New York Telephone Co.

NEW YORK TELEPHONE CO 351 New York Telephone Company and Communications Workers of America, Local 1122. Cases 3-CA- 14228, 3-CA-14280 and 3-CA-15166 July 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 31, 1989, Administrative Law Judge Steven Davis issued the attached decision 1 The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a brief answering the Respondent's exceptions 2 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, 3 and conclusions and to adopt the recommended Order, as modified and set forth in full below 4 'On Apnl 6, 1990, the Respondent, the Charging Party, and counsel for the General Counsel filed a motion in Case 3-CA-15166 requesting the Board to accept the parties' stipulation of facts and to consolidate that case with Case 3-CA-14280 On Apnl 26, 1990, we granted the motion and accepted the stipulation The only Issue in Case 3-CA-15166 is whether, under art 35 of the parties' collective-bargaining agreement, the Union waived its nght to re- ceive tardiness control records for employees at the Respondent's Tona- wanda, New York garage, without the written consent of the employees This issue—whether the Union waived its right to certain documents contained in employee files without the employees' written consent—is the same as that presented in Case 3-CA-14280, and the parties agree that all the findings in that case are applicable to Case 3-CA-15166 The parties have agreed to rely on their briefs and the record as developed in Case 3-CA-14280 2 The Respondent's request for special leave to file a reply to the Gen- eral Counsel's answering brief is denied "The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In addition to making the waiver arguments, discussed Infra, the Re- spondent also excepted to the judge's decision on the ground that the in- formation sought by the Union is irrelevant to the Union's performance of its duties as collective-bargaining representative We find no merit in this exception The Respondent has justified its demotion of two drafters on the ground that they had 5 years of unsatisfactory ratings on their per- formance appraisals The Union is certainly entitled to evaluate the merits of the Respondent's actions by comparing the grievants' performance ap- praisals with those of similarly classified employees See Pfizer Inc , 268 NLRB 916, 918-919 (1984) No exceptions were filed with respect to the judge's findings in Case 3-CA-14228 4 The General Counsel excepted to the judge's recommended Order on the ground that It required the Respondent to post the attached notice only at the Respondent's Lancaster facility as opposed to all the Re- spondent's facilities in western New York We correct this apparent over- sight on the part of the judge and order that the notice be posted at all the Respondent's western New York facilities A Factual Background The Respondent provides telephone communica- tion services throughout the State of New York The Union represents the Respondent's employees in the western area of New York 1 Case 3-CA-14280 In November 1986, the Respondent demoted two unit employees from their positions as drafters in the engineering department to engineer study clerks because they had 5 consecutive years of un- satisfactory performance appraisals The Union filed grievances protesting the demotions In preparation for the second-step grievance meeting, 5 the Union sent the Respondent a request for the performance appraisals of all drafters in western New York for the years 1981 through 1986 6 The Respondent did not provide the re- quested documents At the second-step meeting on April 20, 1987, the Union's executive vice president, Donald Lor- etto, renewed the Union's request for the appraisals of all drafters for the previous 5 years The Re- spondent's district manager of engineering, Edward Bushway, denied the request, informing Loretto that he would have to furnish releases from the employees whose appraisals the Union sought before the Respondent would provide the request- ed appraisals At the conclusion of the meeting, Loretto telephoned Henry Loskorn, the Respond- ent's associate director of labor relations, request- ing the appraisals After some discussion, Loretto agreed to accept "sanitized" appraisals (from which all identifying information had been removed) of drafters with an unsatisfactory rating within the 5- year period By letter dated Apnl 24, 1987, the Respondent denied the grievances at the second step and also denied the Union's request for all appraisals as un- reasonable and irrelevant Thereafter, by letter dated April 28, 1987, the Respondent sent the Union copies of 14 sanitized appraisals with unsatis- factory ratings, in addition to the appraisals of the 2 gnevants When Loretto received the unsatisfac- tory appraisals from the Respondent, he consulted his grievance files and discovered that he had ap- proximately 22 or 23 grievances from drafters pro- testing unsatisfactory performance appraisals In early May 1987, Loretto called Loskorn and in- formed him that he believed he had not received all the appraisals he had been promised During the conversation, Loretto named 2 employees whose appraisals he believed had been omitted from the 'The parties agreed to waive the first step of the grievance procedure 6 There are 40 drafters in the Respondent's western New York area 299 NLRB No 44 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 he had received In both instances, the Respond- ent's official, William Donaldson, 7 replied that the appraisals had not been sent to the Union because the employees had not been or were not currently drafters Loretto did not give Loskorn and Donald- son the names of all the employees on his griev- ance list nor were they requested by the Respond- ent 8 Thereafter, Loretto renewed his original re- quest for the performance appraisals of all drafters for the 5-year period 9 2 Case 3-CA-15166 According to the parties' stipulation, the follow- ing facts have been established Since about July 3, 1989, the Union, by letter, has requested the tardi- ness control records of bargaining unit employees employed at the Respondent's Tonawanda, New York garage This information is necessary and rel- evant to the Union's processing of a grievance Since about July 11, 1989, the Respondent, by letter from John Richardson, the Respondent's acting director of labor relations, has failed and re- fused to furnish the requested information The Re- spondent's position is that the tardiness records may only be provided with the written consent of the employees B Discussion The judge found that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with the performance appraisals of all draft- ers in the western area of New York for the years 1981 through 1986 The Respondent first excepts to the judge's decision on the ground that, under arti- cle 35 of the parties' collective-bargaining agree- ment, the Union waived its right to receive the performance appraisals without the consent of the affected employees 10 7 Loskom brought Donaldson Into the conversation because he had compiled the unsatisfactory appraisals and forwarded them to the Union at Loskorn's request 8 Loretto testified, however, that, after his conversation with Loskom and Donaldson, he gave the list of grievants to Jan Borman, the Union's area vice president and chief steward, who venfied that the employees on the list were drafters and that, of the two individuals named by Loretto to Loskorn and Donaldson, one was not a drafter and the other had been demoted but had not filed a grievance concerning the demotion ° Loretto testified that he renewed his original request during the May 1987 telephone conversation with Loskorn and Donaldson and again at a third-step meeting on July 16, 1987, and the request was refused Loskorn denied that Loretto requested all the appraisals then or at the subsequent third-step meeting The Respondent's officials also deny that the Union made a request for the appraisals at that meeting There is no dispute, however, that the Union, by letter dated December 22, 1987, requested the appraisals of all drafters in western New York for the years 1981 through 1986 10 Similarly, in Case 3-CA-15166, the Respondent has refused to fur- nish tardiness records of employees, on the ground that the Union has failed to provide releases from the affected employees as required by art 35 As set forth in the judge's decision, article 35 provides that an employee may inspect the per- formance appraisals and absence and tardiness records contained in his or her employee file once each year and that the Union may inspect those records on reasonable notice and at reasonable times with the employee's written consent The Re- spondent contends that, by this provision, the Union waived its right to inspect the employees' performance appraisals without their written con- sent and that, when the consents were not forth- coming, the Respondent was justified in refusmg to provide the drafters' appraisals The General Counsel argues that article 35 is not a clear and unmistakable waiver of the Union's right to the appraisals for use in the processing of grievances to which they are relevant He notes that article 35 does not, on its face, speak to gnev- ance processing, and it thus expands the Union's right to information by permitting the Union to in- spect the documents without regard to any poten- tial relevance to the Union's duty as collective-bar- gaining representative Furthermore, the General Counsel argues, if article 35 could be construed as a waiver of the Union's right to employee records, such a waiver was inadvertent and, thus, could not clearly and unmistakably manifest an intention on the Union's part to waive its statutory right to in- formation In addition, the General Counsel argues that the past practice of the parties demonstrates that article 35 has not been understood by the par- ties to require releases before the Union could obtain employee records As both parties recognize, we will find a waiver of a statutory right only when there is a clear and unmistakable manifestation of an intent to waive the right Metropolitan Edison Co v NLRB, 460 U S 693 (1983) We find that article 35 does not meet this standard As the judge noted, the parties' collective-bar- gaining agreement, including the grievance proce- dure set forth m article 11, is silent on the Union's statutory right to obtain information necessary to the performance of its duties as collective-bargain- ing representative of the Respondent's employees The record discloses that the Union originally pro- posed article 35 in 1968, in order to guarantee em- ployees the right to inspect their records, and to permit the Union to do so on the employees' behalf with their consent The record further discloses that the Union proposed article 35 in part to meet the Respondent's complaint that the Union filed too many grievances, this provision permitted the Union to inspect an employee's records to deter- mine, in advance of filing, whether a potential grievance had merit Thus, although article 35 re- NEW YORK TELEPHONE CO 353 quires the Union to obtain an employee's consent to inspect his or her records when no grievance is pending, we cannot say that the Union intended clearly and unmistakably to waive its statutory nght to information that may be relevant to the processing of grievances after the grievances have been filed with the Respondent The Respondent's belated assertion of article 35 as a basis for its refusal to furnish the performance appraisals is also inconsistent with its own actions earlier in this case Although the Respondent's offi- cial, Edward Bushway, informed Loretto that the Respondent would not produce the requested ap- praisals without employee releases, neither he nor any official asserted article 35 or any other con- tract provision as the foundation for this require- ment until after the Union renewed its original re- quest For example, in its Apnl 24, 1987 letter, the Respondent denied the Union's request on the grounds that it was, "unreasonable and not relevant to the grievance," and not on the ground that the Union failed to provide the employees' written consent as required by article 35 Indeed, the Re- spondent subsequently provided the unsatisfactory appraisals to the Union without the drafters' con- sent Thus, not only can we not say that the Union clearly and unmistakably intended to waive its stat- utory right to information under article 35, but it is equally clear that the Respondent itself did not in- terpret the provision to operate in the manner it now suggests Accordingly, we find that the Union did not waive its nght under article 35 to receive the ap- praisals of all drafters in western New York for the years 1981 through 1986 The Respondent next contends that the Union waived its right to receive the performance ap- praisals of all drafters by subsequently agreeing to accept only those appraisals with unsatisfactory no- tations We disagree To determine whether the Union waived its right to the performance appraisals it now seeks by agreeing to accept less than it was legally entitled to, we apply the clear and unmistakable standard, set forth above, to the circumstances surrounding the compromise We find no such clear and unmis- takable waiver The record discloses that, after Bushway denied the Union's request for the appraisals of all drafters at the second-step grievance meeting, Loretto called Loskorn to pursue the matter When Loi- korn also denied Loretto's request as "too burden- " In addition, we find that the Union is entitled to receive the tardi- ness control records of employees at the Respondent's Tonawanda, New York garage, without first obtaining the employees' wntten consent See fn 1, above some," Loretto made some initial offers of compro- mise, which were also rejected," and ultimately agreed to accept the unsatisfactory appraisals There is no evidence, however, that the Union clearly and unmistakably intended this compromise to operate as an unconditional abandonment of its original request In the absence of any evidence to the contrary, it is just as likely that the Union hoped the compromise would render its original re- quest unnecessary When it appeared to the Union that there were possibly eight or nine more drafters who had received unsatisfactory appraisals than the Respondent claimed, its hope that the compromise would suffice disappeared We cannot equate the Union's initial optimism with a clear and unmistak- able intent to abandon unconditionally its original request We also reject the Respondent's contention that the Union was obligated to consult its files to at- tempt to determine which appraisals had been omitted from the group furnished by the Respond- ent 13 It is sufficient that, after verifying that the employees on its grievance list were drafters, the Union renewed its original request in the good- faith belief that some appraisals were missing Accordingly, we find that the Respondent's fail- ure to provide the requested information violated Section 8(a)(5) and (1) AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5 "5 By failing and refusing to provide the Union with the performance appraisals of all of its em- ployees in western New York in the title of drafter for the years 1981 through 1986, and the tardiness control records for employees at the Tonawanda, New York garage, the Respondent unlawfully re- fused to bargain in violation of Section 8(a)(5) and (1) of the Act" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, New York Telephone Company, Buffalo, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from " According to Loretto's uncontradicted testimony, he offered to share the cost of copying the appraisals or to inspect the documents with- out copying them Loskorn did not testify regarding the substance of this conversation with Loretto " We note that the 14 appraisals produced by the Respondent had been furnished without names, addresses, or social secunty numbers It would have been, at best, guesswork for the Union to compare the sani- tized appraisals with those, if any, in its possession 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively with Com- munications Workers of America, Local 1122, by refusing to furnish it with the performance apprais- als, with the names, addresses, and social security numbers deleted, of all its employees in western New York in the title of drafter, for the years 1981 through 1986, and by refusing to furnish the tardi- ness control records for employees at the Tona- wanda, New York garage (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, on request, to the Communications Workers of Amenca, Local 1122, the performance appraisals, with the names, addresses, and social se- cunty numbers deleted, of all its employees in western New York in the title of drafter, for the years 1981 through 1986, and the tardiness control records for employees at the Tonawanda, New York garage (b) Post at its western New York facilities copies of the attached notice marked "Appendix "14 Copies of the notice, on forms provided by the Re- gional Director for Region 3, 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 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 wnting within 20 days from the date of this Order what steps the Respondent has taken to comply 14 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 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 collectively with Communications Workers of America, Local 1122, by refusing to furnish it with performance apprais- als, with the names, addresses, and social security numbers deleted, of all our employees in western New York in the title of drafter, for the years 1981 through 1986, or by refusing to furnish it with the tardiness control records of our employees at the Tonawanda, New York garage WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the nghts guaranteed you by Section 7 of the Act WE WILL furnish, on request, to the Communica- tions Workers of America, Local 1122, the per- formance appraisals, with the names, addresses, and social security numbers deleted, of all our employ- ees in western New York in the title of drafter, for the years 1981 through 1986, and the tardiness con- trol records for our employees at the Tonawanda, New York garage NEW YORK TELEPHONE COMPANY Michael Cooperman, Esq , for the General Counsel Michael Hertzberg, Esq , of New York, New York, for the Respondent DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge Pursuant to charges filed in Cases 3-CA-14228 and 3-CA-14280 on February 29 and March 23, 1988, respectively, by Communications Workers of America, Local 1122 (Union), an amended consolidated complaint was issued against New York Telephone Company (Respondent) on Apnl 29, 1988 The complaint, as amended before and at the hearing, alleges that Respondent failed to furnish the Union with certain mformation which is necessary for and relevant to the Union's performance of its function as the exclu- sive collective-bargaining representative of the employ- ees in the unit Specifically, the complaint alleges that the Union re- quested and the Respondent failed to furnish it with (a) information relating to the maintenance of the cosmic frame equipment at Respondent's Lancaster, New York central office and the subcontracting ar- rangement pertaining to the cosmic frame, and (b) performance appraisals from 1981 through 1986 for individuals employed by Respondent in the unit as drafters in Western New York Respondent's answer denied the material allegations of the complaint and set forth certain affirmative defenses On January 25 and 26, 1989, a hearing was held before me in Buffalo, New York On the entire case, including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the parties, I make the following NEW YORK TELEPHONE CO 355 , FINDINGS OF FACT I JURISDICTION Respondent, a corporation, having an office and place of business in Buffalo, New York, has been engaged in the furnishing of telephone communication services During the past 12 months, Respondent, in the course and conduct of its business operations, derived gross rev- enues in excess of $100,000, and purchased and received at its Buffalo, New York facility, products, goods, and materials valued in excess of $5000 directly from points outside New York State Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Request for Performance Appraisals 1 The Facts The complaint alleges that since about December 22, 1987, the Union, by letter, has requested Respondent to furnish the Union with performance appraisals from 1981 through 1986 for drafters in western New York State Respondent raises several defenses, including that arti- cle 35 of the parties' contract requires the Union to obtain the consent of employees in order to obtain their appraisals In November 1986, two employees, Deborah Hender- son and Phyllis Tracy, were downgraded—demoted from their positions as drafters, to engineer study clerks The Union filed grievances protesting the "unjust downgrades" The grievance was denied by the Re- spondent The Union and Respondent agreed to waive step 1 of the grievance procedure In early 1987, the Union notified the Respondent in writing that it would appeal the denials of the griev- ances Attached to this notification was a request for in- formation which the Union sought for its use at the second-step grievance meeting, as follows Appraisals for all other drafters, for [sic] last 5 years Inasmuch as there are about 40 drafters in the unit, such a request involved about 200 appraisals A second-step grievance meeting was held on April 20, 1987 Not having received the requested information prior to the meeting, Union Executive Vice President Donald Loretto asked at the meeting for that informa- tion According to Loretto, Edward Bushway, Respond- ent's district manager of engineering, denied that re- quest 1 Loretto asked him why the two workers were demoted Bushway replied that they had 5 consecutive years of unsatisfactory performance appraisals and were unsatisfactory employees Loretto further stated that he I William Donaldson, Respondent's official, was also present at that meeting told Bushway that Respondent's standards were being unfairly applied in that the standards for performance ap- plied to employees in the Buffalo area were different than those in effect for drafters in other parts of New York State Accordingly, Loretto stated that he asked for the pro- ductivity and quality standards used in appraising em- ployees in the engineering department from 1980 through 1987 for all of Respondent's districts Loretto wanted those records in order to compare the standards for performance in the various districts of the Company's operations Bushway denied that request Loretto further stated that at that meeting Bushway told him that he (Loretto) needed employees' consent or releases to obtain information relating to grievances Loretto replied that he did not need releases to obtain this information 2 , When the meeting ended, Loretto called Henry Los- korn, Respondent's associate director of labor relations and requested the information An agreement was reached whereby Loretto agreed to accept "sanitized" appraisals—appraisals in which the names, addresses, and social security numbers of the employees involved were removed from the documents—of all drafters having an unsatisfactory rating in any rating category in the past 5 years Loretto agreed to accept this information in lieu of his previous request for the appraisals of all drafters for the past 5 years On April 24, 1987, Respondent sent the Union a letter denying the grievance and stating that "the information requested by the Union is unreasonable and not relevant to the gnevance " On April 28, 1987, William Donaldson, Respondent's official, sent Loretto the following letter, in relevant part As you agreed to with Mr Loskorn, attached are all the Western Area Drafter appraisals for the last five years which contain unsatisfactory ratings and a matrix indicating same I have also included P Tracy and M Hender- son's 1986 appraisals which you requested They represent ten months as drafters and two months in the Engineering Studies Clerk position Included in the April 28 letter were 14 appraisals of employees other than the 2 grievants Loretto testified that on receiving the 14 appraisals he checked the nuthber of grievances on file in his office and came to the conclusion that there must have been more than 14 unsatisfactory appraisals Loretto had about 22 or 23 grievances of drafters on file He did not check to see whether he had appraisals for any of those drafters nor did he compare the appraisals he received with those he may have had in his files Nevertheless, Loretto believed that eight or nine other employees must have had unsatisfactory appraisals, and that those were not forwarded to him as promised by Loskorn 2 This contradicts Loretto's testimony that the first time he heard of the requirment of employee consent to release if was in the Re- spondent's answer to the complaint Issued in this case 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, in May 1987, Loretto called Loskom and told him that not all of the appraisals were sent to him because of the greater number of grievances he had on file Loskorn told him that all the appraisals turned over to the Union constituted all the unsatisfactory ap- praisals in the Respondent's possession Loskorn asked him for the names of the employees he believed were missing Loretto stated that he did not tell Loskom all the names, nor did Respondent ask for all the names of the allegedly missing appraisals Loretto stated that he asked for all the appraisals, and Loskorn refused On July 16, 1987, a third-step meeting was held Present were Loretto and Respondent officials Loskorn, John Finnegan, and Robert Tait Loretto testified that at that meeting he asked again for all the appraisals and standards that had been previously requested The re- quest was refused Loretto further stated that at the meeting there was no discussion concerning his need to obtain written permission from employees in order to re- ceive their appraisals Loretto further stated that at that meeting Respondent did not rely on the confidentiality of the documents in refusing to release them Respondent's officials Finnegan, Loskom, and Tait all denied that the Union made any request for appraisals at that meeting Loretto testified that following that meeting, he of- fered to accept sanitized copies of all the appraisals and offered to help pay for their production Respondent re- fused to produce them On December 22, 1987, Loretto sent the following letter to Loskorn To further prepare and make a final decision on whether to arbitrate the [grievances relating to the demotions] please make available to me the follow- ing information 1 The written guidelines, for the W N Y Engi- neering Department, that affix the productivity and quality standards for the years 1981 through 1986 2 The appraisals of all employees in WNY in the title of Drafter for the years 1981 through 1986 According to Loskorn, following his receipt of the letter, he told Loretto that, pursuant to article 35 of the contract, he would have to obtain the releases of all the employees in order to obtain the rest of the appraisals Loretto denied that Loskom made such a comment When the information was not forthcoming, Loretto filed a charge Article 35 of the contract states as follows Inspection of Employee Records Once each year an employee may inspect the ap- praisals of his performance as an employee, or en- tries in his personnel record with respect to absence or tardiness Also on reasonable notice and at rea- sonable intervals, a Local Union Officer or Interna- tional Union Representative may inspect the items in an employee's record referred to above if such Local Union Officer or International Union Repre- sentative has the employee's written consent to do so As set forth above, Respondent relies on article 35 in its refusal to deliver the requested documents to the Union Donald Sanchez, a former union official, testified as to the origin of article 35 He stated that in 1968, the Union proposed what later became article 35 It was proposed in order to require Respondent to make available to the employees their personnel file Sanchez stated that pnor to 1968, the Union was given appraisals where they were relevant to a grievance There was no requirement, at that time, to obtain the consent of the employee whose appraisal the Union sought He further stated that the employees represented by the Union wanted the Union to be able to see their records The requirement that the Union have the consent of the employee before looking at a record was addressed to the situation where the file contained very personal information Sanchez noted that, faced with an accusation by Respondent that the Union filed too many grievances, the Union sought access to employee records, through article 35, in order to exam- ine personnel files and if necessary tell the employee that his grievance had no merit Loretto stated that after the inclusion of article 35, he has received appraisals of employees, for comparison purposes, in connection with grievances filed by other employees As to those nongnevant appraisals, and the 14 appraisals given to him in April 1987, Loretto was not asked by Respondent to obtain releases from the employ- ees involved 2 Analysis and discussion An employer has a duty to provide on request mfor- mation relevant "to the union in carrying out its statuto- ry duties and responsibilities" NLRB v Acme Industrial Co, 385 U S 432, 437 (1967) The standard for determining whether the information is relevant to a grievance is a "liberal, discovery-type standard " Acme Industrial, supra at 437 The information requested need not necessarily be dispositive of the issue between the parties, it need only have some bearing on it Respondent first argues that the information requested by the Union, "the appraisals of all employees in West- ern New York in the title of Drafter for the years 1981 through 1986" is irrelevant to the grievances relating to the two demoted employees However, the Umon con- tends that it needed the appraisals of all the drafters in order to compare them with those of the grievants As set forth above, the two grievants were demoted because they had 5 consecutive years of unsatisfactory appraisals and were therefore unsatisfactory employees As related by Union Official Loretto to Respondent's official Bush- way, the Union posed the question whether other em- ployees also had 5 consecutive years of unsatisfactory appraisals and were not disciplined In Safeway Stores, 270 NLRB 193, 196 (1984), and Pease Co, 251 NLRB 540, 550 (1980), the Board found that the unions' requests for performance evaluations of all employees was relevant and necessary to their respon- sibility as bargaining agents NEW YORK TELEPHONE CO 357 In Pfizer, Inc , 268 NLRB 916, 918 (1984), the union requested any documents which related to employees being disciplined under a certain rule by the employer The purpose of this request was to determine whether the grievant was properly punished for engaging in a fight with a coworker The Board stated In order to determine whether rules have been ap- plied evenhandedly it is necessary to compare the employment history of employees disciplined for the same rule violations [T]he documents re- lating to the other employees disciplined under rules 5 and 8 are relevant to a determination as to whether the Respondent, in taking into account past work performance, has treated like cases in a like manner, or whether there has been disparate treat- ment This information may therefore be of use to the Union either in deciding whether to proceed to arbitration, or in the arbitration proceeding Cer- tainly, we find that there is a "probability that the information [is] relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities" 268 NLRB at 919 Clearly, pursuant to the above principles, the Union's request for the performance appraisals of all western New York drafters from 1981 through 1986 is relevant to a determination of whether the demotions of the two grievants for having 5 consecutive years of unsatisfac- tory appraisals was consistent with the manner in which other employees in the unit were treated Such a com- parison could only be made if the Union was in posses- sion of the performance appraisals of the other employ- ees in the unit Respondent also argues that the Union is not entitled to the documents it requested because the Union (a) waived any right it may have had to the documents by agreeing to accept unsatisfactory appraisals in lieu of all the appraisals and (b) exhibited bad faith by repudiating its agreement with Respondent to accept the sanitized unsatisfactory appraisals in lieu of its pnor request for all the appraisals As set forth above, Loretto first requested all the ap- praisals of all drafters for the past 5 years He agreed, however, to accept sanitized unsatisfactory appraisals in lieu of the documents originally requested Respondent contends that the actions of the Union in compromising its demand and later repudiating its agreement to accept fewer appraisals precludes it from now, again, demand- ing all the appraisals Although the Union did agree to accept fewer appraisals than it originally sought, once it obtained those appraisals, it had a good-faith belief, based on its review of the grievances in its files, that not all the unsatisfactory appraisals had been provided it, and there- fore properly demanded what it had originally sought— all the appraisals Respondent claims that the Union did not in good faith seek the additional records because it only superficially questioned Respondent concernmg the allegedly missing unsatisfactory appraisals Thus, Loretto conceded that he only asked about a couple of names of persons whose gnevances he had and for whom he re- ceived no unsatisfactory appraisal However, in viewing this type of case, considenng the broad "discovery" standard applied in such cases, I do not believe that the Union should properly be limited to its original demand because it could not articulate which unsatisfactory ap- praisals were missing Thus, notwithstanding Loskorn's admitted statement to Loretto that the appraisals provid- ed constituted all those agreed to be given to the Union, the Union was entitled to see, for itself, the appraisals in- volved Thus, the Union did not have to take the Re- spondent's word that it provided all the appraisals agreed to Nor should the Union be put in a position where it was incumbent on it to provide the Respondent with the names of those it believed were withheld The facts that certain information may be known by a union, or it could obtain it from employees does not relieve an em- ployer from providing the "official version" of such in- formation from its files New York Times Go, 265 NLRB 353 (1982), .1 P Stevens Go, 239 NLRB 738, 746 (1978) See West Point Pepperell, 290 NLRB 1242 (1988), where the Board rejected the employer's argument that the union, in bad faith, sought information relating employ- ees' production in order to harass or embarrass the high producing employees Respondent further argues that the Union waived, by specific contract language, its right to the information re- quested The burden is on the Respondent to establish a "clear and unmistakable" waiver on the part of the Union NLRB v Perkins Machine Co, 326 F 2d 488 (1st Cif 1968), Timken Roller Bearing Co, 325 F 2d 746 (6th Cir 1963) A union may waive its statutory right to receive infor- mation from the employer Such a waiver may be by contract However, as the Supreme Court stated in Met- ropolitan Edison Co v NLRB, 460 U S 705, 708 (1983) We will not infer from a general contractual provi- sion that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated" More succinctly, the waiver must be clear and unmistakable The Second Circuit Court of Appeals stated as fol- lows National labor policy disfavors waivers of statutory rights by unions and thus a union's intention to waive a right must be clear before a claim of waiver can succeed Waivers can occur by ex- press provision in the collective bargaining agree- ment The language of a collective bargaining agreement will effectuate a waiver only if it is "clear and unmistakable" in waiving the statutory right Chesapeake & Potomac Telephone Co v NLRB, 687 F 2d 633, 636 (1982) The contractual provision relied on by Respondent in support of its argument that the Union contractually waived its right to receive the appraisals sought is as fol- lows Article 35 Inspection of Employee Records 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Once each year an employee may inspect the ap- praisals of his performance as an employee, or en- tries in his personnel record with respect to absence or tardiness Also on reasonable notice and at rea- sonable intervals, a Local Union Officer or Interna- tional Union Representative may inspect the items in an employee's record referred to above if such Local Union Officer or International Union Repre- sentative has the employee's written consent to do so There was much testimony, set forth above, concern- ing the fact that this provision was proposed by the Union, and the Union's intent in obtaining this clause However, I believe that the clause unambiguously sets forth the context in which this clause is to be applied Where contractual provisions are unambiguous, extrinsic evidence need not be considered Kal Kan Foods, 288 NLRB 590 (1988), NLRB v Electrical Workers Local 11, 772 F 2d 571, 575 (9th Cir 1985) The provision appears in a section entitled "Inspection of Employee Records" Its primary purpose is to establish a right in behalf of the employee to view his personnel record Apparently, no such right existed prior to this clause In addition, the provision permits a union official to view certain documents in an employee's personnel file if he has the written consent of the employee to do so General Counsel argues that this requirement is not ap- plicable to situations where the Union requests such doc- uments from Respondent for the purpose of processing grievances Respondent contends that this clause covers all situations in which the Union wishes to examine doc- uments in an employee's file, mcludmg the processing of grievances Article 35, on its face, clearly refers and is applicable to the situation where an employee wishes to view the documents in his personnel file, and the related circum- stance where the Union wishes to view such papers in that particular employee's file Article 35 has no refer- ence to the Union's statutory right to obtain information necessary to the performance of its duties as the bargain- ing representative of the employees The clause refers to the Union's ability to obtain documents "at reasonable in- tervals" This has some reference to the 1-year interval at which employees may view their files, and is related to the employee's request to inspect documents Thus, if the employee wishes the Union to inspect his records, the Union may do so on reasonable notice and at reason- able intervals with the employee's written consent The Union would not be so limited to looking at such docu- ments "at reasonable intervals" where it wished to do so for the purpose of processing grievances or prospective grievances, where such grievances might be filed with some regularity In fact, when the 14 appraisal forms were turned over to the Union after an agreement was reached with it, no consent forms were obtained by the Union from the employees whose appraisals were pro- duced The grievance procedure, set forth in article 11 of the contract prescribes an elaborate method for the process- ing of grievances That provision is silent on the Union's right to obtain information In order to find that article 35 applied to the processing of grievances and precluded the Union from obtaining appraisals for such purposes without the written consent of the appraisees, I would have to find that the Union clearly and unmistakably waived its statutory right to obtain such information without the consent of the workers whose appraisals it sought As found above, the documents sought, the ap- praisals of other workers, are unquestionably relevant and reasonably necessary to the Union in the perform- ance of its role as the employees' collective-bargaining representative Article 35 is limited to the inspection of employee records—not the Umon's use of them for the processing of grievances Article 35 provides a proce- dure for the Union's inspection of worker personnel files "at regular intervals" which is directly at odds with a union's right to obtain them promptly for its use in the timely processing of grievances Moreover, the parties' actual practice has not been to require the Union to obtain such releases in order to obtain the documents at issue General Dynamics, 270 NLRB 829, 830 (1984) Under these circumstances, and given the national policy disfavoring waivers of statutory rights, I cannot find that the Union clearly and unmistakably waived its right to obtain employee appraisals, on request, without first ob- taining the written consent of the employees involved I accordingly find and conclude that the Union was entitled to receive the appraisals it requested Inasmuch as the Union accepted copies of the 14 appraisals without the names, addresses, or social security numbers of the employees involved, and Loretto testified that after step 3 of the gnevance procedure he offered to accept such "sanitized" copies of all the appraisals, I will recommend in my Order that Respondent be required to produce copies of such appraisals without the names, addresses, or social security numbers of the employees involved B The Request for Subcontracting Information 1 The facts The complaint alleges that smce on about December 15, 1987, the Union has requested Respondent to furnish the Union with information relating to the maintenance of the cosmic frame equipment at the Respondent's Lan- caster, New York central office and the subcontracting arrangement pertaining to the cosmic frame In early 1987, a new frame was installed at the Lancas- ter facility Basically, the frame houses the cross connec- tions between the telephone cable entering the Respond- ent's facility and the telephone wires leaving the building which go to customers Respondent contracted with Northern Telecom to build the new frame Northern Te- lecom contracted with McClain Communications for the actual installation of the frame During its installation, the old frame continued in op- eration, providing service to Respondent's customers Once the new frame was installed, "board to board" tests were run to ensure that the connections made were correct, and matched the connections on the old frame Following installation of the new frame, if a customer had a service change—a new telephone number or can- cellation of service—such change was done by the con- •••■ NEW YORK TELEPHONE CO 359 tractor's employees on the new frame Such change in service work was ordinarily done by Respondent's em- ployees, and they continued to do such work on the old frame prior to the "cut-over" to the new frame The Union does not now claim that it was entitled to do the work of the installation of the new frame, nor that the work was improperly subcontracted Rather, it argues that employees represented by it were entitled to perform the repair or service change work on the new frame The Union filed charges in August and September 1987, in Case 3-CA-13920 which alleged the Respond- ent's alleged unlawful unilateral subcontracting of the maintenance work of the newly installed frame 3 On September 28, 1987, the Regional Director deferred processing of the charge because the matter was gneva- ble under the parties' collective-bargaining contract On October 16, 1987, the Union filed the instant griev- ance which states in relevant part Violation of Article 1—McClain employees used to complete service orders on cosmic frame after initial cross connections were completed 8/10/87 non-bargaining unit employees maintaining new frame 4 As set forth on the grievance form, the Respondent's position was that the contractor was hired for the com- plete cosmic frame job, until the cutover was made A second-step grievance meeting was held on October 30, 1987 According to Michael Ferrentino, the Union's president, he argued that the bargaining unit employees, those represented by the Union, and not the contractor's employees, should be doing the corrections work on the new frame He further argued that such unit employees currently performed that work on the old frame and should therefore be entitled to perform such work on the new frame Ferrentmo stated that he asked for a copy of the contract [between Respondent and Northern Tele- com] Respondent's official Roy Jordan refused to supply it, but said he would check with the labor relations de- partment In November and December 1987, the Union filed a charge in Case 3-CA-14062 which alleged Respondent's failure to supply it with a copy of the subcontract On November 16, 1987, the Union notified the Re- spondent in writing that it was appealing the grievance to the third step, and requested the following informa- tion Request engineer in charge of bids and contract for Lancaster D M S job [to] be at third step grievance meeting Documents showing When frame purchased How frame purchased 3 The collective-bargaining agreement's provision relating to subcon- tracting is as follows Article I3—The Company will not contract out work if such con- tracting out will cause, currently and directly, layoffs from employ- ment with the Company or part-timing of present employees 4 Article I of the contract is the recognition clause by which Respond- ent recognizes the Union as the sole and exclusive representative for its bargaining unit employees From who purchased When frame was accepted by NY Telephone Copy of orders delivered to C 0 from L A C On December 14, 1987, Respondent's official Henry Loskorn gave Ferrentmo two letters between Respond- ent and Northern Telecom which, according to Loskorn, constituted the contract for the installation and mainte- nance of the new cosmic frame The letters constituted the offer and the acceptance of the work set forth Es- sentially, it called for Northern Telecom to run the initial cross connections and additional cross-connections gen- erated by service orders, install protector units, run board to board tests, and clear board to board errors The letters had the cost figures deleted Ferrentmo tes- tified that he agreed with Loskorn that he would accept the two letters with the cost figures delete and would withdraw the charge in Case 3rCA-14062 Ferrentmo further stated that on receiving the two letters he called the Board agent and told the agent that the two letters he received satisfied his request for a copy of the con- tract made at the second grievance step, and that he would withdraw the charge On December 15, Ferren- tmo sent the Board a letter requesting withdrawal of its charge The letter stated that "Mr Loskorn has sup- plied us with all the information available concerning contractual arrangements" The request for withdrawal was approved by the Regional Director On December 15, the day Ferrentmo sent his letter re- questing withdrawal of the Union's charge, he and Union Representatives Don Hoak and Donald Loretto met at a third-step grievance meeting regarding this grievance, with Respondent's officials John Finnegan, Henry Los- korn, and Robert Tait Loretto testified that the basis of the grievance was that Respondent violated article 1—the recognition clause of the contract—in that the work performed by McClam's employees was bargaining unit work It was his position that Respondent violated the contract by contracting with Northern Telecom instead of bargaining with the Union for such work Loretto and Ferrentmo testified that they went through each item on the two letters supplied by Re- spondent and asked questions concerning them in order to support their case that the Respondent was improper- ly contracting for bargaining unit employees Ferrentmo stated that it was the Respondent's position at the grievance meetings that the job was a contract pursuant to which the contractor was paid a set price to install and fix the errors made by the contractor's em- ployees However, according to Ferrentmo, the letters stated that the contract was based on a time and expense basis, with hourly rates provided for Thus, Ferrentmo believed that this was not a legitimate subcontract, but a means by which employees outside the bargaining unit were utilized to perform unit work and paid an hourly rate which differed from the collective-bargaining agree- ment's wage rate According to the Union, Respondent's officials did not know the answers to many of the questions asked, or said that the questions were irrelevant 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On January 20, 1988, John Finnegan, Respondent's di- rector of labor relations sent a letter to Union Represent- ative Hoak, in which he denied the grievance, saying that the "Company has the right to contract work and no violation of Article 1 was committed." Finnegan fur- ther stated: The series of questions asked at third step are being researched and in some cases additional clarification has been requested from the Union. The Company is responding as the individual issues are clarified, if necessary and answers are developed. On February 1, Loretto wrote to Respondent's official Loskorn and told him that he had not received a re- sponse to his December 22 letter requesting informa- tion.5 When no answer from Respondent was forthcoming, the Union filed the instant charge on February 29, 1988, which alleged the failure to provide certain information. On April 6, 1988, Union Official Loretto sent a letter to Board Agent Revs Betha' which set forth the infor- mation requested by the Union at the December 15 meet- ing. On April 14, Board Agent Betha' sent the list to Re- spondent, and inquired whether it would provide the re- quested information. On April 26, Beverly Gross, Respondent's attorney, sent a letter to Betha' in which she responded to each alleged request, and attached a copy of the minutes taken by its officials at the December 15 meeting in support of her response. Based on the testimony of the witnesses for the Union and Respondent, and the documentary evidence, includ- ing the minutes of the December 15 meeting taken by Respondent and the Union, and the letters of agent Betha' and Respondent's attorney Gross, I find that the following questions were asked at the December 15 meeting and the following answers given, either at that time, or in Gross' letter of April 6. Q. The name of the McClain supervisor who ad- ministered the work.6 A. Raymond Pugh. Q. Were work assignments were given to the contractor on a daily basis . A. Yes. 5 The letter stated that on January 14, 1988, Loretto, Loskorn, and Finnegan had a conversation regarding his December 22 request for in- formation. Loretto testified that in that conversation he asked Finnegan and Loskorn whether they received his letter and if they would provide the information requested. Finnegan allegedly replied that he would con- sider it. Loskorn testified that in that conversation he provided certain information to Loretto as to the name of the McClain supervisor, and the fact that the maintenance administrators did not work with the contrac- tor. According to Loskorn, Loretto said he would call Loskorn if he had any more questions, and did not do so. 6. 1t should be noted that Respondent's official Loskorn testified at the hearing that much of the information allegedly requested at the meeting was not in fact requested. Nevertheless, the minutes of that meeting, as provided by Gross to the Board agent, contains answers given at that meeting to certain questions which Loskorn claims were not asked. Such questions include the name of the McClain supervisor who administered the work; whether the work assignments were given on a daily basis; and how the contractor accomplished the board-to-board test. Q. What is the meaning of install protector units?7 A. Heat coils. Q. Has Respondent ever contracted the board to board test, and where? A. Loskorn testified that Respondent gave no re- sponse at the meeting, but Gross' letter stated that such work has only been done by Respondent. Q. What tools were used to perform the board to board test? Who owned the tools? A. Punch-on tool or possible dial set. Respondent did the testing. Q. Who decided whether or not the cross con- nections which had been run were correct? A. Respondent denies that this question was asked. Q. Who decided what physical arrangement of Central Office equipment was correct? A. Respondent states that it does not understand this question. Q. How was the contractor paid for performing the original and maintenance work on the frame? A. Respondent states that such information was not relevant. Q. Did the contractor work with and under the direction of a Maintenance Administrator (a Union represented employee of Respondent?) A. No. Q. The Union requested an explanation of the fol- lowing sentence of the contract dated February 4, 1987: "Switched services will still be responsible for all COSMIC II frame related jobs as in the past." A. Respondent denied that question was asked. Q. The Union asked for an explanation of the term "all expenses" in the following section of the contract between Respondent and Northern Tele- com: "The prices of $ . . . regular time and $. . . overtime will include the installer and all expenses." A. Respondent states that such information is not relevant. Q. The Union requested the cost figures that were omitted from Respondent's contracts, includ- ing the rates per hour for regular and overtime work; the estimated cost of the job; the estimated number of hours needed to complete the job; the total cost of the job; and the total number of hours that the job required. A. Respondent states that such information is not relevant. 2. Analysis and discussion The main issue is the Union's request for the cost in- formation which was deleted from the two letters which Respondent supplied. General Counsel argues that the Union is entitled to the information requested because it needed such infor- mation in order to determine whether its grievance 7 The Union claims that it asked Respondent who installed the protec- tor units, but Ferrentino conceded at the hearing that he could not recall that question being asked. NEW YORK TELEPHONE CO 361 should be pursued The Union asserted that the work performed was not done by a contractor, but rather that Respondent had improperly hired temporary employees, in violation of the collective-bargaining agreement Thus, the Union sought to learn how they were compensated and supervised Respondent argues that the Union is not entitled to any information concerning its subcontracting arrange- ments because (a) the collective-bargaining agreement expressly permitted subcontracting and therefore since Respondent was not required to bargain about subcon- tracting it was not required to provide any information concerning any matter relating to subcontracting (b) the cost information requested by the Union is not relevant to the Union's grievance (c) the Union waived its right to the cost figures by specific agreement in which it ac- cepted the two letters with the cost information deleted in exchange for its withdrawal of a previous charge and the Union exhibited bad faith in repudiating that settle- ment agreement and (d) as to the noncost information re- quested, some items were not asked for, some were an- swered and the Union already knew the answers to many As set forth above, the cost information requested by the Union related to the number of hours and wage rates paid by Respondent to the contractor, Northern Tele- com, for its performance of the subcontract In NLRB v Acme Industrial, 385 U S 432, 438 (1967), the Supreme Court stated that a union should not be forced to process a grievance without the "opportunity to evaluate the merits of the claim" However, "the bare assertion that information is needed to process a griev- ance does not obligate the party from whom it is request- ed to turn it over" Detroit Edison Co v NLRB, 4.40 U S 301, 318 (1979) Thus, the union must show some rel- evance, or probability of relevance, for the requested in- formation Southwestern Bell Telephone, 173 NLRB 172 (1968) I do not believe that the Union has satisfied its burden with regard to the cost information it sought Here, the parties' contract expressly permitted Re- spondent to subcontract unit work except if such subcon- tracting would directly cause layoffs or part-timing of unit employees The Union has not made any assertion that the subcontracting has caused such displacement of unit employees It thus had no suspicion that the subcon- tracting is improper Indeed, it argues that subcontract- ing is not the issue However, its grievance, although la- beled as a violation of article 1—the recognition clause— in fact, is a grievance over subcontracting The griev- ance states that the subcontractor's employees were used to complete service orders on the frame after the initial cross connections were completed, and that nonbargam- mg unit employees were maintaining the new frame This grievance is clearly an attack on the subcontracting per- formed by Northern Telecom and its subcontractor McClain The Board's decision in Southwestern Bell, supra, clear- ly covers the issue here The Board, in dismissing a re- quest for subcontracting cost information, stated 8 [T]he Union requested cost information solely for the purpose of processing specific grievances alleg- ing that the subcontracting violated certain specified Articles of the collective-bargaining agreement be- tween the parties These pertained to recognition of the Union as bargaining representative of unit em- ployees, wages to be paid such employees for unit work, and a prohibition against strikes protesting the subcontracting At no time during the grievance discussions did the Respondent claim that cost was a factor, nor did the Union explain how cost was relevant to its preparation or presentation of the grievances in question Nor do we see any probability of relevance, as none of the Articles on which the grievances were based refer to cost Cost was not asserted as a reason for subcontracting, and it would thus appear that the detailed information requested by the Union would not have made the subcontracting any more or less permissible General Counsel asserts that Southwestern Bell is inap- posite because the employer there stated that cost was not a factor in its decision to subcontract the work be- cause its employees were too busy and could not per- form the work, whereas here Respondent's decision to use nonbargammg unit employees to perform the work must have been related to cost since bargaining unit em- ployees were available to do the work Such a distinction is too tenuous First, it must be observed that Respond- ent gave no reasons for subcontracting the work, and al- though there was evidence that Respondent's workers were capable of performing the work, there was no showing that they were available, at that time, to do it See Calmat Co, 283 NLRB 1103, 1105 (1987), where the Board dismissed a complaint which alleged the respond- ent's failure to provide information concemmg the wages paid to a subcontractor's employee W-L Molding Co, 272 NLRB 1239 (1984), cited by General Counsel is inapposite In that case, the Board found that the respondent unlawfully refused to furnish information concerning subcontracting notwithstanding a contract clause which gave broad authority to the em- ployer to subcontract, and which stated that subcontract- ing was not subject to the grievance and arbitration pro- visions of the contract In that case, the union had re- ceived reports that the employer was violating the con- tract by permitting management to perform unit work, transfernng ineligible employees into available unit jobs and fading to post job vacancies, moving machinery out of the plant and transferring them to another plant, and denying access to the plant to the union Accordingly, the Board found that the union had a good-faith concern that the employer might be evading its obligation to recall strikers to available jobs consistent with the con- 8 Southwestern Bell was recently cited by the Board and distinguished from the facts in the case in which It was cited General Electric Co, 294 NLRB 146 fn 4 (1989) 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tractual recall procedure, and on that basis held that the requested information on subcontracting was relevant and reasonably necessary to the union's function of polic- ing compliance with the contract. Here, no such :good- faith concern or relevance has been shown by the Union. As set forth above, no contention has been made by the Union that the subcontracting clause has been violated by virtue of layoffs or part-timing of unit employees. Accordingly, no relevance exists for the Union's re- quest for such cost information. Ferrentino's reason, stated at the hearing, as to why he requested the cost fig- ures, does not establish the relevancy of the request. He testified that he wanted the figures because he believed that the subcontractor's employees were being paid on an hourly basis and that therefore they should have been unit employees. However, inasmuch as the parties' con- tract permits subcontracting of unit work, it is irrelevant as to how they are paid, and even assuming that they are paid on an hourly basis, the collective-bargaining agree- ment does not prohibit that. Inasmuch as I have found that the Union's request for the cost information in the subcontract is not relevant to its grievance, I find that I need not reach the Respond- ent's other reasons for refusing to provide such informa- tion. Concerning the questions, set forth above, which- I find were asked by the Union, I find that questions 1, 2, 4, and 9 were answered by Respondent. I further find that questions 3, 5, 6, 7, 8, 10, 11, and 12 request information directly concerning the language of the subcontract or the work performed under it, and therefore Respondent was not required to provide such information. Southwestern Bell, supra. CONCLUSIONS OF LAW 1. Respondent New York Telephone Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, Local 1122 is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit described in article 1 of the collective-bar- gaining agreement in effect between Respondent and the Union constitutes an appropriate collective-bargaining unit. 4. By failing and refusing to provide the Union with information it requested relating to the maintenance of the cosmic frame equipment at the Respondent's Lancas- ter, New York central office and the subcontracting ar- rangement pertaining to the cosmic frame, Respondent has not violated Section 8(a)(5) and (1) as alleged in the complaint. 5. By failing and refusing to provide the Union with the performance appraisals of 'all of its employees in western New York in the title of drafter for the years 1981 through 1986, Respondent unlawfully refused to bargain in violation of Section 8(a)(5) and (1) of the Act. 6. The above unfair labor practices affect commerce Within the meaning of the Act. THE REMEDY • Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. • Inasmuch as the Union has offered to receive "sani- tized" copies of the performance appraisals requested, I shall recommend that the Respondent be ordered to fur- nish the Union with copies of the performance appraisals with the names, addresses, and social security numbers of . the employees involved deleted. [Recommended Order omitted from publication.] •