H. J. Scheirich Co.

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 687 (N.L.R.B. 1990)

687
300 NLRB No. 77
H. J. SCHEIRICH CO.
1 Member Oviatt notes that, although there may be some question whether
the Union is entitled to receive the requested elemental times included in the
standards which are not yet in effect for 2 years pursuant to sec. 5 of art. XIX
of the labor agreement, because the Respondent did not raise that issue it has
not been considered.
1 Unless otherwise noted, all dates occurred in 1989.
2 The complaint alleges, the Respondent admits, and I find that H. J.
Scheirich Company is an employer engaged in commerce within the meaning
of Sec. 2(2), (6), and (7) of the Act. The complaint alleges, the Respondent
admits, and I also find that the Carpenters Union, Local 2294, is a labor orga-
nization within the meaning of Sec. 2(5) of the Act.
3 The General Counsel’s exhibits admitted into evidence will be referred to
as G.C. Exh., followed by the exhibit number; Respondent’s exhibits will be
referred to as R. Exh., followed by the exhibit number.
H. J. Scheirich Company and United Brotherhood
of Carpenters and Joiners of America, Local
No. 2294, AFL–CIO. Case 9–CA–26688–2
October 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 17, 1990, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, H. J. Scheirich Company,
Louisville, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
David L. Ness, Esq., for the General Counsel.
Walter L. Sales, Esq. (Ogden, Sturgill & Welch), of Louis-
ville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Pursuant to a
charge filed on July 31, 1989,1 by the United Brotherhood
of Carpenters and Joiners of America, Local No. 2294, AFL–
CIO (the Union or Local 2294), a complaint issued on Sep-
tember 14 alleging that the Respondent, H. J. Scheirich Com-
pany, violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely an-
swer denying that it committed any unfair labor practices.
This matter was tried before me in Louisville, Kentucky,
on December 5. Thereafter, the parties filed briefs which
have been duly considered. Upon the entire record, including
the demeanor of the witnesses, I make the following findings
of fact, conclusions of law, and recommendations.2
FINDINGS OF FACT
I. ALLEGED VIOLATION OF SECTION 8(A)(5)
A. The Terms of the Collective-Bargaining Agreement
The facts in this case can be briefly stated and are, for the
most part, uncontested. The Respondent, a manufacturer of
kitchen cabinets, employs approximately 235 employees at
its two Louisville plants. The Union, which represented these
employees since at least the mid-1960s, has entered into suc-
cessive collective-bargaining agreements with the Respond-
ent, with the most current one effective from September 15,
1987, to September 14, 1990.
For at least several decades, the parties’ labor agreements
have provided for an incentive system of wages which per-
mits workers to earn wages above their base rates by exceed-
ing production quotas set for ‘‘standard hours.’’ (G.C. Exh.
2 at 31)3
Article XIX of the current contract sets forth in 10 sec-
tions the parties’ agreement concerning the incentive system.
The first few sections make clear that the Company shall be
responsible for setting work standards using professional job
evaluation techniques such as methods-time-measurement
studies, so that each operation or function involved in manu-
facturing Respondent’s products is measured accurately.
Sections 5 and 6 of article XIX address the duration of the
standards and the circumstances under which their restudy
may occur. Specifically, a permanent standard remains in ef-
fect for 2 years unless certain changes in production condi-
tions make a restudy of the particular operation appropriate.
Sections 6 and 7 set forth the circumstances under which
an employee may challenge a standard. Verbatim, they state:
When an employee considers a new or changed per-
manent standard to be too low or too high, he shall re-
port it within seven (7) days to his supervisor in writ-
ing, who will ask for a review of the standard by the
standards department. If the trouble is not found after
the employee has sincerely tried for two (2) weeks to
earn with the standards the job will then be re-studied
If after the job is re-studied and the employee con-
siders the permanent standard too low or too high he
will then resort to the grievance procedure.
Article XIX concludes with the provision that permanent
standards will be reviewed under two circumstances only:
changed working conditions, or an employee complaint that
a new or changed standard is inappropriate.
B. The Information Request Is Denied
By letter dated February 3, Union President William
Hampton requested Respondent’s chief operating officer,
Raymond Heitz, supply the following information related to
the incentive standards:
The time study data elements and complete methods
description of the operations with the appropriate ele-
mental times from the tables of standard data that the
company implemented for the C.P.S., also the . . . as-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sembly coating systems [and] shipping [departments].
[G.C. Exh. 3.]
Hampton explained in the letter that the Union needed the
information so that it could ‘‘review the standards to make
sure that there are no overlapping elements and that all por-
tions of the work have been included in the standard.’’ (G.C.
Exh. 3.) In an effort to make the request less burdensome,
Hampton proposed that the material could be furnished by
‘‘copies or examination.’’ (G.C. Exh. 3.)
In a reply letter of February 6, Heitz refused to comply
with the request, offering the following three reasons:
(l) [S]uch a request is contrary to contract specifica-
tions regarding standards, (2) that information is not es-
sential to the fulfillment of your duty to represent the
employees, and (3) the information requested is so ex-
tensive that production would be too burdensome and
oppressive. [G.C. Exh. 4.]
In a second letter dated March 20, Hampton asked the Re-
spondent to supply the same material identified in the pre-
vious request. On this occasion, Hampton wrote that the time
study data was needed to enable the Union ‘‘to intelligently
evaluate standard data rates fixed by [Respondent] and to
properly administer the contract during the whole period of
its term.’’ (G.C. Exh. 5.)
Heitz again responded by letter dated March 23, denying
the request for the same reasons given in his previous an-
swer. Amplifying on these reasons, Heitz testified that article
XIX was negotiated in the mid-1960’s to provide an exclu-
sive method by which employees could obtain a review of
an objectionable standard without first resorting to the griev-
ance system. Heitz further stressed that under article XIX,
only the employee is given the right to question the stand-
ards; nothing in the collective-bargaining agreement gives the
Union this right or entitles the Union to such a massive
amount of data.
In addition, Heitz pointed out that voluminous data would
have to be provided for each of the many tasks involved in
performing the numerous jobs for which information was re-
quested. He maintained, that complying with the Union’s re-
quest would be extremely burdensome particularly since
within the past few months, a severe personnel reduction had
greatly depleted Respondent’s clerical staff.
Hampton acknowledged that the Union was not requesting
the data because of a pending grievance challenging par-
ticular standards. Rather, based upon complaints from em-
ployees in each of the departments mentioned in the letters
of February 3 and March 6, the Union was seeking the infor-
mation to determine whether there were problems which
would warrant filing grievances.
II. DISCUSSION AND CONCLUDING FINDINGS
A. General Principles
Under well-settled principles, an employer is required to
supply its employees’ exclusive bargaining agent with re-
quested relevant information which is reasonably necessary
to the union’s performance of its duties, including its obliga-
tion to administer the collective-bargaining agreement. NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The Board and the courts
take a broad view of relevance, likening it to discovery rath-
er than trial standards. Accordingly, the information must be
disclosed unless it plainly appears irrelevant. Acme Industrial
Corp., supra at 437; NLRB v. Item Co., 220 F.2d 956 (5th
Cir. 1955).
Neither the Board nor the courts insist that the information
sought must be tied to current collective-bargaining negotia-
tions or an existing controversy in order to be relevant. Thus,
in Whitin Machine Works, 108 NLRB 1537 (1954), affd. 217
F.2d 593 (4th Cir. 1954), the Board held the proper rule ‘‘to
be that wage and related information pertaining to employees
in the bargaining unit, should, upon request, be made avail-
able to the bargaining agent without regard to its immediate
relationship to the negotiation or administration of the collec-
tive-bargaining agreement.’’ Moreover, because the grievance
procedure is a part of the continuous collective-bargaining
process, a union is entitled to information so that it may in-
telligently process employee complaints. General Motors
Corp., v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983). How-
ever, a grievance need not necessarily be pending, for the po-
tentially relevant information may help the union evaluate
claims and sort out those which have merit from those which
do not. Safeway Stores, 236 NLRB 1126 fn. 1 (1978);
T.R.W., Inc., 202 NLRB 729 (1973).
Further, the cases uniformly hold that information con-
cerning wages, including incentive earnings, is presumptively
relevant. West Point Pepperell, 290 NLRB 1242, 1244
(1988). General Motors Corp., supra at 1089.
B. The Union Requested Relevant Information
Under the above-cited cases, it is evident that the Union’s
request for data underlying the formation of standards used
to calculate incentive pay was presumptively relevant, even
though no grievance was pending and negotiations for a new
agreement were not imminent. Given such a presumption, it
could be argued that the Union has no obligation to prove
the relevance of its request. Yet, here, the Union did present
its reasons, stating in its first letter of February 3, that it was
seeking the information so that it could ‘‘review the stand-
ards to make sure that there were no overlapping elements
and that all aspects of a job were taken into account in de-
veloping a standard.’’ Later, on March 20, the Union added
that it sought the time study data ‘‘to enable [it] to intel-
ligently evaluate standard data rates fixed by the . . . Com-
pany. . . .’’ In addition, the union president supported the
Union’s request by maintaining that employee complaints
had been forwarded to him regarding the standards. Hamp-
ton’s inability to recall more than one name of a complaining
employee hardly proves that he did not receive such com-
plaints either directly or through the shop stewards, just as
he alleged. After reviewing the requested information, the
Union might decide that the employee complaints were in-
valid, but what better way for the Union to determine how
best to proceed, or whether to proceed at all, than by review-
ing the underlying data. Accordingly, I find that the informa-
tion sought was potentially relevant to the Union’s perform-
ance of its duty to administer and police the collective-bar-
gaining agreement.
689H. J. SCHEIRICH CO.
4 The Respondent apparently assumes that under art. XIX, a restudy must
take place before the grievance procedure is invoked. However, an argument
could be made that art. XIX applies only when an employee contests a new
or changed permanent standard but has no applicability when the Union choos-
es to dispute a standard.
5 Respondent claims in its brief that in accordance with past practice, em-
ployees could informally request a restudy without necessarily complying with
art. XIX, sec. 6. However, although the record is somewhat ambiguous on this
point, I understand Chief Operating Officer Heitz’ testimony to mean that art.
XIX supplanted past practice, so that any requests for restudy were governed
by its provisions. (See transcript at pp. 112–113.)
C. The Respondent’s Defenses
The Employer does not seriously contend that the re-
quested information was not presumptively relevant. Instead,
it defends its refusal to disclose for the three reasons offered
in its responses to the Union: (1) the information was not
pertinent to a pending grievance or to contract negotiations;
(2) the Union effectively waived any right to request the data
and, (3) the request was oppressive and burdensome. As dis-
cussed further below, I conclude that the Respondent’s de-
fenses are unpersuasive.
(1) The Respondent apparently assumed that unless a
grievance was pending or that contract negotiations were im-
minent, the Union had no purpose or right to obtain data.
Thus, it wrote that the ‘‘information is not essential to the
fulfillment of your duty to represent the employees.’’ Well-
settled case law cited above makes it unnecessary to belabor
the point that no controversy need exist nor must bargaining
be underway to justify the Union’s entitlement to the re-
quested material.
The Respondent argues in its brief, that even if the Union
obtained the material and found the standards inappropriate,
the collective-bargaining agreement would preclude the filing
of a grievance until a restudy was conducted. The Respond-
ent reasons that since a restudy would produce new time
study elements, the information provided to the Union would
become worthless.
The Respondent misses the point by failing to understand
the possible purposes to which the requested information
could be put. After reviewing the data, the Union could
choose to file a grievance, or decide to take no action at all.
In either case, the information could play a useful role either
by preventing the filing of a nonmeritorious grievance or by
supporting a well-grounded request for a restudy.4 The fact
that new data would be generated by a restudy would not ob-
viate the initial utility to the Union of the original data.
(2) The Respondent further contended that the Union’s re-
quest was ‘‘contrary to contract specifications regarding
standards.’’ Respondent’s contention is premised on the the-
ory that the Union waived its right to question any matter
related to the wage incentive standards by agreeing to article
XIX of the collective-bargaining agreement.
In order to find that a union has waived a statutorily guar-
anteed right, ‘‘clear and unmistakable proof is required that
the union consciously yielded that right. See Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). Neither the
Board nor the courts accept contractual silence as proof of
clear and unmistakable waiver. See General Motors Corp. v.
NLRB, supra at 1091; Ciba-Geigy Pharmaceuticals Division,
264 NLRB 1013, 1017 (1982).
Here, the Respondent maintains that in order to reduce the
number of grievances filed, the parties negotiated a detailed
article in their collective-bargaining agreement, which was
intended to be the exclusive method by which any aspect of
the wage incentive system could be challenged. Respondent’s
argument rests on the notion that by consenting to one meth-
od allowing individual employees to seek review of the in-
centive wage system, the Union impliedly relinquished its
collective right to question those matters or to request infor-
mation about that system.
Plainly, article XIX, section 6, speaks solely of the em-
ployee’s right to challenge a standard, and only when that
standard is new or changed. Section 10 further provides that
standards shall be subject to review only for the reasons set
forth in sections 5 and 6. Although this final section may
limit the procedures available to the Union should it decide
to challenge the standards, nothing in the article expressly
proscribes the Union’s right to request data which will help
it to intelligently evaluate the standards that have been set.5
To find proof of waiver from this contractual silence would
run counter to all precedent requiring that relinquishment be
expressed in clear and unmistakable language. Stated in
somewhat different terms, the Union did not waive its statu-
tory right to the requested information by executing a con-
tract providing that the Respondent would furnish something
less. West Point Pepperell, supra at 1224. In sum, I conclude
that the Union has not clearly and unmistakably waived its
right of access to the requested documents related to the
wage incentive standards.
(3) Lastly, the Respondent urges that producing the re-
quested information would be ‘‘too burdensome and oppres-
sive.’’ It is undisputed that the Union’s request calls for pro-
duction of massive amounts of material. To make matters
worse, due to reductions in the number of administrative and
clerical employees, Respondent submits that it has few em-
ployees available to gather the data for the Union.
The practical disadvantages of responding to the Union’s
request cannot be discounted. However, it is important to
bear in mind that in both letters to the Respondent, the
Union expressed its willingness to review the information by
examination or by copying. I take the Union’s offer to mean
that it would be willing to prepare its own copies or simply
inspect the material at the site. In either case, the role of Re-
spondent’s personnel could be limited to helping the Union
locate or retrieve the appropriate information. This should
not be a herculean effort since Industrial Engineering Man-
ager Devore testified that all the time study data was stored
in separate files in one office with the data categorized ac-
cording to individual operations by department. In the final
analysis, although disclosure may impose strains on some
personnel, such considerations do not outweigh the Union’s
right to inspect the information requested.
Based on the foregoing, I conclude that Respondent has
failed to justify its refusal to supply the data requested by
the Union which is relevant to its obligation to police the
collective-bargaining agreement. It follows that Respondent’s
refusal violates Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
7 If 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
3. At all times material, the Union has been the exclusive
bargaining representative of employees in a unit described
below, which is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All production, maintenance, truck drivers, watchmen-
firemen employees at the [Respondent’s] Plant l . . .
and Plant 2. . . .
4. By failing and refusing to provide the Union with the
information requested in its letters of February 3 and March
20, 1989, which are relevant and appropriate to its perform-
ance as the employees’ bargaining representative, Respondent
has violated Section 8(a)(1) and (5) of the Act.
5. The unfair labor practice set forth in paragraph 4 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)(1)
and (5) as set forth above, I recommend that it be required
to cease and desist from such conduct or related conduct. Af-
firmatively, to effectuate the purposes of the Act, I rec-
ommend that Respondent be required to allow the Union to
copy or examine the information requested in its letters of
February 3 and March 20, 1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, H. J. Scheirich Company, Louisville,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to timely furnish the United Broth-
erhood of Carpenters and Joiners of America, Local No.
2294, AFL–CIO, with requested information which is rel-
evant and necessary to the performance of the Union’s obli-
gations as exclusive bargaining representative of Respond-
ent’s employees.
(b) In any like or related manner interfering with the
Union’s efforts to bargain collectively with it on behalf of
the employees in the appropriate unit.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish Carpenters Local No. 2294 for copying or ex-
amination, the following information which it previously re-
quested: the time study data elements and complete methods
description of the operations with the appropriate elemental
times from the tables of standard data implemented for the
C.P.S. and for the assembly coatings system and shipping de-
partments.
(b) Post at its plants in Louisville, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees cus-
tomarily are posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material .
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with United
Brotherhood of Carpenters and Joiners of America, Local
No. 2294, as the exclusive representative of our employees
in an appropriate unit by failing and refusing to timely pro-
vide requested information for examination and copying
which is relevant to administering its collective-bargaining
agreement with us.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed
by Section 7 of the National Labor Relations Act.
WE WILL furnish to the Union for inspection or copying,
in a timely manner, the information requested in its letters
of February 3 and March 20, 1989, so that it may properly
administer its collective-bargaining agreement with us.
H. J. SCHEIRICH COMPANY