Magma Copper Co., 329 (1974)

MAGMA COPPER CO. 329

Magma Copper Company, San Manuel Division and United Steelworkers of America, Local No. 937,

AFL-CIO-CLC. Case 28-CA-2853

January 10, 1974 DECISION AND ORDER

BY MEMBERS JENKINS, KENNEDY, AND PENELLO

On August 17, 1973, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and supporting brief, and the General Counsel filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. However, for reasons discussed below, we do not adopt the rationale set forth in his Decision.

As more fully set forth in the attached Decision,

Respondent and the Union have maintained a collective-bargaining relationship for approximately 14 years. During this period, the Union, as certified representative of Respondent's production and maintenance employees, and Respondent have engaged in contract negotiations which have resulted in at least five successive contracts, including the current 3-year contract executed on July 28, 1971. At each of these negotiations, the Union has requested the names and addresses of unit employees, the Respondent has consistently refused to supply the Union with such information, and the record shows that the Union has continued to make similar requests periodically throughout each such contract term for the past 10 years.

The existing contract between the parties is silent on the subject of names and addresses but includes the following language:

The parties specifically waive any rights which either may have to bargain with the other during the life of the continuing Agreement or any matter pertaining to rates of pay, wages, hours of employment or other conditions of employment.

This case arose when, after entering the current contract, the Union again requested that Respondent supply it with the names and addresses of employees in the collective-bargaining unit and Respondent refused to comply.

The Union now claims that it needs the unit employees' names and addresses in order to perform its duty properly as collective-bargaining agent of all of Respondent's unit employees and to comply with a Board order issued in a prior case 1 involving two of Respondent's employees. Respondent does not contend that in a proper case such information is not relevant to a union's representation of employees, but it argues that this is not such a case.

The Administrative Law Judge concluded that Respondent, by refusing to furnish the Union with the requested information, violated Section 8(a)(5) and (1) of the Act. As indicated above, we agree with his conclusions but not his reasons therefor.

The Respondent contends, primarily, that by the terms of the current contract the Union has waived its right to the names and addresses of unit employees. Like the Administrative Law Judge, we reject this argument. Although it is well recognized that a labor organization may, for reasons of its own, relinquish its right to such information, an alleged waiver based on contract negotiations must be supported by clear and unmistakable evidence.2 The Board has also held that, although a subject has been discussed in precontract negotiations and has not been specifically covered in the resulting contracts, the employer violates Section 8(a)(5) of the Act if during the contract term he refuses to bargain with respect to the particular subject, unless it can be said from an evaluation of the prior negotiations that the matter was fully discussed or consciously explored and the union consciously yielded its interest in the matter.3

The record here is devoid of any evidence which would warrant finding such a waiver or conscious yielding. A list of employees' names and addresses is clearly not a matter pertaining to the negotiation of new 'rates of pay, wages, hours of employment or other conditions of employment,' to which the disputed clause is directed, and the evidence before us indicates that the Union's objective was not to effect a change in the agreement, but rather to fulfill its statutory obligation to administer the agreement on behalf of all unit employees. Further, it is clear that at all times the Union continued to request that information, having repeatedly asked for it during the term of each contract. Accordingly, we find that i United Steelworkers ofAmerica, Local No 937 AFL-CIO-CLC(Magma insufficient to support Respondent's claim that furnishing the Union with a Copper Company), 200 NLRB No 8 We agree with the Administrative Law list of names and addresses of all unit employees would result in harassment Judge that unlike the situation in Shell Oil Company v N L R B, 457 F.2d of and possible violence to those employees 615 (C A 9), denying enforcement of 190 NLRB 101, cited and relied on by 2 American Cyanamid Company, 185 NLRB 981 the Respondent, the unfair labor practice findings in this prior case are s Hilton Hotels Corporation d/b/a Stotler Hilton Hotel, 191 NLRB 283

208 NLRB No. 53 neither the express language of the current contract clause itself nor the conduct of the Union constitutes an unequivocal waiver.

Having found no waiver, the Administrative Law Judge was of the view that the Supreme Court's holding in Wyman-Gordon 4 is dispositive of this case and that in light of the decision (that a union is entitled to the names and addresses of unit employees prior to the holding of a scheduled Board election), a fortiori an exclusive bargaining representative is entitled to such a list without explorations of relevancy and necessity for that information.

The General Counsel requests that the Board consider also the cases cited and relied on by him in support of his contention that the Respondent's refusal was unlawful,5 while the Respondent argues that Wyman-Gordon is inapplicable and that the criteria established by the cases relied on by the General Counsel have not been met here.

We agree with the General Counsel that under the holdings of the cases cited by him it has been established that the Union herein was entitled to the information it sought and that the Respondent therefore violated the Act in refusing to supply it .6

In the Standard Oil and United Aircraft cases supra, among others, both the Board and the courts found violations of Section 8(a)(5) in the failure of the respondents to satisfy the unions' requests for such information when it had established that the information was relevant to the unions' performance of its role as bargaining representative. The determination as to whether an employer is required to supply a list of names and addresses of unit employees was based on consideration of such factors as the size of the unit; the rate of turnover; the nature of the contractual union-security clause, if any; the union's ability to reach member and nonmember employees, both at the plant and at their homes, including the effectiveness of any steward system, and the use of bulletin boards; and the availability of the information to the employer. In Standard Oil and United Aircraft, the employers were required to furnish the list in view of such facts as the relatively low union membership in the unit, the absence of a unionsecurity clause in the collective-bargaining agreement, the residential dispersion of the unit employees over a wide geographic area, the apparent ineffectiveness of the steward system, the lack of adequate exposure of unit employees to union bulletin boards, the inefficiency of handbilling efforts, and the ability of the company to compile the list with relative ease.

4 N L R B v Wyman-Gordon Co, 394 U S 759

5 Standard Oil Company of California, Western Operations, Inc, 166

NLRB 343, 344-345, enfd 399 F 2d 639 (C A 9), Prudential Insurance Company of America, 173 NLRB 792, 793, enfd. 412 F.2d 77 (C A 2); United Aircraft Corporation, 181 NLRB 892, 903, enfd 434 F.2d 1198 (C A 2),

The parallel between the facts of Standard Oil and United Aircraft and this case is readily apparent.

Thus, here, as in Standard Oil and United Aircraft, the Union had a relatively low membership in the unit, having as members approximately 60 percent of the employees in the bargaining unit, thereby leaving a very substantial minority of nonmembers to whom the Union owed the duty of fair representation. In this case also the contract did not contain a unionsecurity clause, Arizona being a right-to-work State.

Further, as in Standard Oil and United Aircraft, here the employees' residences were dispersed over several counties, rendering personal contacts with employees at their homes practically impossible; the record shows that some employees lived as far away as 90 miles from Respondent's facilities. Here, too, the alternative means of communicating with employees available to the Union were inadequate. There is undisputed testimony in the record that the Union did attempt to distribute its literature on the public highway and roads leading to and from Respondent's facilities but that this practice was 'hazardous' since many on-coming cars did not stop and the distributor was forced to dodge them to avoid personal injury. Further, since there were usually employees from seven different units emerging from Respondent's gates, it was extremely difficult for the distributor to determine who were members of the bargaining unit. Also, as in those cases, bulletin boards were an inadequate means of communicating with unit employees. Here, the record discloses, the Union was assigned four bulletin boards at Respondent's facilities for a total of 2,250 employees.

Although the Union requested that it be...