Salt River Valley Water Users' Association

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Salt River Valley Water Users' Association and International Brotherhood of Electrical Work- ers, Local Union No 266, AFL-CIO. Case 28- CA-7479 24 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 March 1984 Administrative Law Judge William J Pannier III issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in re- sponse 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 as modified 2 and to adopt the recom- mended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law Judge as modified below and orders that the Re- spondent, Salt River Valley Water Users' Associa- ' 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 Cm 1951) We have carefully examined the record and find no basis for reversing the findings 2 In concluding that the Respondent violated Sec 8(a)(5) of the Act by refusing to permit the Union to Inspect employee Wes Ehrhardt's person- nel file the judge rejected the Respondent s assertion of confidentiality and based this finding in part on the file disclosure practices of the Salt River Project Agricultural Improvement and Power District Although the District is, along with the Respondent, a component entity of the Salt River Project, It is a political subdivision of a State within the meaning of Sec 2(2) of the Act and a separate legal entity from the Respondent In dividuals are employed either by the District or by the Respondent, not by a single all embracing entity Furthermore, their employees are coy ered by separate collective bargaining agreements which are independent ly administered Accordingly, we find no need to rely on the District s disclosure practices as evidence of the Respondent s practices Several days after requesting to review Ehrhardt s personnel file the Union sent the Respondent a letter regarding employee file requests gen erally The letter was part of an ongoing dialogue regarding the Re spondent s imposition of costs for reproducing employee records The letter stated that in light of these costs the Union wanted to detail those records which were to cover employee file requests so that it would not be charged for receiving unwanted information The letter stated that the Union would need all records of disciplinary action issued to the employ ee in question, all performance reviews relevant to the employee and all documents that the Respondent would rely on in the grievance or arbi tration procedure The Union's business manager, Bill Bearden, testified on both direct and cross examination that this letter was Intended to specify the information the Union requested to inspect in Ehrhardt s file Accordingly, the recommended Order is modified to require the Re spondent to provide only that information in Ehrhardt s file which the Union specified in this letter lion, Phoenix, Arizona, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(a) "(a) Furnish International Brotherhood of Elec- trical Workers, Local Union No 266, AFL-CIO access to all records in the personnel file of Wes Ehrhardt pertaining to disciplinary actions and per- formance reviews or which it intends to rely on in the grievance or arbitration procedure concerning the termination of Antonio Montanez " 2 Substitute the attached notice for that of the administrative law Judge APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, Join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain collectively with International Brotherhood of Electrical Workers, Local Union No 266, AFL-CIO by refusing to furnish it promptly with information that it re- quests which is relevant and reasonably necessary to the processing and evaluation of grievances and preparing them for arbitration WE WILL NOT in any like or related manner engage in conduct in derogation of our statutory duty to bargain in good faith with the above- named labor organization, nor in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act WE WILL furnish International Brotherhood of Electrical Workers, Local Union No 266, AFL- CIO access to all records in the personnel file of Wes Ehrhardt pertaining to disciplinary actions and performance reviews or which we intend to 272 NLRB No 53 SALT RIVER VALLEY WATER USERS' ASSN 297 rely on in the grievance or arbitration procedure concerning the termination of Antonio Montanez SALT RIVER VALLEY WATER USERS' ASSOCIATION DECISION STATEMENT OF THE CASE WILLIAM J PANNIER III, Administrative Law Judge This matter was heard by me in Phoenix, Arizona, on December 6, 1983 1 On July 18, the Regional Director for Region 28 of the National Labor Relations Board issued a complaint and notice of hearing, based on an unfair labor practice charge filed on June 15, alleging violations of Section 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act, 29 U S C § 151 et seq (the Act) All parties have been afforded full oppor- tunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs Based on the entire record, 2 on the briefs filed on behalf of the parties, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION At all times material, Salt River Valley Water Users' Association (Respondent), has been a corporation duly organized under, and existing by virtue of, the laws of the State of Arizona, with its principal office and place of business in Phoenix, Arizona, and has been engaged in the operation and maintenance of a water irrigation system in the Salt River Valley located in the State of Arizona During the 12-month period preceding issuance of the complaint, a representative period, Respondent, in the course and conduct of its business operations, pur- chased goods, materials, and supplies valued in excess of $50,000 which were transported and delivered to its places of business in the State of Arizona directly from points located outside the State of Arizona Therefore, I conclude, as admitted by the answer, that at all times material, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED At all times material, International Brotherhood of Electrical Workers, Local Union No 266, AFL-CIO (the Union) has been a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Issues Respondent and the Union have an established bar- gaining relationship and currently are parties to a collec- 1 Unless stated otherwise, all dates occurred in 1983 2 The General Counsel's unopposed motion to correct record is grant ed and the record is corrected as set forth in Appendix A tive-bargaining agreement effective until November 30, 1984 3 A grievance and arbitration procedure is provided in Article VIII of that agreement It is undisputed that about February 18 the Union re- quested that a copy of a heat stress study be provided to It by Respondent The latter admits that the study was relevant to the collective-bargaining process However, not until approximately August 26 did Respondent fur- nish the Union with a copy of it As amended at the hearing, the complaint alleges that Respondent violated the Act by this delay It is well settled that the duty to furnish information encompasses the duty to do so promptly and that a delay in furnishing relevant informa- tion constitutes a violation of the Act Queen Mary Res- taurants Corp v NLRB, 560 F 2d 403, 408 (9th Cir 1977) For, "an employer fails to bargain in good faith when he unreasonably delays production of requested, relevant data " (Citations omitted ) NLRB v J P Stevens & Co, 538 F 2d 1152, 1164 (5th Cir 1976) Respondent has advanced no explanation for delaying over 6 months in furnishing a copy of the admittedly relevant study to the Union Nor does the record suggest any valid reason for that delay In these circumstances, it requires no fur- ther discussion to conclude that Respondent's delay in furnishing the heat stress study to the Union violated Section 8(a)(5) and (1) of the Act A more involved Issue is posed by a second allegation in the complaint On March 22, two employees—Anto- nio Montanez and Wes Ehrhardt—were caught sleeping the job Ehrhardt was suspended, but Montanez was ter- minated Thereafter, the Union filed a grievance on behalf of Montanez and, in the course of processing that grievance, requested that it be permitted to inspect Ehr- hardt's personnel file However, as discussed in greater detail infra, it is Respondent's stated policy to release in- formation from personnel files to outsiders, such as the Union, only "with employee consent" While the Union insists that, as the bargaining representative of all em- ployees in the bargaining unit including Ehrhardt, it is entitled to examine relevant information in personnel files, it never attempted to secure Ehrhardt's consent to examine the contents of his personnel file The General Counsel alleges that Respondent violated the Act by re- fusing to produLe "the relevant material in the personnel file of employee Wes Ehrhardt" Conversely, Respond- ent argues that there was no material in Ehrhardt's per- sonnel file that could be construed as relevant to the processing of the grievance on behalf of Montanez Moreover, argues Respondent, it has made a commit- 3 The unit pleaded in the complaint—which Respondent concedes to be an appropriate one and, further, one in which the Union enjoys major ity status—is ' all employees employed by the Respondent whose job titles are included in Exhibit A of the agreement referred to in paragraph 8 above at pages 79 through 94 of said agreement Examination of those pages of the agreement discloses a list of specific job classifications and labor grades grouped under general headings such as Field and Shop Classification, Clerical Classifications ' and Apprentices According to Director of Human Resources Paul Ahler, the employees in these clas sifications are ones who are paid on an hourly rated basis Bill Bearden, business manager and financial secretary of the Union, testified that these employees basically are Involved with the distribution, construction, maintenance, and delivery of the water system here in the valley, irriga ton water 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment to its employees to maintain the confidentiality of material in their personnel files and, in addition, there is a federally recognized confidentiality policy that pre- cludes the Union from access to that material without first securing employee consent to its inspection For the reasons set forth infra, I conclude that by asking to in- spect Ehrhardt's personnel file, the Union did make a re- quest for information that is relevant to the processing of the grievance concerning Montanez' termination and, further, that it has not been shown that Respondent was permitted to require prior authorization by 'Ehrhardt, for the Union to do so, in the circumstances of the instant case B Sequence of Events As noted above, Respondent and the Union are parties to a collective-bargaining agreement containing a griev- ance and arbitration provision On March 22, Antonio Montanez was terminated for having been caught sleep- ing on the job, while Wes Ehrhardt was only suspended, although he also had been sleeping and had been caught doing so at the same time as Montanez The Union filed a grievance on April 18, asserting that Montanez' termi- nation had violated article I, section 3 4 and section 8 5 of that agreement and requesting that Montanez be reinstat- ed and made whole, with all reference to the matter being expunged from his personnel file On May 23, before any meetings had been conducted pursuant to the grievance procedure, Bearden authored a letter to Respondent's manager of labor relations, Joe Tittle, stating, in pertinent part, that the Union, "has de- termined that it is necessary to review the personnel file of employee Wes Ehrhardt in order to assess the differ- ence in disciplinary action taken in the above grievance" Having forgotten, testified Bearden, that he already had sent the May 23 letter, another letter was sent to Tittle on June 1 in which Bearden stated, inter aim In order for the Local Union to properly assess the merits of this grievance, we are herewith re- questing to review the personnel records of Mr Wes Ehrhardt, who was issued disciplinary meas- ures along with Mr Montanez for the same infrac- tion of the Company rules forbidding sleeping on the job 4 That section provides Section 3 Mutual Cooperation The Association and the Union agree that they will mutually co operate to promote harmony and efficiency among the employees of the Association Representatives of the Association Management will meet upon reasonable notice with the authorized representatives of the Union to discuss any grievances arising out of this Agreement in accordance with the provisions of Article VIII hereof Such meet ings normally shall be conducted outside of working hours 5 That section provides Section 8 Equal Application of Contract Terms The Association and the Union agree that the provisions of this Agreement shall be applied to all employees covered by this Agree ment without discrimination as to their color, race, religion, sex, na tional origin, or status as a Vietnam era veteran or disabled veteran, and in carrying out their respective obligations under this Agree- ment, neither the Association nor the Union will discriminate against any individual because of race, color, religion sex, national origin, age, handicap, or status as a Vietnam era veteran or disabled veteran in regard to any position for which the individual is qualified In viewing and receiving a copy of this file, it will enable the Local Union to determine if there was disparate treatment in this instance Please advise the Local Union by letter, no later than June 8, 1984 of the time and place where these records may be reviewed, and if necessary copies obtained By letter dated June 6, Tittle replied to Bearden Your letter of June 1, requests a copy of Wes Ehrhardt's personnel file As you know, we are unable to provide copies of employee files unless you provide us with a signed authorization from the employee to release his file Your letter did not in- clude Mr Ehrhardt's release We understand your objective, Bill, and are pre- pared to explain the reasons for the differences in discipline imposed on Mr Ehrhardt and Mr Anto- nio Montanez during the grievance meetings Specifically, Tittle was referring to that portion of Re- spondent's Policy HR 305 which, to the extent relevant in this case, recites 1 Accessibility of employee records is as follows A SRP Employee - Has a right to review or cor- rect his/her personal records B SRP Management - Has the right to review em- ployee record information for job related reasons C Outside Agencies - Accessible with employee consent D Instances Covered by Law - Accessible with legal documents 3 Employee Records Center files may contain this type of information Accreditation items Bumping and layoff information Checkout card Computer printouts of employee information Data sheets Education Items Diplomas, college transcripts, grade slips, certificates Employee Basic Information form Employee data sheets Employee Status Change forms Employment applications Employment Authorization form Letters of commendation Loyalty oath Orientation checklist Performance Reviews (most recent first) Personal information changes Receipts Accident Prevention Rule Book, driv- er's license, medical clearance Removal form Reprimands Resume Safety shoes or glasses certificates SALT RIVER VALLEY WATER USERS' ASSN 299 Terminated blue card Termination and Transfer Clearance form And other personnel-related documents Tittle's June 6 letter concluded the correspondence be- tween the parties concerning access to Ehrhardt's per- sonnel file and the focus of debate then moved to the meetings concerning the Montanez grievance 6 During the summer, three grievance meetings were conducted concerning it The minutes of the first and second ones show that, at each one, the Union's representative had requested access to Ehrhardt's personnel file to deter- mine if the latter had been disciplined prior to the time that he and Montanez had been caught napping In addi- tion, the minutes of the first meeting disclose that the Union's representative had said that if Ehrhardt's records showed that he had not been disciplined "in a reasonable amount of time" prior to March, then that "would settle the whole thing" Moreover, during the second meeting, according to the minutes, the Union's representative had pointed out that review of Ehrhardt's disciplinary record was needed "in order that Montanez will have fair repre- sentation " At each meeting, according to the minutes, Respond- ent's officials had replied that the Union should obtain Ehrhardt's authorization to inspect his records Howev- er, Respondent's officials did say, during the first meet- ing, that Ehrhardt had "an unblemished record," and, further, that Ehrhardt's file showed that he had been ex- ceptionally reliable, only rarely having used time off or sick leave Similarly, Bearden testified that during the third meeting, he had been told by Respondent's officials that Ehrhardt had a good record It is this sequence of events that has led to the allega- tion concerning the refusal to make Ehrhardt's personnel file available to the Union However, before proceeding to analysis of that issue, there is one further series of 6 During late May and early June, Bearden and Tittle had been corn municating regarding the general subject of costs Incurred in reproducing information from personnel files that the Union sought to have copied As part of that apparently ongoing dialogue, Bearden prepared a letter to Tittle on June 7 stating that, in light of Respondent s imposition of a monetary amount for duplicating records of employees, This letter will be as good of [sic] place as any to identify to you what we need Bearden then listed records of disciplinary action performance reviews and documents that Respondent intended to rely upon in grievance and arbitration proceedings Bearden s letter does not serve to narrow his ear her requests, of May 23 and June 1 for access to Ehrhardt's entire file At no place does the June 7 letter refer specifically to those requests There is no evidence that the Union ever had told Respondent, on some other occasion, that the June 7 letter represented a modification of the requests of May 23 and June 1 There is no evidence that Respondent had understood that those requests were being modified by the June 7 letter Nor is it likely that, from the circumstances, Respondent would have inferred as much For the June 7 letter was concerned with the gen eral subject of costs assessed to the Union for reproducing documentation that it requested While the Union had mentioned the possibility of dupli cating documents from Ehrhardt s file in the June 1 letter, It made no request for copies of documents in Ehrhardt s personnel file Instead, it had been seeking to inspect its contents Consequently, it cannot be said that Respondent likely would have perceived that the substance of the June 7 letter, narrowing the types of documentation from personnel files that the Union had sought to have copied, would have constituted a modification of the range of documents in Ehrhardt s personnel file that the Union was asking initially to examine events that is of critical importance 7 Respondent is but one component entity in the Salt River Project The other is the Salt River Project Agricultural Improvement and Power District, herein called the District, which is a party to a separate collective-bargaining agreement with the Union, but which the Board has determined to be a political subdivision within the meaning of Section 2(2) of the Act and, thus, not subject to its proscriptions Nevertheless, Tittle testified that the policy enunciated in Policy HR 305, regarding access to personnel files, ap- plies equally to both employees of Respondent and to those of the District, without distinction The Union ad- mittedly never has requested that Respondent allow it to examine the personnel records of a nongrievant, third- party employee However, the District has allowed the Union to examine personnel files of nongrievant, third- party employees without their prior authorization in situ- ations where an employee has been promoted, or has by- passed, to a position over a more senior employee More- over, Respondent has permitted the Union to examine personnel files of grievants, and even of potential griev- ants, in termination cases without requiring the Union to first secure authorizations from those individuals C Analysis It cannot be argued with any degree of persuasion that in requesting examination of Ehrhardt's personnel file, the Union had not been making a request for access to relevant information Two employees had been caught committing the same infraction As a result, one of them, Montanez, had been terminated, but the other one, Ehr- hardt, merely had been suspended This disparity in dis- cipline, of Itself, gives rise to obvious suspicion regarding the evenhandness of Respondent's application of disci- pline "For the even-handed application of work rules for discipline purposes is a fundamental principle of in- dustrial justice" Pfizer, Inc , 268 NLRB 916 (1984) Moreover, the grievance refers expressly to article I, sec- tion 8 of the collective-bargaining agreement which, as set forth in footnote 5, supra, prohibits discrimination on the basis, inter aim, of race and national origin Where such a clause is contained in a collective-bargaining agreement, "it becomes the duty of union representatives engaged in bargaining and in monitoring the agreement to see to it that an employer meets its obligations under 7 It is not disputed that during a meeting of the Joint Labor Manage ment Committee on October 4, 1979 then Business Manager Don Hall had raised the subject of union access to employee records and that Tittle had replied, `that in order to have access to employee records, our law department had told us that the employees would have to provide the Union with a signed release to have access ' Hall then had said, accord mg to Tittle's uncontradicted testimony, that was a good idea' and had 'asked or suggested that a form be prepared to that effect However, at no point has Respondent argued that, by virtue of that conversation, the Union either had waived whatever right it otherwise might enjoy to obtain personnel file information without employee authorization or, al ternatively, had agreed to follow a procedure of first trying to secure em ployee consent before requesting examination of those files Moreover, in light of my conclusion infra that the restrictions embodied in Policy HR 305 have been selectively applied and disregarded, it is not material whether or not, in other circumstances, Hall s 1979 remarks could have constituted such a waiver or agreement 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those clauses" Electrical Workers UE. v. NLRB, 648 F.2d 18, 25 (D.0 Cir. 1980). "In order to determine whether rules have been ap- plied evenhandedly it is necessary to compare the em- ployment history of employees disciplined for the same rule violations." Pfizer, Inc., supra. That Respondent may not have relied on the contents of Ehrhardt's personnel file in arriving at its decision to terminate Montanez is not a proper consideration in assessing the relevancy of the information in that file. See, e.g , Safeway Stores, 252 NLRB 682 fn. 2 (1980). "The duty to bargain in good faith obliges the employer to furnish information ena- bling the union to make an intelligent decision about processing grievances." Torrington Co. v. NLRB, 545 F 2d 840, 842 (2d Cir 1976) So long as a bargaining rep- resentative suspects that its collective-bargaining agree- ment is being violated, it is entitled to relevant informa- tion from the employer to "successfully act on these sus- picions," NLRB v. Realty Maintenance, 115 LRRM 2468, 2470 (9th Cir. 1984), and "to evaluate grievances and sift out unmeritorious claims." NLRB v. Safeway Stores, 622 F.2d 425, 430 (9th Cir 1980) Nor is Ehrhardt's personnel file rendered irrelevant by Respondent's belief that it will not have to rely on infor- mation from it in an arbitration proceeding concerning Montanez' discharge. In the first place, as a matter of law, that is not a proper measure of relevancy of infor- mation Pfizer, Inc., supra, and cases cited therein. Second, although I do not doubt Respondent's sincerity in arguing that it will not have to rely on that informa- tion, I question how realistic Respondent is being in ad- vancing that argument. In the second above-quoted para- graph of his June 6 letter, Tittle acknowledged that he understood the Union's concern about the disparate dis- cipline of Montanez and Ehrhardt and, further, was "prepared to explain the reasons for the differences in discipline imposed on Mr. Ehrhardt and Mr. Antonio Montanez during the grievance meetings." Further, as noted above, in defending against the Union's argument concerning the disparity of discipline imposed upon the two employees, Respondent already has relied upon Ehr- hardt's employment history by referring to his good or "unblemished record" and by alluding to the fact that his attendance record rendered him a reliable employee In sum, notwithstanding Respondent's belief that it will not have to rely upon information from Ehrhardt's personnel file in an arbitration proceeding pertaining to Montanez' termination, it has recognized the relevancy of Ehrhardt's employment history to the grievance con- cerning that termination and, further, has relied upon Ehrhardt's employment record to justify having taken less severe disciplinary action against him than was taken against Montanez for having committed the same work rules infraction. In light of these circumstances, it hardly is realistic to conclude, whatever it anticipates not having to do, that Respondent will not be obliged to resort to information from Ehrhardt's personnel file to defend its position regarding Montanez' discharge And, of course, "a union has the right and the responsibility to frame the issues and advance whatever contentions it be- lieves may lead to the successful resolution of a griev- ance." Conrock Corp., 263 NLRB 1293, 1294 (1982) Therefore, a preponderance of the evidence does lead to the conclusion that the inspection of Ehrhardt's per- sonnel file is a request for relevant information to which the Union is entitled in order to process the grievance concerning Montanez' discharge. In another era, that conclusion would suffice to terminate further analysis of the matter However, in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), the Supreme Court "recognized a limit- ed exception [to the duty to supply relevant information to a bargaining representative] for information that is confidential in nature." New Jersey Bell Telephone Co. v. NLRB, 720 F 2d 789 (3d Cir 1983). That is, the court held that, in view of "[t]he sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence," Detroit Edison Co. v. NLRB, 440 U.S at 318, It is not a violation of the Act for an employer to promise employees that that type of information will be kept confidential and to require that employee-consent be secured before it is released to a bargaining representative. Id., 440 U.S. at 319. However, in doing so, the employer must not be acting on the basis of a "fabricated concern for employee confidentiality only to frustrate the Union in the discharge of its respon- sibilities " Id., 440 U.S. at 319-320 Here, as set forth above, Respondent has a policy, enunciated in Policy HR 305, making employee person- nel files available only under certain circumstances. As described in Policy HR 305, personnel files contain items which likely would disclose information pertaining to the "basic competence" of employees, such as accreditation items, computer printouts of employee information, edu- cational matters, employee basis information forms, em- ployment applications and personal information changes. Although the Court was concerned only with test scores resulting from psychological aptitude testing in Detroit Edison, its use of the term "basic competence," as the measure of the types of information that could be pro- tected by the limited confidentiality exception to the duty to disclose information, implies a much broader range of protection than simply, as the General Counsel argues, "professional diagnosis and evaluations of em- ployees' mental and physical character." That is perhaps best illustrated by the various state laws, cited in footnote 16 of the Court's opinion, which served as the basis for taking judicial notice regarding sensitivity to disclosure of matters bearing on "basic competence" For, the range of items protected by those laws extends to matters, such as education, that are not encompassed by diagnoses and evaluations of mental and physical characteristics. Further, if the Court had intend- ed to confine the exception to matters protected ordinari- ly by privileges such as those for physician-patient and psychotherapist-patient, it simply could have said so, rather than use a phrase so potentially far-reaching as "basic competence" to define the scope of the exception. Nothing in the realm of sound reason "indicates that the classification of information as confidential turns on whether it was professionally developed " New Jersey Bell Telephone Co. v. NLRB, supra, 720 F.2d at 792 In the final analysis, however, it is not necessary to re- solve the Issue of the scope of the "basic competence" SALT RIVER VALLEY WATER USERS' ASSN. 301 exception in order to resolve the instant matter For, al- though Respondent has a published restriction on avail- ability of information from employee personnel files, a preponderance of the evidence here is insufficient to es- tablish that Policy HR 305 satisfies the exception created in Detroit Edison Co., supra, and, further, to demonstrate that its terms have been applied uniformly in dealing with the Union. Aside from being a policy that must be followed by Respondent's supervisors and agents, there is no evidence of the extent, if any, to which Policy HR 305 is disseminated to employees Moreover, of perhaps greater significance, there is no evidence that employees are given express assurances, parallel at least to those given employees in Detroit Edison, that the restrictions enunciated in Policy HR 305 will be followed—that as a condition of accepting and continuing employment with Respondent, the latter will observe the restrictions con- tained in Policy HR 305. In short, there is no evidence of any "express commitment that each [employee's per- sonnel records] would remain confidential." Detroit Edison Co. v. NLRB, supra, 440 U.S. at 306 "Nor has it shown that employees have sought to have this informa- tion kept confidential or that they have an expectation that in the normal processing of grievances their employ- ment history at [Respondent] will be kept confidential." Pfizer, Inc., supra, at 919. Furthermore, there is evidence that Policy HR 305 has not been uniformly followed in dealings with the Union and employees that it represents. For example, Respond- ent concedes that it has allowed the Union to examine the personnel files of grievants and of potential grievants without requiring their prior consent to such examina- tions That, of course, is a practice that contrasts with what had occurred in Detroit Edison Co. v. NLRB, supra, and in New Jersey Bell Telephone Co. v. NLRB, supra, where application of the prior consent requirement had been so strictly applied that consent to disclosure was being required of those on whose behalf the grievances were being processed. Moreover, the District has permitted the Union to in- spect personnel files of nongrievant third-party employ- ees, without their prior authorization, in bypass situa- tions. True, the District is not an employer whose oper- ations are regulated by the Act. But, Respondent has not contended that the District's reason for permitting previ- ously unauthorized inspection of employee records in those situations is based on the fact that the District is not subject to the Act, whereas Respondent is. Indeed, such a contention, were it to be made, would raise a question concerning the validity of Respondent's asserted concern for employee confidentiality, possibly creating an inference that its assertions of concern are "fabricat- ed" and intended to "frustrate the Union in discharge of its responsibilities" Detroit Edison Co. v. NLRB, 440 U.S. at 321. Instead, Tittle testified that the substance of Policy HR 305 is applied equally to employees of Re- spondent and to those of the District. That being the fact, it can only be concluded that were a bypassing case to arise with regard to an employee of Respondent, then the Union would not have to obtain consent of the non- grievant third-party employee before being able to in- spect his or her records. That is, that Respondent, like the District, would turn over that employee's personnel file for examination by the Union without first securing that employee's authorization to do so. Whether or not, in bypassing situations, it would be in the Interest of the nongrievant third-party employee to have the contents of his or her personnel file disclosed to the Union is hardly a basis for applying the Detroit Edison exception. Nothing in that case permits an em- ployer to pick and choose when it feels that it should impose a restriction on access to personnel files based on its own view of the degree to which doing so would be advantageous to employees To the contrary, as noted above, it is the bargaining representative that "has the right and the responsibility to frame the issues and ad- vance whatever contentions it believes may lead to the successful resolution of a grievance." Conrock Corpora- tion, supra. In light of the foregoing considerations, Policy HR 305 does not serve to justify Respondent's refusal to permit the Union to inspect the personnel file of Wes Ehrhardt and, accordingly, by having refused the Union's requests to do so, Respondent violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By delaying submitting the heat stress study and by re- fusing to permit inspection of the personnel file of Wes Ehrhardt, Salt River Valley Water Users' Association violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that Salt River Valley Water Users' As- sociation engaged in unfair labor practices, I shall recom- mend that it be ordered to cease and desist therefrom and that it be ordered to take certain affirmative action to effectuate the policies of that Act. With respect to the latter, it shall be ordered to make the personnel file of Wes Ehrhardt available to International Brotherhood of Electrical Workers, Local Union No. 226, AFL-CIO, for its inspection in connection with the processing of the grievance concerning the termination of Antonio Montanez. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 8 ORDER The Respondent, Salt River Valley Water Users' As- sociation, Phoenix, Arizona, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with International Brotherhood of Electrical Workers, Local Union No. 226, AFL-CIO by refusing to promptly fur- nish it with information that it requests which is relevant B 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 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and reasonably necessary to the processing and evalua- tion of grievances and preparing them for arbitration (b) In any like or related manner engaging in conduct in derogation of its statutory duty to bargain in good faith with International Brotherhood of Electrical Work- ers, Local Union No 226, AFL-CIO and in any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action which is nec- essary to effectuate the policies of the Act (a) Furnish to International Brotherhood of Electrical Workers, Local Union No 226, AFL-CIO access to the personnel file of Wes Ehrhardt so that it may inspect the contents of that file in connection with the processing of the grievance concerning the termination of Antonio Montanez (b) Post at its Phoenix, Arizona office, copies of the at- tached notice marked "Appendix B " 9 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable 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 Re- spondent has taken to comply 9 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board