for the years of 1982 and 1983. Especially requested is as much information as possible for Moss #1 Prep Plant, Moss #4A, Moss #4D, -McClure #1 Prep Plant, McClure #1 Mines, Hurricane Creek Mines and Moss #3 Prep Plant. 5. Please furnish a list of all repair orders issued from the Central Shop for the years 1982 and 1983, and identify the items or work to be performed by each such repair order and to whom issued. 6. Please furnish a list, of purchase orders issued to outside vendors who do the same type work as that performed in the Clinchfield Coal Co Central Shop (i.e.) Industrial Machine, B & K Welding, Electric Motor Repair, T & T Machine Co., etc., and identify to whom issued, and for what purpose for the years 1982 and 1983. 7. Please furnish information showing the cost to the Company for repair work farmed out to outside jobbers for years 1982 & 1983 8 Please furnish information showing the relation of Clinchfield Coal Co. and Sycamore Strip. 9. If Sycamore Strip is in the Clinchfield Coal Co. division of Pittston Co , please identify all out- side jobbers who do work for them, the type of 21 I do not credit Pendergast's testimony that Fogg told,him he was attempting. to expand the work jurisdiction of the shop by filing the grievance Fogg's denial in this regard was very persuasive Fogg was an experienced union official and I find it simply unbelievable that he would admit he was attempting to expand work jurisdiction rather than enforce contractual jurisdiction The record establishes that in the past Fogg had attempted to enforce the contract with respect to contracting out repair work and there is nothing to persuade me that he was attempting to do or that he would admit that he was trying to do otherwise on this occa- sion work performed and approximate dollar value of such work [G.C Exh. 11.]22 Fogg received a written reply. to his first request for in- formation from Pendergast dated May 10. Pendergast's response in pertinent part was as follows: After careful consideration of your request for in- formation concerning a pending grievance, the fol- lowing response is made: [1] Response- (a) Pursuant to Article IA, Section (a) and (g) of the National Bituminous Coal Wage Agreement of 1981, the information requested cannot be furnished until the Union specifically identifies the work in question and demonstrates that such specifically identified work is within the jurisdiction of the employees of, the Clinchfield Central Shop [2] Response: Pursuant to Article I, Sections (a) and (g); the Union has'no jurisdictional claim over the purchase of parts or equipment - [3] Response: Pursuant to Article I, Sections (a) and (g), the Union has no jurisdictional claim over the purchase of parts or equipment. [4] Response. (a) Pursuant to Article IA, Section (a) and (g) of the National Bituminous Coal Wage Agreement of 1981, the information requested cannot be furnished until the Union specifically identifies -the work in question and demonstrates that such specifically identified work is within the jurisdiction of the employees of the Clinchfield Central Shop [5] Response: The request for repair order is so broad as to be unidentifiable in accordance with Ar- ticle IA, Sections (a) and (g) of the National Labor Bituminous Coal Wage Agreement of 1981. [6] Response- This request acknowledges that the Union does not have a jurisdictional claim to this work in accordance with Article IA, Sections (a) and (g) of the National Bituminous Coal Wage Agreement of 1981. Therefore, purchase orders rel- ative to this work will not be furnished. [7] Response- The cost information requested is proprietary and will not be furnished. [8] Response- Please see page 172 of the National Bituminous Coal Wage Agreement of 1981. [9] Response: Pursuant to Article IA, Sections (a) and (g) of the National Bituminous Coal Wage Agreement of 1981, the work to which reference is made in this request is not within the jurisdiction of the employees of the Clinchfield Coal Company Central Shop [G.C Exh. 10(b)] Fogg testified he found the May 10 response of Pen- dergast, to be unsatisfactory.' Fogg filed in writing what he termed a clarifying and supplemental request for in- formation on May 31.23 The pertinent portions of Fogg's May 31 request are 22 Complaint par 8(a) is identical to the numbered paragraphs set forth in Fogg's first written request except that par 7 of the request was not alleged in the complaint (G C Exh 1(c)) 29 The evidence tends to indicate this request was mailed rather than hand delivered to Pendergast CLINCHFIELD COAL CO After reviewing your May 10, 1983 response to our above request, I wish to re-submit same with the following clarifications. This correspondence is to be considered as a supplemental to our previous requests - 1. Please detail the work Clinchfield has jobbed out to the following persons or entities in 1983: A. Weldon Bland Route 1 Nora, Virginia B Wayne Franks d/b/a Frank's Machine Shop Coeburn, Virginia C. Seko Repair Shop Coeburn, Virginia D. Brooks Electric 1224 Spring Ave., S.W. Norton, Virginia E Coal Country Electric Bristol, Virginia F Bristol Electric Bristol, Virginia G. Copenger Machine Shop Princeton, West Virginia H. National Electric Coil Co. (McGraw Edison) Bluefield, West Virginia I. Hart Electric (Joy Manufacturing) Bluefield, West Virginia J Industrial Machine Company Hansonville, Virginia K Hydraulics, Incorporated a/k/a Lebanon Hydraulics Shop L. Shelton-Witt Equipment Corporation . Wise, Virginia M. Rosedale Heavy Equipment Corporation Rosedale, Virginia N Logan Hydraulics Logan, West Virginia . 0. Logan Corporation Clay Pool Hill Richlands, Virginia - P. Foley Hydraulics Incorporated Route 23 - Norton, Virginia Q. Keith's Repair Shop Lebanon, Virginia R Top Equipment Abingdon, Virginia S Castlewood Welding Castlewood, Virginia T. West Virginia Armature Bluefield, West Virginia For each person or entity named above, please pro- vide information regarding the work contracted out for the following purposes. ELECTRICAL WORK (i) motor:winding (ii) motor rebuilding (AC & DC) (iii) panel board requiring and repair 1393 (iv) electrical lighting system repairs for mining equipment MINE EQUIPMENT (i) continuous miners (ii) coal feeders (in) locomotives (iv) steel fabrications and erecting (v) hydraulic plumbing (vi) cutting head drums (vii) mine machinery components: (a)- wheel units - (b) water pumps (c) miner heads (d) belt rollers _ (e) welding repairs (f) motor housings HYDRAULICS (i) roof jacks and other hydraulic jacks (n) motors MACHINE REPAIR WORK (i) manufacturing rotor shafts and other equipment shafts (ii) manufacture of all other mine machinery equip- ment Also state whether or not any of the above named persons or entities have transported or delivered for repair any of the items listed and if so, name the person or entity performing such work. II. Please provide the same information as requested in question number I. for the year 1982. III. Please state whether or not Sycamore Coal Company (a/k/a Sycamore Strip) has been incorpo- rated into the Clinchfield Division of the Pittston Corporation since the signing of the National Bitu- minous Coal Wage Agreement of 1981. If the answer is yes, please provide the following informa- tion: A. During the year 1983 has Sycamore Coal Com- pany had any repair work done to'mining equip- ment as identified in Paragraph I. of this request? If so, Please provide information as to: (i) the equipment repaired (u) the person or entity providing such repair serv- ices (iii) the person or entity transporting or delivering such equipment to or from the Sycamore operation; and (iv) the reasons for, not bringing the equipment to the company repair shop pursuant to the National Bituminous Coal Wage Agreement of 1981 [G.C. Exh. 10(c)].24 24 Complaint par 8(b) is identical to the May 31 request of Fogg (G C Exh 1(c)) 1394' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pendergast responded in writing to the May 31 request in a reply dated June 21. Pertinent parts of his reply are as follows: This is to acknowledge receipt of the additional request for information which you submitted on May 31, 1983 (Copy attached). After careful review and research of the material requested, I am pleased to- report that the Clinch- field Coal Company has neither jobbed out work to the firms referred to in Request No. I nor issued purchase orders to these firms for any work which has been customarily performed by classified em- ployees of the Central Shop. With regard to the Request No. II, the Clinch- field Coal Company continues to maintain that any request dating back to 1982 is untimely and could not be relevant to any current grievance. With regard to Request No: III, the classified employees of the Clinchfield Central Shop have not customarily performed any repair and maintenance work on, any Sycamore strip mine; therefore, the Central Shop employees do not hold jurisdiction over this repair and maintenance work in accord- ance with the provisions of the 1981 Wage Agree- ment (G.C Exh 10(D)). Fogg testified he was not satisfied with Pendergast's June 21 response because Pendergast was substituting his judgment for that of an arbitrator as to what work was customarily and normally performed by employees of the Central Shop, therefore, Fogg stated he filed the charge that gave rise to the instant case. B. Discussion, Analysis, and Conclusions The General Counsel contends that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide to the Union, the information it requested. The General Counsel asserts the Union's request met- the rel- evancy standards required by Board law for production of information and that it likewise established the neces- sity for the information.- Further,-the General Counsel as- serts that the Union adequately apprised the Respondent of the relevancy of the information and clearly described what information it needed. The General Counsel also contends that this is, not a case warranting deferral to the parties' collective-bargaining : agreement .- The General Counsel contends-the Union's right-to the requested in- formation is statutory- and not contractual. and, that the Union has not clearly and unmistakably waived'its statu- tory right to the information.- ' , 'The -Respondent contends that the collective-bargain ing agreement, provides the machinery' necessary for the settlement. of the issues herein and that that machinery- must be utilized 'by the parties: "In this. respect the Re- spondent .contends% that the Union must•'rhake' its request' for information 'through ,the -grievance-arbitration proce- dure and by utilizing' that, procedure it may be properly determined whether the Union is entitled to the informa- tion it requested.; The Respondent contends the matter herein should be deferred to the parties' arbitration proc- ess. The Respondent asserts the contractual issues are factually parallel to the alleged unfair labor practice issues and that an arbitrator would be presented with the facts relevant to resolving the unfair labor- practice charges. The Respondent also contends the information requested by the Union does not meet the requisite standards of relevancy. Finally the Respondent contends, as earlier eluded to, that the Union contractually waived its statutory right to the information in issue. I shall first address the issue of whether it would best effectuate the purpose and policies of the Act to defer this case pursuant to the Collyer Insulated Wire doctrine (192 NLRB 837 (1971)) to the arbitral forum. The Board renewed the Collyer principles in United Technologies Corp., 268 NLRB 557 (1984). In United Technologies, the Board held: Where an employer and a union have voluntarily elected to create dispute resolution machinery cul- minating in final and binding arbitration, it is con- trary to the basic principles of the Act for the Board to jump into the fray prior to an honest at- tempt by the parties to resolve' their disputes through that machinery. . . . In our view, the statu- tory purpose of encouraging the practice and proce- dure of collective bargaining is ill-served by permit- ting the parties to ignore their agreement -and, to pe- tition this Board in the first instance for remedial relief. The Respondent contends that the Collyer doctrine as re- vived in United Technologies controls the instant case. I find however that I am precluded from deferring the in- stant case to the arbitral forum for a number of reasons. The Respondent at trial indicated it would -not relinquish or waive any defenses it had regarding timeliness in processing the grievance relating to the instant case The Respondent in its posttrial brief indicates however a will- ingness to submit all issues to an arbitrator. Such a posi- tion on the part of the Respondent would, allow the time- liness issue to be submitted to an arbitrator. The Board clearly stated at footnote 22 in United Technologies that one of the requirements for deferral was that there must be a waiver of any timeliness provisions of the griev- ance-arbitration ' clauses of the collective-bargaining agreement Deferral herein is inappropriate inasmuch' as the Respondent is unwilling to waive timeliness as a de- fense. Furthermore, the Board in' General Dynamics Corp., 268 NLRB 1432 fn. 2 (1984), held: We agree with the judge's conclusion that the in- stant dispute over the Union's request for the MIT study is not-an appropriate matter for deferral to ar- bitration. In so finding, we rely particularly on' the fact that the 'Union requested the study for the pur- pose of determining whether to proceed with griev- ances' it was' planning to, and later did, file regard- ing the subcontracting of unit work. Thus, the pro- cedural issue of disclosure of the study is merely preliminary to the resolution of the parties' substan- tive dispute over the subcontracting. In these cir- cumstances, we, find no merit in encumbering the process of resolving the pending subcontracting CLINCHFIELD COAL CO grievances with the inevitable delays attendant to the filing, processing, and submission to arbitration of a new grievance regarding the information re- quest Such a two-tiered arbitration process would not be consistent with bur national policy favoring the voluntary and expeditious resolution of disputes through arbitration. Nor would it be consistent with prior Board decisions in this area See, e.g., Safeway Stores, 236 NLRB 1126 fn. 1 (1978); St. Joseph's Hospital, 233 NLRB 1116 fn. 1 (1977). Therefore,, it is Board policy not to defer information re- quests to the parties'. arbitration process. Accordingly, I conclude and find deferral is inappropriate in the instant case. Having found deferral -inappropriate I now turn to the' issue of whether a statutory right exists for the Union to. have the information it requested in the instant case. The governing principles in deciding whether an employer is required to furnish a union with information are well es- tablished; however, a brief restatement of some of those principles is appropriate. The general rule is that an em- ployer has an obligation, as part of its duty to' bargain in good faith, to provide relevant information in its posses- sion to a bargaining representative if the information is needed by the representative for the proper performance of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The obligation to furnish relevant information ex- tends beyond the period of contract negotiations and ap- plies to labor-management relations during the term of an agreement and includes the evaluation of grievances. NLRB v Acme Industrial Co, 385 U.S. 432 (1967); Na- tional Cleaning Co., 265 NLRB 1352, 1354 (1982). Whether information is relevant or not is determined by the probability that the desired information would be of use to a union in carrying out its statutory duties and re- sponsibilities. - Administrative Law Judge Jerrold H. Shapiro quoting many lead cases stated in Leland Stanford Junior Univer- sity, 262 NLRB 136 at 139 (1982), that the standard for determining whether information is relevant is a liberal one much akin to that applied an discovery proceedings and a party must disclose information that has any bear- ing on the subject matter of a particular case The burden of proving the relevance of information shifts ac- cording to the nature of the information sought. The Board in Realty Maintenance, supra, reaffirmed the requi- site standard of relevance set forth in Ohio Power Co., 216 NLRB 987 (1975). The -requisite standard of rel- evance set forth in Ohio Power Co. is as follows: Where the information sought covers the terms and conditions of employment within the bargaining unit, thus involving the core of the employer-em- ployee relationship, the standard of relevance is very broad, and no specific showing is normally re- quired; but where the request is for information with respect to matters occurring outside the unit, the standard is somewhat narrower (as where the precipitating issue or conduct is the subcontracting of work performable by employees within the ap- propriate unit) and relevance is required to be some- 1395 -what more precise.. . . The obligation is not unlim- ited. Thus where the information is plainly irrele- vant to any dispute there is no duty'to provide it. It appears the General Counsel would have to meet the narrower standard-of relevance in order to establish that the Union was entitled to the requested information in the instant case -However, this burden of proving the relevance of outside-the-unit information is not excep- tionally heavy, for to hold otherwise -would defeat the very purpose of the' liberal discovery standard regarding relevance that is to be used.-San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d 863 at 868-869 (9th Cir. 1977); Leland Stanford Junior University, supra. - In applying the above principles I am persuaded that the General Counsel met his burden of establishing the relevancy and necessity of the requested information and that a statutory right exists, absent a waiver25 for the Union to have the information if requested. The work ju- risdiction provision (art. IA(a)) of the collective-bargain- ing agreement between the parties (BCOA) taken in con- junction with the contracting and subcontracting provi- sion of that agreement (art. IA(g)(2)) clearly formed a basis for the Union's request for the information it asked for in order for it to determine if work "normally" and "customarily" performed by the central -shop unit em- ployees was being contracted out in violation of the col- lective-bargaining agreement. There were only two ex- ceptions to the provision for contracting out work: if the repair was being provided by a manufacturer under war- ranty or if the shop did not have equipment and skills to perform in late 1982 and early 1983 that work was being sent from the mines for repair, he had a valid and suffi- cient basis for making the information requests that he did in order to police and administer the contract as well as to, process his ongoing class grievance regarding con-' tracting out of repair work. Prior to making the written requests for information to the Respondent that it did, the Union presented the Respondent with numerous ex- amples of what it-contended was contracting out repair work which it believed was in violation of the collective- bargaining agreement. Clearly it had a valid need for the information. Next I shall consider the particular items of the Union's first written request to determine if the specific' information it requested was and is relevant. I find that the second request was merely an amplification of the earlier request and if the first request, or any part of it, was for relevant information the second request or at least the corresponding part or parts found to be relevant in the first request would' also be relevant in the second request. Items 1, 4, and 5 of the Union's first requeste6 go to the heart of Fogg's class action grievance regard= ing whether the Respondent was contracting out work of the central shop in violation of the collective-bargain- ing agreement. The information would demonstrate all repair work including that contracted out and not -per- formed by the central shop employees. The Union would 2s The issue of whether the Union waived its statutory right to the information is set forth elsewhere in this decision 26 The Union's first request is set forth elsewhere in this decision 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then be in a position to adequately evaluate the situation and make an informed judgment as to whether it could support its contention that work was being contracted out that was normally and customarily performed by unit employees of the central shop. Without all such-informa- tion.the'Union would be placed in the position of having to rely on the Respondent's determination, of what con- stituted work normally and customarily performed by the central shop -employees It is this latter situation of the Respondent unilaterally making the determination of what work was customarily and normally performed by the central shop that causes the Respondent's answers to the Union's requests to be inadequate, Items 2, 3, and 6 of the Union's initial request would relate to its.conten- tion Respondent was attempting to use purchase orders for new, repaired, or -rebuilt items in order to circumvent central shop repair work customarily and normally per- formed by unit employees. Whether the. Union can prevail before an arbitrator with the information it requested is not the issue before me, I need not decide, nor do I decide, the underlying grievance. It is my function to.determine -if the requested information is relevant and whether it could make tena- ble the Union's • contention _ of alleged- violations . of the contract by the Respondent. Fogg testified he had com- plaints that motors were being discarded and that those same motors were being-rebuilt by an outside contractor and then sold back to the Respondent as new.or rebuilt parts. Such concerns lend credence to the Union's contention that the Respondent might be in violation of the contract and as such the Union is entitled to the information it.re- quested in order to make an informed evaluation of the.. situation. Item 7 of Fogg's initial request for information was not alleged in • the complaint; therefore, I shall not address Item 7. Items 8 and 9 of the request would, with certainty, establish the -relationship between the Re- spondent and Sycamore mines and such information could lend some credence to the Union's contention that since the Sycamore. mines are, located within the geo- graphical area served by the central shop that the repair work from those mines should come to the central shop. Further, the information would allow the Union to make an evaluation as to whether the -repair work from.those mines . was of the type customarily and .normally per- formed by unit employees at the central shop The failure to provide this information would place the Respondent in the position of unilaterally determin- ing that the work was outside the jurisdiction of the cen- tral shop rather than allowing an arbitrator to make that, determination, if the Union decided, based on the re- quested information, that the matter should be submitted to an arbitrator as a possible violation of the collective- bargaining agreement. The Union's second request for in- formation was simply a more detailed request for the same information it had earlier sought. The Respondent's second reply was inadequate and deficient in that it again placed, itself in the position of unilaterally determining the elusive and perplexing question of what constituted work customarily and normally performed by the central shop unit employees rather than allowing an arbitrator, if necessary, to make that determination after the Union had made an informed evaluation of the situation based on the information it requested . The request for the same type information running to 1982 is potentially relevant with respect to the Union 's claim that it may, - within a set period of time after it has knowledge of-any potential contract "violations, file grievances regarding its conten- tions. - - Accordingly, I find the reasonable or probable rel- evance of -the information requested . by the Union has been established and the Respondent has a statutory obli- gation to furnish the requested information. I now turn to the issue of whether " the Union has waived its statutory right to the requested information. Stated otherwise does the collective -bargaining agree- ment between the parties impose on them a compulsory duty to exclusively request through the collective-bar- gaining agreement information needed to process a griev- ance or police the agreement . For the reasons I shall'set forth I'am persuaded the Union clearly and umistakenly waived its statutory right to the requested information. The `parties' collective-bargaining agreement at article XXIII, Settlement of Disputes, section (c), Grievance Procedure27 states in part. Should differences arise between the Mine Workers -and an Employer.as to the meaning and application of the provisions of this Agreement, or should dif- ferences arise about matters not specifically men- tioned in this Agreement, or should local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences at the earliest practi- cable time. . - The "differences" mentioned in this contract provision are not.limited to contract interpretation and application but clearly cover "differences" regarding matters "not specifically mentioned" in the collective-bargaining agreement as well as "differences" involving "local trou- ble of any. kind." It is apparent that the grievance arbi- tration machinery was to be utilized for all misunder- standings that might arise out of any interpretation of any clause or clauses of the collective-bargaining agree- ment. In comparing the current contract language to that before the United States Supreme Court in Gateway Coal Co., 414,U.S. 368 (1974), I note that the Court placed a broad interpretation on similar language contained in the National Bituminous -Coal Wage Agreement of 1968. When article XXIII, section (c) of the current agreement is read in conjunction with article XXVII it is inescap- able that all differences between the.parties are to be re- solved by the machinery of the collective-bargaining agreement Article XXVII, Maintain Integrity of Con- tract and Resort to Courts, states- The United Mine Workers of America and the Employers agree and affirm that, except as provid- ed herein, they will maintain the integrity of this contract and that-all disputes and claims which are not settled by agreement shall be settled by the ma- 2 The grievance procedure is set forth in full elsewhere in this deci- sion , - CLINCHFIELD COAL CO - chinery provided in the "Settlement of Disputes" Article of this Agreement unless national in charac- ter in which event the parties shall settle such dis- putes by free collective bargaining as heretofore practiced in the industry, it being the purpose - of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract and by collective bargaining without recourse to the courts. The Employer, however, expressly authorizes the Union to seek judicial relief,. without exhausting the grievance machinery, in cases involving successor- ship. The broad language of the current agreement also states that the settlement-of any grievance dispute at any step of the -procedure is final and binding on the parties as well as any decision or decisions of an arbitrator. Addi- tionally, the current agreement contains what was some- times referred to in this proceeding ,as the "full-disclo- sure" provision of the agreement. That provision-article XXIII, section (e), Earnest Effort to Resolve Disputes- states at the second paragraph- At all steps of the complaint and grievance proce- dure, the grievant and the Union representatives shall disclose to the company representatives a full statement of the facts and the provisions of the Agreement relied upon by them. In -the same manner, the company representatives- shall disclose all the facts relied upon by the company. - - Considered together the above portions of the current collective-bargaining agreement between the parties es- tablish that the Union clearly and unmistakably waived .11 1397 its statutory right to the information it requested.- It agreed, that all differences between the parties would -be either negotiated out or submitted to the final and bind- ing arbitration machinery of the. collective-bargaining agreement. It also agreed to a procedure for disclosure of information with respect to grievances and further agreed to resolve all disputes without outside' litigation. The United States Supreme Court in Metropolitan Edison Co., 460 U.S. 693 (1983), recognized that a union could and might choose to bargain away a statutorily protected right in order to secure gains it might consider of more value to its members and its decision to do so would fall within the range of"reasonableness accorded bargaining representatives.' Accordingly, I conclude and find that the .Union waived its statutory right to the information it - requested which information is set forth in paragraph 8 of the complaint, and as such I recommend the com- plaint be dismissed in its entirety. - CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not committed unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act, since on or about May 10 and June 21, failing and refusing to furnish the Union certain requested informa- tion. 4. Respondent has engaged in no unfair labor practices violative of the Act. [Recommended Order for dismissal omitted from pub-' lication.]