Leland Stanford Junior University

National Labor Relations Board - Board Decisions

May 26, 1988

288 N.L.R.B. 1129 (N.L.R.B. 1988)

LELAND STANFORD JUNIOR UNIVERSITY 1129
Leland Stanford Junior University and United Stan-
ford Workers, Service Employees International
Union, Local 680, AFL-CIO. Case 32-CA-
8303
May 26, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On February 1, 1988, Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent filed exceptions and a supporting
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Leland
Stanford Junior University, Palo Alto, California,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
' The Respondent argues that its obligation to provide the information
requested by the Union should have been deferred to arbitration under
Collyer Insulated Wire, 192 NLRB 837 (1971). The Board's well-estab-
lished policy is to decline to defer 8(a)(5) allegations involving an em-
ployer's refusal to furnish information requested by an exclusive collec-
tive-bargaining representative See General Dynamics Corp., 268 NLRB
1432 (1984), and United Technologies Corp, 274 NLRB 504 (1985)
Patricia M Milowicki and Virginia L. Jordan, Esqs., for
the General Counsel.
Michael Vartain, Esqs., Associate Staff Counsel, of Stan-
ford, California, for the Respondent.
James Eggleston, Esq., of Oakland, California, for the
Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Palo Alto, California, on 6 August
1987. The initial charge was filed on 22 August 1986, by
United Stanford Workers, Service Employees Interna-
tional Union, Local 680, AFL-CIO (the Union).
Thereafter, on 31 October 1986, the Regional Director
for Region 32 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing al-
leging a violation by Leland Stanford Junior University
(Respondent) of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). Following withdrawal of
the complaint, infra, the Regional Director issued an
order reissuing complaint and notice of hearing on 13
May 1987.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for Respondent.
On the entire record, and based on my observation of
the witnesses and considerations of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a private nonprofit institution of higher
learning located in Palo Alto, California, annually re-
ceives gross revenues in excess of $1 million excluding
contributions by the grantor not available for operating
expenses. Respondent, in the course and conduct of its
business operations, annually purchases and receives
goods or services valued in excess of $5000, which origi-
nate outside the State of California.
It is admitted, and I find, that Respondent is now, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Respondent, in violation of Section 8(a)(1) and (5) of
the Act, has failed and refused to furnish necessary infor-
mation to the Union in order to carry out its duties and
responsibilities as a collective-bargaining representative
of certain of Respondent's employees.
B. The Facts
The Union represents a unit of Respondent's employ-
ees including "nonexempt computer operations person-
nel." The current collective-bargaining agreement be-
tween the parties is effective from 1 September 1985 to
31 August 1988.
On 13 November 1985, the day prior to the execution
of the current contract, the Union filed a grievance
claiming that the Respondent's faculty practice program
has used temporary and other nonunion individuals at its
data entry center on University Avenue in Palo Alto, a
location separate from the locations where unit employ-
ees customarily work, to avoid placing them in the bar-
gaining unit. To settle the grievance the Union proposed
that Respondent should place these computer and data
entry employees in the bargaining unit and to make the
288 NLRB No. 129
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union whole for Respondent's conduct in derrogation of
the collective-bargaining agreement.
On 17 March 1986 the Respondent denied the griev-
ance on the basis that the faculty practice program posi-
tions in question, which Respondent identified as "office
assistants, medical services assistants, and miscellaneous
clericals," are not bargaining unit positions.
Thereafter, on 26 March 1986 the Union requested
specific information, including the names and specific
hourly rates of pay for all office assistants, medical serv-
ice assistants, and miscellaneous clericals employed by
the Respondent at its faculty practice program data entry
center on University Avenue in Palo Alto, in order to be
able to intelligently investigate the matter and decide
whether to process the grievance.
The Union believes that the work of the aforemen-
tioned employee classifications, performed by six em-
ployees, is bargaining unit work. It learned of the exist-
ence of these employees as a result of an advertisement
that Respondent placed in an areawide newspaper on 20
January 1985. The ad is as follows:
DATA ENTRY OPERATOR
Stanford University's Faculty Practice Program is
seeking an experienced Data Entry Operator to key
and verify.
Qualifications: 1-3 yrs. exper. on data entry equip.
is a must. CMC, IBM 3742 or similar equip. very
helpful. 10,000 keystrokes/hour desired.
To Apply: Send resume and letter of interest to:
Joan Power, FPP
Ref 26781 PT
25 University Av. #400
Palo Alto, CA 94301
Mary Ann Tenuto, staff counsel for the Union, testi-
fied that data entry operator work is bargaining unit
work and should have been posted in accordance with
the posting provisions in the contract. As a result of the
aforementioned ad, she instructed a union steward to in-
vestigate the matter. According to Tenuto, the steward
reported to her that, after a conversation with the facul-
ty practice program's secretary-receptionist, certain work
being done by several employees at that location ap-
peared to be bargaining unit work.
As a result of Respondent's refusal to furnish the re-
quested information, the Union filed a charge with the
Board on 22 August 1986 and a complaint issued on 31
October 1986. Thereafter, the Union raised the identical
issues here (i.e., the Union's right to the requested infor-
mation) in an unrelated arbitration proceeding and, as a
result, the Respondent requested that the Regional Di-
rector defer the matter to arbitration. The Union did not
want the issue deferred, and to obviate this, it advised
the arbitrator on 3 February 1987 that it was withdraw-
ing the request for information issue from the arbitration.
The Respondent, thereupon, notified the Regional Direc-
tor that it intended to resist the Union's withdrawal re-
quest to the arbitrator. On 6 February 1987, the Regional
Director issued an Order withdrawing complaint and de-
ferred the matter under Dubo Mfg. Corp, 142 NLRB 431
(1963), to the contractual grievance/arbitration proce-
dure. The Regional Director's order, after reciting the
above facts, states as follows:
Under these circumstances, it is concluded that the
matter is at least arguably presently pending before
an arbitrator, at least until the arbitrator rules on
the Union's request to withdraw that issue.
In all these circumstances, and in accordance with
, the Board's decision in Dubo Manufacturing Corpo-
ration, 142 NLRB 431 (1963), I have concluded that
it is appropriate to administratively defer further
proceedings in this case. My reason for deferral is
that both the Union and Respondent on January 14,
1987 agreed to resolve their outstanding differences
in this case through a pending arbitration proceed-
ing. Moreover, even though the Union has attempt-
ed to withdraw the information issue from that arbi-
tration proceeding, the arbitrator has not yet ruled
on that matter and the information issue remains
properly before the arbitrator. Accordingly, defer-
ral of that issue to the parties' contractual griev-
ance-arbitration procedure is appropriate.
The Union did not appeal this order.
Thereafter, on 13 May 1987, the Regional Director
issued an order reissuing complaint, as follows:
On February 6, 1987 an Order Withdrawing Com-
plaint and Notice of Hearing and Deferring Charge
to Grievance-Arbitration Procedures issued in the
above case. As set forth in that Order, while the
unfair labor practice issues involved in this case
were originally deemed inappropriate for deferral
under Collyer Insulated Wire, 192 NLRB 837 (1971)
since they did not involve any question of interpret-
ing the provisions of the parties' collective bargain-
ing agreement, they were deferred under Dubo
Manufacturing Corporation, 142 NLRB 431 (1963) in
light of the then-pending grievance involving those
same issues. Thereafter, the unfair labor practice
issues were severed and removed from the outstand-
ing grievance, which removal was consented to by
the arbitrator hearing the grievance. In such cir-
cumstances, and with the basis for continued defer-
ral under Dubo Manufacturing Corporation no longer
present in this case,
IT IS HEREBY ORDERED that the Complaint previ-
ously withdrawn in this case on February 6, 1987
be, and it hereby is, reissued.
Analysis and Conclusions
The Union made a clear request that Respondent fur-
nish the names and specific pay rates of six employees
whom the Union, after preliminary investigation and in
good faith, I find, believes are performing the work of
"nonexempt computer operations personnel," a classifica-
tion of employees represented by the Union. The Union
is not satisfied that the generalized information previous-
ly furnished by Respondent accurately reflects either the
LELAND STANFORD JUNIOR UNIVERSITY 1131
true nature of the work of the six employees or the per-
centage of time their work is more akin to the work per-
formed by unit personnel. For this reason, it wants to
interview the employees. For similar reasons it wants to
know their specific rates of pay, rather than merely the
parameters of their general wage scale. Clearly, this in-
formation, which the Union intends to use in order to
assist it in ascertaining whether, in its opinion, the six
employees are within the bargaining unit, is the type of
information to which it is entitled. Leland Stanford Junior
University, 262 NLRB 136 (1982), earl,. 715 F.2d 473 (9th
Cir. 1983).
Respondent argues that the Union is not entitled to the
information because the office assistants, medical service
assistants, and miscellaneous employees in the faculty
practice program were previously included within a sep-
arate unit description that, following a Board-conducted
representation election on 7 May 1981, voted against
union representation.' This contention is without merit.
Thus, while the aforementioned unit, which included em-
ployees in the faculty practice program, did not contain
the classification of "data entry operator," the Respond-
ent nevertheless placed the aforementioned ad for such
employees in the newspaper on 20 January 1985. The
Union now believes that these employees, despite their
descriptions or classifications, perform work that may be
characterized as data entry work and are, in fact, "non-
exempt computer operations personnel."
The Respondent also argues that by agreeing to cer-
tain language in the current collective-bargaining agree-
ment, which agreement is retroactive to a date prior to
the date the Union filed its grievance in this matter, the
Union specifically waived any right to assert that the
employees in question should be included in the unit, and
that therefore the Union is not entitled to the requested
information. This language, upon which Respondent
relies (art. I.A.6.), is as follows:
Jobs Outside of the Bargaining Unit
The University and the Union agree that no job at
the University at the time of execution of this
Agreement not then classified by the University in
one of the classifications set forth in Appendix A of
this Agreement, is either covered by this Agree-
ment or within the unit for which the Union is rec-
ognized in accordance with paragraph I.A.1. above.
If any such job changes substantially and perma-
nently, subsequent to execution of this Agreement,
so that the job consists predominantly of work cov-
ered by paragraph I.A.1. and satisfies the remainder
of the provisions of part I.A. of this Agreement, the
job shall be included within the bargaining unit.
The Union argues that the grievance in question is not
precluded by the contract language as the grievance was
filed prior to the contract's execution and, further, that it
was the implied intent of the parties that the retroactive
application of the contract is not applicable to this par-
ticular grievance.
The Certification of Results of Election issued on 5 February 1982.
The disagreement as to the intent and meaning of arti-
cle I.A.6. of the contract, vis-a-vis this particular griev-
ance, appears to be solely one of contract interpretation
and may be resolved by the arbitrator. See NCR Corp.,
271 NLRB 1212 (1984). Assuming arguendo that the ar-
bitrator may ultimately conclude that the employees in
question, even though within the unit description, are
precluded from being represented by the Union as a
result of the aforementioned contract language, it does
not follow that, as contended by Respondent, the Union
is not entitled to the information prior to the resolution
of this issue. As stated by Administrative Law Judge
Shapiro in Leland Stanford Junior University, supra, the
test of a union's need for information is a showing of
probability that the desired information is relevant and
would be of use to the Union in carrying out its statuto-
ry duties and responsibilities. Clearly, its statutory duty
to represent employees includes the filing and processing
of grievances. The requested information may be utilized
by the Union not only to show that the employees
should be included within the unit, but also, initially, to
ascertain whether the Union should continue to pursue
the grievance. Thus, for example, after conferring with
the employees in question, the Union may discover that
the employees do not, in fact, perform the work that the
contract covers. I thus find Respondent's argument to be
without merit.
Finally, the Respondent argues that the Regional Di-
rector abused his discretion by first deferring the matter
to arbitration and, thereafter, following the Union's with-
drawal of its information request from the arbitration
proceeding, reissuing the complaint. I do not agree.
The Regional Director's deferral order specifically
states as the primary rationale for deferral, that "the arbi-
trator has not yet ruled on that matter [i.e., the Union's
attempt to withdraw the information issue from the arbi-
tration proceeding] and the information issue remains
properly before the arbitrator." Thereafter, the arbitrator
did rule on the issue and, contrary to Respondent's posi-
tion before the arbitration, permitted the Union to with-
draw the matter. As a result, the Regional Director re-
issued the complaint. Under these circumstances, I fail to
see any prejudice to Respondent.
On the basis of the foregoing, I find that the Union is
entitled to the requested information and that by failing
and refusing to provide it, the Respondent has violated
and is violating Section 8(a)(1) and (5) of the Act as al-
leged. Leland Stanford Junior University, supra; E. L
duPont & Co., 271 NLRB 1245 (1984).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has violated and is violating Sec-
tion 8(a)(1) and (5) of the Act by failing and refusing to
furnish the Union with the names and specific rates of
pay of approximately six employees in the Respondent's
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
faculty practice program, classified as office assistants,
medical service assistants, and miscellaneous clericals.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Specifical-
ly, I shall recommend that it be required to furnish cer-
tain information to the Union, which information is nec-
essary and relevant to the Union's administration of its
statutory obligation as collective-bargaining representa-
tive of the unit employees. Moreover, Respondent shall
be required to post an appropriate notice attached hereto
as appendix.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Leland Stanford Junior University,
Palo Alto, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to furnish the United Stanford Workers,
Service Employees International Union, Local 680,
AFL-CIO with the names and specific rates of pay of
approximately six employees in the faculty practice pro-
gram classified as office assistants, medical service assist-
ants and miscellaneous clericals.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with the requested information.
2 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.
(c) Post at its office and place of business, where no-
tices to employees represented by the above Union are
customarily posted by Respondent, copies of the at-
tached notice marked "Appendix." Copies of the notice,
on forms provided by the Regional Director for Region
32, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees employed in the appropriate bargain-
ing unit, 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 materi-
al.
(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.
3 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment Of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively and in
good faith with United Stanford Workers, Service Em-
ployees International Union, Local 680, AFL-CIO by
refusing to furnish said Union with information necessary
and relevant to the Union's performance of its collective-
bargaining functions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed under Section 7 of the Act.
WE WILL furnish the Union with the names and specif-
ic rates of pay of the employees in the Faculty Practice
Program classified as office assistants, medical service as-
sistants, and miscellaneous clericals.
LELAND STANFORD JUNIOR UNIVERSITY