Hugh J. Baker & Co.

National Labor Relations Board - Board Decisions

May 20, 1955

112 N.L.R.B. 828 (N.L.R.B. 1955)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hugh J. Baker & Company ; Engineering Metal Products Corpo-
ration ; Geiger & Peters , Inc.; Central States Bridge & Struc-
tural Company ; and Fabricators Bargaining Committee (Un-
incorporated ) and Shopmen 's Local Union No. 529, Interna-
tional Association of Bridge , Structural and Ornamental Iron
Workers, AFL . Case No. 35-CA-527. May 20, 1955
DECISION AND ORDER
On November 24, 1954, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting brief
and also requested oral argument; the request for oral argument is
hereby denied as, in our opinion, the record and the exceptions and
brief adequately present the issues and the positions of the parties.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions' of the Trial Examiner, with the following modifications.
1. The single issue in this case is the Respondents' obligation to
furnish the Union information concerning their employees' hourly
pay rates. In their answer to the complaint herein, the Respondents
claimed to lack knowledge of the Union's status as the majority rep-
resentative of their employees in the appropriate unit; they did not,
however, raise that question at any time prior to the filing of their
answer herein. Instead, they continued to recognize and bargain with
the Union and, following the filing of the charge herein, executed
contracts applicable to the employees historically represented by the
Union. Under all the circumstances of this case, we find that the
Union represented a majority of the employees in the appropriate unit.
2. We find, in agreement with the Trial Examiner, that the in-
formation sought by the Union was reasonably available only from
the Respondents' records. We do not, however, adopt his comments
concerning the desirability of the "reasonably available" standard.
3. We do not agree with the Trial Examiner's apparent feeling
that the Respondents' argument concerning the applicability of Sec-
I The Trial Examiner's recommended order is modified to make explicit the Respondents'
obligation to furnish upon request information linking hourly pay rates with the names
of individual employees in the appropriate unit
112 NLRB No. 107.
HUGH J. BAKER & COMPANY 829
tion 8 (d) of the amended Act to the issue in this case was so clearly
lacking in merit as to warrant its summary rejection. Nor can we
find that this argument, in its present context, has been directly con-
sidered either by this Board or by the courts. We do, however, agree
with the 'Trial Examiner's ultimate conclusion that the enactment
in Section 8 (d) of a definition of collective bargaining was not in-
tended to, and did not, overrule or otherwise affect Board and court
decisions concerning an employer's obligation to furnish information
to the representative of its employees.
As the Respondents point out, decisions of this Board and the
courts, establishing the obligation to furnish information as part of
the collective-bargaining process, long antedate the enactment of Sec-
tion 8 (d). In considering the 1947 amendments to the Act, the Con-
gress considered, inter cilia, the changes, if any, to be made in the Act
affecting the Board's and the courts' decisions on matters relating to
the obligation to bargain collectively. The original House bill, indeed,
would have overruled many prior Board and court decisions in that
field.2 The Senate bill, however, and the amendments as finally
enacted, were more limited in scope and, in their substantive definition
of collecting bargaining,3 affected only those prior decisions involving
failure to agree to a proposal or to make a concession.' Otherwise, that
definition was "more or less declaratory of the law as it had been ex-
pounded in judicial decisions under the original Act." 5 We conclude,
accordingly, that the enactment of Section 8 (d) of the Act did not
relieve the Respondents of their obligation to supply upon request to
the statutory representative of their employees relevant wage and
other proper information contained in their records, in order to snake
possible "the full development of the collective bargaining negotia-
tions which the Statute is intended to achieve." 6
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Hugh J. Baker
Company, Engineering Metal Products Corporation, Geiger &
Peters, Inc., Central States Bridge & Structural Connpany, and Fabri-
2Section 2 (11), it R 3020, 801h Cone, 1st Sess , see House Report No 245 on I3 B.
3020, SOth Cong 1st Sess at pp 7, 19-23
3 The amendments affecting obligations during the term of an existing agicement are not
maternal to the issues of this case
¢ ee SS nato Repon t No 105 on S 1120, 80th Cong , 1st Sess , at p 2-1, House Conference
Repoi t No 510 on i i R 3020, SOf h Cong , I st Sess , at pp 34-35 see also, N. L P B V
United Clay .limes Chi poi atnon, 219 F 2d 120, 124-125 (C A 6)
sN L It. B v Reed d Prince Manufaotnnnng Company, 205 F. 2d 131, 134 (C A 1),
cert denied 340 U, S 887
See Whutin 3[ac111mmc 117o2As, 108 NLRB 1537, enfd 217 F. 2d 593 (C A 4), cert denied
349 U S 905
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cators Bargaining Committee (Unincorporated), Indianapolis,
Indiana, their officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Shopmen's Local Union
No. 529, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL, by failing and refusing, when requested,
to furnish such labor organization with the hourly pay rate of each
individual employee in the appropriate unit, linked with the name
of each such employee.
(b) In any like or related manner interfering with the efforts of
such labor organization to bargain collectively on behalf of the em-
ployees in the aforesaid appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, furnish the above-named labor organization with
the hourly pay rates of each individual employee in the appropriate
unit, linked with the names of each such employee.
(b) Post at the Respondents' individual plants, in Indianapolis,
Indiana, copies of the notice attached hereto and marked "Appen-
dix A."' Copies of said notice, to be furnished by the Regional Di-
rector for the Ninth Region (Cincinnati, Ohio), shall, after being duly
signed by the Respondents' individual representatives, be posted by
the Respondents immediately upon receipt thereof, and be maintained
by their for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents, and each
of them, to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order what steps the Re-
spondents, and each of them, have taken to comply herewith.
7In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WTE WILL, upon request, furnish to Shopmen's Local Union No.
529, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL, as the exclusive representative of
HUGH J. BAKER & COMPANY 831
our employees in the bargaining unit described below, the hourly
pay rate of each individual employee in that unit, linked with
the name of each such employee. The bargaining unit is :
All production and maintenance employees at the Indianapo-
lis, Indiana, plants of Hugh J. Baker & Company, Central
States Bridge & Structural Company, Geiger & Peters, Inc.,
and Engineering Metal Products Corporation, excluding
office clerical employees, erection, installation, or construction
employees, polishers and platers, guards, and supervisors as
defined in the Act.
HUGH J. BAKER & COMPANY
Dated---------------- By-------------------------------------
(Representative) (Title)
CENTRAL STATES BRIDGE & STRUCTURAL COMPANY
Dated---------------- By-------------------------------------
(Representative) (Title)
GEIGER & PETERS, INC.
Dated---------------- By-------------------------------------
(Representative) (Title)
ENGINEERING METAL PRODUCTS CORPORATION
Dated---------------- By-------------------------------------
(Representative) (Title)
1+ ABRICATORS BARGAINING COMMITTEE
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed March 18, 1954, and subsequently amended 1 by Shop-
men's Local Union No. 529 , International Association of Bridge , Structural and
Ornamental Iron Workers , AFL, herein called the Union , the General Counsel of
the National Labor Relations Board , herein called the General Counsel 2 and the
Board, respectively , by the Regional Director for the Ninth Region (Cincinnati , Ohio),
issued its complaint dated August SO, 19)4, against Hugh J. baKer & Lompany, nugi-
neering Metal Products Corporation, Geiger & Peters, Inc., Central States Bridge &
Structural Company, and Fabricators Bargaining Committee, herein collectively re-
ferred to as the Respondents , alleging in substance that the Respondents : ( 1) On or
about January 28 , 1954, and dates subsequent thereto, refused to bargain collectively
in good faith with the Union " in that they refused to supply on repeated request, the
hourly pay rate of each individual employee " in an appropriate unit comprising cer-
tain classifications of employees of all of the Respondent Employers in which the
Union was the recognized bargaining agent for such employees , thereby engaging in
1 The subsequent amendments were received by the Regional Office on August 11, 1054,
and August 20, 1954
2 This term specifically includes the counsel appearing for the General Counsel at the
hearing.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) (7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Copies of the complaint, the charges, and the notice of hearing were
duly served upon each Respondent and the Union.
The Respondents duly filed an answer wherein certain allegations of the complaint
were admitted but the commission of any unfair labor practices was denied.
Pursuant to notice, a hearing was held on September 28 and 29, 1954, at Indian-
apolis, Indiana, before the duly designated Trial Examiner. The General Counsel,
Union, and the Respondents were represented at the hearing by counsel or repre-
sentatives. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all parties Briefs
were received from the General Counsel and the Respondents on November 1, 1954.
Upon the entire record of the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Hugh J. Baker & Company is a corporation organized and existing under the laws
of the State of Indiana, with its principal office and place of business at Indianapolis,
Indiana. Said Respondent is engaged in the fabrication of iron, steel, and metal
products. During the past 12-month period, the total value of goods produced or
handled for out-of-State shipment or services performed outside the State of Indiana
by said Respondent has been in excess of $50,000 and the total value of goods re-
ceived directly from out of the State during such period by said Respondent was
approximately $500,000.
Engineering Metal Products Corporation is a corporation organized and existing
under the laws of the State of Indiana, with its principal office and place of business
at Indianapolis, Indiana. Said Respondent is engaged in the fabrication of iron,
steel, and metal products. During the past 12-month period, the total value of goods
produced or handled for out-of-State shipment or services performed outside the
State of Indiana by said Respondent has been in excess of $50,000. The total value
of goods received directly from out of the State during such period by said Respond-
ent was in excess of $425,000 but less than $475,000.
Central States Bridge & Structural Company is a corporation organized and
existing under the laws of the State of Indiana, with its principal office and place of
business at Indianapolis, Indiana. Said Respondent is engaged in the fabrication
of iron, steel, and metal products. During the past 12-month period, the total value
of goods produced or handled for out-of-State shipment of services performed out-
side the State of Indiana by said Respondent has been in excess of $50,000 and the
total value of goods received directly from out of the State during such period by
said Respondent was approximately $375,000.
Geiger & Peters, Inc , is a corporation organized and existing under laws of the
State of Indiana, with its principal office and place of business at Indianapolis, In-
diana. Said Respondent is engaged in the fabrication of iron, steel, and metal prod-
ucts. During the past 12-month period, the Respondent has made no sales of goods
or services outside the State of Indiana but has furnished goods and services during
said period to enterprises in the State of Indiana which themselves annually pro-
duced or handled $50,000 worth of goods destined for out-of-State shipment and
which become a part of the stream of commerce, ultimately going outside the State
in amount not less than $20,000, nor more than $25,000. The total value of goods
purchased by this Respondent directly from out of the State of Indiana during said
period was in the amount of approximately $115,000.
Fabricators Bargaining Committee at all times material here is and has been a
voluntary unincorporated association, composed of the aforementioned Respondent
Companies which has conducted negotiations with the Union on behalf of the re-
spective Respondent Employers which have resulted in nearly identical agreements
executed by the individual Respondent Employers. In February 1954, J. D Baker
was secretary of said Respondent Committee.
It is obvious that at least one of the Respondents does not individually satisfy the
Board's new jurisdictional standards and would not individually be subjected to the
Board's jurisdiction. However, as these Respondents have for many years volun-
tarily associated themselves together for the purposes of bargaining in a multi-
employer unit with the Union, it is customary for the Board to look to the aggregate
of the effect upon commerce which, in this instance, satisfies the standards of the
Board so that the Trial Examiner finds that each of the Respondents is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
HUGH J. BAKER & COMPANY 833
II. THE ORGANIZATION INVOLVED
Shopmen's Local Union No. 529, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL, is a labor organization admitting to member-
ship employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Since about 1938 these Respondents have recognized the Union as the collective-
bargaining representative of their employees employed in the appropriate unit com-
posed of all production and maintenance employees at Respondent Employers' In-
diana plants, excluding office and clerical employees, erection, installation, or con-
struction employees, polishers and platers, guards, and supervisory employees as
defined in the Act. After a contract had been negotiated by a Committee represent-
ing these employers, who had associated themselves together for the purposes of
negotiating with the Union, these contracts, with some individual changes negotiated
by the same Committee, were executed by each Employer individually. During this
period there had been some changes in the composition of the Employers so asso-
ciated. The last such change occurred prior to the negotiations of 1947.
In accordance with the terms of the then expiring agreements with these Respond-
ents, the Union on December 30, 1953, and again on January 27, 1954, notified each
of the Respondents here of the Union's desire to terminate said agreements at the
end of the contract year.
In preparation for the ensuing negotiations with the FabLicators Bargaining Com-
mittee composed of J. David Baker, James H. Carnine, and W. H. Graver looking
toward the execution of a contract for the succeeding year, the Union by letter under
date of January 28, 1954, notified each of the Respondent Employers as follows
INDIANAPOLIS, INDIANA, January 28, 1954.
HUGH J BAKER COMPANY
602 West McCarty Street
Indianapolis, Indiana
GENTLEMEN. Inasmuch as this Union is the sole collective bargaining agent
of your production and maintenance employees, and, as such will, in the very
near future, enter into negotiations with representatives of your Company for
the purpose of consummating a new collective bargaining agreement to become
effective as of April 1, 1954, we request that you furnish us with the informa-
tion hereinafter set forth, in order that representatives of the Union, including
the negotiating committee, will be in position to intelligently negotiate such
agreement . The information we desire is as follows:
(1) Name of each production and maintenance employee; (2) date
each employee was hired, (3) presently hourly rate of pay of each em-
ployee; (4) job classification of each employee; (5) comprehensive out-
line of any bonus or incentive plan affecting such employees; (6) compre-
hensive explanation of group insurance and/or welfare benefits, if any,
(7) explanation of any other benefits not hereinabove listed or provided
for in the present collective agreement.
Although the Union has prepared and adopted its proposed agreement, we
cannot include herein or submit to the Company in writing or orally any
proposal dealing with economic matters until we are furnished the aforemen-
tioned information.
In a letter of January 4th, received by the Union, from Mr J. D. Baker,
Chairman, Fabricators Committee, he stated we would be notified of proposed
meeting place and time during the month of February We desire to be in
position to discuss any and all phases of the agreement when negotiations are
commenced. Therefore, we respectfully request that the aforementioned in-
formation be furnished within the next ten (10) days.
Very truly yours,
SHOPMEN'S LOCAL UNION No 529 OF THE INTER-
NATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS
By (Signed) JAMES E. REED, President
By (Signed) ALVIN COOK,
Recording Secretary, 425 South Noble Street,
Indianapolis, Indiana.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above request was acknowledged by the following letter on letterhead of the
Hugh J. Baker and Company under date of February 9, 1954:
SHOPMEN'S LOCAL 529 February 9, 1954.
425 S. Noble Street
Indianapolis, Indiana
Attention-Mr. James E. Reed, President
Mr. Alvin Cook, Recording Secretary
GENTLEMEN. In reply to your letter of January 28th addressed to the
several fabricators for whom we bargain, we are enclosing lists of names, date
of employment and classification for each employee.
The other information is not sent at this time but we will expect to discuss
the other items with you at the meeting set for Thursday, February 18, 1954, at
the offices of the Engineering Metal Products Company.
Very truly yours,
FABRICATORS BARGAINING COMMITTEE,
(Signed) J. D. BAKER, Secretary.
Enclosed in this letter, from each of the individual Employer Respondents, was a
list of its individual employees, their employment date, and job classification 3
As scheduled, the parties met in person on February 18, 1954, at the offices of
the Engineering Metal Products Corporation. The Union was repiesented by
William Waltman, international organizer and spokesman for Local 529 throughout
these negotiations, Charles W. Irish, Local 529 business agent, and a committee con-
sisting of an employee from each of the Respondent Employers. The Respondent
Employers were repiesented by the Fabricators Bargaining Committee consisting
of J. David Baker, James H Carnme, and W H. Graver. During the course of
the opening meeting, as well as at a few of the subsequent meetings thereafter,
William Waltman orally reiterated the Union's request for the data sought in the
Union's letter of January 28 and refused by Respondents in their transmittal letter
of February 9. During the course of about a 15-minute discussion of this matter,
the Respondents' Committee refused to supply the hourly wage rate of their indi-
vidual employees saying, in effect, that the Committee had never previously submit-
ted any such information and that the rates of the individual employees were none
of the Union's business being exclusively that of the Respondents.
Although the Union was demanding both a wage increase and a clause requiring
Respondents to consult with it prior to granting any further individual merit wage
increases, the Respondents have never receded from the position they took at the
original meeting and have never furnished the requested data on the individual em-
ployee wage rate.
Under date of September 22, 1954, and over the signature of James H. Carnine,
Engineering Metal Products Corporation wrote its employees as follows:
The Shopmens' Union, Local No. 529, as you know, represents, as Agents,
all of your company's production and maintenance employees.
The Union, thru its representative, has demanded that we furnish it with the
names of the company's production and maintenance employees, with the wages
each such individual employee receives, claiming that refusal to furnish such
information is an unfair labor practice, because they claim this information is
necessary for bargaining purposes. (You know this information was not neces-
sary, as we came to a satisfactory agreement without same.)
The management of this company has declined to furnish this information, for
the following reasons:
(1) We do not want to disclose the private affairs of our employees. If
our employees wish to give this information to the Union, it is okay with us.
(2) We want to be free to award our employees with extra pay, in
accordance with what we observe to be of special merit.
(3) We believe that the growth and expansion of our company is due to
the fine spirit of our employees. We feel that this spirit is in part due to
our policy of rewarding the efforts of individual employees by merit
increases. We want to continue this policy which has been so satisfactory
in the past.
3It is interesting to note that the letter of the Hugh J Baker and Company submitting
the above einplocee data was addressed to "JIr J D Baker, Secretary, Fabricators Bar-
gaining Committee, P 0 Box 892, Indianapolis, Indiana "
HUGH J. BAKER & COMPANY 835
Because of our refusal to give this information to them, the Union has claimed
unfair labor practice against your company before the National Labor Rela-
tions Board. A trial is scheduled before the Labor Board next week.
You are one of a majority of the production and maintenance employees
who receive more than the Union scale. If you disapprove of your company
being forced to divulge your individual wages, you have a right to protest the
action of the Union to Charles Irish, who signed the charge before the National
Labor Relations Board.
This letter is similar, but not identical, to the letters which the other Respondent
Employers about March 18 sent to their individual employees.
On April 6, 1954, the Union and Fabricators Bargaining Committee arrived at
a satisfactory agreement which was executed with some individual variations by the
individual Respondent Employers and the Union on April 10, 1954, after Waltman
for the Union had made it clear that, by executing these agreements, the Union
was in no way to be considered as waiving its request for the economic data set forth
above. These agreements were to remain in full force and effect until March 31,
1956. They contained a blanket wage increase of 6 cents an hour across the board
but nothing in regard to merit wage increases.
B. Conclusions
1. Unit and majority
The Respondent correctly states in its brief: "The Respondents have, since 1937,
recognized and bargained with the Union concerning wages, hours and other terms
and conditions of employment of the employees represented by the Union." Thus
the contract, dated April 10, 1954, is merely the current agreement in a long series
of contracts negotiated by the Fabricators Bargaining Committee on behalf of the
Respondent Employers and the Union as the recognized bargaining agent of the
employees in the appropriate multiemployer unit.
In view of this long, historical recognition of the Union as the majority repre-
sentative and of the appropriateness of the unit alleged here to be appropriate, the
Trial Examiner has no hesitation in finding that, at all times material here, the Union
was, and now is, the exclusive representative of all the employees in the appropriate
unit composed of all production and maintenance employees at Respondent Em-
ployers' Indiana plants, excluding office clerical employees, erection, installation, or
construction employees, polishers and platers, guards, and supervisory employees
as defined in the Act.
The above findings are buttressed by the fact that a large majority of the em-
ployees in the above-found appropriate unit were members of the Union and by the
fact that, while the Respondents plead that they were "without knowledge" as to
the appropriateness of the aforementioned unit and would take no position thereon
at the hearing, they introduced no evidence tending to show that the said unit was
in any way inappropriate. Respondents' action in recognizing and bargaining with
the Union as the representative of the employees in that appropriate unit speaks
very convincingly on both subjects.
2. The refusal to bargain
The only question raised by the complaint and by the evidence here is whether
an employer fails to bargain in good faith with the duly recognized bargaining agent
as required by Section 8 (a) (5) and (d) when that employer refused after request
made to furnish that representative with the individual wage rates of their employees.
This question is not novel. It is answered by numerous Board and court decisions.4
On the basis of these precedents alone, the question posed must be answered in
the affirmative- an employer does fail to bargain in good faith within the meaning
of Section 8 (a) (5) and Section 8 (d) of the Act when he refuses upon request
to furnish the Union with the individual wage rates of his employees.
6 Whitin Machine Works, 108 NLRB 1537 and cases there cited N L. R B v Yawman
& Brim 31aaufacturuiq Co, 187 F 2c1 947, 948 (C A 2) ; N L R B v Leland-Gifford
Company. 200 F 2d 620 (C A 1) , N L R B v Hcl, vian Furniture Co , 207 F 2c1 561, 562
(C A 6) , Aluminum Oie Co v. N L R P, , 131 F 2d 48 5 . 487 (C A 7) ; N L Ii B. v
Jacobs 3lanufarluring Company, 196 P 2d 680, 684 (C A 2) , N L R B v New Britavu,
Machine Co, 210 F. 2d 61 , 62 (C A. 2) , N L R B v Otis Elevator Co., 208 F 2d 176
(C. A 2).
369028-56-vol 112 54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent here makes the usual arguments made in these cases so that the
Trial Examiner will comment upon them only briefly.
First, the Respondent contends from a statement found in the W7iitin Machine case
that it is incumbent upon the General Counsel to prove that the information sought
was not reasonably available from some other source than the Respondent. It is
true that here the Union did not even attempt to interview the 240-odd employees in-
volved in an effort to secure the information requested. Even with the relatively
small number of employees involved here the use of such a method would lead to
interminable delays, inaccuracies, and would create a fertile field for unnecessary
arguments For these reasons the Trial Examiner does not consider that the sug-
gested method of securing information so readily and accurately available from the
Respondent satisfies the "reasonably available" criterion.
In addition it would seem from this and other cases of a similar ilk that this "rea-
sonably available" requirement will lead to litigation and disputes on the question of
what sources are to be considered "reasonably available" which will unduly and
unnecessarily delay collective bargaining and thereby increase labor tensions and
troubles contrary to stated purposes of the Act. The information requested is neces-
sary for current negotiations-not years later after appellate litigation has run its
course.
Second, Respondents argue that there can be no violation here because the Union's
request for information covered "each production and maintenance employee" which
the Respondents for the first time in its brief interpret to include certain employees
not within the appropriate unit Contrary to the Respondents' argument this is not a
case where the Union is requesting the right to bargain where some cases hold that
the Union must set forth the appropriate unit with exactitude. Until this case reached
the litigation stage, the Respondents had construed the request reasonably in the light
of 17 years of bargaining history and based its partial compliance on that interpreta-
tion of the request. There is no merit to this contention either in fact or in law
Third, the Respondents contend that the request for information was a harassing
tactic and not a good-faith effort to secure bargaining information When wages and
merit wage increases are issues in collective bargaining , as here, it is axiomatic that
individual wage rates of the employees are both material and pertinent to permit
intelligent collective bargaining. Such information is also necessary to administer
or "police" the agreement as shown by the testimony here that one employee received
only a 3-cent per hour increase in April whereas the agreement called for 6 cents.
Also for the first time, the Respondents in their brief make the claim that the
Union did not offer to pay any part of the cost of accumulating the information re-
quested from the Respondents' books, inferring that these costs were burdensome.
It is true the Union made no such offer, perhaps, because the matter was never
broached prior to the hearing. Also the Respondents' partial compliance with the
request indicates that the Respondents did not consider at that time that the request
was burdensome. Nor could the addition of the current wage rate of the individual
employees listed have added enough work to the form submitted to bother mentioning.
The real reason that the individual wage rates were not added to the forms sub-
mitted and the real reason that the Respondents have refused to comply with the
request involved is presented in 2 of the 3 reasons given by Respondent Engineering
Metal Products Corporation in its letter of September 22, 1954, to its employees
where it says: "(2) We want to be free to award our employees with extra pay, in
accordance with what we observe to be of special merit. (3) We believe that the
growth and expansion of our Company is due to the fine spirit of our employees.
We feel that this spirit is in part due to our policy of rewarding the efforts of
individual employees by merit increases. We want to continue this policy which
has been so satisfactory in the past." Thus it appears that at least some of the
Respondents refused the individual wage rates so as to prevent the necessity of
bargaining with the Union in regard to individual merit wage increases , which would
indicate a lack of good faith in bargaining.
The Respondents also intimated that the Union did not offer to "take any less"
information than they had originally requested. No such compromise is required.
This is information to which the Union is entitled as a matter of right in good-faith
collective bargaining . This is not subject to the give and take of negotiations where
compromises play their part.
Finally, as their sockdolager, the Respondents argue:
However, the Respondents herein are not guilty of a refusal to bargain
collectively for the further reason that under the provisions of Section 8 (d) of
the Act the term "to bargain collectively" is given a limited definition which
HUGH J. BAKER & COMPANY 837
cannot be construed to require the furnishing of any data. To the extent that
the policy of the Board announced in the Whitin case, purports to require any-
thing more than is included in the statutory definition of the term "to bargain
collectively," such policy is void.
The Respondents respectfully submit that the provisions of sub-section 8 (a)
(5) have been the subject of much confusion on the part of both the Board
and various courts since the passage of the Labor Management Relations Act
of 1947 which amended the Wagner Act. Under the Wagner Act, as under
the present Act, the provisions of Section 8 (a) (5) made it an unfair labor
practice for an employer to "refuse to bargain collectively" with the represent-
atives, subject to the provisions of Section 9 (a). However, it should be noted
that the Wagner Act did not anywhere contain any definition of the term "bar-
gain collectively" and thus the National Labor Relations Board was free to
formulate, as it did, its own definition and policy in connection with the meaning
of such term. However, one of the significant amendments to the Wagner Act
included in the Taft-Hartley Act was the addition of sub-section (d) to Section 8
Such sub-section, insofar as is material here, reads as follows- "For the pur-
poses of this Section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party, but such
obligation does not compel either party, to agree to a proposal or require the
making of a concession. .
Thus with the addition to the Act of the provisions of sub-section (d) quoted
above, Congress established a definition of the term "to bargain collectively."
By so doing, Congress removed from the hands of the National Labor Relations
Board any power or duty to formulate or apply its own definition of the term
"to bargain collectively." Congress has now defined the term and its definition
is controlling upon both the Board and the Courts.
The Congressional definition makes it clear that the only obligation which an
employer must perform in order to bargain collectively is that he "meet . .
and confer. . Certainly it cannot be said that the obligation to meet and
confer includes any obligation to furnish any data upon the request of the
Union.. . .
It is somewhat remarkable that the matter of the furnishing of data has been
considered by the Board and some Courts since the passage of the Taft-Hartley
Act without noting the fact that Congress has now supplied a narrow definition
of the term "to bargain collectively" set forth in Section 8 (a) (5) of the Act.
While it is difficult to explain why the Board and the Courts have failed to give
effect of attention to the Congressional definition set forth in sub-section 8 (d),
it is nevertheless apparent that such is the case. . . .
Under the provisions of Section 8 (a) (5), an employer has only one obliga-
tion to be in compliance with the law and that obligation is that he "bargain
collectively." The very same term is defined "for the purposes of this Section
and sub-section 8 (d) and such definition is a narrow one requiring, in effect,
only that an employer (or labor union) meet and confer."
In this argument the Respondents rather conspicuously omit mention of the fact
that the amended Act requires bargaining or conferring "in good faith." Under the
Wagner Act it was this "good faith" in bargaining or conferring which required the
furnishing of information permitting intelligent bargaining. This same "good faith,"
together with its Wagner Act construction, was adopted in the amended Act of 1947.
As the Respondents' argument has been presented to, and rejected by, both the Boards
and the courts since 1947, all that need be said further is that this argument is without
merit.
One further item need be mentioned. Appropriate motions were made to dismiss
the complaint as to the "Fabricators Bargaining Committee (Unincorporated)" on
the grounds that such a committee was a "wholly nonexistent entity." The facts
show that for years Respondent Employers have conducted their negotiations with
the Union through a bargaining committee with authority to act for each of them.
The Union's request for information was originally sent to each of the Respondent
Employers individually. These Respondents then sent their partial answers thereto
to J. D. Baker as "Secretary, Fabricators Bargaining Committee" or "Secretary,
.Employers Group, Bargaining Committee." Baker in turn forwarded these same
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answers to the Union under a covering letter on the letterhead of Hugh J Baker
and Company executed by "Fabricators Bargaining Committee, J. D. Baker, Sec-
retary." This covering letter contained the following- "The other information is
not sent at this time but we will expect to discuss the other items with you at the
meeting set for Thursday, February 18, 1954, . . It was this same Committee
acting for and on behalf of its principals which on Februaiy 18 and thereafter refused
to supply the remainder of the requested information. This Committee claimed at
the beginning of the negotiations to have, and obviously had, authority to bargain on
behalf of and to bind Respondent Employers. As such, under Section 2 (2) of the
Act, this Committee was the agent of the Employers and hence an employer subject
to the jurisdiction of the Board. As the refusal of the information which is the
subject matter of this case was made by and through this Committee, the remedy
for the refusal to furnish the information requested will only be complete if it also
applies to the spokesman for the Employers.
Accordingly, it is hereby found that on January 28, 1954, February 18, 1954, and
at all times since those dates, by refusing to furnish the Union with the hourly pay
rate of each individual employee in the above-found appropriate unit, the Re-
spondents, and each of them, have violated Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents, and each of them, have refused to bargain
in violation of Section 8 (a) (5) of the Act by refusing to furnish the Union with
the data described above, it will be recommended that the Respondents be ordered
to cease from engaging in this conduct and supply the Union with the requested in-
formation.
Because of the limited scope of the Respondents' refusal to bargain, and because
of the absence of any indication of danger of the commission of any other unfair
labor practices to be anticipated from the Respondents' past conduct, it will not be
recommended that the Respondents cease and desist from the commission of any
other unfair labor practice. It will be, however, recommended that the Respond-
ents, and each of them, be ordered not to engage in any like or related conduct.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Shopmen's Local Union No. 529, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. All production and maintenance employees at Respondent Employers' Indi-
ana plants, excluding office clerical employees, erection, installation, or construc-
tion employees, polishers and platers, guards, and supervisory employees as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act
3. The Union has been at all times material herein, and now is, the reps esentative of
all the employees in the above-described appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing to furnish the Union upon request with the hourly pay
rate of each individual employee in the appropriate unit, the Respondents and each
of them has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) and (1) of the Act.
5. By the aforementioned conduct, the Respondents have interfered with, re-
strained, and coerced their employees in the exercise of the rights guaranteed in
Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforementioned unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]