General Electric Co.

National Labor Relations Board - Board Decisions

Jul 14, 1971

192 N.L.R.B. 68 (N.L.R.B. 1971)

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 as