American Telephone Co.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 925 (N.L.R.B. 1992)

925
309 NLRB No. 147
AMERICAN TELEPHONE CO.
1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act, we note that the Respondent’s exceptions
are limited to the issue of whether the Union waived its right to bar-
gain about the subcontracting of unit work discussed at sec. II of
the judge’s decision.
1 AT&T admits, at least impliedly, that if the collective-bargaining
agreement did not give it the right to contract out, the Company
would have been obligated to bargain with the bargaining representa-
tive of the unit employees. That is, AT&T does not claim that the
nature of its subcontracting was such that the rationale of First Na-
tional Maintenance Corp., 452 U.S. 666 (1981), applies.
2 AT&T admits that it is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the National Labor Rela-
tions Act (the Act). AT&T also admits that the CWA and Local
4090 are labor organizations within the meaning of Sec. 2(5) of the
Act.
American Telephone and Telegraph Company, Net-
work Systems Customer Support and Oper-
ations Division and Michigan Local 4090, Com-
munications Workers of America, AFL–CIO.
Case 7–CA–32168
December 16, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On July 2, 1992, Administrative Law Judge Stephen
J. Gross issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief to the Respondent’s
exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, American Telephone and
Telegraph Company, Network Systems Customer Sup-
port and Operations Division, Oak Park, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Janice H. Jones, Esq., for the General Counsel.
John H. Curley, Esq., of Morristown, New Jersey, for the
Respondent.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS, Administrative Law Judge. The em-
ployees of American Telephone and Telegraph Company
(AT&T) are divided into a number of bargaining units. The
Communications Workers of America (CWA) is the exclu-
sive collective-bargaining representative of many of those
employees. The employees of concern to us here are those
employed in Michigan by AT&T’s Network Systems Cus-
tomer Support and Operations Division (the Respondent).
These employees are all members of the following bargain-
ing unit, which is nationwide in scope and which is rep-
resented by the CWA:
All communication equipment workers (hourly-rated,
non-supervisory employees) of the installation field
forces of AT&T.
At all material times the collective-bargaining agreement
between the CWA and the Respondent covering this unit
provided that the Charging Party, Local 4090, would handle
certain bargaining representation functions for the Michigan
members of the unit. The collective-bargaining agreement
also provided that the CWA could delegate certain additional
functions to Local 4090.
In 1991, the Respondent began to contract out work within
Michigan. The officers of Local 4090 deemed some of the
contracted-out work to be bargaining unit work. (All the
events discussed in this decision occurred in 1991 unless oth-
erwise specified.) The Union asked the Respondent for infor-
mation about the subcontracting. The Respondent provided
some, but only some, of the information sought by Local
4090.
That led Local 4090 to file an unfair labor practice charge
against the Respondent, on August 5. A complaint dated
September 26 followed. The complaint alleges that, by fail-
ing to provide the requested information, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
The Respondent denies that it violated the Act in any re-
spect. According to the Respondent: (1) Local 4090’s reason
for wanting the information was in order to be better able
to bargain about subcontracting, but the collective-bargaining
agreement then in force precluded midterm bargaining about
subcontracting absent the consent of the parties;1 (2) even if
the Respondent was required to bargain about subcontracting
and, therefore, to provide information about it, the Respond-
ent owed that duty only to the CWA, not to Local 4090; and
(3) even if the Respondent was obligated to bargain with
Local 4090 about subcontracting, most of the information
Local 4090 sought was neither relevant nor necessary to the
Union’s bargaining obligations.2
I heard the case in Detroit on February 3, 1992.
I. THE SUBCONTRACTING BY THE RESPONDENT; LOCAL
4090’S REQUEST FOR INFORMATION
Sometime in or prior to 1990, GTE Corporation and
AT&T entered into an arrangement whereby the AT&T un-
dertook to install telephone lines for GTE in Ohio and
Michigan. AT&T’s work for GTE was to be mostly, if not
wholly, ‘‘outside plant’’ work. That is, burying underground
cables, running aerial cables, and interconnecting cables. The
members of Local 4090, on the other hand, were trained to
handle ‘‘central office work’’—that is, work on communica-
tions equipment inside telephone buildings. (By ‘‘members
of Local 4090,’’ I mean the Michigan members of the bar-
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Local 4090 Vice President Michael Klein, testifying about what
an AT&T official told him.
4 Witness Klein.
5 The IBEW represents some AT&T bargaining units.
6 The comparable letter from AT&T to the IBEW of course refers
to the IBEW instead of the CWA.
7 The ellipses are in place of the word ‘‘other.’’ Thus, in the origi-
nal, this paragraph begins: ‘‘As to other work normally.’’ But the
‘‘other’’ clearly is a mistake, having been in a comparable paragraph
in the 1986 version of this letter, which version included this sen-
tence just prior to the paragraph under discussion here: ‘‘The Com-
pany must retain discretion to outsource materials and products in
manufacturing facilities.’’
gaining unit described above.) Local 4090 Vice President
Klein, for instance, testified that he has ‘‘never worked in the
outside plant area.’’
AT&T advised Local 4090 about its arrangement with
GTE, and sometime in 1990 discussions about the subject
began between the Respondent and Local 4090. Initially the
talks concerned issues related to AT&T’s plan to train mem-
bers of Local 4090 to do the GTE-project work.
Early in 1991 an AT&T official advised Local 4090 that
AT&T planned to contract out some of the work on the GTE
project, but only those types of work for which Local 4090’s
members ‘‘weren’t equipped or trained to do.’’3 Local 4090,
however, soon ‘‘got reports from Ohio’’ (where the Re-
spondent’s work for GTE had begun prior to its startup in
Michigan) ‘‘that the subcontracting was more extensive than
the company had told us.’’4 According to those reports the
subcontractors were doing some central office work—the
kind of work that Local 4090’s members were trained to do.
AT&T’s work for GTE in Michigan began in April and,
as in Ohio, the Respondent entered into subcontracts cover-
ing some of the GTE-project work. In May and on various
occasions thereafter, officials of Local 4090 wrote to the Re-
spondent, asking for information about the Respondent’s sub-
contracting of GTE-project work.
Beginning in late July the Respondent’s local officials did
provide some of the information. But apart from these partial
responses, Respondent’s responses to the information re-
quests were, in the main, either: silence; or claims that the
information was not available; or the contention that the sub-
contracting issue should be handled by bargaining between
Respondent’s headquarters and the CWA; or the contention
that ‘‘the issue of subcontracting’’ was covered by the col-
lective-bargaining agreement then in force and that the Re-
spondent was ‘‘not obligated to bargain for modification of
the current agreement during its term.’’
II. DID THE COLLECTIVE-BARGAINING AGREEMENT THEN
IN FORCE PERMIT THE RESPONDENT TO SUBCONTRACT
WITHOUT BARGAINING
In this part of the decision I consider whether the terms
of the collective-bargaining agreement between the Respond-
ent and the CWA permitted the Respondent to refuse to re-
spond to Local 4090’s information requests. For the purposes
of this discussion I will assume that: (1) Local 4090 was the
proper entity to bargain with the Respondent about the Re-
spondent’s subcontracting of work in Michigan; and (2) the
requested information was relevant and necessary to Local
4090’s bargaining obligations.
The collective-bargaining agreement in force during the
events of interest to us here covered the period May 1989
through May 1992. The prior collective-bargaining agreement
included in it a letter from a member of AT&T’s manage-
ment, Raymond E. Williams, to the president of the CWA,
Morton Bahr, concerning subcontracting by AT&T.
In 1989, in the course of ‘‘National’’ bargaining (that is
nationwide, multiunit bargaining), the CWA proposed that
AT&T agree not to subcontract at all. Considerable discus-
sion followed. The upshot of that discussion was the republi-
cation of the 1986 Williams/Bahr letter, changed slightly and
redated. The republication took the form of an attachment to
a memorandum of understanding between AT&T, on the one
hand, and, on the other, the CWA and the International
Brotherhood of Electrical Workers Systems Council T-3 (the
IBEW).5
The 1989 version of the letter from AT&T’s Williams to
the CWA’s Bahr reads:
I am writing to respond to your expressions of con-
cern raised at the Operations bargaining table regarding
the Company’s contracting out of work, which have fo-
cused on situations in which a layoff is pending or has
occurred (and exbargaining unit members retain recall
rights) within the same geographical commuting area
where the work is to be contracted, and in job titles
whose occupants would traditionally have performed
such work.
I do not believe that CWA and AT&T have diverse
views on this subject.6
As to . . . work normally performed by our employ-
ees, we have always preferred not to contract such
work out if it would otherwise be performed by bar-
gaining unit employees in job titles in a geographical
commuting area (1) where layoffs of such employees
are pending; or (2) where a layoff has already occurred
and such laid off bargaining unit members retain recall
rights and are available to perform such work.7
In the future, the Company will not contract out such
work, under the conditions outlined above, except when
it has no other reasonable alternative. Under such cir-
cumstances, the Company will discuss its decision with
the Union.
The memorandum of understanding to which the
Williams/Bahr letter was appended includes the following
provisions:
This Memorandum of Understanding . . . set[s] forth
the Understandings reached at the National level as to
wages, hours, terms and conditions of employment that
have application to all Operations Units.
This Memorandum binds AT&T and its Operations
Units, the CWA and IBEW to incorporate the agreed
upon items into the collective-bargaining agreements
which will be executed.
In keeping with the memorandum of understanding, the
Respondent and the CWA included the 1989 Williams/Bahr
letter in their 1989 collective-bargaining agreement. (Apart
from that letter, the collective-bargaining agreement says
nothing about subcontracting.)
927AMERICAN TELEPHONE CO.
8 The article of the collective-bargaining agreement entitled ‘‘Ap-
plication and Interpretation of Contract’’ provides, inter alia, that:
The provisions of this contract may be amended by mutual con-
sent of the parties. . . . Matters not specifically covered by this
contract may be negotiated and made a supplement to this con-
tract.
I do not read this language as affecting the foregoing discussion.
9 A September (1991) memorandum from a CWA official to Local
4090 president Horton purports to delegate to Local 4090 the ‘‘au-
thority . . . to negotiate with local AT&T management concerning
the issue of subcontracting.’’ That memorandum goes on to state:
‘‘Nothing in the Bahr/Williams letter of 5/27/89 precludes the
Local’s right to these negotiations.’’ Additionally, Local 4090 Vice
President Klein testified about a telephone conversation he had with
officials of the CWA to the same effect. I do not consider either the
letter or the testimony about the telephone conversation to be a per-
suasive indication of the meaning of the collective-bargaining agree-
ment.
‘‘[Th]e duty to provide information is coextensive with the
statutory duty to bargain concerning mandatory subjects.’’
Service Employees Local 535 (North Bay Center), 287
NLRB 1223 fn. 1 (1988). In many circumstances an employ-
er’s decision to contract out unit work is a mandatory subject
of bargaining. E.g., Fibreboard Paper Products, 379 U.S.
203 (1964); Torrington Industries, 307 NLRB 809 (1992). A
union accordingly may demand information from an em-
ployer reasonably calculated to permit the union to deter-
mine, inter alia, whether the subcontracting by the employer
is a mandatory subject of bargaining, NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967); Arch of West Virginia, 304
NLRB 1089 (1991); cf. Brisco Sheet Metal, 307 NLRB 361
(1992); and, if it is, to prepare itself for such bargaining.
E.g., Arch of West Virginia, supra; General Electric Co., 294
NLRB 146 (1989), enf. denied 916 F.2d 1163 (7th Cir.
1990).
But a union may waive its right to bargain about the con-
tracting out of unit work by agreeing in advance that the em-
ployer may unilaterally undertake such action. E.g., Island
Creek Coal Co., 289 NLRB 851 (1988), enfd. 879 F.2d 939
(D.C. Cir. 1989); American Stores Packing Co., 277 NLRB
1656 (1986). The question, therefore, is whether by entering
into a collective-bargaining agreement that included the
Williams/Bahr letter, the CWA waived its right to bargain
about the subcontracting that concerned Local 4090.
Certainly a waiver by the CWA can be read into the
Williams/Bahr letter. In that letter AT&T agreed that it
would discuss with the union certain sub-contracting when
specified types of layoffs had occurred or were pending.
Subcontracting under other circumstances is not mentioned.
One possible interpretation of the letter thus is that AT&T
was entitled to subcontract, without discussing the sub-
contracting with the union, in all situations except in those
specified layoff situations.
If that interpretation is the correct one then the union had
waived the duty to bargain about the GTE subcontracting be-
cause no layoffs had occurred or were pending.
But another interpretation of the Williams/Bahr letter is
possible. In 1989 (as now) not all decisions by employers to
contract out unit work created a duty to bargain. In particu-
lar, an employer was under no obligation to bargain about
subcontracting that stemmed from an alteration in the em-
ployer’s ‘‘basic operation.’’ First National Maintenance
Corp., supra, 452 U.S. at 679, quoting Fibreboard Paper
Products, supra, 379 U.S. at 213. The Williams/Bahr letter
accordingly can be read as an agreement that had the purpose
of requiring AT&T to ‘‘discuss’’ with the union all plans to
subcontract in which the circumstances specified in the letter
obtained, even if the subcontracting was part of an alteration
in AT&T’s ‘‘basic operation’’ and thus was one that AT&T,
but for the agreement, could undertake unilaterally.
Under this interpretation, the letter relates only to sub-
contracting under the specified circumstances and does not
apply at all to subcontracting in other circumstances (as, in-
deed, the first paragraph of the letter also suggests).
A waiver of a union’s right to bargain about an employer’s
contracting out of unit work will be recognized only if it is
‘‘clear and unmistakable.’’ Olivetti Office U.S.A. v. NLRB,
926 F.2d 181, 187 (2d Cir. 1991), cert. denied 112 S.Ct. 168
(1991), quoting Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). And here: (1) the collective-bargaining
agreement does not specify that the Respondent was entitled
to contract unit work out without bargaining; and (2) an in-
terpretation can be given to the only possibly relevant part
of the collective-bargaining agreement—the Williams/Bahr
letter—by which the letter makes sense without reading it as
granting such unilateral authority to the Respondent.8
The Respondent, however, points to the bargaining history
behind the inclusion of the Williams/Bahr letter in the collec-
tive-bargaining agreement. And there is no doubt that in con-
struing the provisions of a collective-bargaining agreement,
‘‘careful consideration’’ must ‘‘be accorded extrinsic evi-
dence bearing on the parties’ intent.’’ Indianapolis Power
Co., 291 NLRB 1039 (1988), enfd. 898 F.2d 524 (7th Cir.
1990); see Speedrack, Inc., 293 NLRB 1054 fn. 5 (1989).
Here the inclusion of the Williams/Bahr letter followed con-
tract negotiations about a proposal by the CWA that AT&T
agree not to subcontract at all.
But I fail to see why that bargaining history suggests that
the inclusion of the Williams/Bahr letter in the collective-
bargaining agreement should be interpreted as an agreement
that the Respondent could unilaterally subcontract unit
work.9
I accordingly conclude that the collective-bargaining
agreement does not waive the CWA’s (or Local 4090’s) right
to bargain about the subcontracting in question.
III. THE AUTHORITY OF LOCAL 4090 TO BARGAIN
ABOUT SUBCONTRACTING
The CWA, not Local 4090, is the exclusive bargaining
representative of the employees in the bargaining unit. But
a union that is the bargaining representative of a unit of em-
ployees may lawfully delegate bargaining authority to an-
other union. See Kodiak Island Hospital, 244 NLRB 929
(1979). The Respondent, however, contends that there was
no such delegation; or rather, no valid delegation.
I conclude that the Respondent is estopped from raising
that contention.
For purposes of analysis, let us hypothesize facts different
from those presented by the record. Let us assume that: (1)
prior to the subcontracting, the Respondent advised the CWA
about the proposed subcontracting and offered to bargain
about it; (2) the CWA, in response, demanded that the Re-
spondent bargain with Local 4090 concerning the Michigan
facets of the subcontracting; and (3) the Respondent insisted
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 ‘‘The National [i.e., the CWA] hereby delegates to each of the
Locals [specifically including Local 4090] jurisdiction over all griev-
ances as to employees who are within their respective jurisdictions.’’
11 The provision reads, in full: ‘‘The National shall have exclusive
bargaining authority except insofar as jurisdiction is herein specifi-
cally delegated to the Locals. With respect to any subject proper for
collective bargaining and exclusively local in character, not covered
by this contract, the National may, by specific delegation, authorize
the Local to bargain locally on such subject. In each such case, the
National shall forward to the Company a copy of the delegation of
authority.’’
12 See pt. IV.
13 277 NLRB 1656, 1659 (1986).
14 268 NLRB 824, 825 (1984).
15 228 NLRB 607, 623 (1977), enf. as modified 573 F.2d 101 (1st
Cir. 1978).
on bargaining with the CWA, rather than Local 4090, about
the subcontracting.
In those circumstances, the Respondent’s contention con-
cerning the lack of Local 4090’s bargaining authority would
be a powerful one.
The collective-bargaining agreement covers delegations of
the CWA’s authority to local CWA unions. As such, it con-
stitutes an agreement by the CWA to limit its delegations of
authority in the ways and for the purposes specified in the
agreement.
The only specific delegation of authority in the collective-
bargaining agreement that is even possibly relevant to our
concerns here is the authority of local unions to handle griev-
ances.10 It is by no means entirely clear that, under the hy-
pothesized facts, such grievance authority would give local
unions the authority to bargain about subcontracting.
The collective-bargaining agreement also permits the
CWA to delegate additional matters to the locals, so long as
those matters are ‘‘exclusively local in character.’’11 (And, in
fact, in September (1991) the CWA did purport to specifi-
cally authorize Local 4090 to bargain with the Respondent
concerning the subcontracting in Michigan.) But the GTE
project that gave rise to the subcontracting covered two
States (Ohio and Michigan), not just one. Additionally, the
position of Local 4090 was that under the collective-bargain-
ing agreement the Respondent could not properly subcontract
at all without union permission.12 Local 4090 did not con-
tend that there was anything unique in this respect about the
subcontracting in Michigan. Thus, under the hypothesized
facts the Respondent could reasonably argue that the delega-
tion to Local 4090 was invalid since the subject of the pur-
ported bargaining authority was not exclusively local in char-
acter.
But the hypothesized facts are critically different from
what in fact occurred. As far the record here indicates, the
Respondent never proposed to bargain with the CWA about
the subcontracting. Rather, the Respondent, via its local of-
fice, raised the matter of the GTE project with Local 4090.
When the local asked about subcontracting in connection
with the GTE project, the Respondent, without objection, en-
tered into discussions with the local about the subcontracting.
The first time the Respondent took the position that the sub-
contracting was a matter for bargaining between its head-
quarters and the CWA was in August 1991, about a half year
after discussions with Local 4090 concerning the sub-
contracting had first begun and 3 months after the local had
first made its information requests.
By entering into discussions with Local 4090 about the
GTE-project subcontracting in Michigan, the Respondent
communicated to Local 4090 the position that it considered
the local to be the proper entity with which to bargain about
such subcontracting. Local 4090, in turn, made the informa-
tion requests at issue in order to obtain information it consid-
ered relevant for the conduct of its bargaining efforts. Under
these circumstances the Respondent may not, because it is
displeased with the local’s information requests, subsequently
reverse direction and claim that only the CWA has the au-
thority to bargain about subcontracting. See, e.g., Sewell-
Allen Big Star, Inc., 294 NLRB 312, 313 (1989), enfd. mem.
943 F.2d 52 (6th Cir. 1991).
IV. THE RELEVANCE OF THE UNION’S
INFORMATION REQUESTS
All this brings us to the particular information sought by
Local 4090.
On the one hand, ‘‘an employer is obligated to provide a
union with requested information if there is a probability that
such data is relevant and will be of use to the union in ful-
filling its statutory duties and responsibilities.’’ Associated
General Contractors of California, 242 NLRB 891, 893
(1979), enfd. as modified 633 F.2d 766 (9th Cir. 1980), cert.
denied 452 U.S. 915 (1981). On the other hand, since the in-
formation requests at issue are for information about nonunit
employees and circumstances, the information is not pre-
sumptively relevant:
Where the information sought covers the terms and
conditions of employment within the bargaining unit,
thus involving the core of the employer-employee rela-
tionship, the standard of relevance is very broad, and no
specific showing is normally required; but where the re-
quest is for information with respect to matters oc-
curring outside the unit, the standard is somewhat nar-
rower (as where the precipitating issue or conduct is the
subcontracting of work performable by employees with-
in the appropriate unit) and relevance is required to be
somewhat more precise.’’ Ohio Power Co., 216 NLRB
987, 991 (1975), enfd. per curiam, 531 F.2d 1381 (6th
Cir. 1976).
In these circumstances ‘‘the union is under the burden to
establish the relevance of such information.’’ Bohemia, Inc.,
272 NLRB 1128, 1129 (1984).
Relevance, clearly, is the touchstone. But in this case that
raises the question of relevance to what? To the particular
issues that Local 4090 told the Respondent it wanted to bar-
gain about? To all issues having to do with the subcontract-
ing that the union was concerned about, whether or not the
union had advised the Respondent of such concerns? To any
issue that a union, faced with the Respondent’s subcontract-
ing, might reasonably have wanted to bargain about?
The information-request cases arising under the Act have
not always focused on this issue. But cases such as American
Stores Packing Co.,13 Emery Industries,14 and Western Mas-
sachusetts Electric Co.15 suggest that the relevance of a
union’s request for information should be measured against:
(1) what reasons the union gave the employer about why the
union wanted the information; and (2) the circumstances sur-
929AMERICAN TELEPHONE CO.
16 ‘‘CWA-19’’ is the 1989–1992 collective-bargaining agreement
to which reference has been made. The record provides no further
information about the ‘‘work codes’’ and union charter to which
Klein’s letter refers.
17 At the hearing Local 4090 President Horton and, to a lesser ex-
tent, Vice President Klein, listed numerous reasons for wanting the
requested information. See Tr. 9, 17, 19, 26–28, 42, 78–81, 83–85.
I am not convinced that Klein and Horton had all those reasons in
mind prior to the hearing.
rounding the information request to the extent that they ‘‘are
reasonably calculated to put the employer on notice of a rel-
evant purpose which the union has not specifically spelled
out.’’ Emery, supra, quoting Brazos Electric Power Coopera-
tive, 241 NLRB 1016, 1018 (1979). Relevance thus is to be
measured against the union’s reasons for wanting the infor-
mation of which the employer has either ‘‘actual notice’’ or
‘‘constructive notice.’’ Emery, supra at 824–825.
Local 4090’s first request for information was set out in
a May 2 letter to the Respondent from Union Vice President
Klein. The letter reads:
At our meeting of 4–18–91, you indicated that the com-
pany intended to use subcontractors for a portion of the
GTE project in Michigan and I expressed the union’s
concern over subcontracting work that should be done
by members of our bargaining unit. Let me further state
that the Union’s position is that contract CWA-19, the
work codes in SD-11-1421-2, and the CWA Local 4090
Charter [give] the installers we represent first right of
refusal to the work on the GTE project contracted by
AT&T Network Systems.16
In regards to the above, the Union must insist that the
company provide the following information before as-
signing subcontractors to work in Michigan.
1. Names of subcontracting companies and their
unions.
2. Location of each subcontractor’s work sites.
3. The [approximate] number of employees sub-
contractors will use.
4. Description of all work operations to be performed
by subcontractors.
When the Respondent did not provide the information, the
Union, in meetings with officials of the Respondent in June,
and in a June 17 letter, repeated the earlier request for infor-
mation. Then, in a letter dated July 22, Local 4090 President
Horton asked for the following information in addition to the
four information requests already discussed. Horton did not
give any reasons for wanting the information. He just re-
ferred back to Klein’s May 2 letter.
1. Copies of contracts between AT&T and sub-
contractors on the GTE project in Michigan.
2. Dates that bids were made and names and ad-
dresses of bidders. When solicitations for bids [were]
made.
3. Approximate dollar value of all work that is to be
subcontracted.
4. Duration of all sub-contracts—beginning and end-
ing dates.
5. Names of the principle officers of each sub-
contracting company used by AT&T.
6. The names of any former AT&T employees who
work for subcontractors used by AT&T [on] the Michi-
gan GTE project.
7. Copies of AT&T contracts with GTE to do out-
side plant work in Michigan and the approximate dollar
value of these contracts.
In an August 5 letter to the Respondent, Union President
Horton reiterated the Union’s position about why it wanted
the information:
On 5–2–91 the union made you aware of our posi-
tion on subcontracting. That position is that our mem-
bers have first right of refusal of AT&T’s work. We
have requested information that we need to discuss the
issue.
Until the hearing, Local 4090 did not inform the Respond-
ent of any other reasons the Union wanted the requested in-
formation.17
The Union’s letters of May 2 and August 5 amount to
statements that: (1) the collective-bargaining agreement,
among other documents, precluded the Respondent from con-
tracting out bargaining unit work; (2) the Union intended to
support the grievances of any members of Local 4090 to the
effect that the members should have been given the GTE-
project jobs that instead went to sub-contractors; and (3)
Local 4090 wanted the specified information in order to
more effectively press its contention that the subcontracting
was contrary to the Respondent’s agreements with the CWA
and to be better able to prosecute the grievances.
As for whether the Respondent should have constructively
been on notice that the Union wanted the information for ad-
ditional reasons, it seems pertinent to me that the Respondent
knew that the officers of Local 4090 knew that: (1) the sub-
contracting involved a project that AT&T had undertaken for
GTE—it did not involve traditional AT&T work; (2) the
heart of the GTE project was outside plant work, which
Local 4090’s members were not trained to handle; (3) the
Respondent had made no claim that costs were the reason
that it was subcontracting GTE-project work and instead had
referred to the lack of trained bargaining unit personnel; (4)
the subcontracting had not caused any layoffs, no layoffs
were pending, and no members of Local 4090 were on lay-
off; and (5) the Respondent planned to bring additional bar-
gaining unit employees into Michigan to work on the GTE
project. From the Respondent’s point of view, each of these
circumstances should have narrowed Local 4090’s areas of
concern about the subcontracting. Respondent accordingly
had no constructive notice that Local 4090 had reasons for
desiring the requested information beyond those specified in
Klein’s letter of May 2.
This brings us back to the particular information requested
by the Union.
Turning first to Klein’s May 2 letter, information requests
2 (location of subcontractor worksites), 3 (number of sub-
contractor employees), and 4 (description of subcontractor
work operations) are plainly relevant to the Union’s needs.
Information request 1 (names of subcontracting companies
and their unions) is not.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Some of the requested information would obviously be relevant
to any unfair labor practice charge Local 4090 might have wanted
to file concerning a failure to bargain on the Respondent’s part prior
to entering into the subcontracts. (That is particularly true of the re-
quest for bidding dates.) But an employer is not required to provide
information to a union where, as far as the employer knows, the
union’s information request ‘‘is akin to a discovery device pertinent
to its pursuit of [an] unfair labor practice charge rather than to its
duties as collective bargaining representative.’’ WXON-TV, 289
NLRB 615, 617–618 (1988). I note that in many cases the Board
has concluded that employers were obliged to provide the kinds of
information that I have found the Respondent was not required to
provide to Local 4090. For instance, as to copies of subcontracts
(item 1 in Horton’s August 5 letter) see Arch of West Virginia,
supra; Island Creek Coal Co., supra. But in those cases the employ-
ers had actual or constructive notice of the union’s reasons for want-
ing the information that made such information relevant.
19 See Interstate Food Processing, 283 NLRB 303, 306 (1987).
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
21 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
As for the information requested by Horton on July 22,
item 4 (duration of all subcontracts) is information that might
well be pertinent to bargaining unit members in deciding
whether to grieve their rights to particular work that the Re-
spondent contracted out. But I am not persuaded that any of
the other information requests in Horton’s July 22 letter
could reasonably be deemed by the Respondent to be rel-
evant to the reasons that Local 4090 gave for wanting the
information.18
The Respondent has not provided any of the information
requested in Horton’s July 22 letter.
As for the information requested in Klein’s letter of May
2, one of the Respondent’s officials provided the Union with
some of the information (the name of a subcontractor and a
description of the subcontracted work) in the course of a
telephone conversation in late July 1991. Then, in letters
dated August 8 and 18—that is, more than 4 months after
Klein had asked for the information and shortly after Local
4090 filed its unfair labor practice charge—the Respondent
provided information that responded to all four of the infor-
mation requests in Klein’s May 2 letter. But neither in those
letters nor otherwise did the Respondent advise the Union
that the information thereby provided was a complete re-
sponse to these four information requests. In fact the Re-
spondent indicated that the information as provided was in-
complete. Both letters ended with the sentence: ‘‘I will keep
you informed as additional information becomes available.’’
At the hearing, the Respondent did not introduce evidence
about whether or not the information it has provided con-
stitutes a complete response to any of Local 4090’s informa-
tion requests. In fact no official of the Respondent who is
knowledgeable about the subcontracting at issue was called
as a witness. Nor has the Respondent claimed either in its
answer to the complaint or in its brief that it has fully re-
sponded to any of the information requests.
Under all these circumstances I conclude that:
The Respondent, by unduly delaying providing the infor-
mation requested by items 2, 3, and 4 of Klein’s May 2 let-
ter,19 and by failing and refusing to respond completely to
those three requests, violated Section 8(a)(5) and (1) of the
Act.
By failing and refusing to provide Local 4090 with infor-
mation about the duration of all subcontracts pertaining to
the work in Michigan on the GTE project (item 3 in Hor-
ton’s letter), the Respondent violated Section 8(a)(5) and (1)
of the Act.
Respondent’s failure and refusal to provide information to
Local 4090 did not otherwise violate the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, American Telephone and Telegraph
Company, Network Systems Customer Support and Oper-
ations Division, Oak Park, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide the following informa-
tion to Michigan Local 4090, Communications Workers of
America, AFL–CIO about the Respondent’s work in Michi-
gan that the Respondent has undertaken, or will undertake,
pursuant to an arrangement with GTE Corporation:
(1) The location of the subcontractors’ worksites.
(2) The approximate number of employees the sub-
contractors have used or will use.
(3) A description of all work operations performed
or to be performed by the subcontractors.
(4) The duration of all subcontracts, including begin-
ning and ending dates.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish to Local 4090 the information described above
in paragraph 1(a)(1) through (4).
(b) Post at its facilities in Michigan, copies of the attached
notice marked ‘‘Appendix.’’21 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by a representative of the Respondent, shall be posted
by the Respondent immediately 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.
931AMERICAN TELEPHONE CO.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to furnish Michigan Local 4090,
Communications Workers of America, AFL–CIO with infor-
mation relevant and necessary for bargaining about sub-
contracting by American Telephone and Telegraph Company,
Network Systems Customer Support and Operations Divi-
sion, or for the proper prosecution of grievances concerning
such subcontracting.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights that Sec-
tion 7 of the National Labor Relations Act guarantees to you.
WE WILL furnish Local 4090 with the following informa-
tion about the work in Michigan undertaken pursuant to our
agreement with GTE Corporation:
(1) The location of subcontractors’ work sites.
(2) The approximate number of employees used by
subcontractors.
(3) A description of all work operations performed
or to be performed by the subcontractors.
(4) The duration of all subcontracts, including begin-
ning and ending dates.
AMERICAN TELEPHONE AND TELEGRAPH
COMPANY, NETWORK SYSTEMS CUSTOMER
SUPPORT AND OPERATIONS DIVISION