Southwestern Bell Telephone Company

National Labor Relations Board - Board DecisionsJul 14, 1982

262 N.L.R.B. 928 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwestern Bell Telephone Company and Commu- nications Workers of America, AFL-CIO, Dis- trict 12, affiliated with Communications Work- ers of America, AFL-CIO and Communications Workers of America, Local 12208, AFL-CIO. Cases 16-CA-9550 and 16-CA-10038 (former- ly 23-CA-8592) July 14, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On March 4, 1982, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, the Charging Parties filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: The charge in Case 16-CA-9550 was filed on December 5, 1980, by Communications Workers of America, AFL- CIO, District 12, affiliated with Communications Work- ers of America, AFL-CIO. A complaint based on that charge issued January 27, 1981.1 The charge in Case 16- CA-10038 was originally filed on July 20 as Case 23- CA-8592 by Communications Workers of America, Local 12208, AFL-CIO. 2 A complaint upon that charge was issued September 1 and on September 10 the cases were consolidated for purpose of hearing. The com- plaints allege violations of the National Labor Relations Act, as amended (herein called the Act), by Southwest- ern Bell Telephone Company (herein called Respond- ent). Respondent duly filed answers admitting jurisdic- I All dates are in 1981, unless otherwise specified. 2 The Charging Parties are herein collectively called "the Union." 262 NLRB No. 114 tion3 but denying the commission of any unfair labor practices. The hearing was held before me on September 24 in Dallas, Texas, and thereafter the General Counsel, Charging Party District 12, and Respondent submitted briefs which have been carefully considered. Upon the entire record in this proceeding, it is hereby found as follows: I. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The complaints herein allege violations of Section 8(aX5) and (1) of the Act by Respondent. These consoli- dated cases involve demands and refusals for informa- tion. The Union contends it needs certain financial infor- mation to process grievances over the use of subcontrac- tors by Respondent. The refusals are admitted. Respond- ent contends that it is legally justified because the infor- mation has no possible relevance to the processing of the grievances involved. In Case 16-CA-9550 the facts are these: On August 24, 1979, the city council of Cleburne, Texas, granted a franchise to Storer CATV of Texas to provide cable television services in that city. The city council request- ed that Respondent and the area electrical utility allow joint use of right-of-way and utility poles with Storer. After securing permission from Respondent and the elec- tric company, Storer contracted out the work of string- ing the cable TV lines to Cable Tek Construction Co., Inc. To make room for the cable TV lines, Respondent was required to lower many of its own telephone lines to prevent electrical arcing. Respondent contracted out the lowering of its lines on its poles to Cable Tek. That is, Cable Tek had a contract with Respondent to lower cer- tain telephone lines and a contract with Storer to string the cable TV lines on the same poles. Negotiations of the contracts involved were concluded about August 24, 1979, and the work by Cable Tek began immediately thereafter. The city of Cleburne had required that the portion of the work involved herein be completed within I year of the granting of the franchise according to the credible testimony of witness L. E. Bolgiano, Respond- ent's division manager of network distribution services. The Charging Parties and Respondent have had a con- tractual relationship for over 30 years. The contracts, as far as relevant herein, have remained identical although the numbering of articles and sections has been changed. Each of the contracts has had grievance and binding ar- bitration procedures and a "Contract Work" clause which states that, except for certain types of work not involved here: The Union and the Company agree there shall be no lockout, stoppage, interruption, slowdown or failure to carry out assigned duties because of allo- cation of work to contractors as outlined below where such contracting of work to others does not 3 Upon the basis of the admissions by Respondent, I find and conclude that it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and further that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 928 SOUTHWESTERN BELL TELEPHONE COMPANY involve the layoff of part-timing of regular employ- ees. On December 3, 1979, the Union filed a grievance alleg- ing that Respondent's contracting out the work of lower- ing of cable in Cleburne violated past practices and the "Contract Work" section of the agreement between the parties. On June 5, 1980, the Union filed an arbitration request on the grievance. On September 9, by letter of that date, the Union requested Respondent to furnish it information regarding the letting of the subcontracts, including, inter alia: Copies of the agreements between Respondent and the subcontractors; the cost per contract/hour of the work involved; and the amount billed to the cable TV company for reimbursement purposes. 4 On November 26, 1980, by letter of that date, Respondent, through its attorneys, supplied some of the information requested but declined to produce the three categories of financial in- formation. In declining the requested financial informa- tion, Respondent stated: Southwestern Bell respectfully declines to produce information that relates to the financial nature of the contractual arrangements with our subcontractors. The financial nature of our contractual relationship with subcontractors is proprietary information and is not an issue in the case. On December 5 there was a telephone conversation be- tween Respondent's attorney, R. Knox Tyson, and the union's attorney, Joelen Snow. In that conversation and by letter dated December 8, 1980, Tyson told Snow that in the pending arbitration Respondent would not be "taking the position that it was 'cheaper' to use contract- ed labor as opposed to company employees." As a result of this refusal the Union filed the charges in Case 16- CA-9550. The essential facts involved in Case 16-CA-10038 are these: In the spring of 1981, Respondent contracted out the work of "wrecking," or removal, of certain obsolete telephone lines in the San Antonio-Victoria, Texas, area. On March 1, a series of grievances were filed over the matter, all of which had the following text: The Union charges the Company with violation of Article I, Recognition and Establishment of the Unit, Article IV, Bases of Compensation, Article VI, Hours of Work, Article XII, Seniority, [and] Article XXX, Contract Work, of the 1980 Depart- mental Agreement and any other applicable Article when it contracts "bargained for" Craft work to outside contractors .... The Union further charges the Company with deliberately contracting out such work while en- gaged in surplus force condition of affecting the San Antonio area. The term "surplus" is used by the parties to refer to em- ployees on layoff or in positions to which they were 4 Respondent was to be reimbursed by Storer 110 percent of what Cable Tek charged it to lower telephone lines. transferred because of a loss of work. Attached to each grievance was a request for information, to wit: number of contractors used; type of work being performed by the contractors; amount of money being paid to the con- tractors; number of employees employed by the contrac- tors; and name and location of the contractors. While Respondent furnished other information, it refused to furnish the information of how much money was being paid to the contractors and the number of employees em- ployed by the contractors. While the response to the grievances simply stated that the financial information re- quested was not necessary for the processing of those grievances, it is undisputed that during the discussions between Respondent's Division Manager Beal and Union President Ward, Beal stated that Respondent had em- ployees doing more urgent work and that was the reason for the subcontracting. Specifically no agent of Respond- ent told the Union that the subcontracting was being uti- lized by Respondent because of financial considerations. While the Union claimed that employees were in "sur- plus" status in the San Antonio region, the evidence dis- closed that the employees who would have done the "wrecking" were outside employees while the employees on surplus status were performing such inside duties as stock clerks and office clerical employees. Beal testified credibly, and without contradiction, that no outside plant technicians or cable splicers in the Victoria district or surrounding areas were on surplus status during the period involved and, in fact, the Victoria area employees were working overtime. Beal further credibly testified that Respondent had contracted out this type work for over 25 years. B. Contentions of the Parties Southwestern Bell Telephone Company, 173 NLRB 172 (1968), involved the same parent Union, the same con- tract clauses cited by the grievances herein, and essen- tially the same grievances and information requests. The Board held that the Union was not entitled to the infor- mation because Respondent had never claimed that cost was a factor in deciding to subcontract and none of the clauses cited by the Union referred to cost. The Board found that there was therefore no "probability of rel- evance" in the information request and found Respond- ent's refusal to furnish it not to be a violation of the Act. The General Counsel and the Charging Party, in effect, urge reconsideration of the issue in light of a recent Board case (to be discussed below) and a case his- tory of arbitrations between the parties which was not introduced in the prior proceeding. As stated in General Counsel's brief, page 4: It is submitted that the need for "probability of rel- evance" in the instance cases is met through a long history of arbitral decisions wherein arbitrators had found the cost effectiveness of contracting to be a criterion for consideration in reaching a decision to contract out work. The Union's brief particularizes the portions of the arbi- tration decisions upon which it and the General Counsel rely for this arbitral history. 929 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union briefs acknowledges that arbitrators have found the above-quoted "Contract Work" section of the contract is not a subcontracting clause but rather a limit- ed no-strike provision. The Union argues, however, that the arbitrators "have fixed the limits of the company's right to subcontract based on other provisions of the contract and upon general principles of contract law."5 In support of this contention the Union relies on four ar- bitration decisions: The first arbitration decision relied on by the Union is that of arbitrator Leonard Oppenheim, which issued on July 20, 1962. That matter involved a grievance over Re- spondent's contracting out "house service work" (or maintenance) in new buildings and building additions in San Antonio. The Union contended that the Company's action violated article I, the recognition clause of the contract. In that case arbitrator Oppenheim held that subcontracting was specifically prohibited by neither the recognitional clause nor the limited no-strike clause quoted above. However, the arbitrator went on to agree with authorities which stated: "It can no longer be said that a contract which does not specifically negate con- tracting out of work must necessarily permit it because such is a natural prerogative of management." The arbi- trator found that "standards of reasonableness and good faith" must be observed. The arbitrator repeated eight factors listed by the Company in its briefs as demonstrat- ing that the action of the Company therein was reason- able. The arbitrator held that the Company's action was reasonable on the basis of three of these factors: the con- tracting was in good faith and for "sound reasons of effi- ciency and economy"; that past practice showed that the Company contracted out other types of work as well as the type of work involved therein; and that the Union had attempted repeatedly in negotiations to obtain re- striction upon the Company's right to contract out and had failed. The arbitrator also found that the contracting out was not done for the purposes of destroying the unit. The second decision relied on by the Charging Party is that of arbitrator Saul Wallen, dated December 8, 1964. In that case Respondent at its Houston-Springlea subdivision contracted out the burying of 29 service wires; the Union contended that the action violated the recognitional clause, the wage scale clause, and the "Contract Work" clause quoted above. Arbitrator Wallen found that there was, in the sections cited by the Union, no limitation on the right to subcontract but simi- larly to arbitrator Oppenheim, held that: . . .inherent in a labor agreement otherwise silent on the subject is a passive understanding that the right to contract out work exists but that its exer- cise is limited either by explicit understanding set forth in the agreement or in the parties' past prac- tices or by implicit understanding as revealed by the history of their bargaining. The arbitrator reviewed the various factors involved in the case before him and concluded that the unexpressed but "inherent" limitations on the use of outside contrac- tors by Respondent are: sC.P. br., p. 3 . . .that among these limitations is the fact that such contracting may not result in layoffs or part timing; that it may not be done if the work involves the use of typical telephone skills or involves tasks closely integrated therewith; and that the general limitations of good faith, the existence of sound jus- tification and the absence of ulterior motives are also applicable to the extinct appropriate. Arbitrator Wallen found Respondent had not crossed these limits and denied the grievance. The third decision upon which the Charging Party relies is that of arbitrator Clyde Emery, which is dated May 11, 1968. In that case the Union grieved over Re- spondent's use of contract labor to set two telephone poles in Fort Worth, Texas. Although the grievance was not sustained under the "Contract Work" clause, arbitra- tor Emery went on to construe the entire contract and adopted the rationale of arbitrators Oppenheim and Wallen to state that Respondent's right to contract out work was not completely unfettered just because there was no such provision in a contract. The arbitrator found that none of the implied criteria for scrutiny of subcontracting actions was violated and concluded: Thus, it seems that the facts here do not constitute a violation of the agreement's implied provisions. Also, the facts indicate sufficient good faith and rea- sonableness and absence of intent to injure the bar- gaining unit in contracting out the pole setting. After stating that conclusion the arbitrator went on to say: The Union's brief present an excellent and persua- sive argument that the Company would find it less expensive to let its linemen set poles rather than contracting them. However, there was no evidence that the Company was trying to hold down the number of linemen, and it seems certain that if the Company were not saving money by contracting, it would have abandoned that practice. The final arbitration decision relied upon by the Charging Party is that of arbitrator Sylvester Garrett which is dated January 22, 1969. The grievance involved therein was the contracting out of the setting of one tele- phone pole. The Union asserted that Respondent's action was a violation of the "Contract Work" clause quoted above. The arbitrator held that Respondent's action was not a violation of that provision but went on to construe the "implied" provisions of the agreement. The arbitrator listed a number of factors which lead him to conclude that Respondent's action was not a violation of any im- plied provision of a contract. One of the reasons set forth was: The contracting for performance of the disputed work was undertaken in good faith, for reasons of efficiency and economy, and without any intent to destroy or undermine the plant bargaining unit. 930 SOUTHWESTERN BELL TELEPHONE COMPANY Finding no evidence of bad faith, arbitrator Garrett denied the grievance. The Union argues that the arbitrators' references to "economy and efficiency," "saving money," and "sound justification" compel a conclusion that, despite absence of contractual reference to cost, an arbitrator would find that financial information regarding subcontracting was relevant. Therefore, the Union argues, that the informa- tion is necessary to the processing of the grievances in- volved herein. In both cases, Respondent's primary contention is that at no time did it assert to the Union that its subcontracts were entered into for financial reasons. In fact, it notified the Union that an economic defense would not be assert- ed at arbitration. In Case 16-CA-9550, Respondent further argues that the cost information cannot be considered relevant be- cause there was no cost to it involved. Storer was to re- imburse Respondent 110 percent of whatever Cable Tek charged Respondent to lower its telephone lines on the poles to be shared with the cable TV company. Re- spondent further argues that the information is not rele- vant because there is no contractual prohibition against contracting out, although the Union had sought to estab- lish one for years through the processes of collective bargaining. Lacking any express prohibition, the informa- tion can be used for nothing. Assuming the existence of the implied prohibition mentioned above, cost effective- ness has never been held to be a prerequisite to the estab- lishment of "good faith" or "reasonableness" in the con- tracting out. Rather the arbitrators had been more con- cerned with the impact on the unit, and it is undisputed that no employees were laid off as a result of the con- tracting out of the lowering of the telephone lines in the Cleburne area. The Cleburne area employees were, in fact, working overtime and Respondent would have had to hire new employees to do the work, then lay them off a year later when the work, according to the directive of the Cleburne City Council, should have been completed. Relying on principles discussed below, Respondent contends in Case 16-CA-10038 that because there is no expressed contractual provision against subcontracting, the information sought does not relate to a mandatory subject of bargaining and is therefore not presumptively relevant. Respondent further argues that there had been no demonstration of relevance because it had shown that the contracting herein has had no adverse impact on the unit. And Respondent further argues that the work in- volved was of the type Respondent had regularly con- tracted out for 25 years. C. Analysis and Conclusion There is no dispute that the information request sub- mitted by the Union herein is precisely of the same nature as that considered in the previous Board case in- volving the parties. The Board held in Southwestern, supra at 172, 173: The Trial Examiner concluded that under the "standard of relevancy" of Acme,3 the requested cost information pertaining to subcontracting of unit work was broadly relevant to the Union's represen- tation function. Therefore he found that the Re- spondent, by refusing to furnish the Union with such information, violated Section 8(aX5) and (1) of the Act. We do not agree. It has been long established by court and Board decisions that certain information is presumptively relevant because it bears directly on the negotiation or general administration of the collective-bargain- ing agreement. Other information, not so obviously related to the Union's bargaining or contract admin- istration or grievance responsibilities, may not be relevant, depending on the circumstances. 4 In our opinion the relevance of the information requested has not been established herein. Thus, the record herein shows, as noted above, that the Union requested cost information solely for the purpose of processing specific grievances alleg- ing that the subcontracting violated certain specified Articles of the collective-bargaining agreement be- tween the parties. These pertained to recognition of the Union as bargaining representative of unit em- ployees, wages to be paid such employees for unit work, and a prohibition against strikes protesting the subcontracting of certain kinds of work not in- volved in the instant case. At no time during the grievance discussions did the Respondent claim that cost was a factor, nor did the Union explain how cost was relevant to its preparation or presentation of the grievances in question. Nor do we see any probability of relevance, as none of the Articles on which the grievances were based refer to cost. Cost was not asserted as a reason for subcontracting, and it would thus appear that the detailed information requested by the Union would not have made the subcontracting any more or less permissible. Under all the foregoing circumstances, we find that the Respondent's obligation to furnish the Union with the cost information requested has not been estab- lished and, accordingly, we shall dismiss the com- plaint in its entirety. I N.LR.B. v. Acme Industrial Co., 385 U.S. 432. 4 See, e.g., Curtiss-Wright Aeronautical Corp., Wright Aeronauti- cal Division v. N.LR.B., 347 F.2d 61 (C.A. 3), enfg. 145 NLRB 152; Sylvania Electric Products Inc. v. N.LR.B., 358 F.2d 591 (C.A. 1), enfg. 154 NLRB 1756, cen. denied 385 U.S. 852; Adco Manufacturing Company, I I 1 NLRB 729. As noted above, the Union and the General Counsel concede that the contract sections cited have not changed in language but argue that an opposite result shall accrue because of two factors: First, the arbitration results outlined above were not considered by the Board in deciding the previous case and they demonstrate the element of probable relevance, that being the "implied" provisions of the contract found to exist by the arbitra- tors. Second, the General Counsel and the Charging Party argue that a subsequent Board case controls the issue. Addressing the second contention first, the case relied on is factually distinguishable. In Equitable Gas Compa- ny, 245 NLRB 260 (1979), enforcement denied 637 F.2d 931 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 980 (3d Cir. 1981), the employer, a public utility, without prior notice to or consultation with the union which rep- resented its office clerical employees, contracted out to a bank all initial processing of bill payments. This work was an integral part of the function of the represented unit. The arrangement eliminated three classifications, two immediately and one 6 months thereafter. No em- ployees were immediately laid off as "bumping" rights under the exsiting contract were exercised, but the "ripple" effect was obvious, and employment opportuni- ties in the unit were unquestionably lost. The Union was told that the reason for the arrangement was financial, as well as practical: As found by the Board, the arrange- ments resulted in a gain of 2 to 2-1/2 day's time getting payments processed and the deposits credited to the em- ployer's bank account; it resulted in more efficient remit- tance services and acceleration of cash flow while af- fording more current updating of customers' filed; and it was estimated that the acceleration in the handling of those payments would provide an additional $700,000 in available cash on deposit for the employer, resulting in considerable savings in interest to the company. The union asked for information as to just what the cost was to the employer, but the employer refused to furnish it. Upon review of the controlling authorities, the Board found that the employer had violated its duty to bargain over the subcontracting because it held, contrary to the defense, that there had been no past practice of contract- ing out such routine unit work. The Board went on to find that in Equitable Gas Company, supra at 265, the re- fusal to furnish the requested financial information was also a violation: Having concluded that the contracting out of the remittance work was subject to a duty to bargain in good faith, it follows that the information sought by the Union was relevant to an assessement of alterna- tives in the context of such negotiations and indeed to determine the degree to which future contracts protection might be necessary to avert similar incur- sions. Thus, the Board predicated its holding regarding the fail- ure to furnish information on the fact that Respondent had a duty to bargain before contracting out the billing function of the office clerical employees. The Board went on to state: The fact that the Company did not inform the Union that the work was awarded to the bank on the basis of cost considerations is immaterial. What- ever the Company relied upon in taking this step it is difficult to imagine that cost and its interrelation- ship with savings was a totally alien factor. In any event, any such claim by the employer is worthy of appraisal through good-faith discussions with the Union after disclosure of all facts permitting fair evaluation. An unconfirmed self-saving stance that cost was not a factor is no substitute for disclosure absent convincing collateral evidence that this was in fact the case. 12 " Such evidence was available in Southwestern Bell Telephone Company, 173 NLRB 172, where an 8(aXS) allegation based on the failure to supply cost information pertaining to subcontracting was dismissed. In that case the subcontracting itself was not challenged, it was restricted to "peak loads," and had been resorted to only "because its employees were too busy and could not handle the work." Futhermore, while the information requested was in aid of union efforts to grieve the subcontracting, the Board viewed the provisions of the contract to which the grievances related as fail- ing to reveal that cost data was enshrouded with a "probability of relevance." General Counsel and the Charging Party ignore the quoted footnote and rely heavily on the statement that an unconfirmed, self-saving stance that cost is not a factor is no substitute for disclosure absent convincing "collateral" evidence of just what was the reason for the subcontracting. However, neither General Counsel nor the Charging Party suggest why the "collateral" evi- dence, submitted by Respondent herein, should be con- sidered less than "convincing." Respondent's witnesses testified, without objection or any attempt to impeach, that: the work involved was, in effect "peak load" work; the unit employees were working full time (even over- time); at least in the case of the wrecking of lines in the Victoria area, this was work which was commonly con- tracted out over the past 25 years; and no employment opportunities were lost to the unit employees. The quoted footnote in Equitable Gas makes clear that such evidence distinguished it from the previous Southwestern Bell case. The same distinguishing evidence is present here.6 Finally, there is a legal distinction to be noted be- tween this case and Equitable Gas. In Equitable Gas it was held as a predicate for the decision on the refusal to furnish information that the action about which the union sought information was a unilateral action in viola- tion of Section 8(aX5). Here there is no allegation or sug- gestion that Respondent had a duty to bargain about the contracting out over which the grievances were filed. In addition to being a legally distinguishing factor, the fail- ure of the General Counsel to allege Respondent's action (which, according to this record, was done without prior a prior notice to or consultation with the Union) consti- tutes a prior concession that the subcontracting involved herein was not any item requiring bargaining. Nor do I agree that the arbitration history between the parties supplies the element of probable relevance found missing in their prior Board case. Each of the arbitrators found that there was a standard of good faith or reason- ableness which limited the discretion to subcontract, even if there was no express prohibition against, or limit upon, subcontracting in the contract. I agree that this ar- bitration history is one which, in effect, has become a Further distinction between this case and Equitable Gas lies in the factor that the employer there did, at least at one point, rely on economic factors as its justification: To wit, more rapid processing of deposits to its account; $700,000 increase in available cash; and a savings in interest. Also the action of the employer in Equitable Gas caused elimination of three job classifications and the reduction of employment opportunities, other factors not present herein. 932 SOUTHWESTERN BELL TELEPHONE COMPANY part of the contract and should be considered in deter- mining probable relevance of cost information requested. But the arbitral criteria for establishing reasonableness are multiple, cost being only one. If cost is asserted as one of the reasons for the subcon- tracting action, it is clear that the Union would be enti- tled to the information as Respondent acknowledges. On the other hand, if other considerations are asserted as the only reasons for the subcontracting, and those other rea- sons are not established, an arbitrator assuredly would hold that the contracting out is violative of the contract. The arbitrator may, or may not, suspect that economic considerations were the real reason for a contracting out which is made the subject of a grievance. However, dis- closure tel non of the suspected economic factors would not change the outcome of the arbitration. If the non- economic defense is not established, the arbitrator is going to find a violation of the contract. That is, to para- phrase the Board's reasoning in Equitable Gas at 173: If cost is not asserted for subcontracting, the detailed infor- mation requested by the Union would not make the sub- contracting more or less permissible. In its brief in support of Case 16-CA-9550, the Union acknowledges that Respondent was making at least a 10- percent profit by the contracting out of the work in- volved since it was billing Storer 110 percent of what- ever Cable Tek charged it. The Union however, poses the hypothetical: Suppose it could be shown that Re- spondent could have made more profit by using bargain- ing unit employees; would not an arbitrator hold it un- reasonable, therefore contract-violative, to use a subcon- tractor? Since the Cleburne area employees were fully employed, even working overtime, the hypothetical as- sumes too much. It assumes that Respondent could have found, hired, supervised, and thereafter terminated tem- porary employees to perform the work of lowering the lines, and done so at a profit in excess of 10 percent. The improbability is so great as to erode any persuasiveness of the hypothetical argument. Finally, the Union argues hypothetically: What if Re- spondent contended that cost was the only factor; would not the Union be entitled to information about efficiency, "the bona fides of the contractor," and the effect of the contracting out on the bargaining unit? I do not know what counsel means by the term "bona fides of the con- tractor." The efficiency of the contractor would, of course, come under the umbrella of cost effectiveness and would therefore be producible. Of course, the effect on the unit (i.e., layoffs, reduced, hours, etc.) would be required as the union is always entitled to know the terms and conditions of employment of the unit employ- ees. However, the converse is not necessarily true. The union is not always entitled to financial information re- garding subcontractors; a demonstration of probable rel- evance must be made, as noted in the prior Board case between the parties. In summary, I find and conclude that the probable rel- evance of the requested financial information about sub- contracting has not been demonstrated since Respondent never asserted an economic defense for it actions and it is clear that Respondent let the subcontracts involved for noneconomic reasons: To wit, there were no employees available to do the sc(rk, in Cleburne the work was not to be repeated and Respondent would have been re- quired to hire new employees if it did not subcontract, and this the Board or an arbitrator would not force it to do; the Victoria contracting was merely an instance of the type of work which had been regularly contracted out over the last 25 years; no work opportunities were lost in either case; in both cases the bargaining unit em- ployees were working regularly, even overtime; and there is no contention that the contracting out itself was a violation of the Act. Accordingly, I find and conclude that Respondent had not violated Section 8(a)(5) or (1) of the Act by its refus- al to furnish financial information regarding subcontract- ing, and I shall issue the following recommended: ORDER The complaint is dismissed in its entirety. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 933