Western Massachusetts Elec. Co. v. N.L.R.B., Nos. 77-1328 and 77-1420
| Citation | 573 F.2d 101 |
| Decision Date | 23 March 1978 |
| Docket Number | Nos. 77-1328 and 77-1420 |
| Parties | 98 L.R.R.M. (BNA) 2851, 83 Lab.Cas. P 10,474 WESTERN MASSACHUSETTS ELECTRIC COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. The CONNECTICUT LIGHT & POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Harold N. Mack, Boston, Mass., with whom Philip J. Moss and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for petitioners.
Anne H. Andrews, Atty., Washington, D. C., with whom John S. Irvin, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Elinor Hadley Stillman, Atty., Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
These cross-petitions for review and enforcement of two orders of the National Labor Relations Board present the same legal issue in different factual contexts: whether an employer is guilty of an unfair labor practice when in the course of negotiating a new collective bargaining agreement it refuses to divulge to the union its prior costs in subcontracting out work that members of the bargaining unit are capable of performing. 1
Local 455 of the International Brotherhood of Electrical Workers filed charges against Western Massachusetts Electric Co. ("WMECO") on July 2, 1975, and the Regional Director of the Labor Board issued an amended complaint several months later. After a hearing, an administrative law judge held that WMECO had violated 29 U.S.C. § 158(a)(5) by refusing to disclose certain information while negotiating a new contract with the union. On March 11, 1977, the Labor Board affirmed this decision and issued a cease and desist order requiring WMECO to disclose the requested data and restraining it from future violations. 2 An appeal to this court and cross petition for enforcement followed.
Locals 420 and 457 of the IBEW filed charges against Connecticut Light and Power Co. ("CL&P") on May 14, 1976, and a complaint was issued. An ALJ similarly found that CL&P had committed an unfair labor practice, and the Labor Board affirmed and issued a cease and desist order on May 31, 1977. The Second Circuit ordered the appeal transferred to this court pursuant to a stipulation of the parties, and the cross-petitions were consolidated with those in the WMECO case.
This dispute arose during negotiations between Local 455 and WMECO concerning a collective bargaining agreement to take the place of the one expiring on July 1, 1975. WMECO traditionally had subcontracted out some work that its regular employees can and on occasion do perform, such as overhead line work, underground excavation and line installation, and tree trimming. The collective bargaining agreement then in effect required WMECO to use its own employees when performing certain underground cable work in the Berkshire area (the "Berkshire restriction"), but otherwise allowed the company free rein with regard to subcontracting. During the fall of 1974 WMECO had, at the union's request, launched an experiment of using regular employees to perform certain tree trimming work that ordinarily would have been contracted out. The company ended the experiment after a few months, informing the union both that the regular employees were not cheaper than the subcontractors, and that it did not intend to compete with its subcontractors.
At the first negotiating session over the new collective bargaining agreement on May 20, 1975, the company proposed to eliminate the Berkshire restriction. According to testimony of the union's bargaining agent, the company stated that the restriction was inefficient and uneconomical. At the next session on June 2, the union submitted its own proposal with regard to subcontracting. The union wanted to forbid subcontracting whenever regular employees were laid off or not fully utilized. Some layoffs had occurred before bargaining began, and the company warned the union that more might be expected. At the meeting where it presented its proposal, the union requested information as to total hours worked by subcontractors during the existing agreement and the amounts paid to these workers. A union spokesman explained to company negotiators that the union believed regular employees could do the work more cheaply than the subcontractors. According to the spokesman, one of the company negotiators asked if the union's proposal would apply even to short term subcontracting and, when informed that it did, declared that such a restriction would be inefficient and uneconomical.
At a negotiating session on June 24, the company orally informed the union of the hours worked by subcontractors, but refused to provide the cost information on the ground that it was not relevant. On June 26 the union renewed its request for the cost data in writing. On June 30 both parties withdrew their respective proposals as to subcontracting, but the union did not waive its claim to the information. The parties reached a new agreement on July 3, and during that day the company provided the union with a letter in response to the request for cost information. It stated:
The company feels that the cost of such outside contracting is not material to negotiations and, consequently, that we do not have to supply it.
Our refusal is not based on economic reasons, but on the fact that such information is not relevant to negotiations.
These proceedings followed.
Beginning in the spring of 1976, CL&P and Locals 420 and 457 entered into negotiations over a collective bargaining agreement to replace the one expiring on June 1. The existing agreement contained the following clause:
Work regularly performed by employees covered by this Agreement will not be contracted out if it would result in loss of continuity of employment or opportunities for permanent promotions to job classifications covered by this Agreement.
At least since 1972 the locals had requested information from the company respecting subcontracting, and the company consistently had refused to disclose cost data on the ground that such information was not relevant to bargaining. Before negotiations on the 1976 contract began, the locals sent a letter to the company requesting the following information:
1. The name of each and every contractor & or subcontractor who performed work during the year 1975.
2. The type of work performed.
3. The number of people employed by the contractors on such work.
4. Total manhours worked by contractors (sic ) employees.
5. A list of equipment used to perform the work.
6. The total cost of each job contracted out and a breakdown of the costs to the Company to complete the work.
The letter indicated the union's intention "to propose to the Company areas where our members can perform work now being performed by contractors more economically . . .." The company agreed to provide most of the information, but refused to comply with the last two requests. With regard to the demand for cost information, the company replied, The locals renewed their request for this information, and the company held to its earlier position.
The parties exchanged initial proposals for a new collective bargaining agreement on April 26, and among those forwarded by the union was a change in the existing subcontracting restriction. 3 Although most of the promised information was provided to the locals in the course of negotiations in May, the company remained adamant in refusing to pass on subcontracting cost data. A new collective bargaining agreement was executed July 15, in which the previous subcontracting limitation clause was carried over without change. By that time the locals had already begun to seek relief from the Labor Board.
The sole issue in each of these appeals is whether in the circumstances of each case the company violated its duty to bargain in good faith by refusing to disclose subcontracting cost information. This court recently addressed the principles applicable to the compulsory exchange of financial information between union and employer during bargaining in Teleprompter Corp. v. NLRB, 570 F.2d 4 (1st Cir. 1977). In our discussion of "the general obligation of an employer to provide information that is needed by the bargaining representative for the proper performance of its duties," NLRB v. Acme Industrial, 385 U.S. 432, 435-36, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967), we observed:
(1, 2) "The 'general obligation' described in Acme extends in varying degrees of intensity throughout the many aspects of management-union relations, with accommodation being made between the union's urgent need for some types of information, such as wage data, and the employer's greater relative interest in preserving the confidentiality of other information, such as profitability data."
Teleprompter Corp., supra, 570 F.2d at 8. Information pertaining immediately to the mandatory subjects of bargaining wages, hours, and other terms and conditions of employment, see 29 U.S.C. § 158(d) is presumptively relevant and must be disclosed unless it "plainly appears irrelevant." NLRB v. Yawman and Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951). Other kinds of information which a union believes might be useful in bargaining "need not be disclosed in the course of contract negotiations unless the bargaining representative first makes a showing that it is specially relevant to the bargaining taking place." Teleprompter Corp., supra, 570 F.2d at 9 (citing International Woodworkers v. NLRB, 105 U.S.App.D.C. 37, 263...
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