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Chesapeake and Potomac Telephone Co. v. National Labor Relations Board

decided: August 25, 1982.


Petition for review of an order of the National Labor Relations Board, 259 N.L.R.B. No. 30 (1981), and cross-petition for enforcement. The order requires the petitioner company to produce information sought by the intervenor Union on the ground that the company's withholding of the information violates § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) & (1). Enforcement granted.

Kearse, Mansfield, Circuit Judges, Cabranes, District Judge.*fn*

Author: Mansfield

MANSFIELD, Circuit Judge:

The Chesapeake and Potomac Telephone Company ("C&P") petitions for review of an order of the National Labor Relations Board ("the Board") requiring it to furnish to the Communications Workers of America, AFL-CIO ("CWA" or "the Union") information sought by CWA to assist it in determining whether to continue arbitration of a grievance and in preparing for arbitration should it decide to do so. The Board cross-petitions for enforcement of its order. CWA has intervened, and also argues for enforcement. We deny C&P's petition for review and grant the Board's petition for enforcement.

In late 1978 C&P suspended an employee named Dennis Henson for using an improper tone of voice in speaking to a customer over a telephone. CWA, Henson's union, filed a grievance on his behalf pursuant to its collective bargaining agreement with C&P, which provides for a three-step grievance procedure to be followed, if necessary, by arbitration. The Board found that at the second step conference on or about December 19, 1978, CWA representative Michael Agnew requested from C&P a list of employees suspended for the same offense, but that C&P refused to provide such information. The parties were unable to settle the grievance and proceeded to the third step. The Board found that at the third step conference on February 13, 1979, CWA national representative Charles Sangmeister made the Union's second request for the names of C&P employees who had been suspended for using an improper tone of voice. Again C&P refused to provide the information. The parties were unable to resolve the grievance at the third step conference.

On February 14, 1979, CWA filed a demand for arbitration. In order to determine whether to arbitrate, settle, or withdraw Henson's grievance, and to prepare for any arbitration hearing that might be held, Michael Murphy, the CWA attorney who had responsibility for handling the grievance at arbitration, requested from C&P information on past suspensions of employees by it for use of an improper tone of voice. When C&P refused to comply with his informal request, Murphy, on October 10, 1979, issued a subpoena signed by the impartial arbitrator and the Union-designated arbitrator, requiring C&P to produce before the arbitration hearing the "name of each employee fired, suspended, or given a final warning solely for an improper tone of voice toward a customer during the last five years." C&P declined to comply with the subpoena on the ground that it was not the parties' practice to engage in pre-arbitration discovery after an arbitration demand, but offered to produce such a list at the arbitration hearing if the arbitrator ruled it relevant.

The Union then postponed the arbitration hearing, which had been scheduled for December 11, 1979. It sought to enforce the subpoena in the U.S. District Court for the District of Columbia, but on January 7, 1980, that court, in a summary decision by Judge John H. Pratt, denied its petition on the ground that 9 U.S.C. § 7 does not permit the enforcement of an arbitration subpoena issued prior to an arbitration hearing. CWA did not appeal this decision, but on February 15, 1980, it filed an unfair labor practice charge with the Board. The Regional Director issued a complaint on July 3, 1980. Because it was unwilling to go to the expense of holding the arbitration hearing without the list it had subpoenaed, CWA made an ex parte request to the impartial arbitrator that the hearing, which was by now scheduled for September 4, 1980, be postponed pending a decision by the Board on the unfair labor practice complaint. CWA claims that it did not inform C&P of this request because it did not believe that C&P would have any objection. Agreeing that it would be "futile" to hold the hearing before a Board decision, the impartial arbitrator postponed the hearing.

In a decision filed on June 10, 1981, Administrative Law Judge ("ALJ") Benjamin Schlesinger found the facts as stated above and concluded that C&P had violated § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) & (1), by refusing to furnish to the Union whatever material it had that was called for by the subpoena. The ALJ rejected C&P's arguments that past practice, waiver, collateral estoppel, and union bad faith required dismissal of the complaint. He also rejected C&P's argument that the Union's charge was not timely under § 10(b) of the Act, 29 U.S.C. § 160(b). Finally he found that the Union request was not unduly burdensome and ordered that C&P comply with it, stating:

"It is not the intention of this Decision to require Respondent [C&P] to search through thousands of files. On the other hand, Respondent should make reasonable efforts to comply with the Union's request and, if there is still a claim of burden, attempt to reach some accommodation with the Union so that information is supplied. If there is still further dispute, that may be resolved in the compliance stage of this proceeding. Food Employer Council, Inc., 197 N.L.R.B. 651 (1972)."

On November 12, 1981, the Board affirmed and adopted the ALJ's rulings, findings, and recommended Order without opinion. C&P then petitioned this court for review of the Board's order and the Board cross-petitioned for enforcement.


The Supreme Court in NLRB v. Acme Industrial Co., 385 U.S. 432, 17 L. Ed. 2d 495, 87 S. Ct. 565 (1967), established that an employer's statutory duty to turn over to a union "information that is needed by the bargaining representative for the proper performance of its duties," id. at 435-36, extends to requests for information needed by the union to determine whether to take a grievance to arbitration.*fn1 Accord Torrington Co. v. NLRB, 545 F.2d 840 (2d Cir. 1976). C&P neither challenges this principle nor questions the relevancy of the information sought. It argues, however, that once a union has invoked arbitration, its statutory "discovery" rights should be cut off in order to ensure a prompt resolution of the underlying dispute through the arbitration process. C&P cites no authority for this proposed ruled.

Other circuits have held that "the duty of an employer to furnish information relevant to the processing of a grievance does not terminate when the grievance is taken to arbitration." Cook Paint & Varnish Co. v. NLRB, 208 U.S. App. D.C. 339, 648 F.2d 712, 716 (D.C. Cir. 1981). Accord NLRB v. Davol, Inc., 597 F.2d 782, 786-87 (1st Cir. 1979). Although the issue was not raised, we recently enforced a Board order requiring a company to furnish information even though the union involved had already invoked arbitration. NLRB v. Designcraft Jewel Industries, Inc., 675 F.2d 493 (2d Cir. 1982). The Board also has consistently held that the duty to disclose does not cease when a union invokes arbitration. See, e.g., St. Joseph's Hospital (Our Lady of Providence Unit), 233 N.L.R.B. 1116, 1119 (1977); Fawcett Printing Corp., 201 N.L.R.B. 964, 972-73 (1973); Fafnir Bearing Co., 146 N.L.R.B. 1582, 1586 (1964), enforced, 362 F.2d 716 (2d Cir. 1966). We agree.

Sound reasons exist for not terminating a party's discovery rights merely because arbitration has been invoked. Reasonable discovery of material relevant to a grievance prior to an arbitration hearing enables a union to make an informed evaluation of the merits of its claim and to withdraw the arbitration demand or settle the grievance if the information indicates that the grievance is less meritorious than it had initially believed, thus eliminating delay and expense that might otherwise be incurred. C&P's argument, that failure to cut off discovery will delay the arbitration process because the parties will litigate before the Board the issue of whether evidence must be disclosed, misses the mark. Arbitration may to the same extent be delayed by requests for materials made before it is actually invoked. Moreover, failure to request relevant information until after arbitration is invoked may be attributed to the fact that union officials who handle grievance steps, unlike skilled lawyers who enter when arbitration is demanded, may not appreciate the necessity for uncovering and marshalling evidence bearing on the strengths and weaknesses of the union's case in order to decide how to proceed. Reasonable delay of arbitration for this purpose is therefore justifiable. In the ...

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