General Electric Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 407 (N.L.R.B. 1970)

GENERAL ELECTRIC COMPANY
General Electric Company and International Union
of Electrical Radio and Machine Workers,
AFL-CIO-CLC. Case 10-CA-7668
June 30, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND BROWN
On October 16, 1969, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the alleged unfair labor practices and
recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision Thereafter, the General Counsel
and Charging Party filed exceptions to the Trial Ex-
aminer's Decision and briefs in support thereof; the
Respondent 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent con-
sistent herewith.
For the reasons hereinafter set forth, we find,
contrary to the Trial Examiner, that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by
denying the request of the Union that the Respon-
dent supply it with correlated wage information
which the Respondent had obtained as a result of
an area wage survey it conducted in 1968.
The Trial Examiner found, and the record
reveals, that the Union, Local 191 and its affiliate
International Union of Electrical Radio and
Machine Workers, AFL-CIO-CLC, has rep-
resented the Respondent's production and main-
tenance employees at the Rome plant since 1954.
The Union and the Respondent are parties to a col-
lective-bargaiing agreement which provides that
' Under art X11 (Grievance Procedure) of the collective-bargaining
agreement, the Union may file grievances for individuals or groups and
when the grievances are exhausted the employees have the right to strike
' We find no merit in the Respondent's contention that it had no obliga-
tion to bargain over wages because the grievances had been exhausted
Even assuming, arguendo, that exhaustion of the grievance procedure
created an impasse, the Respondent's participation in further meetings
with the Union and its offer to conduct a wage survey "to bring the strikes
407
wage rates for individuals or groups are subject to
local negotiations. The Union filed grievances'
requesting wage rate increases which were denied
by the Respondent. Thereafter the Union
proceeded to conduct a series of strikes beginning
in January and ending in May 1968 over these
grievances. In mid-May, the Respondent offered to
take a wage survey in order to bring an end to the
strikes. In the past the Respondent had made area
wage surveys and adjusted rates at the plant as a
result of these surveys. After an exchange of letters
and several meetings, the Respondent advised the
Union that a survey would be conducted in ac-
cordance with its usual practice and that it would
not divulge information given to it in confidence;
the Union agreed to halt the strikes temporarily.
The Respondent, on November 22, 1968, presented
the Union with the survey results in the form of a
list of the companies surveyed; a graph on which
were listed 20 job classifications with the highest
and lowest rate paid for each classification by the
companies surveyed, the community average for
each classification, and the Respondent's pay rate
for each classification. The Respondent also ad-
vised the Union that the survey revealed that the
employees were properly paid. The Union chal-
lenged the accuracy of the figures at this meeting
and, at this time and subsequently, requested the
Respondent to correlate this information by tying
each job classification and rate to a specific com-
pany surveyed The Respondent refused on the
ground that the information had been given by the
companies surveyed in confidence.
The Trial Examiner found, and we agree, that the
correlated information requested was relevant and
necessary to the Union in order that it might bar-
gain intelligently concerning wages, as the Respon-
dent has relied on such surveys in the past in adjust-
ing its wage rates, and relied on this one in refusing
to do so,2 the Union needed the information to
check the accuracy of the survey, and never clearly
and unequivocally waived its right thereto; and it is
well established that a request for relevant and
necessary information cannot be denied on the
ground that it is confidential.
However, we do not agree with the Trial Ex-
aminer's ultimate conclusion that the information
requested in this case need not be produced.' Such
information is not exempted merely because it was
to an end" effectively broke the impasse and reimposed upon the Respon-
dent the duty of fulfilling its obligation to bargain about wages Cf Kohler
Co , 128 NLRB 1062, 1078, enfd in pertinent part 300 F 2d 699
(C A D C ), cert denied 370 U S 91 1, Langlade Veneer Producers Corpora-
tion, 118 NLRB 985,988
' It should be noted that the Trial Examiner also concluded that if in the
future the Union asks for correlated data, the Respondent may not conceal
the information on the basis of confidentiality
184 NLRB No. 45
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained from other employers in confidence. On
the contrary, the Board has recently adopted, with
apparent court approval, a Trial Examiner's state-
ment in a prior case involving another plant of this
same employer, to the effect that,
Should such correlated [area wage survey] in-
formation be necessary for the intelligent
processing of grievances by the Union, the
Company would not be warranted in withhold-
ing it from the Union because it may have been
given such information on the understanding
that it would not be disclosed.'
The additional, correlated information was not
shown to be necessary in the prior case. In the in-
stant case, however, the requested additional infor-
mation was shown to be necessary in order to
check the accuracy of the graph, as the Trial Ex-
aminer found, as well as to evaluate its representa-
tive nature and its statistical significance. Thus, the
Union alleged discrepancies in the graph because
the Union had surveyed several of the job classifi-
cations at several of the plants listed and had found
that rates higher than those given in the graph. In
addition, the lowest rate given on the graph for
Class A (highest rated) Machinist-Maintenance was
lower than the lowest rate given for Class B (lower
rated) Machinist-Maintenance. Moreover, it was
impossible for the Union to determine from the in-
formation provided whether the rates for each clas-
sification listed on the graph were based on figures
obtained from all I], or only some, of the plants
surveyed; or whether the figures represented
straight averages of all the high and low rates ob-
tained, or were weighed according to number of
employees in the classification or in some other
manner. In these circumstances, we see no legal
relevance to the Trial Examiner's statement imply-
ing that production of the requested information
might prejudice rights of the employers surveyed.
Nor do we agree that the issue is moot because the
data may be out of date. To so hold would be to
permit the Respondent to benefit from the length of
time it took to litigate its own unfair labor prac-
tices, contrary to N L.R.B. v. Gissel Packing Com-
pany, Inc.,5 and cases cited therein.
Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refus-
ing to furnish the area wage survey information
requested by the Union showing the specific wage
rates and job classifications correlated with the
specific company surveyed, and we shall order the
Respondent to furnish that information.
CONCLUSIONS OF LAW
1. By refusing the Union's request for correlated
information concerning its area wage survey, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent, General Elec-
tric Company, has engaged in violations of Section
8(a)(5) and (I) of the Act, we shall order it to
cease and desist from such unfair labor practices
and to take certain affirmative action necessary to
remove the effects of the unfair labor practices and
to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, General Electric Company, Rome, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Union of Electrical Radio and Machine Work-
ers, AFL-CIO-CLC, and its Local 191, as the
statutory bargaining representative of the produc-
tion and maintenance employees at its plant at
Rome, Georgia, by refusing to furnish the Union
with correlated information concerning the
Respondent's area wage surveys.
(b) In any like or related manner interfering
with the efforts of the Union to bargain collectively
with it on behalf of the production and main-
tenance employees at the Rome, Georgia, plant.
2. Take the following affirmative action necessa-
ry to effectuate the policies of the Act
(a) Upon request furnish to the Union corre-
lated information concerning the Respondent's area
wage surveys and other information necessary to
enable the Union to bargain intelligently on rates of
pay at the Rome, Georgia, plant.
(b) Post at its office and plant at Rome, Georgia,
copies'of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the Re-
gional Director for Region 10, after being duly
' General Electric Company (Hickory, N C ), 173 NLRB 164, 170, fn 14,
enfd 414 F 2d 918 (C A 4)
'395US 575
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
GENERAL ELECTRIC COMPANY
signed by Respondent 's authorized representative , TRIAL EXAMINER'S DECISION
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees
are customarily posted. Reasonable steps shall be
taken by it to insure that said notices are not al-
tered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 10,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a Trial in which both sides had the oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we in-
tend to carry out the Order of the Board , and abide
by the following:
WE WILL NOT refuse to bargain collectively
with International Union of Electrical Radio
and Machine Workers, AFL-CIO-CLC, and its
Local 191, by refusing to furnish the Union
with correlated information concerning our
wage surveys.
GENERAL ELECTRIC
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Peachtree Building, 730 Peachtree
Street, N. E., Atlanta, Georgia 30308, Telephone
404-526-5760.
STATEMENT OF THE CASE
409
GEORGE J. BOTT, Trial Examiner: Upon a charge
of unfair labor practices filed by International
Union of Electrical Radio and Machine Workers,
AFL-CIO-CLC, herein called the Union, on
February 20, 1969, against General Electric Com-
pany, herein called Company or Respondent, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
July 22, 1969, in which he alleged that Respondent
had engaged in violations of Section 8(a)(1) and
(5) of the National Labor Relations Act, as
amended, herein called the Act. Respondent filed
an answer denying the commission of any unfair
labor practices and a hearing was held before me in
Atlanta, Georgia, on August 19, at which all parties
were represented. Subsequent to the hearing, all
parties filed briefs which I have carefully con-
sidered.
Upon the basis of the whole record and my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent is a New York corporation maintain-
ing a plant and place of business at Rome, Georgia,
where it is engaged in the manufacture and sale of
medium transformers and related electrical
products . During the year prior to the issuance of
the complaint, Respondent sold and shipped
finished products valued in excess of $50,000 from
its plant at Rome, Georgia, directly to customers
located outside the State of Georgia.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Basic Facts
The only issue in this case is whether Respondent
violated the Act when it refused to supply the
Union with correlated wage information it had ob-
tained as a result of an area wage survey it con-
ducted in 1968.1
' The complaint as issued also contained an allegation that Respondent
refused to supply the Union with average earning rates of each incentive-
paid employee in the unit, but this issue was adjusted before the hearing
and the allegation withdrawn at the hearing The complaint as it now
stands alleges the unfair labor practice to be Respondent's refusal to supply
the collective -bargaining agent the " results of an area wage survey con-
ducted by Respondent with the names of all companies surveyed and with
each wage rate and job classification identified with the particular com-
pany from which the information was obtained "
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees at the Rome plant are
represented by Local 191 of the Union and have
been since 1954.2 The Union and Respondent are
parties to a collective-bargaining agreement cover-
ing many plants, including the Rome plant. The
latest contract was negotiated in 1966 and expires
in October 1969. What is particularly significant
about the agreement for the purposes of this case is
that it leaves open for local negotiations the wage
rates for individuals or groups.'
Respondent uses area or community wage sur-
veys to assist it in determining what wage rates it
should pay to preserve its competitive position with
other employers. Alvin Worthington, president of
Local 191, testified without contradiction, based on
his conversations with Respondent's representatives
during negotiation for local rates, that when
Respondent moves into an area it establishes wage
rates based in part at least on the results of an area
survey. Thereafter, as time goes by, Respondent
makes frequent surveys and adjusts its own rates
depending upon the results of the surveys. Respon-
dent's policy was explained to Worthington as
neither paying the highest nor lowest rate in the
community, but as attempting to maintain a level
which will preserve its position in competition with
other employers for employees. In addition to
Worthington's testimony, the Company in this case
told the Union that the results of the 1968 survey
involved here did not support the Union's claim
that a wage increase was in order, and it also ad-
vised the Union in a letter of January 15, 1969, that
if it revealed to the Union what other companies
were paying their employees it might make it "im-
possible to obtain the best measurements of the
wages of our employees against the Rome commu-
nity and then to make appropriate pay changes."
Moreover, John Koetzle, Respondent's manager of
union relations at the Rome plant, conceded that
Respondent had raised wages at the Rome plant in
the past as a result of a survey of community rates.4
In the summer of 1968 the Company conducted
an area wage survey in an effort to eliminate cer-
tain work stoppages that were being repeated every
weekend. The strikes, which lasted I day, began in
January 1968 and continued into the end of May.
They apparently had their roots in wage dissatisfac-
tion and wage grievances filed by the local Union.5
Since part of Respondent's defense for its ad-
mitted refusal to provide the Union with the names
of the companies surveyed tied to the particular job
and rate examined is that the survey was conducted
pursuant to a specific agreement between the
parties which excuses its limited production, it is
necessary to set forth at some length the circum-
stances surrounding the alleged agreement. Koetzle
testified that in order to stop the recurrent strikes
the Respondent made the Union "an offer to take a
wage survey among other things, to try to bring the
strikes to an end." A letter dated May 28, 1968,
was dispatched to the Union containing an offer to
conduct a survey. In referring to the survey the
letter stated that the Respondent would have no ob-
jection to conducting an additioanal survey in the
near future "in accordance with our usual prac-
tice." Koetzle explained what the Company's usual
practice had been in the past. It appears that
management decides what jobs it wants to survey
and selects companies in the Rome area with which
it is in competition for employees for examination.
A wage analyst visits the competitor's plant and
discusses jobs with the person in the plant in charge
of the matter. If in their opinion the particular jobs
analyzed match in job content, the rate paid by the
competitor is used in making a comparison of rates.
According to Koetzle, Respondent in the past never
discussed the results of area wage surveys with the
Union in as much detail as it did the one in
question here. Previously it had been the practice
to give the Union percentages and averages rather
than details, and Respondent never revealed the
names of companies surveyed It was Koetzle's
opinion that, by June 19, 1968, the Union had
agreed to call off its strikes temporarily so that
Respondent could make its wage survey According
to him, although during certain grievance meetings
described below the Union asked him what jobs
would be surveyed, there was no agreement on
what jobs were to be surveyed or what companies
would be included. The only understanding that he
had, he said, was that the survey would be con-
ducted in accordance with the Company's usual
practice, which it was.
Koetzle's opinion about an understanding which
laid the ground rules for the survey was based on
the strikes, the Company's letter to the Union of
May 28 suggesting a survey, the cessation of the
weekly strikes, and certain statements and occur-
rences at grievance meetings during June and July.
He testified that he called a meeting with the Union
on June 4 to discuss the most recent strikes and the
Company's offer to conduct a survey to help end
stoppages. During this meeting he also told the
Union that Respondent was going to have to cancel
its usual vacation shutdown in July because the
strikes had caused "urgent customer problems." At
the end of the meeting, the Union advised him that
it would consider the Respondent's proposal.
I According to Respondent 's brief the plant has been in operation since
1953
' Art VI Sec 1 provides that Any question which affects hourly rates,
piecework rates , or salary rates of individuals or groups shall be subject to
negotiation between the Local and local management
' In General Electrical Company, 173 NLRB 164, the Trial Examiner
found that the company uses information gathered in these surveys in part
to set its hourly rates
S These grievances are described by the parties as "exhausted," that is,
they have gone through the third step of the grievance procedure in the
labor agreement and the company had no obligation under the contract to
discuss them further
GENERAL ELECTRIC COMPANY
Koetzle met with the Union again on June 11. At
this meeting the cancellation of the vacation shut-
down was again discussed. A survey was also men-
tioned and Koetzel urged the Union to agree to
have the Company take one. He said that during
the discussion Worthington asked if Respondent in-
tended to include Lockheed, General Motors, and
Republic in its canvass, but he replied that Respon-
dent was not in competition with those employers
for employees. Koetzle also advised Worthington
that if the survey were made he would discuss the
result of it "in detail," but he would not be able to
"divulge the information given ... in confidence by
the other companies included in the survey ....
by
He said Worthington made no response to this ob-
servation.
At a meeting on June 13, a survey was mentioned
again, but the meeting of June 17 was more signifi-
cant. At the latter meeting, Worthington told Koet-
zle that the Union's executive board had recom-
mended to the membership a temporary halt to
strikes so that the Company could conduct a wage
survey, and this recommendation had been ac-
cepted. Koetzle said, however, that the Company
wanted more assurances from the Union that there
would be an uninterrupted period of production be-
fore it reinstated the normal vacation shutdown
which the Union was interested in securing.
The Union and the Company met again on June
18. Koetzle said the parties discussed the vacation
shutdown grievance again and he tried to get a
better guarantee from the Union than it had given
up to that time that the strikes were over, but he
said the "meeting wound up with no additional as-
surances from the union."
It was at the June 19 meeting that Koetzle
thought an agreement was reached. He testified
that "it was at this particular meeting that I felt we
had an agreement on the bringing the strikes to a
close temporarily. We did not get any further as-
surances from the union, but we were willing at this
point to go ahead and reinstate the vacation shut-
down and proceed with the wage survey." Respon-
dent did, as it had agreed, reinstitute the vacation
shutdown which the Union was grieving about.
Koetzle conceded that before June 15 there was no
agreement about ending the strikes which had been
occurring regularly, although they appeared to have
stopped, and he agreed there never was any as-
surance given by the Union that the strikes had
ended permanently. The Union told him, he said,
that the executive board could call a strike at any
time. He wanted the Union to agree that there
would be a membership vote on a strike before it
was called, but he said that he did not get this as-
surance on June 19.
Respondent proceeded to conduct an area wage
survey as it had in the past and there was occa-
"NLRB v Truitt Mfg Co, 351 U S 149, N L R B v Whitin Machine
Works , 217 F 2d 593 (C A 4), N L R B v F W Woolworth Co , 352 U S
938, N L R B v Yawman & Erbe Manufacturing Co, 187 F 2d 947 (C A
411
sional reference to it by the parties before the
results were revealed in November 1968. On July
23, for example, Worthington asked Koetzle if the
Union could have the names of the companies in-
cluded in the survey. Koetzle told him he would
look into the question.
On November 22, 1968, Respondent presented
the Union with information it had obtained in its
survey. The data was in written form and one docu-
ment contained an employee residence analysis.
The more important information, however, related
to the names of the companies surveyed and rates
paid. In this area Respondent gave the Union a list
of the companies surveyed and a chart showing the
jobs surveyed with the highest and lowest rates
found in each classification examined. The chart
also showed the community average rate in each
classification and Respondent's average. The charts
did not link or tie the rate and job classification to a
particular company. When the information was
presented, Koetzle stated that the survey showed
that Union represented "employees were properly
compensated for their efforts."
Koetzle said a variety of questions were asked
about the survey during the November 22 meeting,
and he conceded that at one point Worthington in-
dicated that the survey did not appear accurate
because it did not agree with certain information
the Union had. Koetzle insisted that the survey was
thorough and complete. Near the end of the meet-
ing, Worthington asked that the charts be broken
down to show the name of the particular company
surveyed tied to the job and the rate, but Respon-
dent took the position that since the companies in-
volved had asked that their replies remain con-
fidential such information was not available.
In a letter of December 9, 1968, the Union asked
that the Company correlate the information ob-
tained in the survey by listing each job and rate
with plan identification and supply it to the Union.
The Respondent replied in a letter of January 15,
1969, refusing to give the requested information
because it had been given to it "in confidence by
the participating area employers."
B. Analysis, Additional Findings, and Conclusions
That a variety of wage data or other economic or
financial information relating to wages must be
furished by an employer to a union representing its
employees in order to make collective bargaining
effective is well established'' It is also clear that a
request for wage data is a presumptively lawful
request and the Union need not show the precise
relevancy of the requested information to particular
2), N L R B v Northwestern Publishing Company, 343 F 2d 521 (C A 7),
N L R B v Western Wirebound Box Co , 356 F 2d 88 (C A 9)
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining issues under consideration unless effec-
tive employer rebuttal comes forth' There also can
be no question, as both General Counsel and the
Union contend, that the argument that the informa-
tion is "private" or "personal" and "confidential"
cannot serve as a shield to protect the Employer
from the consequences of its refusal to divulge this
relevant data." But it is not as clear as the Union
and the General Counsel say it is that these well-
known principles apply without qualification to
wage or other information not generated by the
Employer's own operations but which he has ob-
tained from other employers on the pledge that it
will be held in strict confidence. The Timken
Rolling Bearing Company case,9 for example, in-
volved rates of the employer's own employees. In-
galls Shipbuilding Corporation, 10 in which the Board
stated that "confidentiality is not a defense to an
obligation to furnish relevant wage data," also in-
volved rate standards and other data which
originated in the employer's own operations, and in
Curtiss-Wright," where the court required the
production of nonunit data, the information
nevertheless had originated with the particular em-
ployer and had not been obtained from others.
It is true that in two fairly recent cases Board
decisions requiring the production of data obtained
from area wage surveys have been sustained in the
courts 12 If this case involved only a bare refusal to
supply similar data in correlated form with no
claimed justification and arose in a context like
those cases, then those cases might control the
result here, but because of certain differences in
the cited cases and because of the somewhat
unique circumstances in which Respondent's failure
to supply the Union with all it asked for arose, I
find, without reference to any survey Respondent
has taken since 1968 or will take hereafter, that it
need not identify the specific rate paid by any
identifiable company.
The area wage survey issue in General Electric,
Battery Products Capacitor, arose in a context of ex-
tensive unfair labor practices, and the subject of the
survey itself was tightly interwoven with the com-
pany's general refusal to bargain in good faith on
wages. Unlike this case, the employer gave the
union no information obtained as a result of the
survey, although it heavily relied on it and
disparaged the results of the union's survey in ad-
dition, no claim of "confidentiality" was made in
that case at all. In General Electric (Hickory, N.C.),
the company again refused to give the union any of
the data obtained in an earlier survey, but promised
to give the union information obtained from a new
survey. It also appears that at one point during the
discussion of the union's grievances and requests
for information, the company offered to show the
union the names of the companies surveyed and the
jobs reviewed, but not to identify the company with
the job. The union apparently indicated that it
might accept such offer without identification if it
gave the union the information it needed, but ap-
parently this concession became moot when the
company took the position that it would make a
new survey and give the union information from
that. How detailed the company proposed to make
the information it would give the union in the new
survey is not absolutely clear, but apparently "con-
fidentiality" was raised as a defense in the case
because the Trial Examiner stated in a footnote
that the company would not be warranted in not
correlating a job to a particular company and
withholding it from the union became the company
got such information on the understanding that it
would not be disclosed.13 The Trial Examiner did
not, however, recommend that the company corre-
late a job to a particular company because he
thought that the record did not contain enough in-
formation to make a determination whether supply-
ing only the names of the companies and the job
classification surveyed would satisfy the company's
statutory obligation. He added, however, that if
such correlated information became necessary for
intelligent processing of grievances, the company
would have to produce it. The Board adopted this
part of the Trial Examiner's findings without addi-
tional comment.
When General Electric Company (Hickory, N.C.),
was enforced in the court of appeals, the court
stated that General Electric had to disclose proof of
the accuracy of the position it had taken in bargain-
ing with the union and "that proof was not dis-
closed when General Electric declined to disclose
the identity of the employer in regard to each job
considered" in the survey. This, of course, was not
what the Board had ordered the company to do,
and, on August 28, 1969, on request for clarifica-
tion, the court amended that portion of its decision
to read, "that proof was not disclosed when
General Electric declined to furnish the union with
the names and jobs of area companies it had sur-
veyed." In a footnote, the court added that the
Board did not require correlation in the case and
that the court did not intend to go beyond the in-
' Boston Herald- Traveler Corporation , 110 NLRB 2097, enfd 223 F 2d
58 (C A I ), Curtiss-Wright Corporation , Wright Aeronautical Division, 145
NLRB 152, enfd 347 F 2d 61 (C A 3)
" Boston - Herald Traveler Corporation , Curtiss- Wright Corporation, supra
at 69
v 138 NLRB 15 , enfd 325 F 2d 746 (C A 6)
10143 NLRB 712, 717
" Supra, fn 7 N L R B v Frontier Homes Corp , 371 F 2d 947 (C A 8),
cited by the Union , involved the employer's own price lists
" General Electric Company, Battery Products Capacitor Department, 163
NLRB 198, enfd 400 F 2d 713 (C A 5), General Electric Company
(Hickory, N C ), 173 NLRB 164 , enfd 414 F 2d 918 (C A 4) In McCul-
loch Corporation, 132 NLRB 201, 207, however , the Board also adopted
without discussion the Trial Examiner 's finding that the employer 's refusal
to identify the companies who paid identified wages and participated in an
area survey was not a refusal to bargain because the Examiner credited the
employer 's statement that such identification "would have involved a
breach of confidence "
ii 173 NLRB 164, 170, in 14
GENERAL ELECTRIC COMPANY 413
formation required to be furnished by the Trial Ex-
aminer and the Board in granting enforcement."
What I have observed about the cases just
discussed on which General Counsel and the Union
rely makes me wary of disposing of this case on the
basis of the easy assumption that "confidentiality"
is never a consideration to be weighed in balancing
a union's need to be informed so that it can bargain
intelligently against an employer's need to keep his
sources of information open and accurate. Con-
ceivably there might be overriding considerations in
a particular case which could tip the evaluation of
an employer's good faith in the direction of protect-
ing his position if the risk or hurt to the Union is
slight. Although I disagree with Respondent's sug-
gestions that the information sought here is not
even relevant and in any event not needed,15 I think
this is-a case where the whole context supports the
conclusion that the Union has been given all that it
is equitably entitled to and all that it needs from a
practical point of view in the circumstances of this
case.
Respondent has conducted area wage surveys
since 1954 and the Union has never asked for nor
has Respondent supplied correlated wage informa-
tion or as much information as it gave the Union in
November 1968. In Respondent's letter to the
Union, sent in an effort to bring the series of 1-day
work stoppages to an end, the Respondent, after
noting that it had been its practice to periodically
survey other manufacturers to determine communi-
ty wage patterns and that the last survey had been
conducted in the previous year, offered to conduct
an additional survey "in accordance with our usual
practice."
In meetings with the Union during May and June,
the Respondent again suggested the wage survey as
a solution for the strikes and the wage problem, and
during at least one meeting the Union said it would
consider the Company's proposal. The strikes
ceased, and while it is true that they stopped before
the Company felt it had an agreement that they
would temporarily stop while the wage survey
would be conducted and that the restoration of the
vacation shutdown may have been related to the
disappearance of the stoppages, the president of the
Local told Respondent that the executive board of
Local 191 had recommended to the membership
that there be 'a temporary halt to the strikes while
the Company conducted a survey. Worthington
also testified that the Union "indicated" to the
Company that the strikes would stop temporarily to
give the Company an opportunity to take the sur-
vey, and he said he understood that it would be per-
formed according to the Company's usual practice.
During other meetings with the Union during
June and July the subject of the survey was raised.
Although the Union asked questions about what
companies would be included in the survey, it never
put a condition on the Company's proposal by in-
sisting that certain companies or jobs be checked,
and the Union made no response to Koetzle's state-
ment that although he would discuss the results of
the survey with the Union in detail, he would not be
able to divulge information given in confidence by
companies surveyed. At one meeting in July,
Worthington asked if the Union could have the
names of the companies to be included in the wage
analysis, and when Koetzle said he would look into
it and let him know, Worthington did not press the
matter.
The Union raised the question of correlated in-
formation for the first time at the November 22
meeting when Respondent presented its charts and
the names of the companies included in the survey.
Respondent claimed that the requested information
was confidential, but the Union did not then claim
that it understood that it was to be given anything
more than it got. On December 9, 1968, the Union
wrote the Company and made certain complaints
about the nature and content of the survey and
Respondent's delay in completing it, but it raised
no issue about Respondent denying it anything in
violation of any understanding it had about how the
results of the survey were to be presented to it.
Based on the context in which the survey was
suggested and taken, Respondent argues that there
was a firm agreement to take a survey in a particu-
lar manner. In effect, Respondent is arguing that
the Union waived whatever statutory rights it had
to the information requested. I find it unnecessary
to decide whether there was a "waiver" or a "strike
settlement" with a "quid pro quo." Waivers of statu-
tory rights must be in clear and unmistakable lan-
guage and there was no clear and unequivocable
agreement that the strikes would end if manage-
ment would take a survey and announce the results
in any specific form But this does not prevent the
Board in reviewing a labor relations matter from
tailoring its remedy to the situation in the light of
fairness, equity, and the basic rights of all parties,
including third party employers who have not been
heard.
My view of the whole situation out of which this
issue arose is that the Union was aware that
Respondent historically made surveys which af-
" Westinghouse Electric Supply Company, 96 NLRB 407, is a fourth case
in which the production of the results of area wage surveys was considered
It appeared that there the union asked for substantiation of the company's
claim that the area wage survey indicated that its rates were higher than
competitors At that point , the Board noted, "the Respondent had
completed its survey and had prepared mimeographed copies of a chart
tabulating the results of this survey without identifying any of the employers
involved Such a chart could have been shown to the Union without dis-
closing confidential data " (Emphasis supplied ) The Board found a
violation in refusing to show the Union that chart
" Regarding relevancy , as found in more detail in the body , Respondent
has raised rates at this plant as a result of a survey and the results of surveys
are considered generally in fixing rates As far as need is concerned, it is
generally unnecessary to show a specific need for wage information , and, in
any case, Worthington testified without contradiction that the information
was needed to check the accuracy of the Company's charts
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fected the Respondent 's position at the bargaining
table on the extremely important subject of wages
and disclosed the results of the surveys in a
restricted form which , prior to November 1968, did
not even reveal the names of the employers in-
volved in the studies The Union made no protests
of any kind about the Company's method , which it
knew it would again utilize , and placed no condi-
tions on it , although it had many opportunities to
do so before the study was completed and an-
nounced almost 6 months after the Union was ad-
vised how the Company was going to proceed.
Moreover , the proposed survey was definitely con-
nected or related to the serious labor problem
which appeared to exist , and if there was no legal
agreement to take a survey as a consideration for
stopping the strikes, even the inexperienced ob-
server of the labor -management scene would have
been justified in assuming that the two were closely
related.
By the time the survey was completed Respon-
dent had assured the participants in it that the in-
formation obtained from them would remain con-
fidential , and so the rights of those third parties
were now involved . In my opinion , the equitable
thing is not to risk jeopardizing the rights of others,
or to ignore Respondent's commitments to its com-
petitors, or the Union 's silence and apparent
acquiescence, but to permit , in respect to this par-
ticular survey only, that Respondent not be
required to tie the names of the employers involved
to the rate and classification observed. In doing
this, I see no great injury, hardship , or even sub-
stantial inconvenience to the Union . First, the
Union has the names of the companies surveyed
and there are only 1 1 of them , and so it would seem
that with this information , a list of all the jobs sur-
veyed and all the rates discovered , and the Union's
own ingenuity , it will not be greatly handicapped in
bargaining . Second , the ruling here is not that this
information is confidential as such , but that it need
not be produced in the circumstances of this case.
The data obtained in the survey is now over a year
old and it is dated If management wishes to con-
tinue making wage surveys , and if in the future the
Union asks for correlation , Respondent cannot
complain that it did not know that the results of its
surveys, which it uses in part at least to fix rates and
which it frequently uses to support its bargaining
position , cannot be concealed on the basis of con-
fidentiality.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case , I make the
following:
CONCLUSION OF LAW
Respondent did not violate Section 8(a)(1) and
(5) of the Act by refusing to supply the Union with
correlated wage information in the circumstances
of this case.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusion of law, and upon the entire record
in the case, I recommend that the complaint be
dismissed in its entirety.