Combustion Engineering Inc.

COMBUSTION ENGINEERING 215 Combustion Engineering Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 558. Cases 39-CA-466 and 39-CA-813 21 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 November 1982 Administrative Law Judge Raymond P Green issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions 1 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, and conclusions only to the extent consistent with this Decision and Order This case arose from the Respondent's promulga- tion of a system for combating employee absentee- ism and tardiness called the "Out-Time Program," on 5 January 1981, 2 during the term of a collec- tive-bargaining agreement between the Respondent and the Union The Out-Time Program established harsher disciplinary standards than had existed pre- viously On 6 January the Union filed a grievance under the collective-bargaining agreement request- ing that the program be immediately discontinued The parties were unable to resolve this dispute be- tween themselves and eventually brought it before Arbitrator Louis Pitticco Pitticco held that the Respondent had violated the contract by instituting the Out-Time Program without negotiating with the Union and ordered the Respondent to cease and desist from enforcing it He did not render any findings, however, as to the validity of disciplinary measures already taken against employees under the Out-Time Program Thereafter, the Union filed several individual grievances under the contract, requesting that the Respondent withdraw all such disciplinary meas- ures and make whole the punished employees In one case, the grievance eventually proceeded to ar- bitration, and Arbitrator J Larry Foy ordered that dischargee Kevin Bennett be reinstated, but with- ' In its brief in answer to the Respondent's exceptions, the General Counsel summarily requested that we dismiss the Respondent's excep lions for alleged noncompliance with Sec 102 46(i) of the Board s Rules and Regulations However the General Counsel provided us with no more specific grounds for such dismissal Since no grounds are apparent we deny the General Counsel's request 2 All dates are in 1981 unless otherwise indicated out backpay for the 6 months he was out of work Another grievance, filed on behalf of discharged employee J D Richard, was settled by the parties without resort to arbitration The Respondent, the Union, and Richard signed a memorandum of agreement stating that Richard would be reinstated without backpay subject to a 120-day probationary period 3 In his decision, the judge did not defer to the ar- bitration awards of Pitticco or Foy, or uphold the validity of the settlement agreement involving Richard Rather, he concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by im- plementing the Out-Time Program without bar- gaining with the Union, and recommended that all employees disciplined or discharged pursuant to this program, including Bennett, be reinstated and made whole with full backpay He did not specifi- cally address Richard's settlement agreement, but left the question of its validity to the compliance stage of the proceeding The Arbitration Awards In its exceptions, the Respondent urges that the Board defer to both arbitration awards pursuant to our Spielberg4 policy and find the settlement agree- ment involving Richard to be lawful In response, the General Counsel contends that we should not even consider the Respondent's request for defer- ral, asserting that the Respondent did not raise this argument prior to filing its exceptions to the judge's decision, and therefore its request was un- timely and inappropriate We disagree In general, the Board will not defer to an arbitra- tion award unless the party urging such deferral has raised this issue in a timely manner In prior cases, the Board has held that a party raising a de- ferral issue for the first time in its exceptions has done so too late Bourne's Transportation, 256 NLRB 281 fn 3 (1981), MacDonald Engineering Co, 202 NLRB 748 (1973) This policy seeks to ensure that the deferral issue is fully litigated and that the record is complete enough for the Board to render an informed decision Geary Ford, 261 NLRB 1149 (1982), MacDonald Engineering, supra In the present case the Respondent contended at the hearing that the Board should defer to Arbitra- tor Foy's award reinstating Bennett without back- pay 5 and introduced this award into evidence 3 The agreement further stated that Mr Richard and the Union agree that this memorandum settles any and all actions of any kind, including those now pending concerning Mr Richard 4 Spielberg Mfg Co , 112 NLRB 1080 (1955) 5 The award also required that Bennett be made whole for all seniority and pension credits lost due to his discharge 272 NLRB No 32 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD along with adequate background information The judge in his decision specifically considered wheth- er to defer to this award, but decided against it 6 Therefore, it is not untimely for the Respondent to continue to urge that we defer to this award The question of whether to consider deferral to Arbitrator Pitticco's award presents more unusual circumstances The Respondent now requests that we defer to this award, although during the hear- ing the Respondent argued to the contrary, con- tending that the case was incorrectly decided by the arbitrator Despite this inconsistency in the Re- spondent's position, in this unique situation we will consider its request to defer The issue was fully litigated at the hearing, and the General Counsel cannot claim undue surprise at the Respondent's raising the issue at this time Moreover, deferral to this award effects the same result as the judge's de- cision, both would require the Respondent to cease enforcement of the Out-Time Program According- ly, we find that the Respondent is not precluded from asserting that the Board should defer to the awards rendered by Arbitrators Foy and Pitticco, and we may now consider whether such deferral is warranted under our Spielberg criteria, as recently interpreted in Olin Corp, 268 NLRB 573 (1984) No party alleges that the proceedings before either Arbitrator Pitticco or Arbitrator Foy were not fair and regular or that the parties did not agree to be bound by the arbitrators' awards Therefore, we need only determine whether these awards are "clearly repugnant" to the Act We find that they are not In Olin Corp, supra at 574, the Board held [W]ith regard to the inquiry into the "clearly repugnant" standard, we would not require an arbitrator's award to be totally consistent with Board precedent Unless the award is "palpa- bly wrong," i e, unless the arbitrator's deci- sion is not susceptible to an interpretation con- sistent with the Act, we will defer [Footnote omitted ] Arbitrator Pitticco's award fully meets this standard, as it is fully consistent with the Act The award mirrors the judge's decision in holding that the Respondent violated the collective-bargaining agreement by implementing the Out-Time Program without bargaining with the Union and in ordering the Respondent to cease and desist from further en- forcement of the program The arbitrator found as follows "The subjects as presented in the Out- Time Program are mandatory subjects of bargain- ing pursuant to the contract, and therefore must be negotiated with the Union if the Company wishes 6 See the remedy section of his decision to institute the program" Although Arbitrator Pit- ticco based his findings on the contract rather than the Act, his analysis and conclusions are wholly consistent with the Board's approach to such issues, and thus deferral is clearly warranted 7 Ac- cordingly, we will not duplicate the arbitrator's cease-and-desist award in our Order Nor will we specifically order that the Respondent bargain with the Union in the future, as this requirement is im- plicit in the arbitration award Regarding Bennett, Arbitrator Foy decided that the discharge was not for proper cause, because it stemmed from the improperly promulgated Out- Time Program He ordered that Bennett be rein- stated without backpay, stating In the present case, the fashioning of an appro- priate remedy is a difficult question It is made so by the gnevant's demonstrably obdurate at- titude toward correcting his history of absen- teeism and tardiness and his apparent lack of concern about his job security This is evident from his failure to improve his record of unex- cused absences until he received the three day suspension It is also evident from his lack of concern about his job security as he blithely accepted more serious levels of progressive discipline without even being concerned enough to file a grievance until the eleventh hour when he was discharged It is further evi- dent from his disturbing failure to fully follow his doctor's advice (even to the date of the hearing) on controlling his health problems and thereby his absences Finally, even with having been discharged and out of work for nearly six months by the date of the hearing, the grievant seemed not to have appreciably increased his understanding of the need to im- prove his absenteeism In light of this, I must reluctantly conclude that the Company's argu- ment that "[t]here is little hope that if Bennett did return to work his record would be any better," [Br, p 7} 8 may regrettably be correct Thus, Arbitrator Foy determined that although Bennett was improperly discharged, backpay was not warranted due to his poor attitude toward im- proving his performance As Olin Corp suggests, the Board's decision whether to defer to an arbitration award does not hinge on whether we would reach the same result 7 See Bay Shipbuilding Corp, 251 NLRB 809, 810 (1980), in which a Board panel held that an arbitrator need not refer specifically to Sec 8(a)(5) of the Act if he makes factual findings in the course of resolving the contractual issues which resolve the unfair labor practice issues Olin Corp, supra, implicitly supports this finding 8 This is a citation to the Respondent's brief to the arbitrator COMBUSTION ENGINEERING 217 de novo Rather, our concern is to ensure that the decision does not impinge upon the parties' rights under the Act In this case, we find that Bennett's rights were preserved by his reinstatement, and the arbitration award is not invalidated by the arbitra- tor's decision not to award backpay since this remedy was based on a factor that is not inconsist- ent with the Act We find Douglas Aircraft Co v NLRB, 609 F 2d 352 (9th Cir 1979), directly on point In that case, the court refused to enforce a Board decision 9 not to defer to an arbitration award of reinstatement without backpay for a grievant whose discharge was judged improper The court found that one of the reasons for the arbitrator's refusal to award backpay was the discharged employee's pattern of abusive and uncivil conduct, and since this reason "rested independently on a ground not repugnant to the Act, the Board should have deferred as per its established policy " 10 In the instant case, the ar- bitrator also denied backpay on an independent ground that was not repugnant to the Act—Ben- nett's obdurate attitude toward improving his at- tendance The arbitrator's remedy, though perhaps different from what the Board would have ordered de novo, is reasonably based and is susceptible to an interpretation consistent with Board policy Ac- cordingly, we find that Arbitrator Foy's award is not clearly repugnant to the Act, and we will defer ii The Settlement Agreement The judge further found that there were several grievances filed regarding disciplinary actions taken under the Out-Time Program, and 12 [I]t appears that at least some of those cases have been settled in the grievance procedure short of arbitration However, I do not know the nature, extent, or circumstances pursuant to which such settlements have been made As such, those settlements may or may not affect an employee's rights to be made whole and I shall therefore leave that question to the corn- 238 NLRB 668 (1978) 1 ° Douglas Aircraft Co v NLRB, supra, 609 F 2d at 354 See also Fikse Bros Inc , 220 NLRB 1301 (1975), reversed on other grounds and re manded sub nom Stephenson v NLRB 550 F 2d 535 (9th Or 1977), in which a Board panel majority deferred to an arbitration award of less than full backpay for an individual whose discharge violated the Act The Board therein refused to enter such a controversy solely for the object of reassessing and, perhaps, adjusting the amount of a monetary award" " We believe that the flexibility of remedies is a major advantage of arbitration Industrial peace is more likely to result from awards tailored to specific circumstances than those applied mechanically to diverse situ- ations 12 See the remedy section of his decision phance stage of this proceeding [Footnote omitted ] We find this analysis unconvincing as applied to J D Richard's settlement agreement with the Re- spondent The terms of the agreement suggest that both Richard and the Respondent made conces- sions in order to settle the grievance and to avoid arbitration Specifically, Richard agreed to forgo backpay, and the Respondent agreed to reinstate him though not obligated to do so at the time 13 The General Counsel does not allege that Richard was coerced into signing the agreement, that the agreement did not resolve all pertinent issues, or that the parties did not agree as to the terms and application of their private settlement The facts before us are adequate to determine that the settlement agreement is valid under our standards, and we do not envision that information gained through compliance proceedings would aid us in our decision-making process We wish to en- courage parties to resolve disputes without resort to Board processes, and by upholding voluntarily negotiated agreements such as this one we can fur- ther this goal Accordingly, we will not leave the question of the validity of the agreement between the Respondent and Richard to the compliance stage of this proceeding, but will let it stand in its current form 14 AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 5 and renumber the subsequent paragraphs ORDER The National Labor Relations Board orders that the Respondent, Combustion Engineering Inc , Windsor, Connecticut, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Refusing to provide the Union with photo- copies of information and records which are rele- vant to grievances under the Out-Time Program or other grievances under the collective-bargaining agreement at a reasonable cost (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- " In Coca Cola Bottling Co, 243 NLRB 501, 502 (1979), the Board de ferred to a settlement agreement because it "was the product of negotia tions during which each of the parties made concessions 14 We make no finding as to the validity of any arbitration awards or settlement agreements involving discipline pursuant to the Out Time Pro gram other than those we have specifically discussed as no such awards or agreements were Introduced into evidence at the hearing The judge found that the Respondent violated Sec 8(a)(5) and (1) of the Act by failing and refusing to provide to the Union requested infor mation regarding employee discipline under the Out Time Program No exception was taken to this finding, and we therefore adopt it 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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) On request, furnish the Union with informa- tion and records relevant to administration of the Out-Time Program and other grievances under the collective-bargaining agreement and provide it with photocopies of such information and records at a reasonable cost. (b) Post at its plant in Windsor, Connecticut, copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Subregion 39, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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 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. 15 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 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 provide International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 558, with photocopies of information and records which are relevant to grievances under the Out-Time Pro- gram or other grievances under the collective-bar- gaining agreement at a reasonable cost. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, furnish the Union with in- formation and records relevant to administration of the Out-Time Program and other grievances under the collective-bargaining agreement and provide it with photocopies of such information and records, at a reasonable cost. COMBUSTION ENGINEERING INC. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in Hartford, Connecticut, on July 22 and 23, 1982. The charge in Case 39-CA-466 was filed on December 31, 1980, and the charge in Case 39-CA-813 was filed on August 28, 1981. On October 28, 1981, the Officer-in-Charge of Su- bregion 39 issued an Order consolidating cases and a consolidated complaint. In substance the complaint al- leges. I. That on or about January 5, 1981, the Respondent, without having afforded the Union an opportunity to bargain, implemented a revised absentee policy which in- cluded disciplinary penalties for employees 2. That since July 9, 1981, the Respondent has refused to comply with the Union's request for information re- garding the implementation of the aforesaid revised ab- sentee policy. Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Delaware corporation, has a facili- ty in Windsor, Connecticut, where it is engaged in the manufacture of nuclear products. Annually, the Re- spondent sells and ships products valued in excess of $50,000 from its Windsor, Connecticut facility directly to points located outside the State of Connecticut. Accord- ingly, it is concluded that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties agree and I find that the Union involved herein is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE FACTS A. Background ' On September 28, 1959, the Union was certified as the exclusive collective-bargaining representative of the pro- duction and maintenance employees at Respondent's Windsor, Connecticut facility. The most recent contract between the parties (prior to the hearing in this case) ran for a term from July 1, 1979, to June 30, 1982. At the relevant times herein, the bargaining unit consisted of ap- proximately 250 employees. Insofar as relevant to the present case, various provi- sions of the collective-bargaining agreement were cited by the parties. These provisions which have been con- tained in various successive contracts are set forth as fol- lows: COMBUSTION ENGINEERING 219 Article I, Section II By entering into this Agreement, it is the general purpose and intent of the parties to set forth the entire Agreement between the parties on rates of pay, wages, hours and working conditions, re- gardless of prior company policies or practices, and to conclude bargaining on all subjects, whether or not covered in this Agreement Article II, Section III The Union agrees that the Company has the right to secure a full day's work on the part of the Em- ployees, eliminate waste and inefficiency, combat absenteeism and other practices which curtail pro- duction The Union agrees to support the Company's ef- forts to improve methods, machinery and quality of workmanship and prevent accidents Article III Management Rights Section I The management of the plant and the direction of the working force including the right to hire, transfer, demote, promote, suspend or dis- charge for proper cause, and the right to schedule hours of work or to relieve Employees from duty because of lack of work or other legitimate reasons, the assignment of work, the determination of all production methods and processes, and all other management functions are exclusively vested in the Company None of these functions will be exercised in such a manner as to constitute a violation of this Agree- ment Article XIX Company Rules Section I The Company agrees to post copies of the rules and regulations of the Company, or amendments thereof, governing the general conduct of all Employees in the Bargaining Unit These rules and regulations shall not be devised so as to abridge the rights of Employees guaranteed by this Agreement Section 2 Written reprimands more than twelve and one-half months old will not be used in other disciplinary action against an Employee providing that the Employee has no further disciplinary action during this period In furtherance of article XIX of the contract, the Com- pany has maintained certain work rules which have been posted throughout the plant for many years Since at least 1979, Rules 8 and 16 have read as follows Conduct Or Acts That Are Prohibited 8 Unreported or unexcused absences or lateness that tends to interfere with the work progress 16 An employee must be at his regular work place ready to work at the regular starting time and regular quitting time and shall not leave the work station unless so authorized by the supervisor B The Pre-I981 Disciplinary Procedures in Relation to Employee Absence and Lateness Since about 1975 or 1976 until January 1981, the Com- pany had a policy for combating absenteeism and laten- esses which was called the occurrence program 1 It ap- pears that this policy was never reduced to a written document and was applied without objection by the Union The policy was neither referred to in the collec- tive-bargaining agreements, nor was it referred to in the above-quoted rules Under this system each absence or lateness was treated as a single occurrence Also, consec- utive days off were treated as a single occurrence The occurrences for each employee were put into a computer program and, at the end of each calendar quarter, a printout would be generated and analyzed The employ- ees having the highest 10 to 15 percent of occurrences would then be subject to discipline Discipline under this system was meted out in accordance with a progressive disciplinary structure and the steps went from a verbal warning to a written warning, to a 1-day suspension, to a 3-day suspension to a 5-day suspension, and finally to a discharge Although the evidence herein indicates that there may have been rare exceptions to the progressive system, 2 the normal operation of the system contemplat- ed that an employee would receive no more than one disciplinary action per calendar quarter It therefore would take a minimum of six quarters for an employee to be discharged for absenteeism under the occurrence pro- gram Moreover, this was tempered by the fact that the top 10 to 15 percent of persons were not automatically given disciplinary actions, as the system was not rigidly applied and left a degree of discretion with management as to whether an employee's absentee record warranted discipline Also, if an employee maintained a good record for 12 consecutive months, his prior disciplinary actions would be wiped clean in terms of applying the next disciplinary step In terms of the administration of this program, it therefore is apparent that it would take a substantial amount of time for an employee to reach the point where he or she would be discharged In this regard, the evidence establishes that under the occur- rence system only two employees had been discharged, and in one case it is debatable whether the employee was actually discharged pursuant to the system 3 1 No detailed evidence was presented as to precisely when, or the cir cumstances in which, the occurrence program was adopted According to the Company, the program was instituted without bargaining with the Union 2 Mark Himelberger, the manager of industrial relations, testified that the foremen in the maintenance department did not always follow com- pany policy in relation to the program He testified that these foremen, from time to time, meted out discipline more than once a calendar guar ter He did make it plain, however, that these actions were contrary to company policy 3 In one case, an employee named French called in sick and was later found to be eating lunch at a nearby restaurant In effect, his discharge appears to have been related more to his misrepresentation than to his absences French's discharge was gneved by the Union and he was rein stated The other case involved an employee named Murphy, who was discharged without having accumulated all five prior disciplinary steps In that case the employee elected to resign and did not file a grievance Therefore, in Murphy's case, no issue was made as to the failure to afford him all of the pnor disciplinary steps 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Promulgation of the Out-Time Program When Himelberger took over as the manager of indus- trial relations in April 1980, he began working on a new program to deal with absenteeism. He testified that by December 1980 he had finished work on the new system and had received approval from his superiors to imple- ment it in January 1981. In contemplation of installing the new system, the old occurrence program was elimi- nated and no employees were supposed to be receiving disciplinary actions for absences in the final quarter of 1980.4 On December 19, 1980, the Union's agents were called to a meeting with the Company and were presented with a new program called the out-time program. At the meeting, the Union's representatives were asked to com- ment on the program but were specifically told that the Company intended to implement it in January 1981 and that it was, in their view, not negotiable. At first, the Union's representatives were about to leave the meeting because the program was presented to them as a fait ac- compli. They were, however, persuaded to stay at the Company's urging At the meeting, the Union was pre- sented with a written copy of the out-time program, which essentially replaced the occurrence system with a point system. The Union made the general objection that the Company had not negotiated the program with them. It also made specific objections to various particulars of the program. For example, although the program de- scribed an employee's union business as nonchargeable out time, it nevertheless provided that discipline could be given for excessive nonchargeable out time. As distinguished from the old occurrence system, the principal difference under the new system was that points charged for absences or lateness were to be accu- mulated on a continuous basis so that disciplinary actions would not be given out on a one-per-quarter basis, but rather as certain levels of points were reached. In this re- spect, it therefore would be anticipated that an employee could receive more than one disciplinary action per quar- ter. Indeed, it would be possible for an employee to go through the entire progressive disciplinary structure within a much shorter period of time than was possible under the occurrence program. Also the 5-day suspen- sion step was eliminated. Additionally, as compared to the old system, which was somewhat loosely adminis- tered, the new system was to be more automatically ap- plied. Other differences existed, but need not be detailed. The out-time program as presented to the Union on December 19 read as follows: 1. Attendance periods will be based on quarters: Jan. 1-Mar. 31 First Quarter Apr. 1-June 30 Second Quarter July 1-Sept. 30 Third Quarter Oct. 1-Dec. 31 Fourth Quarter 2 The following point schedule will apply to chargeable out time during an attendance period: 4 Through inadvertence one or two employees did receive disciplinary actions in the final quarter of 1980 Report Late/Leave Early-3 points Reported Full Day Out-6 points Unreported Full Day Out-9 points 3. Nonchargeable/out time will consist of the fol- lowing: a Holidays (unless scheduled for work) b. Plant Closings (except for Plant Operators) c. Illness or Injury, personal or family, with an acceptable medical statement d. Vacations e. Jury Duty f. Funeral Leave g. Excused Union Business h. Approved Personal Time 4. Chargeable out-time will consist of the following. a. Unreported Days b Unapproved Personal Days c. Illness or Injury, personal or family, without an acceptable medical statement d. Report Late/Leave Early e. Holidays when requested to work and refused without an acceptable excuse. f. Scheduled Overtime which is not worked but has not been rejected according to Article XV Sec- tion 6C of the Union contract. 5. The following disciplinary schedule will prevail: 18 points Verbal Warning 30 points Written Warning 42 points 1 Day Suspension 54 points 3 Day Suspension 66 points Discharge 6. Administration: a. Points will be accumulated on the basis of chargeable out time during an attendance period. Disciplinary action will be administered on a day- to-day basis. b. If an employee ends an attendance period with less than 12 points, the employee will start the next attendance period with 0 points. c. If an employee ends an attendance period with 12 or more points, the points will carry over to the next attendance period. d. If a discipline is received during an attendance period, all accumulated points will carry over to the next attendance period. e. If an employee receives 6 or less points during an attendance period, the employee will receive 6 credited points which will be used to reduce accu- mulated points of 12 or more or establish a credit of points. Credited points will be used in blocks of 6 points. f. Credited points may be carried over to the next attendance period up to a maximum of 12 points. g. No credited points may be earned in an attend- ance period where credited points have been used. h. On days when an employee is scheduled to work overtime and has not specifically rejected the COMBUSTION ENGINEERING 221 overtime, out time will be charged as on any other workday 7 Probationary employees will not be covered by this program Upon successful completion of the probationary period, the employee will convert to the current attendance period 8 Excessive non-chargeable absenteeism may be cause for disciplinary action 9 An acceptable medical statement must be submit- ted on an appropriate physician's form providing the employee's name, nature of Illness or injury, days of disability, and release to full-time, non-re- stricted work 10 An employee will be charged points for an ill- ness or injury and disciplined as scheduled until an accepted medical statement has been provided Following the meeting described above, the plant was closed for the Christmas/New Year's vacation from De- cember 24, 1980, to January 2, 1981 In the interim, the Union's president, Arthur Mistos, contacted an Interna- tional representative, Ben Miller, who advised that an unfair labor practice charge should be filed This was done on December 30, 1980 On January 2, 1981, the employees were given copies of the out-time program which was to become effective on January 5 This plan contained a modification in the plan which had been presented to the Union on Decem- ber 19 In this respect, the provision relating to excused union business was deleted In all other respects the plan was identical On January 6, 1981, the Union filed a grievance under the collective-bargaining agreement This grievance stated Statement of Grievance With the implementation of the Out Time Program, the Company, by its agents and representatives, failed and refused to bar- gain collectively and in good faith with the Union in respect to rates of pay, wages, hours and work- ing conditions regardless of prior company policy or practices etc Proposed Solution Discontinue the program im- mediately and in the future, policies and/or changes regarding rates of pay, wages and working condi- tions will be negotiated with the Union A second step grievance meeting was held on January 9 The Company's position at the meeting was that the new out-time program was neither negotiable nor arbi- trable Also, the Company asserted that the Union had not identified an injured employee (At that time, It would have been impossible to identify an injured em- ployee because the program had just gone into effect ) Also at this meeting, the Union presented its views re- garding certain provisions of the out-time program which it believed contravened certain provisions of the collective-bargaining agreement On January 26, the Company issued a second revised out-time program This was in response to some of the Union's objections Thus, paragraph 4(c) was changed to read 4 Chargeable out time will consist of the following (c) Illness or Injury, personal or family, without an acceptable medical statement, (unless covered by the first Five Days Sickness Policy) Also eliminated was paragraph 8 which had stated that "excessive non-chargeable absenteeism may be cause for disciplinary action" On February 3, 1981, a third step meeting was held Once again the Respondent adhered to the view that im- plementation of the out-time program was neither negoti- able nor arbitrable In part, its answer stated The Out-time Program recently instituted is not intended to modify any conditions laid down by the Contract or to impose any new conditions, but rather represents those procedures needed for the equitable administration of the general provisions of the Agreement Should the Union bring forth spe- cific substantive issues with regard to the program, these will be considered each upon its own merits, however, no injured party has been identified and the program, per se, is not considered subject to the grievance procedure or to arbitration On February 4, the Respondent issued its final revised out-time program In addition to the previously noted modifications other modifications were as follows Paragraph 3(a) regarding the definition of nonchargea- ble out time was changed from "Holidays unless sched- uled for work" to "Holidays" Paragraph 3(h) was reworded as "Approved Leaves Of Absence" Paragraph 4(e) was deleted and paragraph 4(f) was made 4(e) On February 17, Ben Miller, the International's repre- sentative, wrote a letter to Arthur Mistos which set forth his ideas for settlement of the grievance This letter was given to the Company but was not responded to By letter dated February 19, the Union requested arbi- tration of the grievance The letter stated RE Grievance regarding Out Time policy Through the entire Grievance procedure the Union has maintained that issues regarding "Rate of pay, hours of work and conditions of employment" are negotiable items and are subject to the bargaining process, not only by contract but also under the law The Company by putting into effect an out time policy where disciplinary action is meted out and refusing to allow any input by the Union, bypassing the bargaining process, is guilty of violating both the contract and the law The Company has re- mained steadfast in its position that bargaining this issue is not required, although they have made changes in the policy The issue then is not the out time policy but whether the Company has the right to make changes in the contract regarding "rates of pay, hours of work or conditions of employment" 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the Company refuses to abide by the pro- posed solution of the written grievance, leaves the Union with no other alternative but to request arbi- tration. The arbitration hearing was initially scheduled for September 3, but was postponed at the Union's request until October 30, 1981. On July 9, the Union requested certain information in relation to the pending arbitration. The request was as follows: Pursuant to our pending controversy regarding the out-time program, the Union is requesting the names and records of all employees who have re- ceived points under the program, how many points and why they were given, excuses made and why excuses were rejected, reprimands given, how many and why. On July 15, the Company responded that the informa- tion "will take some time to develop and will be for- warded upon completion." Thereafter in August, Mistos telephoned Himelberger and orally requested the information. He was told that, although he could come to the office and make notes, the records could not leave the office. Mistos credibly testified that he suggested that photocopies be made at the Union's expense and that this was refused. When the Union's representatives were offered a specific date to review the records (August 27) Mistos was scheduled to be in Chicago and his designee, Richard Bergen, was told that he would have to review the records on his own time. With all the foregoing conditions placed on the Union, they decided not to go Instead, on August 28, 1981, the Union filed the charge in Case 39-CA-813. In relation to the information requested, the Union's representatives testified that, in connection with the pending arbitration of the out-time program, they were desirous of seeing how the program was actually being administered and the actual impact it was having on the employees. Although it is agreed that the Union was re- ceiving, in the normal course of business, copies of all disciplinary actions as they were issued, the other infor- mation requested was not received. Himelberger testified that, as these were company records which he asserts contained medical information, he believed that the Company was not obligated to turn them over. Howev- er, based on a sample of one of the records, it is clear to me that no privileged or confidential information was in- volved. At most the records simply indicated whether an absence was due to illness, without stating the nature of the illness. The Company also asserts that the informa- tion was burdensome to provide. Nevetheless, the evi- dence indicates that the information requested was re- corded on a page or two for each employee and that the pages were maintained in two looseleaf books containing, to that point, about 500 pages. On October 30, 1981, an arbitration hearing was held. In its brief to the arbitrator the Union requested a remedy which, inter alia, would vacate all warnings re- ceived under the out-time program. Also sought was a make-whole and reinstatement remedy for all employees who had been suspended or discharged under the pro- gram. On December 18, 1982, Arbitrator Louis P. Pittico issued his award, holding that: The Company violated the Collective-Bargaining Agreement between the parties by instituting an Absenteeism and Tardiness Program without prior negotiations with the Union The Company is di- rected to cease and desist from further use of the Out Time Program until it negotiates and reaches an Agreement with the Union concerning the con- tents of such a program. While the arbitrator did order the Company to cease and desist from utilizing the out-time program, he did not grant the other relief requested by the Union. 5 For its part, the Company has complied with the award. Thus, the parties are in agreement that the out-time pro- gram has been terminated and that the Company has re- verted to the occurrence system. However, it is noted that, because the arbitrator's award was limited in terms of the remedy, a number of employees had been dis- charged, suspended, or given warnings between January 5, 1981, and the date of the award. These disciplinary ac- tions were not removed by the Company after the issu- ance of the award and apparently the Union has filed grievances as to some but not all of these. Although it appears that in two of the discharge cases the Union set- tled those matters in the grievance procedure, the precise nature and extent of the settlements are not known to me. Also, one discharge case, involving a Mr. Bennet, was presented to a different arbitrator on April 23, 1982. On July 7, 1982, that arbitrator issued a decision finding that Bennet's discharge was without just cause and or- dered his reinstatement. & However, because the arbitra- tor concluded, notwithstanding the invalidity of the out- time program, that Bennet was excessively absent he concluded that Bennet was not entitled to backpay for the 6 months that he was out of work. The arbitrator also concluded that Bennett's absentee record should be recalculated as it would have been done under the de- funct occurrence program and that if discipline, short of discharge, would have been warranted under the old system then such discipline should be issued to him. As to this latter point, I do not know whether or not an at- tempt has been made to figure out what discipline should be issued to him. As to this latter point, I do not know whether or not an attempt has been made to figure out what discipline would have been issued to Bennet using the occurrence system. III. ANALYSIS A. The Alleged Unilateral Change It is evident that, for a considerable (albeit undeter- mined) length of time, the Company has maintained a set of rules which required, at items 8 and 16, that employ- 5 It IS likely that, had the arbitrator granted the full relief requested by the Union, this case would never have been tned 6 Shortly before the heanng in this matter, Bennet returned to work at the Company COMBUSTION ENGINEERING 223 ees, upon pain of disciplinary action including discharge, be on time and maintain their attendance The Union does not challenge the validity of those rules as such What the Union does challenge is the unilateral imposi- tion of a changed disciplinary system to enforce the aforesaid rules The record establishes that in or about 1975 or 1976 the Company promulgated a set of procedures to admin- ister the basic rules relating to tardiness and absenteeism While the specific circumstances under which those pro- cedures were established is obscured by the passage of time, it does appear that what was called the occurrence program was implemented without bargaining with the Union As described above more fully, the old system defined occurrences as discrete absences and latenesses and, on a quarterly basis, those employees having the highest 10 to 15 percent of occurrences were subject to the possibility of receiving some type of disciplinary action Under that system the nature of the discipline was based on a progressive scale ranging from a verbal warning in the first instance to a discharge as the final step of a six-step system As it was the policy of the Company to issue only a single disciplinary action per quarter to any employee, it would theoretically take a minimum of six quarters before an employee could be discharged Also, although the system was operated on a statistical curve, its application reserved some discretion and there were occasions when not every employee having the highest 10 to 15 percent of occurrences was disciplined Additionally, the system had a built-in statute of limitations so that if an employee did not receive a disciplinary action over a four-quarter period, his prior disciplines would be wiped clean insofar as future disci- plinary actions were concerned 7 It is not disputed that, after the last contract was exe- cuted, Himelberger began to develop a new system to deal with tardiness and absenteeism It also is undisputed that the new system (the out-time program) was present- ed to the Union on December 19 as a fait accompli The evidence herein establishes that, at the meeting on De- cember 19, the Union was told that the new system would be implemented in January 1981 and that it was not negotiable It therefore is clear that the decision to implement the out-time program was made unilaterally and without affording the Union an opportunity to bar- gain about the decision While the Union was asked for its opinion about the new system (and indeed the Com- pany during the months of January and February 1982 made certain revisions), it is clear that the Company had no intention of bargaining about the decision itself By the same token, although the Union did, at various times, express specific objections to particular parts of the out- time program, the evidence shows that the Union at all relevant times maintained its basic objection that it was promulgated without bargaining Thus, it cannot be said that the Union, by its course of conduct after December 7 For example, if an employee had accumulated a verbal warning a wntten warning, and a 1-day suspension, the next step would ordinanly be a 3 day suspension However, if that employee, after the 1 day suspen- sion, did not receive enough occurrences within the next four quarters to warrant a discipline, the appropriate discipline thereafter would start again at a verbal warning 19, 1980, had expressed its consent to the program or had waived its basic objection that the program had been decided upon and implemented without prior bargaining It is my opinion that the out-time program, as original- ly presented or as finally modified, was not simply a minor adjustment of the preexisting occurrence system On the contrary, it is my opinion that the new system was considerably stricter and was, by its terms, intended to allow the Company to more swiftly deal with absen- teeism and tardiness Thus, under the new system points were to be accumulated on a continuous basis and, when an employee reached a designated number of points, he automatically would be disciplined In this respect, disci- pline no longer would be meted out on a quarterly basis and under the new system it was possible for an employ- ee to receive more than one discipline per quarter It also was possible for an employee to be discharged well before the completion of six quarters and the evidence shows that this occurred Additionally, the 5-day suspen- sion step under the old system was eliminated so that an employee would have one fewer step prior to discharge It is not within my province to determine whether the out-time program, as compared to the occurrence system, was reasonable or not Nor, shall I decide whether the new system was a good, bad, or indifferent way to comabt absenteeism My sole function, pursuant to Section 8(a)(5) of the Act, is simply to decide whether it was a mandatory subject of bargaining, and as such whether the Company was required to bargain about its decision to implement it There is no doubt that the out-time program represent- ed a substantial change in the procedures used for penal- izing employees for absences and lateness Accordingly, it is concluded that this change in the Company's disci- plinary policies constituted a term and condition of em- ployment within the meaning of Section 8(d) of the Act In Womac Industries, 238 NLRB 43 (1978), the Board noted that it has "held that the initiation of new and more stringent rules with respect to absenteeism which represent a significant change from prior practice with- out consulting or bargaining with the Union violates Sec- tion 8(a)(5) and (1) of the Act "8 Notwithstanding the fact that the Respondent has made a unilateral change in a mandatory subject of bar- gaining, it must next be determined if the Union had waived its right to bargain over the subject matter at issue In this respect the Board has held that a union may waive its right to bargain over a mandatory subject of bargaining 9 However, in Southern Florida Hotel Assn 245 NLRB 561, 567-568 (1979), the Board stated The law with respect to unilaterally imple- mented modifications of its work rules during the term of the collective-bargaining agreement is well settled Work rules, particularly where penalties are prescribed for their violation, are generally covered 8 See generally First National Maintenance Corp v NLRB, 452 U S 666 (1981) See also Ciba-Geigy Pharmaceuticals, 264 NLRB 1013 (1982), Murphy Diesel Co, 184 NLRB 757, 762 (1970), enfd 454 F 2d 303 (7th Cir 1971) 9 See, e g, Bancroft Whitney Co, 214 NLRB 57 (1974) 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the phrase "other terms and conditions of em- ployment" as set forth in Section 8(d) of the Act, and are consequently mandatory subjects of collec- tive bargaining. Thus, an employer violates Section 8(a)(5) of the Act if, during the term of a collective- bargaining agreement, it implements, without first having bargained with its employees' collective-bar- gaining representative over the matter, changes in its employees' work rules. However, a labor organi- zation may waive its statutory right to be notified and consulted concerning a change in working con- ditions. Such a waiver will not be lightly inferred but must be clearly evidenced either by the terms of the parties' collective-bargaining agreement or in the nature of the prior contract negotiations. ° The Respondent points to four provisions in the col- lective-bargaining agreement which it believes constitute a waiver. These provisions, or substantially similar provi- sions, have been contained in successive contracts for a number of years. However, there was no testimony as to the genesis of the provisions or the nature of the discus- sions which precipitated their inclusion in the contracts. In this regard, the record is barren as to the collective- bargaining history and, if a waiver is to be found, it must be based on the unadorned language contained in the agreement. The provisions in question are article I, sec- tion 2 (a zipper clause); article II, section 3 (where the Union agrees that the Company has the right to "combat absenteeism"); article III (management rights); and arti- cle XIX (wherein the Company agrees to post rules and regulations and amendments thereto). It is my opinion that none of the above-cited contrac- tual provisions taken either separately or together mani- fests a clear and unequivocal waiver of the Union's right to bargain about a change in a disciplinary system to combat tardiness and absenteeism. Neither the zipper clause," the management-rights clause, nor the posting of rules clause refers the methods, procedures, or disci- plining actions to be taken in the event of absenteeism or tardiness. Nor can I conclude that article II, section 3 is tantamount to a clear and unequivocal waiver. At most, this clause is simply a general statement to the effect that the Union agrees that the Company has the right to combat absenteeism. By itself the language of this clause is innocuous. Who can argue with the statement and who would object to its inclusion in a collective-bargain- ing agreement? But to say that this language clearly manifests an intent to vest with the Company the sole and unfettered right to promulgate disciplinary Proce- dures to combat absenteeism is to state more than the language will bear. It is obvious that, during the negotia- tions leading up to the 1979-1982 contract, neither party had discussed any change in the existing disciplinary 10 See also Ciba-Geigy Pharmaceuticals, 264 NLRB 1013, 1016-17, and cases cited therein " In a recent case, GTE Automatic Electric, 261 NLRB 1491 (1982), the Board held that a "wrap-up" or "zipper clause," by Itself, would con- stitute a waiver of a union's right to bargain over its demands for new benefits (not contained in the contract), which are sought dunng the life of a collective-bargaining agreement However, the Board was careful to distinguish that situation from one wherein the company seeks to make a unilateral change in an existing term or condition of employment system relating to absenteeism, as neither side contem- plated any changes at that time. Nor is there any evi- dence that during prior negotiations the parties had dis- cussed, much less agreed, to the proposition that the Company would have free rein to devise whatever disci- plinary system it saw fit. As noted above, when Arbitra- tor Pitticco was asked to decide whether the Company could unilaterally impose the out-time program, he con- cluded, after examining the relevant contractual provi- sions, that the Company could not do so. Clearly, he de- cided, and I agree, that nothing contained in the collec- tive-bargaining agreement constituted a waiver of the Union's right to bargain over that subject. It also is concluded that the fact that the Company discussed the out-time program on December 19, 1980, and thereafter during subsequent grievance meetings is not sufficient to meet the Company's obligation to bar- gain under the Act. In this respect, the evidence estab- lishes that although the Company was willing to listen to, and did make minor revisions in, the program, it also is clear that the Respondent was not willing to bargain about the decision itself. As expressly stated, it was the Company's view that it had a right to institute the out- time program without bargaining and that it was neither a negotiable nor grievable matter. In Alfred M Lewis, Inc. v. NLRB, 587 F.2d 403, 408 (9th Cir. 1978), the court stated: The Company argues that the grievance proce- dure used by the Union to challenge the quota system was itself a bargaining mechanism; it fol- lows, the Company contends, that there was ade- quate bargaining when the Union utilized this griev- ance process. We reject this theory. In these cir- cumstances arbitration concerning the propriety or fairness of the Company's policy after it had been put into effect was not a substitute for bargaining between the Company and the Union as to whether the policy should be adopted in the first instance. An essential aspect of the Union's role in collec- tive bargaining is its right to be consulted by the employer about mandatory subjects of bargaining and to make comments, objections, or suggestions to the employer before action is taken. This is a practical mechanism to ensure the stability of indus- trial relations. The Board correctly held that the employer disregarded it here. It would wholly un- dercut the duty to bargain if the employer were al- lowed to act with reference to a mandatory bar- gaining subject and then simply defend its actions in a later arbitration hearing Finally, I deem as essentially irrelevant the fact that, when the Company in 1975 or 1976 instituted the occur- rence system, it did so without negotiations with the Union. In NLRB v. Miller Brewing Co., 408 F.2d 12, 15 (9th Cir. 1969), the court stated: . . . it is not true that a right once waived under the Act is lost forever . . . . Each time a bargaina- ble incident occurs—each time new rules are issued—[the] Union has the election of requesting COMBUSTION ENGINEERING 225 negotiations or not An opportunity once rejected does not result in a permanent "close-out "12 B The Alleged Refusal to Furnish Information Pursuant to Section 8(a)(5) of the Act, an employer has an obligation to comply with a union's request for in- formation which is relevant to the processing of griev- ances or the administration of a collective-bargaining agreement, unless there is a showing that the information is unduly burdensome, legitimate confidential, privileged in nature, or has been waived NLRB v Acme Industrial Co, 385 U S 432 (1967), Detroit Edison Co v NLRB, 440 U S 301 (1979), LaGuardia Hospital, 260 NLRB 1455 (1982) Moreover, in determining the parameters of relevance, the criteria used is a broad discovery type of standard, namely, whether the information requested is probably or potentially relevant Therefore it need not be shown that the information will result in the union winning an arbitration, so long as it is relevant to the dis- puted subject matter Indeed the fact that the information may even tend to show that a grievance or potential grievance is without merit equally serves a legitimate purpose of collective bargaining because such disclosure would enable a union to determine which grievances it will pursue to arbitration and which it will not As to the present case, it is my opinion that the infor- mation requested was relevant to the pending grievance involving promulgation of the out-time program Clearly, the Union was entitled to know how the out-time pro- gram was being administered, how employees were actu- ally being affected, and how that effect compared to dis- ciplines issued under the old occurrence system In my opinion, it was not enough that the Union received disci- plinary notices at the same time they were given to em- ployees, for this was only the end result of the new pro- gram's administration In comparing the new system to the old, the Union was entitled to look at the records to see how and under what circumstances points were being accumulated by employees Also the Union was entitled to be able to calculate whether those employees who did receive discipline would have done so under the old occurrence system (i e, whether they would have been in the top 10 to 15 percent of employees having oc- currences during any particular calendar quarter) This is especially true given the Respondent's position on the grievance, inasmuch as it contended, inter alia, that the Union had not shown that any employees had been in- jured because of the out-time program I do not accept the Respondent's position that the in- formation involved was either burdensome or confiden- tial As to the first issue, the evidence shows that the in- formation had been compiled by making up a page or two for each employee and then consolidating these pages into the looseleaf folder, comprising a total of about 500 pages Moreover, the Union was willing to photocopy these records at its own expense As to the second contention, it is my conclusion that the records in quetion did not contain confidential medical records and would not have disclosed the nature of any employee's illness At most, these records simply indicated whether 12 See also Ciba-Geigy, supra an absence was due to illness, without describing the nature of the illness It finally is concluded that the Respondent did not ful- fill its statutory obligation when it offered to allow the Union's representatives to review the records at the Company's office and make notes Clearly, where the grievance involved a matter potentially affecting all the bargaining unit employees, it was necessary for the Union to have accurate copies of the records and have the time to analyze them The restriction placed on the Union's inspection of these records would therefore sub- stantially reduce the Union's ability to utilize the relevant information As the Union offered to pay for the cost of copying, and as I can see no legitimate reason for the Company's refusal, it is concluded that the Respondent violated Section 8(a)(5) of the Act in this respect Com- munications Workers Local 1051 (American T & T) v NLRB, 644 F 2d 923 (1st Cir 1981) CONCLUSIONS OF LAW 1 Combustion Engineering Inc is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 558 is a labor organization within the meaning of Section 2(5) of the Act 3 All production, and maintenance employees em- ployed by the Respondent at its Nuclear Power Systems Division of C-E Power Systems for Windsor, Connecti- cut, and all maintenance and boilerhouse employees as- signed at the Windsor site to Facilities Engineering and Services of General Services of C-E Systems, exclusive of all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material herein, the Union has been the exclusive bargaining representative of the employees in the appropriate unit within the meaning of Section 9(a) of the Act 5 By unilaterally promulgating the out-time program effective on January 5, 1981, without first bargaining with the Union, the Respondent violated Section 8(a)(5) and (1) of the Act 6 By failing to provide photocopies of certain records relating to the administration of the out-time program, the Respondent violated Section 8(a)(5) and (1) of the Act 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain violations of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and that it take certain affirmative action to effectuate the policies of the Act The Respondent implemented, unlawfully, the out-time program effective on January 5, 1981 Although Arbitra- tor Pittico, pursuant to the grievance-arbitration provi- 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions of the contract, ordered the Company to discontin- ue the program on December 18, 1981 (which was com- plied with by the Company), the fact remains that during that intervening period a number of employees had un- lawfully received disciplines under the program which were not remedied by the arbitration award The disci- plines involved were warnings, suspensions, and dis- charges In these circumstances, I shall recommended inter aim that the Respondent, to the extent it has not al- ready done so, fully restore the status quo ante which ex- isted before January 5, 1981, by (1) rescinding all disci- plinary action issued to bargaining unit employees under the out-time program, (2) offering, to the extent not al- ready done, all bargaining unit employees who were either discharged or suspended full and immediate rein- statement to their former positions of employment or, if they no longer exist to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and (3) make whole those bargaining unit em- ployees who either were discharged or suspended under the out-time program In all cases of lost pay and/or benefits the amounts shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) Additionally, it is recom- mended that the Respondent expunge from its files any reference to the disciplinary actions taken against bar- gaining unit employees under the out-time program and notify them, in writing, that this has been done and that evidence thereof shall not be used as a basis for future personnel actions against them As to the discharge of Richard Bennet, it is my belief and recommendation that, although he has been reinstat- ed, the full make-whole remedy is applicable to him not- withstanding an arbitrator's contrary award In this re- spect, the arbitrator concluded that his discharge was not merited as it was done pursuant to the previously invali- dated out-time program He nevertheless refused to order backpay for the 6 months that Bennet was out of work As it is my conclusion that the promulgation of the out-time program was not only contrary to the terms of the existing collective-bargaining agreement (as found by Pitticco), but also unlawfully promulgated in violation of Section 8(a)(5), it follows that, to this extent, the arbi- trator's withholding of backpay to Bennet was repugnant to the Act Nor do I think that it would be appropriate or feasible to review Bennet's record from January 5, 1981, to December 18, 1981, to determine what, if any, discipline he would have received under the previously discontinued occurrence program 13 In this respect therefore, it is my opinion that the burden of risk should fall on the party who has violated the Act and not else- where To the extent that grievances have been filed by the Union on behalf of employees disciplined under the out- time program, it appears that at least some of those cases have been settled in the grievance procedure short of ar- bitration However, I do not know the nature, extent, or circumstances pursuant to which such settlements have been made As such, those settlements may or may not affect an employee's rights to be made whole 14 and I shall therefore leave that question to the compliance stage of this proceeding In regard to the denial of information, it is evident that, pursuant to the award of Arbitrator Pittico and this decision, the information requested is essentially moot This does not mean, however, that the issue itself is moot, and relief is deemed appropriate Therefore, I shall recommend that an order be issued requiring the Re- spondent, in futuro, to furnish to the Union, on its re- quest, information which is relevant to the processing of grievances, and to provide photocopies of such informa- tion at a reasonable expense to the Union [Recommended Order omitted from publication ] i5 do so would require the Respondent and the General Counsel to reconstruct the occurrence system during the period from January 1981 to December 18, 1981 Moreover, as that system provided for the possibil- ity of meting out discipline to the employees having the top 10 to 15 per- cent of occurrences per calendar quarter, it is obvious that a large degree of indeterminacy would be involved In short, it is my opinion that it would be virtually impossible to attempt to determine, at this late date, what levels of discipline would have been given to employees, during the period from January 5, 1981, to December 18, 1981, by trying to recon- struct the occurrence system for that period of time i4 e g, Coca-Cola Bottling Co of Los Angeles, 243 NLRB 501 (1979)