Leland Stanford Junior University

LELAND STANFORD JUNIOR UNIVERSITY 1129 Leland Stanford Junior University and United Stan- ford Workers, Service Employees International Union, Local 680, AFL-CIO. Case 32-CA- 8303 May 26, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On February 1, 1988, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Leland Stanford Junior University, Palo Alto, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent argues that its obligation to provide the information requested by the Union should have been deferred to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971). The Board's well-estab- lished policy is to decline to defer 8(a)(5) allegations involving an em- ployer's refusal to furnish information requested by an exclusive collec- tive-bargaining representative See General Dynamics Corp., 268 NLRB 1432 (1984), and United Technologies Corp, 274 NLRB 504 (1985) Patricia M Milowicki and Virginia L. Jordan, Esqs., for the General Counsel. Michael Vartain, Esqs., Associate Staff Counsel, of Stan- ford, California, for the Respondent. James Eggleston, Esq., of Oakland, California, for the Union. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in Palo Alto, California, on 6 August 1987. The initial charge was filed on 22 August 1986, by United Stanford Workers, Service Employees Interna- tional Union, Local 680, AFL-CIO (the Union). Thereafter, on 31 October 1986, the Regional Director for Region 32 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing al- leging a violation by Leland Stanford Junior University (Respondent) of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Following withdrawal of the complaint, infra, the Regional Director issued an order reissuing complaint and notice of hearing on 13 May 1987. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and counsel for Respondent. On the entire record, and based on my observation of the witnesses and considerations of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a private nonprofit institution of higher learning located in Palo Alto, California, annually re- ceives gross revenues in excess of $1 million excluding contributions by the grantor not available for operating expenses. Respondent, in the course and conduct of its business operations, annually purchases and receives goods or services valued in excess of $5000, which origi- nate outside the State of California. It is admitted, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Respondent, in violation of Section 8(a)(1) and (5) of the Act, has failed and refused to furnish necessary infor- mation to the Union in order to carry out its duties and responsibilities as a collective-bargaining representative of certain of Respondent's employees. B. The Facts The Union represents a unit of Respondent's employ- ees including "nonexempt computer operations person- nel." The current collective-bargaining agreement be- tween the parties is effective from 1 September 1985 to 31 August 1988. On 13 November 1985, the day prior to the execution of the current contract, the Union filed a grievance claiming that the Respondent's faculty practice program has used temporary and other nonunion individuals at its data entry center on University Avenue in Palo Alto, a location separate from the locations where unit employ- ees customarily work, to avoid placing them in the bar- gaining unit. To settle the grievance the Union proposed that Respondent should place these computer and data entry employees in the bargaining unit and to make the 288 NLRB No. 129 1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union whole for Respondent's conduct in derrogation of the collective-bargaining agreement. On 17 March 1986 the Respondent denied the griev- ance on the basis that the faculty practice program posi- tions in question, which Respondent identified as "office assistants, medical services assistants, and miscellaneous clericals," are not bargaining unit positions. Thereafter, on 26 March 1986 the Union requested specific information, including the names and specific hourly rates of pay for all office assistants, medical serv- ice assistants, and miscellaneous clericals employed by the Respondent at its faculty practice program data entry center on University Avenue in Palo Alto, in order to be able to intelligently investigate the matter and decide whether to process the grievance. The Union believes that the work of the aforemen- tioned employee classifications, performed by six em- ployees, is bargaining unit work. It learned of the exist- ence of these employees as a result of an advertisement that Respondent placed in an areawide newspaper on 20 January 1985. The ad is as follows: DATA ENTRY OPERATOR Stanford University's Faculty Practice Program is seeking an experienced Data Entry Operator to key and verify. Qualifications: 1-3 yrs. exper. on data entry equip. is a must. CMC, IBM 3742 or similar equip. very helpful. 10,000 keystrokes/hour desired. To Apply: Send resume and letter of interest to: Joan Power, FPP Ref 26781 PT 25 University Av. #400 Palo Alto, CA 94301 Mary Ann Tenuto, staff counsel for the Union, testi- fied that data entry operator work is bargaining unit work and should have been posted in accordance with the posting provisions in the contract. As a result of the aforementioned ad, she instructed a union steward to in- vestigate the matter. According to Tenuto, the steward reported to her that, after a conversation with the facul- ty practice program's secretary-receptionist, certain work being done by several employees at that location ap- peared to be bargaining unit work. As a result of Respondent's refusal to furnish the re- quested information, the Union filed a charge with the Board on 22 August 1986 and a complaint issued on 31 October 1986. Thereafter, the Union raised the identical issues here (i.e., the Union's right to the requested infor- mation) in an unrelated arbitration proceeding and, as a result, the Respondent requested that the Regional Di- rector defer the matter to arbitration. The Union did not want the issue deferred, and to obviate this, it advised the arbitrator on 3 February 1987 that it was withdraw- ing the request for information issue from the arbitration. The Respondent, thereupon, notified the Regional Direc- tor that it intended to resist the Union's withdrawal re- quest to the arbitrator. On 6 February 1987, the Regional Director issued an Order withdrawing complaint and de- ferred the matter under Dubo Mfg. Corp, 142 NLRB 431 (1963), to the contractual grievance/arbitration proce- dure. The Regional Director's order, after reciting the above facts, states as follows: Under these circumstances, it is concluded that the matter is at least arguably presently pending before an arbitrator, at least until the arbitrator rules on the Union's request to withdraw that issue. In all these circumstances, and in accordance with , the Board's decision in Dubo Manufacturing Corpo- ration, 142 NLRB 431 (1963), I have concluded that it is appropriate to administratively defer further proceedings in this case. My reason for deferral is that both the Union and Respondent on January 14, 1987 agreed to resolve their outstanding differences in this case through a pending arbitration proceed- ing. Moreover, even though the Union has attempt- ed to withdraw the information issue from that arbi- tration proceeding, the arbitrator has not yet ruled on that matter and the information issue remains properly before the arbitrator. Accordingly, defer- ral of that issue to the parties' contractual griev- ance-arbitration procedure is appropriate. The Union did not appeal this order. Thereafter, on 13 May 1987, the Regional Director issued an order reissuing complaint, as follows: On February 6, 1987 an Order Withdrawing Com- plaint and Notice of Hearing and Deferring Charge to Grievance-Arbitration Procedures issued in the above case. As set forth in that Order, while the unfair labor practice issues involved in this case were originally deemed inappropriate for deferral under Collyer Insulated Wire, 192 NLRB 837 (1971) since they did not involve any question of interpret- ing the provisions of the parties' collective bargain- ing agreement, they were deferred under Dubo Manufacturing Corporation, 142 NLRB 431 (1963) in light of the then-pending grievance involving those same issues. Thereafter, the unfair labor practice issues were severed and removed from the outstand- ing grievance, which removal was consented to by the arbitrator hearing the grievance. In such cir- cumstances, and with the basis for continued defer- ral under Dubo Manufacturing Corporation no longer present in this case, IT IS HEREBY ORDERED that the Complaint previ- ously withdrawn in this case on February 6, 1987 be, and it hereby is, reissued. Analysis and Conclusions The Union made a clear request that Respondent fur- nish the names and specific pay rates of six employees whom the Union, after preliminary investigation and in good faith, I find, believes are performing the work of "nonexempt computer operations personnel," a classifica- tion of employees represented by the Union. The Union is not satisfied that the generalized information previous- ly furnished by Respondent accurately reflects either the LELAND STANFORD JUNIOR UNIVERSITY 1131 true nature of the work of the six employees or the per- centage of time their work is more akin to the work per- formed by unit personnel. For this reason, it wants to interview the employees. For similar reasons it wants to know their specific rates of pay, rather than merely the parameters of their general wage scale. Clearly, this in- formation, which the Union intends to use in order to assist it in ascertaining whether, in its opinion, the six employees are within the bargaining unit, is the type of information to which it is entitled. Leland Stanford Junior University, 262 NLRB 136 (1982), earl,. 715 F.2d 473 (9th Cir. 1983). Respondent argues that the Union is not entitled to the information because the office assistants, medical service assistants, and miscellaneous employees in the faculty practice program were previously included within a sep- arate unit description that, following a Board-conducted representation election on 7 May 1981, voted against union representation.' This contention is without merit. Thus, while the aforementioned unit, which included em- ployees in the faculty practice program, did not contain the classification of "data entry operator," the Respond- ent nevertheless placed the aforementioned ad for such employees in the newspaper on 20 January 1985. The Union now believes that these employees, despite their descriptions or classifications, perform work that may be characterized as data entry work and are, in fact, "non- exempt computer operations personnel." The Respondent also argues that by agreeing to cer- tain language in the current collective-bargaining agree- ment, which agreement is retroactive to a date prior to the date the Union filed its grievance in this matter, the Union specifically waived any right to assert that the employees in question should be included in the unit, and that therefore the Union is not entitled to the requested information. This language, upon which Respondent relies (art. I.A.6.), is as follows: Jobs Outside of the Bargaining Unit The University and the Union agree that no job at the University at the time of execution of this Agreement not then classified by the University in one of the classifications set forth in Appendix A of this Agreement, is either covered by this Agree- ment or within the unit for which the Union is rec- ognized in accordance with paragraph I.A.1. above. If any such job changes substantially and perma- nently, subsequent to execution of this Agreement, so that the job consists predominantly of work cov- ered by paragraph I.A.1. and satisfies the remainder of the provisions of part I.A. of this Agreement, the job shall be included within the bargaining unit. The Union argues that the grievance in question is not precluded by the contract language as the grievance was filed prior to the contract's execution and, further, that it was the implied intent of the parties that the retroactive application of the contract is not applicable to this par- ticular grievance. The Certification of Results of Election issued on 5 February 1982. The disagreement as to the intent and meaning of arti- cle I.A.6. of the contract, vis-a-vis this particular griev- ance, appears to be solely one of contract interpretation and may be resolved by the arbitrator. See NCR Corp., 271 NLRB 1212 (1984). Assuming arguendo that the ar- bitrator may ultimately conclude that the employees in question, even though within the unit description, are precluded from being represented by the Union as a result of the aforementioned contract language, it does not follow that, as contended by Respondent, the Union is not entitled to the information prior to the resolution of this issue. As stated by Administrative Law Judge Shapiro in Leland Stanford Junior University, supra, the test of a union's need for information is a showing of probability that the desired information is relevant and would be of use to the Union in carrying out its statuto- ry duties and responsibilities. Clearly, its statutory duty to represent employees includes the filing and processing of grievances. The requested information may be utilized by the Union not only to show that the employees should be included within the unit, but also, initially, to ascertain whether the Union should continue to pursue the grievance. Thus, for example, after conferring with the employees in question, the Union may discover that the employees do not, in fact, perform the work that the contract covers. I thus find Respondent's argument to be without merit. Finally, the Respondent argues that the Regional Di- rector abused his discretion by first deferring the matter to arbitration and, thereafter, following the Union's with- drawal of its information request from the arbitration proceeding, reissuing the complaint. I do not agree. The Regional Director's deferral order specifically states as the primary rationale for deferral, that "the arbi- trator has not yet ruled on that matter [i.e., the Union's attempt to withdraw the information issue from the arbi- tration proceeding] and the information issue remains properly before the arbitrator." Thereafter, the arbitrator did rule on the issue and, contrary to Respondent's posi- tion before the arbitration, permitted the Union to with- draw the matter. As a result, the Regional Director re- issued the complaint. Under these circumstances, I fail to see any prejudice to Respondent. On the basis of the foregoing, I find that the Union is entitled to the requested information and that by failing and refusing to provide it, the Respondent has violated and is violating Section 8(a)(1) and (5) of the Act as al- leged. Leland Stanford Junior University, supra; E. L duPont & Co., 271 NLRB 1245 (1984). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. The Respondent has violated and is violating Sec- tion 8(a)(1) and (5) of the Act by failing and refusing to furnish the Union with the names and specific rates of pay of approximately six employees in the Respondent's 1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD faculty practice program, classified as office assistants, medical service assistants, and miscellaneous clericals. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Specifical- ly, I shall recommend that it be required to furnish cer- tain information to the Union, which information is nec- essary and relevant to the Union's administration of its statutory obligation as collective-bargaining representa- tive of the unit employees. Moreover, Respondent shall be required to post an appropriate notice attached hereto as appendix. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Leland Stanford Junior University, Palo Alto, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to furnish the United Stanford Workers, Service Employees International Union, Local 680, AFL-CIO with the names and specific rates of pay of approximately six employees in the faculty practice pro- gram classified as office assistants, medical service assist- ants and miscellaneous clericals. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union with the requested information. 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (c) Post at its office and place of business, where no- tices to employees represented by the above Union are customarily posted by Respondent, copies of the at- tached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately on receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees employed in the appropriate bargain- ing unit, are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment Of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively and in good faith with United Stanford Workers, Service Em- ployees International Union, Local 680, AFL-CIO by refusing to furnish said Union with information necessary and relevant to the Union's performance of its collective- bargaining functions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed under Section 7 of the Act. WE WILL furnish the Union with the names and specif- ic rates of pay of the employees in the Faculty Practice Program classified as office assistants, medical service as- sistants, and miscellaneous clericals. LELAND STANFORD JUNIOR UNIVERSITY