General Electric Co.Download PDFNational Labor Relations Board - Board DecisionsJul 14, 1971192 N.L.R.B. 68 (N.L.R.B. 1971) Copy Citation 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company and International Union of Electrical Radio and Machine - Workers, AFL-CIO-CLC. Case 1-'CA-6811 'July 14, 1971- DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 5, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, General Counsel, Charging Party, and Respondent filed exceptions to the Trial Examin- er's Decision together with supporting briefs. The Charging Party also filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 I error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. We find, contrary to the Trial Examiner, that the Respondent violated Section 8(a)(5) and (1) of the Act by denying the request of the Union that the Respondent supply it with correlated wage informa- tion which the Respondent had obtained as a result of an area wage survey it conducted. In 1967 the Union filed approximately 100 wage rate grievances, requesting that certain job rates be increased "because of added skills and responsibili- ty." During the discussions of these grievances the Union frequently asserted that the rates in question were below the standard in the community. In 1968 and in 1969 the Company conducted "wage surveys" in the Fitchburg area, obtaining data from a number of other employers in that area. The Company told the employers giving this data that it would be kept confidential. The "wage surveys" included the hourly 192 NLRB No. 9 wage rates which each reporting company paid to each of the various mechanics whose job descriptions were contained in the list furnished by, the Company (e.g., tool-and-die makers, electricians, common, laborers, boring-maehing operators, etc.). In ' the course of discussing the wage grievance on April 23,' 1969, the Union asked the Company to make the wage survey data available to the -Union. The: Company on June 6, 1969, furnished the Union with ,a list of the companies from whom it had obtained the information, together with a summary sheet showing for each job in question the highest wage rate uncovered by the survey, the lowest rate, the median rate, and the Company's rate. The Union then requested that the Company "correlate" the data by furnishing the wage data for each employer, job by job. This the Company refused to do, claiming that it was "confidential." The Company contended that it conducted the wage survey at the request of its officials in New York, who wanted the data in connection with forthcoming national negotiations. The Company further contend- ed that it did not rely on that data in taking or maintaining its position before the Union that the wage grievances lacked merit. The Trial Examiner found that although company testimony along this line is far from inherently convincing, he was satisfied that it is substantially accurate, that the wage grievances did not cause the Company to take the survey, and that it did not rely on the survey in denying the grievances. He found, because the Company did not so rely in this case, it did not violate its bargaining obligation by its refusal to produce the correlated data. We find that the correlated data requested by the Union was relevant and necessary in order that it might bargain intelligently concerning wages. The Union needed the information to check the accuracy of the survey. 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 Examiner's ultimate conclusion that the information requested in this case need not be produced because the wage grievances did not cause the Company to take the survey, and the Company did not rely on the data in considering the grievances. Even assuming the Re- spondent took the wage survey pursuant to instruc- tions from its corporate headquarters in New York City and not for the immediate purpose of adjusting wage rates at its Fitchburg plant, we find that even if Respondent did not specifically rely on the wage surveys in regard to individual grievances, its reliance was inherent in setting the wage rates and in considering the grievances as a group with respect to their overall wage structure. We interpret Company GENERAL ELECTRIC CO. 69 spokesman James Corzine's testimony as implying that the grievances had- been considered by the Company in-taking the position that its "rate-structure was proper.." Thus Corzine testified: On the, contrary, at, the grievance meetings I had constantly taken the position from the first time we started discussions that we' looked at the griev- ances, we considered them' as a group and our rate structure was proper and the union was the one saying: something was wrong, and it was their responsibility, to sustain their case. [Emphasis supplied.] This can only mean `that the Company considered its wage, structure "proper" in relation to the wage structure in the Fitchburg area. This position was maintained, throughout. the grievance discussions. We fail to perceive how the Company could reject the grievances as ,a group on the grounds that its wage structure was "proper" without taking into account area wage survey data which it had,in its possession.' Contrary to-our dissenting. colleague, we do not hold that any information which could have relevance to determining a party's, decision with respect to any matter under negotiation or to be negotiated must upon request be revealed- to the other party. Our decision is bottomed on our conclusion that there was inherent reliance by the Company upon the wage surveys in its possession as evidenced by the Compa- ny's testimony that wage, surveys are used to evaluate the Company's wage structure and to determine if that wage structure is proper and effective for the purpose of attracting and retaining employees from within its competitive wage, area. In other words, the rate structure from the highest to the lowest must be competitive if it is to be characterized as the Company does as "proper." We conclude, therefore, that the Union has a right to correlated area wage survey data in order to properly perform its function as collective- bargaining representative.2 - - Accordingly, .we find that the Respondent violated Section 8(a)(5) and(1)of the Act by refusing 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. ORDER Pursuant to Section ' 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts'as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, General„ Electric Company, Fitchburg,- Massachusetts,- its- officers, agents, successors, and assigns, shall- take the action set forth in the Trial Examiner's recommended Order as herein modified: 1. Insert the following as,-paragraph 1(c) and reletter the present paragraph 1(c) as 1(d). - "(c) Refusing to bargain collectively with Local 286 of the International Union ' of Electrical, Radio and Machine' Workers, AFL-CIO-CLC, as the'statutory bargaining representative ' of_,,the production and maintenance employees at its plant at Fitchburg, Massachusetts, by refusing to furnish the Union with correlated information concerning the Respondent's area wage surveys." 2. Insert the following as paragraph 2(b) and reletter the present paragraphs 2(b), 2(c), and 2(d) accordingly. "(b) Upon request furnish to the Union correlated information concerning the Respondent's area wage surveys and other information necessaryto enable the Union to bargain intelligently on rates of pay at the Fitchburg, Massachusetts, plant. " 3. In footnote'6 of the Trial Examiner's Decision substitute "20" for "10" days. 4. Substitute the attached notice for the notice' attached to the Trial Examiner's Decision. CHAIRMAN-MILLER, dissenting: The majority errs here, in niy view, either as to fact or as to law, or both, in overruling the Trial Examiner, who found ' that Respondent, did 'not rely upon 'the correlated survey data in issue and' therefore had no duty to provide it to the Union. The majority seems to find as a fact that'Respon- dent relied upon such data. There' is no basis for such a finding in the record. The record in the case 'shows that while General Electric Company frequently relies on wage survey data in establishing and adjusting wage rates, this practice has never been followed with respect to `the Fitchburg plant. Rather, at Fitchburg, Respondent had adjusted wages only if ' and when ` employee turnover in a given classification demonstrated that a higher rate was needed to attract and retain ;person- nel.' The record also shows that the grievances at issue did not rest upon a claim that Respondent's wages were out of line with'the area, but rather upon a claim that the jobs in question had changed over a period of time by addition of responsibilities requiring,' in turn, 1 It is illogical that the Company had in its possession wage surveys of such information or that there was no general reliance on such data, either comparable employers in the area and yet did not rely, directly or in initially setting wage scales or in treating the grievances as a group. indirectly, on such surveys in concluding that its "rate structrure was 2 General Electric Co., 173 NLRB 164,' General Electric Co., 184 NLRB proper." We deem it specious to-argue, therefore, that by not citing or No. 45. - proclaiming any reliance on such data, it should not be required to furnish 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional skills. Nor did Respondent make reference to area wage' staridards'or to area wage data'either in- answering `" the grievances or in advancing its position when --discussing the merits of the grievances. The survey here came into being not because of any local wage discussions, but because the national office of the Company, desired the, information , for use in upcoming nationalnegotiations. Under these, circumstances, there is no factual basis for a finding that the surveys here were relied upon by Respondent, in` connction 'with the grievances at, duty to disclose any such data.issue, and it had no-,' The majority finds-it`"illogical" that Respondent did not rely on this data. Whether`; or not. Respondent acted "logically" is not our concern. The issue is, whether the facts in this record support a finding of reliance. For its factual basis, the ,majority relies solely, upon, one statement of one witness (somewhat misleadingly isolated from the total context of his testimony) that "we considered them [the. grievances j as a group and our wage structure, was proper.": It will Abe noted that even in, this `statement, selected to buttress the" majority position, there is, no .reference whatever either to area rates or to wage survey data. Yet the majority bases its reversal, of the Trial Examiner and its finding of reliance on this slim reed, while ignoring the record evidence that (1) no wage surveys have been utilized-in the past ,to establish or adjust rates at Fitchburg, (2) whether wages in general at Fitchburg were out of line with area rates was not the basis "either ofthe' grievances, or of Respondent's defense- thereto,, and (3) Respondent did' not rely upon the data in its grievance discussions with the Union. The, majority, dismisses those facts by reciting, that, it is "specious to argue .. that there was no general- reliance on such data."'But that recital is no substitute for, the Trial, Examiner's finding based, as it is," on substantial evidence. ' If, the majority is saying that regardless of the facts - in ,the record as to reliance, it would nevertheless as a matter, of law require Respondent to furnish the data as "relevant and necessary,", then it errs as to the law. Except for information as to employees, wages, and jobs within ; the unit,-as, to which we require full disclosure because the parties must have before them the essentials with which the bargaining will deal, we have' not required parties to, disclose inforrination collected by them when theydid not clearly rely upon, such information. As the' Court of Appeals for, the Third Circuit correctly pointed out in Curtiss-Wright Corporation v. N.L.&B.,347F.2d61,69(1965),, wage, and related information pertaining to employ- ees in the bargaining unit ispresumptively relevant, for, as such data concerns the core of the employer-employee relationship,- a -union , is not required' to show theprecise relevance of it, unless effective employer rebuttal comes forth; as to other requested data, however, such as-employer' profits- and production figures,,, a union must; by reference to the circumstances of the case, as' an initial matte`r`, " demonstrate- more " precisely the relevance of the data it desires.- Employer s̀' and unions routinely collect substantial amounts of information of many types and varieties in preparation for the discharge of their negotiating and grievance handling duties. Since each is in, some sense in a position' of advocacy in ` both' bargaining and,, grievance handling, each- will choose to `use , such of that information as may be favorable `to its position, - and may, choose not to volunteer such information.as may be unfavorable. Good-faith bargaining does not require more, and certainly does-not require that' each- party make full disclosure to the--other of every last piece of-informati'on it may'have u=nearthed. And this is true regardless of the fact that some-or- all '-of such information may clearly be "relevant" to certain subject matters under discussion. A clear example is to be found in the line of cases dealing- with information as to the employer's finan' cial condition.- Rare, indeed, is the employer who enters contract negotiations without carefully review- ing 'and assessing' its profitability, its liquidity, and` =its ability, or lack thereof, to absorb`' additional labor costs. In" the generalized sense in which the majority here seems to use the ter=n, every employer "relies" upon such data in determining the extent to winch- it, can go in meeting union demands. But we hive held-that such data need be'supplied"to a union if and . only `if Respondent,,-specifically articulates,' its reliance on inability to, pray in the bargaining or -grievance, discussions (Caster --Mold & Machine Co., Inc., 148 NLRB 1614 (1964 ; Empire Terminal Warehouse Co., 151 `NLRB" 1359 (1965); ef. N.L.R.B. v. Truitt M Co., 35'1 U.S.149 . ' The rationale of this precedent- compels the conclu- sion that wage survey data must be supplied'if a party, premises its attack on or defense of'existing wages on the area or industry standards evidenced ' by such data. But here this was not true. The Union's demand, based on additional duties, might, upon request, have to be backed by any data . in its position as to what duties had been added. And Respondent's defense that employee turnover was the real -factor demon- strating the-propriety or impropriety of w rates ,might have to be backed by its data regarding turnover. But there is no legal basis for requiring Respondent to produce data on which it did not rely and which was relevant only to a position, not taken, or to - an, argument not advanced, by the Respondent. The majority's departure from precedent may well GENERAL ELECTRIC CO. have'the-effect of -encouraging employers and unions to, remains as urlinformed as possible. The decisions in the earlier, General Electric wage survey cases 3 were troublesome enough- in this connection , because they might, to some extent, have been interpreted so as to deter-employers-from compiling-useful wage data. But in each of 'those cases -General Electric had chosen to utilize the data it collected as the basis for its position in bargaining or -grievance, handling, and good faith seemed to , require that it respond to factual inquiries for',fttrther-detail asCopy with citationCopy as parenthetical citation