Globe-Union Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1977

233 N.L.R.B. 1458 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Globe-Union Inc. and Local 1116, International Union
of Electrical, Radio and Machine Workers, AFL-
CIO, CLC. Case 17-CA-7463
December 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 31, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that the Respondent, Globe-Union
Inc., St. Joseph, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
matter was heard on June 13, 1977, in Kansas City,
Kansas, upon a charge filed on January 21, 1977, by Local
1116, International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO, CLC, herein called the Union,
and a complaint issued by the Regional Director for
Region 17 of the National Labor Relations Board, herein
called the Board, on April 27, 1977. The complaint alleged
that Globe-Union, Inc., herein called the Respondent,
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, herein called the Act, by
refusing to furnish the Union with information concerning
the wages of employees for whom it was the exclusive
collective-bargaining representative. The Respondent, in
essence, admitted refusing to furnish the information but
denied that it was obligated to do so.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, and after
233 NLRB No. 211
due consideration given to the briefs filed by all parties, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S
STATUS-PRELIMINARY CONCLUSIONS OF LAW
The Respondent, a corporation engaged in the manufac-
ture of automobile batteries, with a plant located in St.
Joseph, Missouri, annually purchases and receives in
excess of $50,000 worth of goods and materials directly
from points located outside the State of Missouri. The
complaint alleges, the Respondent admits, and I find and
conclude that the Respondent is, and has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
On January 28, 1974, pursuant to a secret-ballot election,
the Union was certified as the exclusive collective-bargain-
ing representative of the Respondent's employees in the
following unit:
All production and maintenance employees, including
group leaders and truck drivers, employed by Globe-
Union, Inc., at its St. Joseph, Missouri facilities, but
exluding office clerical employees, professional employ-
ees, janitor-watchmen, guards and supervisors as de-
fined in the Act.
The complaint alleges, the Respondent admits, and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICE
A. The Issue
The issue herein is whether the Union is entitled to be
shown the status change reports reflecting merit increases
granted to the hourly paid nonincentive employees. The
Union contends that it is entitled to these reports, known
as 10-102 forms, and related documents, as a matter of
law, to assist it in the policing of its collective-bargaining
agreement and in order to prepare for negotiations. The
Respondent asserts that the Union is not so entitled
because: (1) the reports are confidential; (2) the Union
waived its right, if any, to the reports in prior negotiations;
(3) compliance with the request would be burdensome
upon the Respondent; and (4) the Union regularly receives
information which would meet its needs.
B. The Information-Request and Refusal
Included within the collective-bargaining unit are those
employees who are paid on an incentive basis (essentially
the direct labor employees), and approximately 40-50
hourly paid, nonincentive indirect labor employees. In
addition to their hourly rates, as set forth in the contract,
the nonincentive employees are eligible for merit wage
increases pursuant to a letter from the Respondent to the
Union, executed on the same day as the contract, July 14,
1975, and appended thereto. That letter summarizes the
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GLOBE-UNION INC.
Respondent's administration of the merit system, as fol-
lows:
I. Non-incentive employees who are paid appropriate
contract minimums are considered for merit
increases of 5% after 3, 9, 15 and 24 months,
respectively, on a particular job in addition to any
general contract increases.
2. Employees are normally reviewed after six (6)
months on the job and then annually thereafter
for merit ncreases up to 35% above the minimum.
When reviewed, employees are either given merit
increases or the reasons for no merit increase are
discussed with them.
3. In determining whether or not a merit increase is
appropriate, the main factors considered are
ability, quality, quantity, attendance, responsibili-
ty, initiative and cooperativeness.
4. Any complaint concerning the administration of
the merit system will be discussed with the
employee, or the employee and the Union com-
mittee if requested.
Also included in that letter were commitments made
during negotiations concerning such matters as insurance,
pensions, union-security, shift differentials, and clothing
allowances.
According to the Respondent's witnesses Allen and
Strand, who participated in the 1975 negotiations, during
those negotiations representatives of the Union requested
that the Respondent agree to furnish copies of the 10-102
forms, in order that it might monitor the administration of
the merit system. That request was rejected. Both the
contract and the addendum are silent on the question of
the Union's entitlement to the forms.' The contract's only
provision for the furnishing of information is contained in
article 11-seniority, section 14, which provides:
Upon request, the Company will furnish the Union
with the seniority date and rate of pay of all employees,
four (4) times a year, during the term of this agree-
ment. . .
The 10-102 forms, in addition to containing the informa-
tion required to be furnished by the foregoing provision,
sets forth the specific change in status, including the
amount and percentage of wage increases, the employee's
rating for such things as initiative, dependability, attitude,
and work quality, and the reason for the change in status.
The Union's attempt to secure access to the 10-102
forms employees began on August 20, 1976. During the
course of a meeting on other grievances, then Union
President Gary Whitmore questioned the Respondent's
administration of the merit program. He named two
employees whose history of merit increases seemed to raise
questions, and asked to see their personnel files. After some
discussion, Personnel Manager John Clemons produced
I Norman Graf, the Union's president and its sole witness, did not
specifically deny that the Union sought to be routinely furnished with copies
of the forms dunng negotiations. Such a denial, however, could be inferred
from the question asked him on cross-examination and his reply. To the
extent that it might be relevant herein. noting particularly that Graf did not
their files. An examination of the 10-102 forms revealed
some company mistakes. Whitmore thereupon asked to see
the files of all nonincentive employees. Clemons refused,
asserting that the files contained privileged material.
On or about September 9, 1976, the Union, in writing,
requested permission to look at the 10-102 pay records for
all hourly employees. On September 10, 1976, Whitmore
filed a grievance which generally concerned "the merit
system and the way it is applied." Clemons denied the
grievance on September 17, on the basis that it contained
no "specific charge of a violation of the collective bargain-
ing agreement" and was too vague. On September 23, 1976,
the Union appealed that grievance to the third step and
Whitmore again requested access to the 10-102 pay records
for the nonincentive employees. He asserted that such
access was requested in connection with the processing of
the grievance and the administration of the collective-
bargaining agreement. On October 6, 1976, Clemons
denied Whitmore's grievance and rejected the Union's
request to see the pay records. According to present Union
President Graf, Clemons' refusal was based on an assertion
that some part of the records were "classified." Clemons
did not deny rejecting the Union's request. He testified that
he offered to open the files of those individuals whom the
Union could name as posing problems in the administra-
tion of the merit system and that the Union refused to
name anyone. He further testified that he believed that the
merit system was not embodied in the collective-bargaining
agreement. On October 26, 1976, the Union withdrew the
Whitmore grievance, expressly because they had been
denied access to the requested forms. The Union's letter
specifically charged that the refusal hampered the Union as
it was unable either to properly prepare the grievance for
arbitration or to properly administer the contract.
On March 24, 1977, Graf wrote Clemons, repeating the
Union's request for access to the records. The letter, stating
that bargaining unit members had complained about the
administration of the merit system, specified the request as
follows:
[I ]t is necessary that we be made privy to all company
records concerning the effectuation of the merit pay
provisions for non-incentive employees. We want to
know the names of all persons subject to the merit pay
provisions, their date of hire, their wage rate at time of
hire, any and all changes in their wage rate since the
inception of the current contract, the reasons for such
action, the date of any and all reviews given each and
every employee subject to these provisions, the action
taken pursuant to these reviews and the reasons for
same.
If, for some reason, you feel that the Union is not entitled
to this information or desire to furnish same in some
manner other than simply photocopying these existent
specifically refute their testimony although recalled as a rebuttal witness,
and the probabilities of the situation, I would find the testimony of Strand
and Allen to be credible. Although not an issue discussed at length in
negotiations, I find that this request was made in negotiations, and rejected
by the Respondent.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ledgers and 10-102 records of all non-incentive employees,
we would appreciate your advising us the nature and basis
for your refusal to provide the data in this extant form, why
you feel same can be collated just as accurately and easily
by another method and the form in which you propose to
provide said information.
This request was rejected, in toto.
In the course of his testimony, Graf explained that in
addition to the Union's desire to review this information to
police the existing contract and evaluate complaints and
grievances, it sought the information to prepare for
negotiations. This latter reason had not previously been
mentioned to the Respondent. The Union and the Respon-
dent are currently in negotiations for a new collective-
bargaining agreement.
C. Analysis and Conclusions
The general proposition of law governing requests for
information by collective-bargaining representatives has
been iterated by the Board throughout a long line of cases,
most recently in Andy Johnson Co., Inc., 230 NLRB 308
(1977). There the Board stated:
It is well established that wage and employment
information pertaining to bargaining unit employees is
presumptively relevant for the purposes of collective
bargaining and contract administration inasmuch as
such information concerns the heart of the employer-
employee relationship, and that such information must
be provided upon request to the unit employees'
bargaining representative. 2
Such presumptively relevant information includes the
names of recipients of merit increases, and the dates and
amounts of such increases. The Item Company, 108 NLRB
1634, 1639 (1954).
The Respondent contends that by unsuccessfully negoti-
ating for the information now sought by this complaint,
and by agreeing to a contractual provision providing that
other information would be furnished, the Union waived
its right to this information. However, the Union's right to
this information is derived from the statute, not the
contract, and, while that right may be waived, any such
waiver must be in "clear and unmistakable language,"
expressed either in the bargaining process or agreement.
Univis, Inc., 169 NLRB 37 (1968). As was found in Univis, I
find that neither the Union's failure to secure agreement to
the furnishing of the merit raise information, nor the
Respondent's agreement to furnish other data, constitutes
such a "clear and unmistakable" waiver. See also Perkins
Machine Company, 141 NLRB 98, 102 (1963), in which it
was stated:
Even when the parties consciously explore the matter
during negotiations and the contract fails to touch upon
it, something more is required before the union will be
held to have bargained away its rights, namely, a
conscious relinquishment by the union, clearly intend-
ed and expressed.
The Respondent has relied on International News Service
Division of the Hearst Corporation, 113 NLRB 1067 (1955),
in support of its contention that the Union's conduct
herein constituted such a "clear and unmistakable" waiver.
As was noted in Perkins Machine, supra, Hearst involved an
"express oral abandonment of [a] more extensive demand
for information during negotiations .... " No such
express abandonment is present herein. Moreover, as the
Board noted in Hearst, the parties therein had a longstand-
ing collective-bargaining relationship and the contract
reached in those negotiations "followed the scheme of the
earlier agreements." No such relationship or pattern is
present in the instant case.
The Respondent further contends that the information it
is required to furnish pursuant to the contract's seniority
provision, which includes a listing of the employees'
current rate of pay, satisfies the Union's need for informa-
tion. The short answer to this contention is that the Union
seeks, and is entitled to, more than a listing of current
wages for all employees. Reference to such a list for the
information it seeks would require the Union to separate
out the incentive employees, collate present and past lists
to determine whether any raises had been granted, would
not reflect whether a raise was given pursuant to the merit
program or for some other reason, and would not reveal
the factors considered in granting a merit raise. That
information would, therefore, be totally inadequate to meet
the Union's expressed purposes, contract administration,
and preparation for negotiations. Moreover, the Respon-
dent cannot impose such a burden on the Union when the
relevant information sought is available in a more conve-
nient and reliable form, as it is here in the 10-102 forms.
See The Kroger Company, 226 NLRB 512 (1977); Ware-
house Foods, a Division of M. E. Carter and Company, Inc.,
223 NLRB 506 (1976).
I also find, contrary to the contentions of the Respon-
dent, that compliance with the Union's demand would not
be so unduly burdensome as to relieve it of the obligation
to comply therewith. At most, according to the Respon-
dent's estimates, it would require approximately 100 hours
to comply with the Union's demand, if that demand were
construed in its most onerous terms, i.e., for examination of
the files of all persons who have occupied nonincentive
positions since the inception of the contract. Less time, of
course, would be required if the request were limited to the
40 to 50 persons currently so employed. The Respondent
estimated that it would take the Union 8 to 10 minutes to
peruse the file of each employee. The Respondent did not,
prior to hearing, object to the allegedly burdensome nature
of the request, insist upon payment of the expenses of
compliance, or seek to limit the scope of the Union's
demand. Moreover, as the records are available in the
format desired by the Union, and require no collation or
copying by the Employer, the burdensome aspect of
compliance, if any, is upon the Union not the Respondent.
2 230 NLRB at 309. See also the cases cited therein at fn. 2.
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GLOBE-UNION INC.
The Respondent could meet its obligation by handing the
files to the Union, little more is required of it.
Throughout the pendency of the Union's information
request, and at hearing,3 the Respondent contended that
the 10-102 forms contained "classified," privileged, or
confidential information, such as occasional references to
marital discord or the reasons for an employee's discharge.
Such alleged confidentiality is not a defense to an obliga-
tion to furnish relevant wage data. Emeryville Research
Center, Shell Development Company, a Division of Shell Oil
Company, 174 NLRB 114, 121 (1969); The Ingalls Ship-
building Corporation, 143 NLRB 712, 717 (1963). As the
Board stated in Cowles Communications, Inc., 172 NLRB
1909, 1910 (1968): "[W]e forsee no less responsible hand-
ling of sensitive data by union officials than by Respon-
dent."
Finally, the Respondent contends that it was not obligat-
ed to furnish information relative to the merit system as
that system operated solely at management's discretion,
was separate from the terms of the collective-bargaining
agreement, and was outside the purview of the grievance-
arbitration procedure. Resolution of this question in the
manner sought by the Union does not require a determina-
tion that grievances over the merit system are arbitrable, as
contended by the Respondent. The Union had both a
contractual and a statutory role in resolving merit system
complaints, the Respondent recognized the Union in that
role, and the Union sought the information both in regard
to that role and in order to assist it in preparation for the
next round of collective bargaining. Moreover, it is settled
law that the employer's right to unilaterally take action
with regard to such items as merit increases does not, "ipso
facto establish a waiver of the Union's right to obtain
information as to the merit increases thus unilaterally
granted." N.L.R.B. v. The Item Company, 220 F.2d 956, 959
(C.A. 5, 1955); United States Postal Service, 203 NLRB 916
(1973).
Accordingly, I conclude that by failing and refusing to
make available to the Union the requested information
concerning the merit system and its administration, as
requested in the Union's letter of March 24, 1977, the
Respondent has violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By refusing to make available to the Union records
and information relevant and necessary to the performance
of its duties as statutory bargaining representative of the
Respondent's employees, the Respondent has violated
Section 8(a)(5) and (1) of the Act.
2. The unfair labor practice set forth in paragraph 1,
above, affects commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) as set forth above, I recommend that they
cease and desist from such or related conduct. Affirmative-
ly, in order to effectuate the policies of the Act, I
recommend that the Respondent be required to furnish the
Union with the following information:
The 10-102 forms and ledger sheets which show the
names of all bargaining unit employees subject to the
merit pay provisions contained in the attachment to the
1975-1977 collective-bargaining agreement, their date
of hire, wage rate at time of hire, all changes in their
wage rate since the inception of the collective bargain-
ing agreement, the reasons for such actions, the date of
all reviews given each employee subject to the merit
pay provisions, the actions taken pursuant to said
reviews, and the reasons for such actions.
I also recommend that the Respondent be required to post
an appropriate notice to employees.
Charging Party seeks additional remedial measures,
based on the Respondent's alleged "willful and egregious
violation of the Act." Included in the remedy sought are: a
reading of the notice to assembled employees by the
personnel manager, mailing of the notice to each employ-
ee's home, the payment of litigation expenses, and the
payment of such merit increases as would have been paid if
each employee had been properly reviewed under the terms
of the merit system. Without condoning the Respondent's
serious violation of the Act, or its apparent lack of
understanding of the extent of its bargaining obligation, I
do not consider this case to warrant the extraordinary
remedies proposed by the Charging Party. The record does
not reveal this to be the kind of case wherein dispersal of
the employees requires mailing of the notices to them in
order to assure them of their rights. Neither does the record
reveal the Respondent to be such a recalcitrant violator of
the Act that a public reading of the notice by the
Respondent might be required to dissipate the effects of the
unfair labor practice. Cf. J.P. Stevens & Co., Inc., 183
NLRB 25 (1970), enfd. 461 F.2d 490 (C.A. 4, 1972).
Further, I do not find the defenses the Respondent has
raised herein to be so "patently frivolous" as to warrant the
assessment of litigation expenses. Compare Kings Terrace
Nursing Home and Health Facility, 227 NLRB 251 (1977),
and Tiidee Products, Inc., 194 NLRB 1234 (1972). Finally,
noting that there appears to be no time limits upon the
processing of union and employee complaints in regard to
the merit pay system, I deem the Union's request for a
make-whole remedy for those employees who did not
receive merit increases to be unnecessary to remedy the
violation found. I
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
3 Neither the alleged burdensomeness of the Union's request, nor the
alleged confidentiality of the information sought, was argued by the
Respondent in its brief.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 4
The Respondent, Globe-Union, Inc., St. Joseph, Missou-
ri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to supply Local 1116, Interna-
tional Union of Electrical, Radio and Machine Workers,
AFL-CIO, CLC, with information relevant and necessary
to the performance by such union of its obligations as
bargaining representative of the Respondent's employees.
(b) In any like or related manner interfering with the
efforts of the Union to bargain collectively with it on
behalf of the employees in the appropriate unit.
2. Take the following affirmative action which is
necessary in order to effectuate the policies of the Act:
(a) Furnish Local 1116, International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO, CLC, as
exclusive representatives of all employees in the appropri-
ate unit, with the following information heretofore request-
ed by the Union: the 10-102 forms and ledger sheets which
show the names of all bargaining unit employees subject to
the merit pay provisions contained in the attachment to the
1975-77 collective-bargaining agreement, their date of hire,
wage rate at time of hire, all changes in their wage rate
since the inception of the collective-bargaining agreement,
the reasons for such actions, the dates of all reviews given
each employee subject to the merit pay provisions, the
actions taken pursuant to said reviews, and the reasons for
said actions.
(b) Post at its plant in St. Joseph, Missouri, copies of the
attached noticed marked "Appendix." Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by a representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to plant employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 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.
5 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Local
1116, International Union of Electrical, Radio and
Machine Workers, AFL-CIO, CLC, as the exclusive
representative of our employees in the appropriate unit
by failing and refusing upon request to furnish them
with information pertaining to the administration of the
merit pay system applicable to the nonincentive hourly
paid employees.
WE WILL NOT in any like or related manner interfere
with the efforts of the Union to bargain collectively on
behalf of the employees in the appropriate unit.
WE WILL furnish Local 1116, International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
CLC, as exclusive bargaining representative of all
employees in the appropriate unit, with the following
information for its use in administering the merit pay
system and collective bargaining: the 10-102 forms and
ledger sheets which show the names of all bargaining
unit employees subject to the merit pay provisions
contained in the attachment to the 1975-77 collective-
bargaining agreement, their date of hire, wage rate at
time of hire, all changes in their wage rate since the
inception of the collective-bargaining agreement, the
reasons for such action, the date of all reviews given
every employee subject to the merit pay provisions, the
actions taken pursuant to said reviews, and the reasons
for said actions.
GLOBE-UNION INC.
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