Kentile Floors, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 755 (N.L.R.B. 1979)

KENTIL.E FLOORS. INC.
Kentile Floors, Inc. and United Rubber, Cork, Lino-
leum and Plastic Workers of America, Local 505,
AFL-CIO. Case 13-CA-15224
June 4. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO(),
MURPHY, AND TRUESDALE
Upon a charge filed on March 9, 1976, by United
Rubber, Cork, Linoleum and Plastic Workers of
America, Local 505, AFL-CIO, herein called the
Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
13, issued a complaint and notice of hearing on April
29, 1976, against Kentile Floors, Inc., herein Respon-
dent. The complaint alleged that Respondent had en-
gaged in, and was engaging in, unfair labor practices
within the meaning of Section 8(a)(l) and (5) of the
Act by conduct hereinafter specified. Respondent
filed an answer in which it denied the commission of
the alleged unfair labor practices.
Respondent, the Union, and the General Counsel
thereafter entered into and on August 27, 1976, filed
with the Board, a stipulation of facts by which the
parties waived a hearing before an administrative law
judge and agreed to submit the case to the Board for
findings of fact, conclusions of law, and Decision and
Order, based on the record consisting of the stipula-
tion of facts and the exhibits attached thereto.
On September 20, 1976, the Board approved the
stipulation of the parties and ordered the case trans-
ferred to the Board, granting permission for the filing
of briefs. Thereafter, both the General Counsel and
Respondent filed briefs.
Upon the basis of the stipulation, with attached
exhibits, the briefs, and the entire record in the case,
the Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation maintaining numerous
facilities in locations throughout the United States in-
cluding a plant in Chicago, Illinois, where it is en-
gaged in the manufacture of resilient flooring and as-
sociated products. During a recent representative
calendar or fiscal year, Respondent, in the course and
conduct of its business operations, manufactured,
sold, and shipped from its Chicago, Illinois, plant
goods valued in excess of $50,000 to points outside
the State of Illinois; during the same period Respon-
dent, in the course and conduct of its business opera-
tions, received at its Chicago, Illinois, plant goods
valued in excess of $50,000 from enterprises located
outside the State of Illinois.
Respondent is engaged in commerce and in opera-
tions affecting commerce as defined in Section 2(6)
and (7) of the Act. We find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZAII()N
We find that the Union is a labor organization as
defined in Section 2(5) of the Act.
III. ISSUE
The issue herein is whether Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to fur-
nish the Union with certain requested information.
IV. TIlE UNFAIR LABOR PRACTICES
A. Facts
Since about 1955 the Union has been and is now
the recognized collective-bargaining representative of
Respondent's employees in a unit of all production
and maintenance employees including receiving, ship-
ping, and labor pool: excluding employees in the
laboratory, office clericals, timekeepers, engineering
department employees, watchmen, the plant nurse,
and all supervisory employees employed at Respon-
dent's Chicago, Illinois, plant. Since about February
1957, Respondent and Union have been parties to
successive collective-bargaining contracts.
On February 29, 1972, Respondent and the Union
entered into a collective-bargaining agreement which
expired on March 6, 1975. Due to unsuccessful con-
tract negotiations prior to expiration of this contract,
the Union authorized a strike of the employees in the
above-described unit. The strike commenced on
March 6, 1975, and ended about 20 weeks later. Dur-
ing the course of the strike, the parties continued ne-
gotiations and enlisted the aid of the Federal Media-
tion and Conciliation Service. On July 24, 1975,
Respondent and the Union entered into a strike-set-
tlement agreement reinstating and extending the 1972
contract from July 24, 1975, until April 30, 1978, with
certain modifications and changes. This contract, as
modified and in effect, contains the following nondis-
crimination clause:
There shall be no discrimination by reason of
age, creed, color, or nationality and employees
will be paid the rate of the job being performed
under the terms of this Agreement.
242 NLRB No. 115
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A written directive dated November 6, 1975, was
sent from District No. 4, United Rubber, Cork, Lino-
leum and Plastic Workers of America, to all the local
union presidents in that district. In summary, the di-
rective stated that many local and international
unions had been named as defendants in civil rights
suits, often because of contract language that had
been found to be discriminatory. The directive con-
tained a checklist of potential discriminatory contract
provisions, a form letter addressed to "Industrial Re-
lations Manager," and a photocopy from a recent
newsletter dealing with unions and Title VII. Accord-
ing to the directive, these materials were to be used to
check current contracts for discriminatory provisions,
to serve as a guideline in drafting future contract pro-
posals, and to obtain certain employment information
from the employer in order to analyze the potential
for prohibited conduct by the employer. The directive
further suggested that a local union bring grievances
or charges with the Equal Employment Opportunity
Commission if discrimination on the basis of race,
sex, or national origin is occurring.
The following letter, dated December 1, 1975, was
sent by Local 505 President Percy Jackson and was
received by Respondent on or about December 2,
1975:
The URW has had a consistent program call-
ing for a total elimination of all forms of dis-
crimination on the job. In accordance with the
policy of our International Union and of this lo-
cal, and our duty to represent all employees in
the bargaining unit, we have been looking into
these matters and find that you as the employer
can best furnish certain information. Accord-
ingly, we would appreciate your supplying us
with the following:
1. Your affirmative Action Program if you
have filled [sic] one under Executive Order 11246
and Revised Order 4 requiring equal opportunity
statements of all government contractors. Also, if
you have filed any other affirmative action re-
ports and/or Workforce Analyses (if these are
not included in the AAP's) required by the
EEOC of any other state or local fair employ-
ment agency, please send us a copy of such re-
port(s) and/or compliance reviews which have
been made.
2. If you have not compiled the above reports
or programs, or those reports or programs do
[sic] contain the following information, please
supply us with:
a. The number of male, female, black and
Spanish-surnamed employees in each classifi-
cation in the bargaining unit. Please also state
the wage rate for each of these classifications.
b. The number of persons hired in each classi-
fication during the past twelve months, with a
breakdown as to race, sex, and Spanish-sur-
named employees showing the sex of all black
and Spanish-surnamed male and Spanish-sur-
named female employees.
In connection with each of the above, please
show the sex of all white, black and Spanish-
surnamed employees, i.e., white male, white fe-
male, black male, black female, Spanish-sur-
named male and Spanish-surnamed female.
3. In addition to the reports or information
requested, please send us a list of all complaints
and charges filed against the company under the
Equal Pay Act, Title VII, Executive Order
11246, and state fair employment practice laws
and copies of each complaint or charge. Please
also advise as to the status of each of these cases.
If the information is not available in the form
requested, we will accept the information in such
alternative forms as may be convenient to the
company as long as they will provide us with the
best possible bargaining information concerning
the foregoing subjects. To facilitate the receipt of
this information it is requested that you provide
some or any part thereof as soon as it is prepared
and becomes available. In addition, if you have
any questions concerning what information is re-
quested or whether an alternative form will be
appropriate, please contact us so that its receipt
may be expedited.
Your prompt attention to this matter will be
appreciated.
At all times since December 2, 1975, Respondent
has refused and continues to refuse to furnish any of
the information requested in the December 1, 1975,
letter.'
B. Discussion
The General Counsel asserts that wage and related
information pertaining to unit employees is presumed
relevant to the Union and must be furnished by Re-
spondent upon request. Insofar as the Union has spe-
cifically requested wage data, the General Counsel
argues, Respondent's refusal to furnish same is a per
se violation. The General Counsel further contends
that the wage and sex data are relevant and necessary
for the administration of the antidiscrimination
clause in the contract, to the formulation and presen-
tation of bargaining demands, and to the evaluation
of suspected and potential grievances. The Union is
I Although Respondent argues in its brief that the information had already
been supplied, the parties specifically stipulated that Respondent refused to
furnish the requested material, and we so find.
756
KENTILE FLOORS, INC.
entitled to race and sex data pertaining to the unit
employee complement and Respondent's hiring pat-
terns, the General Counsel insists, to determine
whether existing provisions in the contract tend to
perpetuate discrimination or frustrate equal opportu-
nity. However, Respondent contends that there is no
showing of relevance of the information requested,
and that the Union is not entitled to this information
without a specific demonstration of the relationship
of this information to the Union's bargaining func-
tion. 2 For the reasons set forth in Westinghouse Elec-
tric Corporation, 239 NLRB 106 (1978), we find the
information requested in item 2 of the December 1,
1975, letter to be presumptively relevant insofar as it
relates to unit employees.3 By refusing to furnish this
information Respondent has violated Section 8(a)(5)
and (I) of the Act, and we shall order Respondent to
produce the requested data.
Under the principles set forth in Westinghouse, su-
pra, however, the remaining information requested by
the Union is not presumptively relevant, and the need
for the data must be demonstrated before Respondent
is required to produce it. With regard to the material
requested in item I of the December 1, 1975, letter,
i.e., Affirmative Action Programs filed under Execu-
tive Order 11246 and Revised Order 4 and "any other
affirmative action reports and/or Workforce Analy-
ses" required by the Equal Employment Opportunity
Commission or by any other state or local fair em-
ployment agency, General Counsel asserts that such
information is obviously necessary and relevant to the
Union in the performance of its obligations as a col-
lective-bargaining representative. The General Coun-
sel further argues that because an Affirmative Action
Program may require certain changes be made in a
wide variety of practices affecting unit employees, the
Union has the right to know about these prospective
changes in terms and conditions of employment; the
Union has the right to be apprised of the changes
contemplated by Respondent to evaluate whether
those actions are in accord with the contract. In Wes-
tinghouse, supra, this rationale was found insufficient
to establish relevance. Accordingly, we will dismiss
the complaint with regard to the allegations relating
to the information requested in item I of the Decem-
ber 1, 1975, letter.'
2 Respondent further argues that this matter should be deferred to the
contrac,al grievance procedure under the Board's rule in Collyer Insulated
Wire, 192 NLRB 837 (1971). Chairman Fanning would not defer on the
basis of his longstanding opposition to the policy established by Coller and
its progeny. Member Penello would also decline to defer for the reasons set
forth in American Standar4 Inc., 203 NLRB 1132 (1973). Member Truesdale
finds it unnecessary to pass on this issue.
3 While in its brief Respondent refers to "prospective employees" with
regard to the information requested in item 2, we do not interpret the request
to include any applicant data.
' While the documents specified in item I may contain certain statistical
information regarding race and sex of unit employees to which the Union
In support of its request for the complaints and
charges listed in item 3 of the December 1, 1975, let-
ter, the General Counsel states that this information
relates directly to the Union's fulfillment of its duties
to fairly represent unit employees. The Union can use
the information to negotiate a new contract, specifi-
cally in strengthening the nondiscrimination provi-
sions, wage scales, and seniority and promotion poli-
cies. Furthermore, the General Counsel argues, a
union is bound by the provisions of a concilation
agreement when it becomes final although it may not
be given prior notice of the proposed contents. In ad-
dition, copies and status reports of antidiscrimination
charges and complaints enable a union to gauge em-
ployee dissatisfaction, thereby assisting a union in
formulating contract proposals. The General Counsel
also explains that certain provisions of Title VII pro-
hibit discrimination against employees for filing
charges; the Union needs the requested information
to protect employees against discrimination and re-
taliation as the collective-bargaining representative.
Finally, the General Counsel argues, because a union
can be held liable for failing to take affirmative reme-
dial action, the charges and complaints are needed to
prevent depletion of resources by unnecessary litiga-
tion.
Discrimination charges and complaints are not pre-
sumptively relevant. The Union must demonstrate
the need for these documents in its role as the exclu-
sive collective-bargaining representative. On the ba-
sis of the sparse record before us, we find that the
Union has failed to do so. Relevance cannot be estab-
lished by speculative argument alone without record
evidence to support the applicability of those argu-
ments to the present circumstances. We will dismiss
the complaint insofar as it alleges that Respondent's
failure to furnish the information listed in item 3 of
the December 1, 1975, letter was violative of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, we make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
would be entitled upon request as is discussed above, we will not speculate
as to the data contained therein nor attempt to sift through the materials
described therein to discern the data to which the Union would be entitled.
In this respect, the Union failed to indicate with appropriate specificity the
relevant information sought.
5 Westinghouse, supra.
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The unit of Respondent's employees described
herein constitutes a unit appropriate for the purposes
of collective bargaining within the meaning of' Section
9(b) of the Act. At all times material herein, the
Union has been and is the exclusive collective-bar-
gaining representative of Respondent's employees in
the unit referred to above.
4. Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act by failing and refusing to
provide the Union with information requested on or
about December 2, 1975, relevant to possible race or
sex discrimination or the advancement of equal op-
portunities for female and minority group employees
in said unit.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ken-
tile Floors, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Rubber, Cork, Linoleum and Plastic Workers of
America, Local 505, AFL-CIO, as the exclusive bar-
gaining representative of Respondent's employees in
the appropriate collective-bargaining unit by refusing
to furnish the Union with information requested on
or about December 2, 1975, relevant to possible race
or sex discrimination or the advancement of equal
opportunities for female and minority group employ-
ees in said unit.
(b) In any like or related manner refusing to bar-
gain collectively with the Union, or interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish the Union with the following current
information for the unit referred to above, to be bro-
ken down into categories of white male, white female,
black male, black female, Spanish-surnamed male,
and Spanish-surnamed female:
(1). The number of male, female, black, and Span-
ish-surnamed employees in each classification in the
bargaining unit and the wage rate for each such clas-
sification.
(2). The number of persons hired into each classifi-
cation in the bargaining unit during the past 12
months by race, sex, and Spanish-surname.
(b) Post at its plant in Chicago, Illinois, copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 13, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURIHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
MEMBER MURPHY, dissenting in part:
In a series of decisions issued over the past 9
months, my four colleagues on the Board have been
gradually turning the National Labor Relations
Board into a mini-Equal Employment Opportunity
Commission. Moving into areas outside both their ex-
pertise and their statutory mandate, my four col-
leagues have ordered various employers to supply
various unions with all sorts of confidential and irrele-
vant information concerning both applicants and em-
ployees.7
My four colleagues are requiring this information
to be supplied to unions even though the unions in-
volved admitted that they wanted the information for
purposes of litigation under Title VII of the Civil
Rights Act of 1964 and not for the purpose of collec-
tive bargaining with the respective employers.
Specifically, over the past 9 months, my four col-
leagues on the Board have required employers to sup-
ply to unions the following:
1. Data concerning the race, sex, and Spanish-sur-
name of unit employees.
2. The number of employees by race, sex, and
Spanish-surname in each classification, as well as
their wages, seniority, and promotions, if any.
3. A list of all complaints and charges filed against
the various employers under the Equal Pay Act of
1963, Title VII of the Civil Rights Act of 1964, Ex-
ecutive Order 11246, and state fair employment prac-
tice laws.
I In the event that 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 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."
7 See, for example, Westinghouse Electric Corporation, 239 NLRB 10)6
(1978); The East Dayton Tool and Die Co., 239 NLRB 141 (1978): Safeway
Stores, Incorporated, 240 NLRB 836 (1979): Automation & Measurement Di-
ision. The Bendix Corporation, 242 NLRB 62 (1979).
758
KENTILE FLOORS. INC.
4. Copies of each complaint and charge, as well as
decisions and reports under the above laws and those
issued by the various state agencies and Federal agen-
cies created to enforce these laws.
5. Portions of the employers' work force analyses.!
6. Master insurance plans for the employer's op-
erations concerning unit employees.
7. All of the employers' hiring practices and poli-
cies.
8. All race, sex, and Spanish-surname data con-
cerning applicants for employment, even if these ap-
plicants were never employed or never became part
of the units represented by the unions.9
As I said in my dissents in these cases. my four
colleagues on the Board are placing an unfair burden
on both the employers and the unions and have ex-
panded Title VII, the Equal Pay Act of 1963, and
Executive Order 11246-under which the Board has
absolutely no jurisdiction far beyond the intent of
Congress or of the President of the United States. Not
only has the Board's entry into this area caused great
confusion, but it could well destroy employers' volun-
tary compliance with title VII and with the other fair
employment practice statutes and Executive orders.
Moreover, I believe that the Board's decisions will
require unions to file protective lawsuits against em-
ployers or run the risk of being held jointly liable for
possible fair employment practice violations concern-
ing an employer's hiring and employment practices.
In the instant case, the Union seeks much of the
same data which a different union sought in the Wes-
tinghouse case. Briefly, the Union here filed charges
alleging that the Employer had violated Section
8(a)(1) and (5) of the Act by refusing to supply the
Union with copies of the Employer's affirmative ac-
tion plan and/or work force analysis and copies of all
charges and complaints filed against the Employer
under Title VII, the Equal Pay Act of 1963, Execu-
tive Order 11246, and state fair employment practice
laws.
Here, after the issuance of a complaint embodying
the above items, the parties entered into a stipulation
agreement transferring this case in that posture to the
Board. My colleagues, on September 20, 1976, ap-
proved the stipulation of the parties, approved trans-
ferring the case to the Board. and granted permission
for the filing of briefs. Both the General Counsel and
the Fmnployer did, in fact, file briefs. Now the Board
majority has ruled that it will not require the Em-
ployer to supply the Union with any of the requested
I The majority stated in Westinghouse, supra, that the employer may delete
from the work force analyses (WFA) "information unrelated to the inlbrma-
tlion requested in Items I through 6." hut did not speclf) what nfirmatiiln
was "unrelated." (See my dissent. 239 NLRB at 123 124.)
9The Board has not yet directed employers to supply unions with "the
reasons" why more minorities are not employed.
information except the number of persons hired and
the wage rate for employees in the unit, broken down
by race, sex, and Spanish-surname. Although the re-
mainder of the information sought by the Union here
is the same type of information the unions obtained
from the Board in some of the cases I have cited in
footnote 7, the Board suddenly finds this information
''is not presumptively relevant" and finds on "the ba-
sis of the sparse record before us," the "Union has
failed" to demonstrate the need for these documents
in its role as the exclusive collective-bargaining repre-
sentative.
Although I compliment my colleagues here for
reaching the correct decision in refusing to force dis-
closure of the requested confidential information. I
would rather they did so for the correct reasons. Ac-
cordingly, I strongly urge my colleagues to join me in
getting out of the Title VII business. As our own sta-
tistics more than amply demonstrate, the NLRB has
enough cases filed under our own statute to handle
expeditiously without erroneously encroaching into
the jurisdiction of other agencies, both state and Fed-
eral. As I said in le'c.tinghouse, the Board's decision
here, like its earlier decision, has created only more
confusion and will lead only to more charges, less
settlements, more hearings, more decisions, more liti-
gation in the courts, and, I repeat, more confusion in
the law of the workplace, and more delay under the
National Labor Relations Act. I dissent.
APPENDIX
NOTI(CE To EMPI ()Yl-.s
PosrED BY ORD)IR 01F 111
NAIIONAL LABOR REI..ArlONS BOARD
An Agency of the United States Government
WE WII.I. NOT refuse to bargain collectively
with United Rubber, Cork, Linoleum and Plastic
Workers of America, Local 505, AFL CIO, as
the exclusive collective-bargaining representative
of our employees in the following unit appropri-
ate for purposes of collective bargaining by re-
fusing to furnish the Union with information re-
quested on or about December 2, 1975, relevant
to possible race or sex discrimination or the ad-
vancement of equal opportunities for female and
minority group employees in said unit:
All production and maintenance employees
including receiving, shipping and labor pool;
excluding employees in the laboratory, office
clericals. timekeepers, engineering department
employees, watchmen, the plant nurse, and all
supervisory employees, employed at the Em-
ployer's Chicago, Illinois plant.
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
refuse to bargain collectively with United Rub-
ber, Cork, Linoleum and Plastic Workers of
America, Local 505, AFL-CIO, or interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL furnish the Union with the following
current information for the unit referred to
above, to be broken down into categories of
white male, white female, black male, black fe-
male, Spanish-surnamed male, and Spanish-sur-
named female:
The number of male, female, black, and
Spanish-surnamed employees in each classifi-
cation in the bargaining unit and the wage rate
for each such classification.
The number of persons hired into each clas-
sification in the bargaining unit during the
past 12 months, by race, sex, and Spanish-sur-
name.
KENTILE FLOORS, INC.
760