Garrett Railroad Car & Equipment, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1979

244 N.L.R.B. 842 (N.L.R.B. 1979)

I)1 (ISI()NS ()I NA II()NAI. ABOR RI.A'IIONS BOARI)
Garrett Railroad (Car & Iluiplent, li. and l nited
Stlecorkers of America, IAWal 8089, A',-C'l()O-
('I.('. Cases (A 11013
SepIChmber 5. 1979
I)1I('ISI()N ANI) ORI)IR
By N 1 ltl RS I l I I. Mt :RI'IIY ANI) I RtlSI)AI I
On Mlay 21. 1979. Administrative law Judge
I'homas A. Ricci issued the attached Decision in this
prceeding. hereater, Respondent filed exceptions
and supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Garrett Railroad Car &
Equipment. Inc., New Castle, Pennsylvania, its offi-
cers. agents, successors, and assigns, shall take the ac-
J Respondent has excepted to certain credibility findings made by the Ad-
rmnistrative Law Judge. We note that the basis of the Administrative Law
Judge's credibility determination between employee Dennis Boots and Re-
spondent's vice president. Robert Krause. is not entirely clear. Where the
credibility determination is based on demeanor. it is the Board's established
policy not to overrule an administrative law judge's resolutions unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enid. 188 F.2d 362 3d Cir. 1951). Where the demeanor factor is
diminished, the choice between conflicting testimony rests not only on de-
meanor but also on the weight of the evidence, established or admitted facts.
inherent probabilities, and reasonable inferences drawn from the record as a
whole. El Rancho Markel. 235 NLRB 468 (1978). We have carefully exam-
ined the record and find no basis under either standard for reversing the
findings of the Administrative Law Judge.
We note that the Administrative Law Judge made no specific findings or
recommendations regarding Respondent's argument urging deferral of this
dispute to arbitration. We see no reason to defer, however, since the appli-
cable agreement contained no provision dealing with requests for informa-
tion and there is, therefore, no direct question of contract interpretation.
Absent a clear and unmistakable waiver in the contract, the Union has a
statutory right to information potentially relevant in assisting it to intelli-
gently evaluate and/or process the grievance. It is well settled that the Board
will not defer to arbitration under those circumstances. See Safeway Stores,
Inc. 236 NLRB 1126 (1978); United-Carr Tennessee. a Division o TRW,
Inc.. 202 NLRB 729 (1973).
2 The Administrative Law Judge inadvertently omitted from his recom-
mended notice an affirmative statement corresponding to par. 2(a) of the
recommended Order. The notice has been amended accordingly.
tion set forth in the said recommended Order, except
that the attached notice is substituted for that of the
Administrative Law Judge.
APPENDIX
NoIIuE To EMPI.OYIS
POSID BY ORIDER OF ()lilt
NAIIONAI. LABOR RILAII()NS BOARI)
An Agency of the United States Government
The National Labor Relations Board has found, after
a hearing, that we violated the National Labor Rela-
tions Act, as amended. We have been ordered to post
this notice and abide by the following:
WE WILL NOT refuse to produce, on demand of
United Steelworkers of America, Local 8089,
AFL CIO-CLC, our records revealing the num-
ber of hours used in our estimate of cost to our
customers.
WE WILL NOT threaten to discriminate against
employees because of their protected union ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE Wl1 L produce, for inspection by the Union
on demand, our written records revealing the
number of hours of work used in our written es-
timate of cost to our customers.
GARRETT RAILROAD CAR & EQUIPMENT,
INC.
DECISION
STAIEMENI OF rH CASE
THOMAS A. Rlc(I, Administrative Law Judge: A hearing
in this proceeding was held in New Castle, Pennsylvania.
on March 6. 1979, on complaint of the General Counsel
against Garrett Railroad Car & Equipment. Inc.. herein
called Respondent or the Company. The complaint issued
on November 29, 1978, based on a charge filed on Septem-
ber 12. 1978, by United Steelworkers of America. Local
8089, AFL-CIO-CLC, herein called the Union. The issue
presented is whether Respondent violated Section 8(a)(5) of
the statute when it refused, on demand of the Union. to
produce record documents bearing a direct relationship to
the agreed-upon amount of pay due the employees for their
work performance.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FAC(
I. IHE BUSINESS OF RESPONDENI
Garrett Railroad Car & Equipment. Inc.. a Pennsylvania
corporation. has its principal place of business in New Cas-
244 NLRB No. 132
S42
GARRET RAILROAD CAR & EQUIPMENT INC.
tie. Pennslvania. where it is engaged in the rebuilding of
railroad cars and parts. During the past calendar ear. rep-
resentative period. it received goods and materials at this
location valued in excess of $50.000 directl front out-of-
state sources. During this same period it shipped goods and
materials valued in excess of $50,0(00 directlN to points out-
side the State. I find that Respondent is engaged in com-
merce within the meaning of the Act.
II. ilt I ABIR ()R(iANIZA I1()N INVO)IA It)
I find that United Steelworkers of America. Local 8089.
AFI. ('lO CLC'. is a labor organization within the mean-
ing of Section 2(5) of the Act.
1ii. 1111: INFAIR lABOR PRA( i(t S
A. The Caste in Brief
The employees involved in this case all receive a base
hourly rate of pay. They are also paid what is called a
bonus, an amount that is in addition to the hourly rate and
that is dependent upon their individual diligence and profi-
ciency of performance. The work consists largely. if not
entirely, of repairing railroad cars for Respondent's custom-
ers. The employees are classified into many crafts and vary-
ing levels of skill. The work is performed by crews of men,
an appropriate group, or perhaps a craftsman and a helper.
being assigned to one railroad car at a time, depending
upon the work required to repair that particular car. This.
after the Company has contracted with the customer to do
the necessary work for a certain price.
The formula for calculating the amount of bonus payable
is precisely detailed in the collective-bargaining agreement
in effect at the time of the events. In pertinent part. it reads
as follows:
The parties agree that the basis for calculation of
this Bonus Pool program shall be established upon the
number of hours that are used by the Company in their
estimate to each customer on each individual Railroad
Car that is to be worked on and completed by the
hourly shop crews.
The Company will contribute to the Bonus Pool
(such payment to be made on a per hour saved basis)
an amount equal to 70 percent of the average wage
rate of the jobs listed in the 100 percent category illus-
trated in item 5 below.
For the purpose of this Agreement, hours saved will
be calculated in the following manner: The estimated
hours made by the Company for the completion of
each Railroad Car to be worked on by the hourly shop
crew will be made known to the shop crews prior to a
crew commencing work on a car. The total number of
actual hours of work necessary for a crew to complete
a car will be totaled at the completion of each car and
will be recorded as crew hours per car. Such crew
hours shall then be subtracted from the estimated
hours for each car and will then be recorded as hours
saved.
In implementation of the bonus arrangement. every time
a car is to be repaired. a written order is prepared for the
foremen and available for inspection by the particular
employees who are to do the work detailing the exact
work instructions. On this document management writes
the number of hours "used by the CompanN in their esti-
mate to each customer." as the contract sass. An illustrative
work-order document was placed into evidence: it sets out
10( hours as the estimated hours. This means, as explained
at the hearing, that i the craftsman and his helper who
hae to do that particular job finish it acceptably in 80.
90. or under 100 hours. they are credited with the number
of work hours thus saved. and that number of hours is re-
corded in the bonus pool. Insofar as their regular hourly
rate of pay is concerned. the employees are paid onlN for
the number of hours actually spent doing the job. If they
use more than 100 hours to do such a job. they are paid in
full at their hourly rate for all the hours the5 work. Once
each month the total number of hours thus "saved"--i.e.,
below the written estimate--is calculated according to the
formula. and the men receive the appropriate bonus checks.
There came a time, in June 1978. when some of the em-
plovees thought the estimated number of hours written on
the work orders were lower then the' should be. A car
repair job previously estimated at 120 hours was marked 90
hours instead. The employees believed at least from their
experience. that the amount of work was the same whether
they were right or wrong. A feeling of unease and of dis-
trust of management began to develop. With these com-
plaints. Denis Boots. an employee who is also the union
representative handling grievances, spoke to a supervisor
but got no satisfaction. On July 12 he filed a grievance.
charging that the Company was underpaying the men. The
grievance demanded "payment of hours as based to the
customer."
Denied at the first step, the grievance went to the second
step-on July 17 and to the third step on August I 1. At the
July meeting Boots was accompanied by Richard Luffey.
the president of the union local, and the Company was rep-
resented by Robinson. a supervisor, and Robert Krause. a
vice president of the Company. These same men were pre-
sent at the August meeting, where there also appeared a
Mr. Reed. of the sales department for the Company. and
Clarence Mannarino. staff representative of the Union.
At the July meeting Luffey asked to be shown "any rec-
ords of bids given to the customer to show us what hours
were being bid to the customer in relation to the hours we
were receiving on the cars." Boots told the company men:
"We would like any bill of lading for documents that you
published to customers so that we could check the actual
hours that you bid to the customer." Management refused
to produce anything in writing. At the August meeting the
Union made the same demand. From Mannarino's testi-
mony: "The Union desired the number of hour that the
company quoted the customer to repair their cars each and
every car. We wanted those number of hours for each num-
ber of cars in each and every car they quoted to their cus-
tomer." Again the Company refused to produce anything.
All three of the Union's witnesses testified that, in response
to their repeated demands, Krause kept saying that that
data was "privileged." In the course of the discussion
Krause also said he did not think that the documents he
244 NLRB No. 130
843
I)( FCISIONS OF NATIONAL LABOR RELATIONS BOARD
ha d although he refused to produce any would give the
Union the information it desired.
From that day to the day of the hearing 7 months later
Respondent has held firm to its resolve to produce nothing
in writing to comply with the Union's demands. The com-
plaint calls such refusal a violation of Section 8(a)(5) of the
Act.
B. nalvsis, I'iolation of Section 8(a)(5)
That this sort of information -without question in the
possession of management is relevant to conditions of em-
ployment is so obvious as to require no discussion at all.
The amount of pay for which the employees work is liter-
ally tied to "the number of hours that are used by the Com-
pany in their estimate." And this is precisely what the
Union wanted to see. That such data must be produced on
request of the bargaining agent is one of the fundamentals
of Board law. N.L.R.B. v. Truitt Manuficturing Company,
351 U.S. 149 (1956).
Krause, the vice president, was the only defense witness.
He vacillated in his testimony, and I am not sure what he
really meant to say. He started by saying that in the written
price estimates he gives the prospective customer he does
not write down how many hours of work by the employees
the Company figures on having to pay for. He did admit
that in his mind, at least, he does think and calculate how
many hours of work that job will require. He could hardly
say otherwise, with single car repair jobs running between
$4,000 and $12,000, as he also said. Krause also admitted
that, regardless of what it may put in the customer's hands,
the Company does reduce to writing the estimate it makes
before reaching a final figure. When asked if in its written
document, the Company also writes down how many hours
of work it thinks are going to be needed, Krause evaded,
answering: "We sit down and there is no established form
that we use."
Reminded of his testimony that the Company does deem
the number of man-hours required on a job a revelant fac-
tor in reaching the total price estimate, Krause was asked
once again: "Do they write this down in making the total
estimate?" Now the witness answered: "It may be written
down on a piece of scratch paper."
It will not do for an employer who hires people on a pay
scale pegged to his records, to later pay them according to
his mental whim and sweep away his records as disposable
scrap. To the extent that Krause was saying-or suggest-
ing-that the written estimate the Union claimed it had a
right to see did not exist, he was not telling the truth at the
hearing. When the Company signed the contract and
agreed to pay according to "the number of hours" used in
its estimates, it was saying that number would be written
down for everybody to see. When Krause said, at the hear-
ing, he read that language as meaning he would do the
bookkeeping in his mind, he was fancifying and detracting
from his credibility as a witness. No union in its right
mind-and no normal employee individually, for that mat-
ter-would agree to permit an employer to pay-after the
work is performed-what he thinks is correct. I suppose
there could be an employee, at that, who might be willing
to leave the matter of his pay to the boss' largesse. But that
is certainly not what this contract says.
And finally, towards the end of his testimony, the witness
slipped. He was explaining again how the written work or-
der for the foreman is prepared, how the figure 100 hours
or whatever the number of estimated hours, is reached:
"Whatever is down here is quite some time ago quoted
Armco Steel. Armco Steel has mulled over the quotations.
These have come back in several months and said. we want
to buy your railroad cars from you and we want you to
include the following repairs. They give us a purchase order
and we refer to our notes, the format that you are reserving
for that. We don't have our notes, and over a period of a
couple of months, we have forgotten what it is. We go back
in the notes and look at it and it is 100 hours. We write the
job up and tell the foreman what it is to be done."
It is those "notes," the written documents prepared when
the estimate of cost is made for the customer the "scratch
paper"---whatever Respondent wants to call them, that it
must produce on demand. I find that Respondent does
make, and keeps, written records of the number of hours
used to estimate cost prices to customers, and that by refus-
ing to produce those documents for the Union's examina-
tion on demand Respondent violated and is violating Sec-
tion 8(a)( 1) and (5) of the Act.
C. Violation o Section 8(a)(])
Two months after the abortive third step in the grievance
mentioned above, Boots participated in a general grievance
discussion involving a number of diversified complaints. He
testified that at the end of the meeting Krause, who was
also present, asked to speak to him aside and said "you are
getting out of line with these grievances, filing these griev-
ances. He says you are starting to step on the wrong peo-
ples' toes. Then he said, there was ways of getting rid of me
if I continued this." Krause recalled the conversation, but
he put it differently: " tried to express my concern with
Mr. Boots that we were nit-picking ourselves to death with
inconsequential grievances.... I did indicate to Denis that
I was disappointed in the number of grievances that he had
processed, allowing to go through to arbitration. I under-
stand that he does kill grievances, and he has that authority
to counsel them now before I even see them. I just was a
little bit upset with the number of grievances, the quality of
the grievances, and I asked him if he might consider doing
something about it as the rapport that had developed be-
tween the company management and the union officers had
seemed to or did seem to be dissipating." Krause denied
having voiced any threats.
I credit Boots against the vice president. It is not a matter
of demeanor or personal misbehavior. It is simply that
Krause's sort of double talk, in justification of his refusal to
produce company records, casts a serious cloud on his testi-
mony altogether in this hearing. I find, on the total record,
that Krause threatened economic discrimination against
Boots in retaliation for his protected union activities and
thereby committed an unfair labor practice in violation of
Section 8(a)(1) chargeable to Respondent.
IV. THE EFFE('TS OF THE UNFAIR LABOR PRA('I('IS UPON
COMMERCE
The activities of Respondent set out in section III, above,
occurring in connection with the operations of Respondent
844
GARRET RAILROAD CAR & EQUIPMENT. INC.
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CON(CLUSIONS OF LAW
1. By refusing to produce. at the Union's request, its
written records of the number of hours of work used in its
estimate to its customers, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) of the Act.
2. By the foregoing conduct, and by threatening eco-
nomic discrimination against an employee for engaging in
protected union activity, Respondent has engaged in and is
engaging in violations of Section 8(a)( ) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER'
The Respondent, Garrett Railroad Car & Equipment
Company. Inc.. New Castle, Pennsylvania, its officers,
agents, successors, and assigns, shall:
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 findings.
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.
1. Cease and desist from:
(a) Refusing to produce. on demand of the Union. its
written records of the number of hours used in its estimate
of cost to its customers.
(b) Threatening economic retaliation against employees
for engaging in protected union activity.
(c) In any like or related manner infering with, restrain-
ing. or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Produce, for inspection by the Union on demand. its
written records revealing the number of hours of work used
in its written estimate to its customers.
(b) Post at its place of business in New Castle, Pennsyl-
vania, copies of the attached notice marked "Appendix.":
Copies of said notice, on forms provided b the Regional
Director for Region 6. after being duly signed h) its repre-
sentatives, shall be posted by Respondent immediatel
upon receipt thereof, and be maintained b it for 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by anm
other material.
(c) Notify the Regional Director for Region 6. in writing.
within 20 days from the date of his Order, what steps Re-
spondent has taken to comply herewith.
2 In the event that this Order is enforced bN a Judgment fI a t nited Slalle
Court of Appeals, the words n the notlce reading "Posted h Order ,t the
National Labor Relations Board" shall read "Posted Pursuant t a Judgmenl
of the lnited States Court of Appeals Enforcing and Order of the Na;ional
Labor Relations Board."
845