Central Soya Co. Inc.

National Labor Relations Board - Board DecisionsMay 31, 1988

288 N.L.R.B. 1402 (N.L.R.B. 1988)

1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Central Soya Company, Inc. and Teamsters Local Union No. 515, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO.' Case 10-CA-22546 May 31, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On December 30, 1987, Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and a supporting brief and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions 3 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The name of the charging Party has been amended to reflect the fact that effective November 1, 1987, the Teamsters International Union was readmitted to the AFL-CIO. 2 The General counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings 'In light of our decision to adopt the judge's dismissal of the com- plaint, we find it unnecessary to pass on the Respondent's cross-excep- tions In adopting the judge's decision Member Babson finds it unnecessary to rely on the judge's conclusion that even if the Union's sole interest in access to the Respondent's premises was to ensure that , contractors were not aligned with the Respondent as the primary employer and to deter- mine the legitimacy of the Umon's picketing of the reserved gate, such an interest was related to the terms and conditions of the locked-out em- ployees and was relevant to the Union's representation obligations Howard Trimble, Esq., for the General Counsel. Carl H. Trieshmann and Douglas A. Darch, Esqs. (Sey- farth, Shaw, Fairweather & Geraldson), of Chicago, Illi- nois, for the Respondent. Robert Logan Jr., of Chattanooga, Tennessee, for the ' Charging Party. 1 All dates are in 1987 unless otherwise stated 2 Respondent's unopposed motion to correct the transcript, dated 8 December 1987, is granted and received in evidence as R. Exh. 15. DECISION STATEMENT OF THE CASE HurroN S. BRANDON, Administrative Law Judge. This case was tried at Chattanooga, Tennessee, on 19 October 1987. The charge was filed on 18 May 1987 1 by Teamsters Local Union No. 515, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (the Union), and the complaint issued on 2 July. As amended at the hearing, the complaint alleged that Central Soya Company, Inc. (Respondent or the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to provide the Union with relevant requested in- formation necessary to the Union's performance of its function as the exclusive collective-bargaining represent- ative of certain of Respondent's employees in an appro- priate unit, and denied the Union's request for access to Respondent's facilities claimed necessary by the Union for the same purpose. The factual issues presented are whether the Union requested documentary information from Respondent, and whether Respondent denied the request. The primary legal issue is whether, under the circumstances of this case, Respondent's denial of the Union's request for access to Respondent's facility in the performance of its representation functions violated Sec- tion 8(a)(5) and (1) of the Act. On the entire record 2 including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is an Indiana corporation with an office and place of business located at Chattanooga, Tennessee, where it is engaged in the processing of soy beans. During the calendar year preceding issuance of the com- plaint, Respondent sold and shipped from its Chattanoo- ga facility finished products valued in excess of $50,000 directly to customers located outside the State of Ten- nessee. The complaint alleges, Respondent admits, and I find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the undisputed records establishes, and I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union and Respondent have been parties to suc- cessive collective-bargaining agreements since about 1972 covering employees in the following unit admitted to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 288 NLRB No. 149 I CENTRAL SOYA CO. 1403 All production and maintenance employees em- ployed by Respondent at its Chattanooga, Tennes- see facility excluding office and clerical employees, laboratory employees, professional employees, guards, watchmen and supervisory employees and truck drivers. The most recent collective-bargaining agreement be- tween the parties expired 1 April, but negotiations for a new collective-bargaining agreement began in March. Negotiations were unsuccessful and Respondent on 20 April locked out its unit employees and continued the lockout through the time of the hearing herein.3 Subsequent to the lockout, the Union picketed Re- spondent's facility, and a dispute arose over the Union's picketing of a gate to Respondent's facilities reserved for the exclusive use of independent contractors, including one R. B. Poole Company (Poole). Respondent conced- ed in its answer herein that Poole was performing con- tract work for it in its facility and had continuously per- formed work for Respondent over the preceding 10 years. In any event, as a result of the Union's picketing, Respondent filed a charge with Region 10 of the Board, Case 10-CC-1281, alleging that the Union was violating secondary boycott provisions of the Act. It was in this context, and prior to the dismissal of the charge in the secondary boycott case on 13 May, that the Union's re- quest for access and alleged request for information oc- curred as set forth in greater detail below. B. The Union's Request for Access and Information The complaint alleges that the Union on 7 May re- quested Respondent to provide for the Union's review of work orders, blueprints, and drawings relevant to work being performed for Respondent by Poole and on 7 and 11 May requested access to Respondent's facilities to ob- serve the work being performed by Poole. To establish these allegations, the General Counsel relies on the testi- mony of Robert Logan Jr., business manager and presi- dent of the Union, who testified that on 7 May following discussions with the Union's attorney and pursuant to in- structions from him, Logan telephonically contacted Richard Strong, Respondent's personnel service manager who was at Respondent's Chattanooga facility at the time. According to Logan, he asked Strong for the Union to be allowed to come in and inspect the work Poole had done and was doing. Further, he told Strong that "we wanted the opportunity to come inâ€”with any future workâ€”we wanted the opportunity to come in and inspect that work and heâ€”have access to drawings and blueprints or any pertinent work orders or things of that nature having to do with the work." Strong asked how soon he needed an answer and Logan replied that he would like an answer then. Strong responded that that made it easy for him, and he said the answer was no. That concluded the conversation. Logan testified that he had no further discussions with Strong or any other company representatives regarding the requests explaining that he had gotten a final answer 3 No contention was made herein that the lockout was in any manner unlawful. as far as he knew. There was, however, correspondence between Respondent's counsel and the Union's counsel concerning the requests. Thus, on 11 May, the Union's attorney, Lynn Agee, wrote Ronald G. Ingham, an attorney then representing Respondent, asserting the Union's position that contrac- tors were performing work traditionally done by bar- gaining unit employees or work related to the manufac- turing process and referring to the Union's request for "access to the plant facility in order to determine the work that has been and is being performed by contrac- tors." Agee's letter went on to state that It is our position that the Union has the right to perform this inspection as it is necessary for pur- poses of bargaining as well as to assess the rights of its members under Sec. 7 of the NLRA. We would be willing to discuss with you and bargain with Central Soya regarding the parameters of this in- spection. Please treat this letter as a continuing re- quest to inspect work performed by contractors. Respondent replied through a letter of one of its attor- neys, Douglas Darch, dated 22 June. Darch referred to Agee's 11 May letter "relating to the Union's request for bargaining regarding inspecting" the work of the con- tractors, and asserted Respondent's willingness to meet with union representatives to discuss the issue. Darch noted that a mediator was arranging a meeting between the parties within the following 2 weeks (apparently to negotiate contract issues) and proposed discussing the matter at that time, but nevertheless offered to meet at "any other mutually agreeable dates." Respondent's representative Strong in his testimony acknowledged Logan's request for access for inspection of Poole's work and admitted that he refused the request. He denied, however, any further request by Logan in their brief telephonic exchange for work orders or other documentation regarding contractors. Strong testified he first learned from Darch about 22 June that the Union was contending in connection with the charge in the in- stant case that it made a request for documentary infor- mation in the 7 May telephone call to Strong. Strong denied to Darch that such a request had been made, and Darch informed Agee by letter dated 23 June that: As we understand it, the Union's position is that it has a right to enter the plant and inspect the work being performed by contractors during the current labor dispute. While there is some dispute as to the extent of Mr. Logan's request of May 18, we are nonetheless willing to proceed to discuss this matter further.* * In this regard, the Company categorically demes that Mr. Logan requested copies of work orders, bluepnnts, and drawings during this conversation. Darch's letter concluded by indicating a willingness to discuss "the matter" further and noting that if it was pre- ferred, "the parties can discuss this topic during their next meeting." Through Deborah Godwin, an attorney 1404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in Agee's firm, the Union replied by letter dated 25 June stating, "As you suggest, the parties can discuss this topic during their meeting which I understand is sched- uled for July 2, 1987," and "We will respond to your letter at that time." It is undisputed that the parties met on 2 July for ne- gotiations. The meeting, however, was not a face to face one, since negotiations were conducted through a media- tor. In any event, Logan conceded in his testimony that during the 2 July meeting the Union made no requests for information regarding the work of contractors ex- plaining on cross-examination that he had been told by the Union's counsel that Respondent would be bringing that subject up at negotiations. 4 The union concedes that there was also no discussion of the alleged request for in- formation on contractors at subsequent bargaining meet- ings in September and October. Accordingly, the forego- ing and the Union's prosecution of the charge herein constitutes the total material evidence on the Union's re- quest for access and information related to Respondent's use of contractors. C. Positions of the Parties The General Counsel's position is fairly straightfor- ward. Thus, the argument is made, citing NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), that an employer must "provide information that is needed by the bargain- ing representative for the proper performance of its duties." While the General Counsel concedes that the in- formation requested must be relevant to the Union's duty to represent its members, such relevancy is established here, according to the General Counsel, by virtue of the fact that access is necessary to the Union "to protect itself from damage suits under Section 303 of the Act, and for the purposes of representing the employees of Respondent in collective bargaining in the current nego- tiations." In another portion of the brief it was stated that access and the information revealed thereby would allow the Union "to determine whether continued and/or additional picketing would be beneficial in the representation of the employees as well as for bargaining purposes." NLRB v. National Broadcasting Co., 798 F.2d 75 (2d Cir. 1986), enfg. 276 NLRB 118 (1985), and NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st Cir. 1985), enfg. 273 NLRB 1369 (1985), cases involving un- lawful employer denials of access by a union in factual situations similar to the one in the instant case, are cited by the General Counsel as specifically supporting the po- sition asserted here. Noting the "balancing test" of the Employer's property rights against the employees' right to proper representation set forth in the Board's decision in Holyoke, supra, the General Counsel argues that the Union's need for access "far outweighs" any property in- terest on the part of Respondent here and cites the Union's willingness to seek access only "at reasonable times and places." Further, the General Counsel claims that there are no other means by which the Union can obtain the information that access would reveal. 4 Logan admittedly had received a copy of Godwin's 25 June letter to Darch prior to the 2 July meeting but testified he viewed Godwin's letter as suggesting only that the information requested could be discussed Respondent's position is stated in a number of argu- ments. First, it denies that there ever was a request by the Union for information and documents as opposed to a request for access. Accordingly, Respondent claims there could be no violation of the Act based on any fail- ure to supply the Union with documentation or other in- formation regarding the contractors.5 With respect to the access issue, Respondent argues that the information to be derived from any union in- spection on Respondent's premises was outside the scope of the Employer's duty to bargain. The scope is limited under Section 8(d) of the Act, according to Respondent, to production of information relevant to conferring on conditions of employment, bargaining on a collective- bargaining agreement, or resolving questions arising under a collective-bargaining agreement. The request for access here had nothing to do with those matters or any term or condition of employment and instead was sought only to determine the legality of the Union's picketing. Alternatively, Respondent argues that the Union has the burden of establishing relevancy, and such relevancy was never shown. Assuming that access was within the scope of Re- spondent's bargainmg obligation and that access was rel- evant to the bargaining process, Respondent proceeds to argue that under Holyoke, supra, and Hercules Inc., 281 NLRB 961 (1986), and the balancing test there involved, the Union Was not entitled to access if there were alter- native means of securing the information that access would otherwise reveal. Here, there were alternative means, according to Respondent, so that denial of access was not unlawful. Finally, Respondent claims that the Union abandoned a request for access after 22 June when Respondent of- fered to discuss access with the Union in Darch's letter of that date. The Union consciously failed and refused to pursue the matter any further after that date notwith- standing subsequent meetings with Respondent. This fail- ure, Respondent claims, constituted an "unmistakable waiver" of any right to information and access. D. Analysis and Conclusions The law is well settled that an employer has a duty to supply requested relevant information to a union that is the collective-bargaining representative of the employer's employees if the requested information is reasonably nec- essary to the union's performance of its responsibilities. NLRB v. Acme Industrial Co., supra; NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). This obligation extends not only to information that is useful and relevant for the purpose of contractual negotiations, but also to informa- tion necessary to the administration of the collective-bar- gaining agreement. See Clinchfield Coal Co., 275 NLRB 1384 (1985); Gunn & Briggs, Inc., 267 NLRB 944 (1983); Safeway Stores, 252 NLRB 1323 (1980); and Westinghouse 5 Poole was the only contractor identified on the record as engaged in work for Respondent during the lockout, and it appears that Respondent ceased using Poole after the dispute arose â€˜over the Union's picketing of the reserved gate. Further, Respondent notified the Union that it had ceased "letting work orders until further notice" The record shows no further notice or any further work by Poole or any other contractor CENTRAL SOYA CO. 1405 Electric Corp., 239 NLRB 106 (1978). Disclosure by an employer of requested information "necessary . . . to enable [a union] to evaluate intelligently grievances filed" or contemplated, allows a union to sift out merito- rious claims" and is said to be an aid to the arbitral proc- ess. NLRB v. Acme Industrial Co., supra at 435, 437-438. The information requested, however, must be relevant and reasonably necessary for the union's proper perform- ance of its role as collective-bargaining representative before the obligation to produce it arises. Detroit Edison Co., 218 NLRB 1024, 1033 (1975), reversed and remand- ed on other grounds 440 U.S. 301 (1979). But the stand- ard for determining relevancy is a liberal one and it is necessary only to establish "the probability that the de- sired information is relevant, and that it would be of use to the union in carrying out its statutory duties and re- sponsibilities." NLRB v. Acme Industrial, supra at 437. See also Leland Stanford University, 262 NLRB 136 at 139 (1982), and cases cited therein. In applying the foregoing principles to the instant case, it must first be determined whether Logan requested Re- spondent to provide documentary information regarding the work of the contractors in addition to his request for access. As noted, Logan claimed he asked Strong on 7 May for the documentary information while Strong denied the claim. Considering the record as a whole, and Strong's emphatic and convincing denial on the point, I conclude that Logan was in error and credit Strong where he contradicts Logan. In reaching this conclusion, some additional observations need to be made. Logan claimed in his testimony that he made notes in his union strike log regarding his conversation with Strong on 7 May after the telephone call. While these notes appear to be an almost verbatim recitation of re- marks made, they do not refer to any request for blue- prints, drawings, or any other documentary information. Logan's notes reflect a request "to come in" and "inspect the work done" by Poole "last Friday" and to come in and "make such inspection anytime construction crews perform work in the plant in order to determine that such work is related to the mfg. process." The notes re- flect Strong's answer as "no to both of them." It seems reasonable to conclude that had Logan requested docu- mentary material, he would have referred to such re- quest in his notes. Moreover, had there been such a re- quest, surely the notes Would have attributed a specific response to Strong to such request. Yet, the note shows a response by Strong only to "both" items referred to in Logan's notes, i.e., the request to inspect Poole's past work and the future work of contractors. Logan also entered some additional notes in a pocket calendar relating to his request of Strong. Initially, based on the General Counsel's questions of Logan, it appeared that these notes were entered as a recording of Agee's instructions to Logan about what to ask Respondent After further examination and cross-examination, howev- er, it became clear that the notes were made by Logan following the telephone call to Strong and repeated Strong's responses in that call as already set out in the strike log notes. The pocket calendar notes do allude to work orders, however, by describing the request thusly: "request opportunity to inspect work/work orders, etc. One of R. B. Poole last Friday. Two of future work." As noted, however, there was no request for work orders in Logan's strike log entry, and Logan conceded that the strike log entry was made first. Moreover, a Ake log entry appearing immediately above the entry regarding the contents of Logan's call to Strong smacks more of a recording of Agee's instructions than the entry on Logan's pocket calendar. This cryptic strike log entry states: "Call Co. tonight tell them if construction crews come in want to inspect see if work related to mfg. Proc- ess." Thus, again there was no reference for a request for documentary information. Under these circumstances and in light of some confusion on Logan's part regarding the entry of the pocket calendar notes, I am inclined to believe that such notes are unreliable as corroboration of Logan's testimony. There is other circumstantial evidence that tends to support Strong's denial that there was no request for documentary information by Logan. Thus, the charge herein, signed by Union's counsel Agee, in outlining the violation claimed noted only Respondent's refusal to grant the Union access to the plant as the basis for the violation. Had Agee directed Logan to ask for documen- tary information or had Logan reported to Agee that he had requested such information of Strong as Logan's tes- timony suggests, it is unlikely that Agee would have omitted the alleged refusal to supply such information as a specific allegation of the otherwise detailed charge. In addition, Agee's letter of 11 May to Ingham specifically stated that the letter was to be treated "as a continuing request to inspect work performed by contractors." No reference was made to a continuing request for any doc- umentary information that could have been expected had Agee instructed Logan to make the request. Still other evidence indicates that no specific request for documentary information was made. Darch's 23 June letter made clear that Respondent was willing not only to discuss the Union access issue but was specifically willing "to provide the Union with copies of work orders as they are let to contractors during the current labor dispute." Darch's letter further stated that in the event the Union was unable to determine if the work performed under the work order was work which the Union claimed, the Company would also provide the blueprints and drawings, if any, for the work. Godwin's response to this offer stated, "We will respond to your letter" at the 2 July meeting. Yet, the Union made no such response at the 2 July meeting or at any time there- after. This failure of response belies Logan's claim that such information was requested by him on 7 May. Considering the foregoing and specifically crediting Strong, I conclude that there was no request for docu- mentary information on contractors' work by Logan and Respondent did not, in violation of Section 8(a)(5) and (1) of the Act, refuse to give the Union such information. Turning to the access issue, I reject Respondent's con- tention that the information sought through access was outside the scope of the Employer's duty to bargain. Re- spondent reads Section 8(d) of the Act too narrowly. As already noted, the duty to provide information is meas- ured by relevancy and the reasonable necessity for the 1406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union's proper performance as collective-bargaining rep- resentative. Detroit Edison Co., supra at 1033. In short, the information requested need only be relevant and of use to the union in carrying out its statutory duties and responsibilities. Accordingly, where relevancy is estab- lished, the providing of information to a union of use to it in carrying out its statutory duties and responsibilities is clearly within the scope of an employer's obligations contemplated under Sections 8(d) and 8(a)(5) of the Act. Moreover, the requested access relates to terms and conditions of employment for it involves resolution of whether contractors were performing bargaining unit work or at least whether they were engaged in the man- ufacturing process. To this extent, like the access sought by the union in National Broadcasting Co., supra, the re- quest for access involved indirectly policing the recently expired collective-bargaining agreement. The fact that the agreement had expired is immaterial. It is well estab- lished that the policies of Section 8(a)(5) of the Act re- quire that the terms of a collective-bargaining agreement relating to mandatory subjects of bargaining may not be unilaterally changed without notice to, and negotiations with, the other party to the agreement even where the agreement has expired. See Hinson v. NLRB, 428 F.2d 133 , (8th Cir. 1970). Access and inspection to ensure compliance with terms and conditions of employment that Respondent could not unilaterally change remains in the best interest of the employees and therefore funda- mental to the Union's representation obligation and the employees' terms and conditions of employment.6 The Union's representation obligation included the ob- ligation to ensure the integrity of the bargaining unit work and the prevention of erosion of such work through use of contractors. See W-L Molding Co., 272 NLRB 1239 (1984). The fact that a lockout was in proc- ess during the time that the Union sought access does not diminish in any respect the Union's representation obligation that would be fulfilled by policing its interest in seeing whether the contractors were engaged in "the manufacturing process." If anything, the necessity for access to fulfill the Union's obligation in this regard was greater as a result of the lockout because bargaining unit employees were eliminated as a source of information re- garding Respondent's adherence to established terms and conditions of employment. Even if the Union's sole interest in access was to ensure that contractors were not aligned with Respond- ent as the primary employer and to determine the legiti- macy of the Union's picketing of the reserved gate, I find such interest or purpose is still related to terms and conditions of employment of the locked-out employees and relevant to the Union's representation obligations. There was clearly a labor dispute existent between Re- 6 Indeed, the provision in the expired bargaining agreement at art VI granting the Union access to Respondent's premises "to insure the provi- sions of this agreement are maintained," constitutes an acknowledgement on Respondent's part of this prmciple. While an argument could be made that this "visitation clause" survived the expiration date of the agreement so that Respondent's denial of access to the Union here constituted a uni- lateral change in the agreement (see National Broadcasting Go, 276 NLRB 118 at 123 (1985)), the General Counsel specifically disaVowed such an argument herein Accordingly, no findings will be made herem on this point. spondent and the locked-out employees. It was in the in- terest of the Union in the performance of its representa- tion obligations to publicly advertise by picketing or other lawful means this dispute. Clearly, a union's right to picket in support of a dispute with an employer is at the core of Section 7 rights under the Act. Medina Super Duper, 286 NLRB 728 (1987). The right to picket would be frustrated here if the Union, the recognized and ac- knowledged collective-bargaining representative of Re- spondent's employees, were forced to engage in a game of "gotcha" with Respondent by virtue of Respondent's withholding of information by which the Union could determine the legitimacy of its picketing. Accordingly, I conclude in the context of picketing to advertise a dis- pute with Respondent, the Union's request for access re- lated to terms and conditions of employment of unit em- ployees and the employees' right to responsible union representation through advice regarding the picketing. In short, I find the access sought by the Union, if only to verify legitimacy of the Union's picketing, was relevant and useful to the Union in carrying out its statutory duties and responsibilities to unit employees. As Respondent further argues, however, a determina- tion that the information sought by the Union through access is relevant to the Union's proper performance of its representation duties does not ipso facto obligate an employer to open its doors. The Board made this clear in its decision in Holyoke Water Power Co., supra. In Hol- yoke, which both the General Counsel and Respondent recognize as being apposite, the Board stated that in ad- dition to establishing that the presence of a union repre- sentative on the employer's premises is relevant to the Union's performance of its representation duties; there must be a balancing of the rights of employees to be re- sponsibly represented with the employer's right to con- trol his property. More specifically, the Board stated at 1370: [W]e are constrained to balance the employer's property rights against the employees' right to proper representation. Where it is found that re- sponsible representation of employees can be achieved only by the union's having access to the employer's premises, the employer's property rights must yield to the extent necessary to achieve this end. However, the access ordered must be limited to reasonable periods so that the union can fulfill its representation duties without unwarranted interrup- tion of the employer's operations. On the other hand, where it is found that a union can effectively represent employees through some alternate means other than by entering on the employer's premises, the employer's property rights will predominate, and the union may be denied access. In sum, the circumstances presented in each case involving a request for access must be carefully weighed, and each of the conflicting rights must be carefully balanced and accommodated in reaching a decision. Do the representational interests of unit employees outweigh Respondent's property rights here? Resolution CENTRAL SOYA CO. 1407 of this issue turns on the balancing test set forth in Hol- yoke and a determination of whether the Union could ef- fectively represent the unit employees through some means other than access to Respondent's premises. As previously suggested, the existence of a lockout in the in- stant case made the Union's need for information regard- ing the work being performed by the contractor critical, since the unit employees were eliminated as a source of information. That source of information is particularly critical when, as here, the record reflects that there has been some confusion regarding the work of contractors historically used by Respondent and the work of mainte- nance employees who are bargaining unit employees.7 Indeed, Kenneth Kilgore, a maintenance employee of Respondent as well as a union steward, testified that, during the last full year the collective-bargaining agree- ment was in effect, three or four grievances had been filed and several complaints made regarding contractors performing bargaining unit work of the maintenance em- ployees. According to the credible and uncontradicted testimony of Kilgore, the Union lost those grievances when it was established that contractors were engaged in "new installation," i.e., the installation of new equipment, but won when the work involved the maintenance or repair of installed equipment. Kilgore further related that the maintenance men sometimes worked "shoulder to shoulder" with contrac- tor employees, and noted that on some occasions mainte- nance employees would "install something." Normally, maintenance employees performed work pursuant to a "service ticket" involving "normal day routine" work while contract employees whom Kilgore also referred to as "construction people" worked pursuant to "work orders" for a "special job." Kilgore, who said he did a substantial amount of electrical work in his department, testified that he occasionally worked from "prints" and wiring diagrams. On such occasions, the work was done pursuant to a work order rather than a service ticket. Logan testified that it would be virtually impossible to determine whether a contractor, and Poole specifically, was doing bargaining unit or manufacturing work with- out access and simply by reviewing blueprints and work orders. This is because, according to Logan, "the work is so interrelated" and the "subcontractors for 30 years have worked shoulder to shoulder in there" with unit employees. He conceded, however, that he was not inti- mately familiar with the work contractors had done in the past as contrasted with unit work. He pointed out, however, that the Union had been successful in convinc- ing the Board of the lack of merit in the charge against the Union in Case 10-CC-1281 by establishing that work openly done by Poole on a sprinkler system near Re- spondent's entrance gate and in sight of the pickets was work previously done by the maintenance employees. Kilgore, who was called as a witness by the General Counsel, contradicted Logan's testimony concerning the necessity for access. Asked specifically if review of a work order and blueprints compared to prior service tickets would be sufficient to determine whether work 7 Respondent employs approximately 35 maintenance employees and 117 employees in production classifications. being performed by a contractor was work previously done by maintenance employees, Kilgore answered af- firmatively. Kilgore's testimony on this point found support in the testimony of Strong who related that blueprints and written descriptions of the work in issue as set forth on purchase orders would provide a sufficient basis for de- termining whether bargaining unit or production work was being done by the contractor and, even if it were not sufficient in itself, it would serve to justify a request for further documentation. According to Strong, while conceding he was not an engineer, the purchase orders alone would serve the Union's purposes in this regard. Considering the credible testimony of Strong and Kil- gore, I am persuaded that adequate alternative methods existed for ascertaining the type and amount of work performed by contractors for Respondent. Logan's lack of familiarity with the prior work of the contractor un- dermines the validity of his contention that any infringe- ment on bargaining unit work could not be ascertained without access. Kilgore, by virtue of being a regular maintenance employee who had worked with prior con- tractors and who was familiar with the normal type , of work performed by contractors in contrast to that of maintenance employees, was in a much better position to assess the value of the alternative methods of ascertain- ing either infringement on bargaining unit work or work being performed in the production process. The fact that it was determined through observation that Poole had done bargaining unit work on the sprinkler system does not establish that the same fact could not have been as- certained through reference to work orders, blueprints, service tickets, or purchase orders without access and observation. Crediting Kilgore and Strong in this regard, I conclude alternative methods existed for determining the work performed by the contractors. Accordingly, on balance, I find the employees' representational rights under the circumstances of this case do not outweigh Respondent's property rights. I therefore fmd that Re- spondent's denial of access to the Union here was not violative of Section 8(a)(5) and (1) of the Act. Having previously found that Respondent did not, in violation of Section 8(a)(5) and (1) of the Act, deny a re- quest by the Union for documentary information, it will be recommended that the complaint be dismissed in its entirety.8 CONCLUSIONS OF LAW 1. Respondent, Central Soya Company, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union, Teamsters Local Union No, 515, affili- ated with International Brotherhood of Teamsters, 8 The foregoing conclusion ,renders unnecessary any finding with re- spect to Respondent's argument that the Union abandoned its request for access by virtue of the Union's failure to raise the matter after Respond- ent indicated its willingness to discuss the matter in Darch's 23 June letter It should nevertheless be observed that Agee's letter of 11 May made the request for access a continuing one and Respondent never re- versed its initial denial of access. Further, the Union continued prosecu- tion of the charge -herein would appear to dispel any notion that it was abandoning its request for access. 1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3.The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its Chattanooga, Tennes- see facility excluding office and clerical employees, laboratory employees, professional employees, guards, watchmen and supervisory employees and truck drivers. 4. The Union has been the recognized collective-bar- gaining representative of all the employees in the unit de- scribed in paragraph 3 immediately above. 5. Respondent did not refuse to provide for the Union's review work orders, blueprints, and drawings relevant to work being performed for Respondent by R. B. Poole Company or other contractors and therefore did not violate Section 8(a)(5) and (1) of the Act in this regard. 6. Respondent did not violate Section 8(a)(5) and (1) of the Act in denying the Union access to Respondent's facilities for the purpose of observing the work being performed by R. B. Poole Company or other contrac- tors. 7. Respondent did not violate the Act in any manner set forth in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The complaint is dismissed in its entirety. 9 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.