Solar Turbines International

National Labor Relations Board - Board Decisions

Aug 13, 1979

244 N.L.R.B. 175 (N.L.R.B. 1979)

SOLAR TURBINES INTERNATIONAL
Solar Turbines International an Operating Group of
International Harvester Co. and Aeronautical Me-
chanics Lodge No. 685, and Silvergate District
Lodge No. 50, International Association of Machin-
ists and Aerospace Workers, AFL-CIO. Case 21--
CA- 16938
August 13. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MEMBERS JENKINS
AND PENE.IO
On May 10, 1979, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. I is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Sandard Dr, Wall Products, Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the
record and find no basis for reversing his findings
In its exceptions, Respondent claims that the Union made no request for
information because Grand Lodge Representative Robert J. Carter was not
an officer or agent of the Union when he made said requests. This argument
is clearly without merit because Respondent's labor relations manager. Ro-
sano, met and negotiated with Carter who was then the Union's principal
representative and spokesman.
In affirming the Administrative Law Judge's findings, we also correct sev-
eral minor inadvertent errors, specifically: (a) in sec. Ill, par. 7, regarding
major medical coverage, the record reflects that Carter proposed lowering
the ceiling to 100,000 rather than to SS50.000; (b) in sec. III, par. 8, in
discussing the parties' economic proposals. the Administrative Law Judge
stated that the "Union made another proposal on July I 1," while the record
reflects that this proposal was actually made by Respondent: (c) in the last
paragraph of sec. 111, the Administrative Law Judge quotes the Union's
November 9 letter to Respondent, but the record reflects that the request was
for "a quarterly accounting of the amount of money paid in diverting I cent
from each Cost-of-Living adjustment." rather than " I" cents; and (d) in sec.
III. par. 9. the Administrative Law Judge's Decision contains the August 3
letter from the Union to Respondent, but the quote is not complete; the last
half of the letter actually read:
I am requesting:
I. Cost data information relative to all the benefit program improve-
ments that you described to our membership in your letter dated July
26. 1978.
2. 1 am further requesting specific cost information relative to the Kai-
ser insurance program and the Aetna insurance program, with proof
that those premiums are actually being paid to the respective carrier.
I am further requesting an accounting of the I I cents that we diverted
from the last Collective Bargaining Agreement to pay for these im-
proved fringe benefits.
Trusting that at long last you will furnish me with the required infor-
mation.
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Solar Turbines
International, an Operating Group of International
Harvester Co.. San Diego. California. its officers.
agents, successors. and assigns. shall take the action
set forth in the said recommended Order.
DECISION
S1AIEMeNT O() HF CASI
JAMES S. JENSON, Administrative Law Judge: This case
was heard before me in San Diego. California, on Decem-
ber 12, 1978.' The complaint, which issued on September 22
pursuant to a charge filed on August 4. alleges Solar Tur-
bines International, an Operating Group of International
Harvester Co., herein called the Respondent, violated Sec-
tions 8(aH I) and (5) of the Act by refusing to furnish Aero-
nautical Mechanics Lodge No. 685. and Silvergate District
Lodge No. 50. International Association of Machinists and
Aerospace Workers. AFL-CIO, herein called the Union.
with information pertaining to the costs of proposed im-
provements in improved fringe benefit plans and cost data
pertaining to past fringe benefit plans into which union
member-employees had contributed a portion of a cost-of-
living wage increase agreed to in a previous collective-bar-
gaining agreement. Arguing that the fringe benefit plans are
noncontributory, Respondent contends it has no obligation
to bargain over the costs of such plans: that the Union had
no need for the cost data: that it acted in good faith when it
submitted certain data in response to the Union's broad
request for information; that to supply a detailed cost
analysis of the various fringe benefit programs would cause
it undue hardship; and that since nothing in the collective-
bargaining agreement requires that an accounting be made
of amounts diverted from the employees' cost-of-living in-
creases, and as a separate fund for such monies has not
been maintained, it is neither required nor able to make an
accounting of such funds.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Respondent and
the General Counsel filed post-hearing briefs. both of which
have been carefully considered.
Upon the entire record in the case.2 from my observation
of the witnesses and their demeanor, and having considered
the post-hearing briefs I make the following:
All dates herein are in 1978, unless otherwise noted
Errors In the transcript have been noted and corrected
244 NLRB No. 37
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINI)INGS ()o FA(I
I. JU'RISDl)I(I'I()N
Respondent is engaged in the manufacture and sale of
gas turbine engines in San Diego, California, and annually
sells and ships products valued in excess of $50,000 directly
to customers located outside the State of California. Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of'
the Act.
1I. tlE I.ABOR OR(ANIZATION INVOLVED
Respondent admits, and I find, that the Charging Union
is a labor organization within the meaning of Section 2(5)
of the Act.
Ill. I Al.l.(;lTl) UINFAIR I.ABOR PRA("IIt ES
Since at least 1948 Respondent and the Union have been
parties to a series of' collective-bargaining agreements the
most recently expired agreement running from November
12, 1975, to July 14, 1978. The unit covered, which the
parties agree and which I find, is appropriate for collective-
bargaining purposes, consists of all production, mainte-
nance, and indirect employees of Respondent employed at
its facilities in San Diego County, California, including all
other employees, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act. Rob-
ert J. Carter is the Union's grand lodge representative and
was its principal spokesman during the 1978 negotiations
which resulted in the collective-bargaining agreement
which succeeded the 1975-78 agreement. Maurice A. Ro-
sano, Respondent's labor relations manager, was the chief
spokesman for Respondent during the 1978 negotiations,
and Harry E. Winn, Respondent's manager of employee
benefits, participated in at least some of the negotiations.
In February, Rosano and Carter met for lunch to discuss
the forthcoming negotiations. There had been a 123-day
strike during the last negotiations, and both individuals ex-
pressed a desire to reach agreement this time without a
strike. Carter informed Rosano that he would be requesting
financial information relative to fringe benefit plans, and
Rosano suggested he make the request in writing. Accord-
ingly, on February 23, Carter wrote Rosano as follows:
In reference to the subject matter, our organization
is in the process of formulating our collective bargain-
ing proposals. In order to bargain intelligently we
hereby formally request that you furnish any and all
information regarding your fringe benefit programs
such as Pension Plans, Health Insurance, Dental Plans.
and Supplemental Unemployment Benefit Plans. We
are specifically requesting copies of your D-2 forms or
other appropriate forms that you have filed covering
your last three fiscal years.
Trusting you will comply with this request in the
immediate furture. I remain,
By letter dated March 21, Rosano responded as follows:
This will acknowledge receipt of your letter on Feb-
ruary 28, 1978 regarding your request for collective
bargaining information.
Attached is a copy of Form 5500 of the Department
of Treasury, Internal Revenue Service. This form su-
persedes the D-2 forms previously filed.
Also enclosed is a copy of the International Har-
vester Company Summary Annual Report of Solar's
Non-Contributory Retirement Plan.
At the conclusion of our last negotiations we pro-
vided your office with a signed copy' of' the Health Se-
curity Plan. If you desire, we can provide another for
you.
Please contact me if we can be of any further assist-
ance.
The form 5500 covered only the Solar Non-Contributory
Retirement Plan.
On May 15 formal negotiations commenced, at which
time Carter informed Rosano he had not received all of the
financial information he had requested. By letter of the
same date, Rosano sent Carter another copy of the data
which he had forwarded in the March 21 letter.
According to Rosano, whose testimony I credit in this
regard, he received a call from Carter about May 23 or 24
wherein Carter acknowledged receipt of the May 15 letter,
but stated he did not have all the infbrmation he needed
and asked specifically for information concerning the em-
ployee security and insurance plans. By letter dated May 31
Rosano sent Carter the following: (I) form 5500, annual
report dated January 30. 1978, for the Solar Group Insur-
ance Plan which covers life, AD and D.' "Hospital, Surgi-
cal. Medical, Major Medical, Dental and Drug" benefits.
Attachments to the form 5500 list the gross premiums and
the monthly billing rate per employee for each of the bene-
fits; (2) Form 5500 annual report dated July 28, 1977, cov-
ering "Employee Security Plan for All Non-Managerial."
The latter form discloses there were 1.685 participants in
the plan, that "Benefits Paid from Operating Revenue" to-
talled $129,975, and that the plan was insured by Aetna
Life and Casualty against losses through fraud or dishon-
esty for $5 million.
While Carter acknowledged on cross-examination that he
had received Rosano's letter of May 31, no mention was
made of it on direct-examination. He testified that it wasn't
until early June that he called Rosano and informed him
that the information forwarded with the May 15 letter was
not complete, and that Rosano suggested he call and tell
Winn exactly what he wanted. Carter testified he called
Winn within a few days and stated he "wanted cost infor-
mation relative to the benefit programs," and that "Mr.
Winn informed me that it was the International Harvester
policy that they negotiate level of benefits, but they will not
negotiate and/or divulge the cost of benefits."'
The Union made its first economic proposal about June
18. Both Rosano and Carter agree that in late June there
was a breakfast meeting attended by the both of them and
Presumably accidental death and dismemberment.
I am convinced that Rosano's account is more accurate than Carter's.
While both men were vague and indefinite regarding dates and the content
of some conversations, there is no question that the May 31 letter was sent
by Rosano, and I conclude it was sent in response to Carter's request for
more information made after receipt of the May 15 letter, as testified to b
Carter. It would have been uncharacteristic of Rosano to have sent material
without first having been requested to do so.
176
SOLAR TURBINES INTERNATIONAL
Winn, during which Winn explained the changes and im-
provements in the benefits programs that Respondent pro-
posed to offer during negotiations. Carter, whom I credit
regarding this meeting, testified he told'Winn that there
would have to be further improvements before the negotiat-
ing committee would recommend the changes to the mem-
bership, and asked Winn for "All the cost data information
relative to the pension plan, to the health and welfare plan,
to the dental plan, and I wanted to know specifically how
much were the improvements worth in money. What did
they cost to add these improvements to the existing con-
tract."' Winn's response was to the effect that the Respon-
dent would negotiate level of benefits but that they would
not negotiate or divulge the cost of those improvements.
While Rosano did not recall that Carter asked for the cost
data regarding the benefit plans, he testified that Winn in-
formed Carter that Respondent would be asking the em-
ployees to pay the difference between the Kaiser and Aetna
insurance premiums to which Carter objected. 6
During June and July the formal negotiating committees
met almost daily. In addition, from July I to 14, Carter and
Rosano met daily with a Federal mediator, mostly on eco-
nomic issues. Carter testified that during this time he made
almost daily requests for cost data on the benefit plans.
While Rosano testified Carter did not request any informa-
tion concerning the cost of benefits between May 31 and
August 2, I am convinced otherwise. In this regard, it is not
disputed that Respondent proposed to improve major medi-
cal coverage from $25,000 to $250,000, and that Carter pro-
posed lowering the ceiling to $150,000, with the difference
in the cost being applied in another area, a vision care plan
which would be more acceptable to the union membership.
Carter testified Rosano responded that Respondent would
not negotiate costs and that Respondent did not want to
pioneer any new benefit plans in the San Diego area be-
cause they did not want to "offend" other employers in the
area who didn't have a vision care program. Rosano testi-
fied Respondent's response was "that the Company was not
interested in any other benefits other than what we have
had proposed-that we had bargained essentially to an im-
passe on economics and benefit packages, and we were not
interested in any counterproposal from the Union." Carter
testified that during this period he also requested an ac-
counting of the money which had been diverted from the
cost-of-living adjustment "to partially pay the increased
5Sec. 13.14(C) of the collective-bargaining agreement, covering cost-of-
living adjustment, provides as follows:
Adjustments in the cost-of-living allowance shall be made quarterly and
shall amount to one () cent for each full 0.3 change in the designated
three month average of the Consumer Price Index over the average of
the Consumer Price Index for July, August, and September, 1975. ex-
cept that the first one (I) cent per hour payable under each quarterly
adjustment will be waived and diverted to partially pay the increased
cost of fringe benefits.
6 In crediting Carter's version over that of Rosano. I note that Respondent
failed to call Winn as a witness to corroborate Rosano, nor was an explana-
tion given for failure to call him. Both Carter and Rosano, I believe, made a
conscientious effort to accurately recall events. My factual conclusions,
therefore, are based upon what I believe, from all the facts presented, to have
been the most logical and probable. To the extent that I credit both Carter
and Rosano in part, I do so upon the evidentiary rule that it is not uncom-
mon "to believe some and not all" of a witness' testimony. N.L.R B v.
Universal Camera Corporation, 179 F.2d 749. 754 (C.A. 2).
cost of fringe benefits." as provided for in Section 13.14((')
of the contract. I am satisfied from the evidence that such a
request was specifically made at the time in negotiations
when the Respondent announced that it wanted those em-
ployees who had selected Kaiser medical coverage to pas
an additional $4.17, the amount the Kaiser policy exceeded
the cost of the Aetna policy. Carter's response to that posi-
tion was "Goddamn it, you know, you've already got damn
near a million dollars of our money. Where is it'?"' Accord-
ing to Carter, whom I credit, Respondent steadfastly main-
tained that it would talk about benefits but not costs.
In response to Union's economic proposal of June 18.
Respondent made an economic proposal July 7. The Union
made another proposal on July II. and Respondent's next
proposal was made on July 14, 2 days before the expiration
of the contract which the parties had extended for 2 days.
Respondent sent "a summary of the more significant im-
provements contained in the July 14 proposal] that the
Company has proposed-wage and benefit improvements "to
each employee in the bargaining unit. A section in the sum-
mary headed "Cost-of-Living AdJustment" recites that "As
in the prior contract, the first one cent ($.01) per hour of
each quarterly adjustment will be waived and diverted to
partially offset the increased cost of the liberalized ringe
benefits. [Emphasis supplied.] The Union countered with its
July 13 proposal, and Respondent made another offer daled
July 26, again increasing the proposed benefit levels, a sum-
mary copy of which was again sent to the unit employees.
This summary also recites that I cent per hour of each cost-
of-living quarterly adjustment will be waived and diverted
to partially offset the increased costs of the liberalized
fringe benefits. Thus, it is clear that Respondent repre-
sented to its employees that a portion of their pay- I cent
per hour of each quarterly cost-of-living adjustment- was
to be used "to partially offset the increased cost of the liber-
alized fringe benefits" which Respondent had proposed.
At the August 2 negotiating meeting Carter requested
cost information concerning Respondent's proposed im-
proved benefits which Rosano asked be reduced to writing.
Accordingly, on August 3 Carter sent Rosano the following
letter:
Concerning our conversation of yesterday which I
again advised to you that in order to intelligently bar-
gain, the Union is in dire need of financial data relative
to our negotiations.
As a little bit of background, I had previously re-
quested of you financial information relative to your
benefit plans. You have never furnished me with finan-
cial information relative to your employment security
program. In addition, you referred me to Mr. Harry
Wynn as to information I was seeking regarding insur-
ance and pension benefits and costs. Mr. Wynn ad-
vised me that your Company would not divulge nor
negotiate cost of benefits. Inasmuch as I 1 cents cost-of-
living money must be diverted "to partially pay the
increased cost of fringe benefits", I am of the opinion
that it is mandatory that you furnish our Union with
'Carter's reference was to the money "dlserted" from the cost-otllving
adjustment to "partially pan the increased cst of fringe benefits" per sec.
13.14C) of the contract.
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cost data information so that we may intelligently bar-
gain.
I am requesting:
1. Cost data information relative to all the benefit pro-
gram improvements that you described to our mem-
bership in your letter dated July 26, 1978.181
On August 4 the Union filed the unfair labor practice
charge initiating this proceeding. Carter's August 3 letter
and a copy of the unfair labor practice charge were received
by Respondent on August 7.
By letter dated August 14 Rosano responded to Carter's
August 3 request for information letter as follows:
This will acknowledge receipt of your letter of Au-
gust 3, 1978 wherein you request certain financial in-
formation for collective bargaining purposes.
The cost data relative to all the benefit program im-
provements, in our view, is not relevant inasmuch as
we have not bargained with the Union over the cost of
the benefits, but only on the basis of levels of benefits.
Our bargaining position has not been justified on the
basis of cost.
Your letter makes a further request of an accounting
of the II cents which was diverted from the cost-of-
living adjustments from the prior collective bargaining
agreement. The Company has maintained no separate
fund or isolated the referenced 11 cents for accounting
purposes. It was simply a means of identifying the net
cost-of-living adjustments which was paid to employ-
ees during the term of the prior collective-bargaining
agreement. We therefore are not providing this infor-
mation due to unavailability of the data.
With regard to the information concerning the Kai-
ser and Aetna insurance program, the premium cost
differential as between those two programs will be pro-
vided to you as described in our letter to Mr. Davidson
on July 27.
As to the proof that insurance premiums are actu-
ally being paid to the respective carrier, you are ad-
vised that the Company would be willing to provide
you with a letter from the carrier that the Company is
meeting its financial contractual obligation and that
the premiums which we are paying are current.
The Employee Security Plan is not a funded pro-
gram. The Company accepts a liability for payment as
the liability is incurred.
On August 18 Rosano sent Carter a letter advising that
Aetna Life and Casualty had confirmed Respondent's esti-
mated premium cost, with improvements, was correct, and
that the excess of the Kaiser rate was $4.17 a month for
employees with family coverage.'
It appears that negotiations continued and that an agree-
ment was reached in the third or fourth week of September.
On November 9 Union Business Representative Pearson
wrote Winn "requesting a quarterly accounting of the
" The I cents referred to in the letter is derived from the I-cent cost-of-
living diversion per quarter to "partially pay the increased cost of fringe
benefits" over the I I quarters covered by the 1975 78 contract.
9 Resp. Exh. 2.
amount of money paid in diverting II cents from each
Cost-of-Living adjustment. We would also request the num-
ber of hours paid to Bargaining Unit Employees used in
calculating the total dollars diverted." The request had
been forwarded to Respondent's counsel and had not been
responded to at the time of the trial herein.
Discussion and Conclusions
Section 8(d) in defining the duty to bargain provides, in-
ter alia, that "[Tlo bargain collectively is the performance of
the mutual obligation of the employer and the representa-
tive of the employees to meet at reasonable times and con-
fer in good faith with respect to wages, hours, and other
terms and conditions of employment ... ."
It is settled that collective-bargaining duties imposed on
an employer by Section 8(a)(5) and 8(d) of the Act include
the obligation to furnish the employees' representative with
information relevant and necessary to the intelligent dis-
charge of its functions as the employees' exclusive bargain-
ing representative. The sole criterion for determining
whether information must be produced is its relevance or
reasonable necessity fr the Union's proper performance of
its representative role. Brown Newspaper Publishing Co..
Inc., 238 NLRB 1334 (1978). This is true whatever the na-
ture of the material sought, although the manner in which
relevance is to be ascertained varies. Information directly
related to mandatory subjects of bargaining-wages, hours,
or other terms and conditions of unit employees-is pre-
sumptively relevant to the Union's representative duties,
and it is not required that the Union show the precise rele-
vancy of the requested information. The information is so
intrinsic to the core of the collective-bargaining relationship
that it is presumptively appropriate and must be disclosed
unless it plainly appears irrelevant or unless the employer
comes forth and effectively rebuts the relevancy. Telepromp-
ter Corporation, et al. v. N.L..R.B.. 570 F.2d 4 (Ist Cir.
1977). Moreover, the Board has held that information con-
cerning pensions, health benefit, and insurance are encom-
passed within the concept of wages and that both premiums
paid and benefits granted under noncontributory plans con-
stitute "wages." The East Dayton Tool and Die Co.. 239
NLRB 141 (1978): The Nestle Company, Inc., 238 NLRB 92
(1978). The General Counsel need not make a showing that
the information sought is certainly relevant or clearly dis-
positive of basic negotiating issues between the parties; if
the information is of probable or potential relevance, there
is an obligation on the employer to provide it. Western
Massachusetts Electric Company, 228 NLRB 607 (1977).
Further, execution of a contract by a union without the
requested information does not render the information ir-
relevant, as the Respondent claims, since the Union may
simply have decided that the advantages of a contract in
hand would outweigh the benefits gained only after the in-
formation was made available following a protracted pe-
riod, perhaps caused by lengthy litigation. See, for example,
N.L.R.B. v. Yawman & Erbe Manufacturing Co., 187 F.2d
947 (2nd Cir. 1951); N.L.R.B. v. Fitzgerald Mills Corpora-
tion, 313 F.2d 260 (2d Cir. 1963). Also, the duty to furnish
information arises under the Act: consequently, the Union's
right to such information can be waived only in clear and
178
SOLAR TURBINES INTERNATIONAL
unmistakable terms and can never he found by implication.
N.L.R.B. v. Perkins Machine Companl . 326 F.2d 488 (Ist
Cir. 1964). Furthermore, the duty to furnish information
"does not terminate with the signing of a collective-bargain-
ing contract." but "continues through the life of the agree-
ment so far as it is necessary to enable the parties to admin-
ister the contract and resolve grievances or disputes."
Sinclair Refining Company v. N.L.R.B. 306 F.2d 569 (5th
Cir. 1962).
With these principles in mind, I conclude and find that
the Respondent has violated the Act as alleged in the com-
plaint.
To summarize pertinent evidence Carter, as outlined
above. in February first requested that Respondent furnish
the Union with information and forms filed with the Inter-
nal Revenue Service for the past 3 years on the fringe bene-
fit programs such as pension, health insurance, and dental
and supplemental employment benefit plans, which would
enable it to bargain intelligently. Approximately a month
later, Rosano sent Carter the last Internal Revenue Service
form 5500 and a summary annual report on Respondent's
noncontributory retirement plan. No information was in-
cluded on the health insurance, dental, or supplemental un-
employment benefits plans, nor was any information for-
warded regarding the 2 preceding years covered by the
collective-bargaining agreement. On May 15. at the first
negotiating meeting, Carter told Rosano he hadn't received
all the information he had requested. In response, Rosano
sent another copy of the information he had previously sent
regarding the retirement plan. Within the week Carter
again told Rosano he did not have all the information con-
cerning the employee security and insurance plans that he
needed. On May 31 Rosano sent Carter the last annual
Internal Revenue Service form 5500 for both the Group
Insurance Plan and the Employee Security Plan. In late
June at a breakfast meeting during which Winn explained
changes and improvements in the benefit plans Respondent
proposed to offer during negotiations, Carter asked Winn
for "All the cost data information relative to the pension, to
the health and welfare plan, to the dental plan, and . . .
specifically how much were the improvements worth in
money, what did they cost to add these improvements to
the existing contract." Despite the fact the collective-bar-
gaining agreement plainly provided at section 13.14(C) that
a portion of the unit employees' cost-of-living pay increase
during the term of the last agreement was to have been used
"to partially pay the increased cost of fringe benefits," and
the fact Respondent was to propose that clause again be
incorporated in the new contract, Winn told Carter that.
while Respondent would negotiate level of benefits, it
would not negotiate or divulge the cost of the benefit im-
provements. Also. Winn told Carter that Respondent would
be asking the unit employees to pay the difference between
the Kaiser and Aetna insurance premiums, to which Carter
objected. Carter's proposal to lower the ceiling of Respon-
dent's proposed improvement in major medical coverage.
with the difference in cost being applied toward another
benefit, was rejected on the grounds Respondent would not
negotiate benefit costs and did not want to offend other
employers in the area by pioneering any new benefits. Car-
ter also requested an accounting of the money diverted
from the cost-of-living adjustment "to partially pay the in-
creased cost of fringe benefits" as provided in section
13.14(C) of the contract. Yet, despite the contractual re-
quirement that these funds - in reality a portion of the unit
employees' pay increase-he used to pay a portion of the
increased cost of fringe benefits. Respondent continued to
refuse to furnish the Union with information covering the
costs of the benefits, and took the position it didn't have to
account for the money so diverted in accordance with the
contract, even though Respondent proposed during nego-
tiations that that clause remain in the contract and that the
employees continue contributing a portion of their cost-of-
living increases toward the cost of benefit improvements."'
Carter's requests of August 2 and 3 for ( I) cost information
concerning Respondent's proposed benefits, and (2) for an
accounting of the money diverted from the cost-of-living
increase to pay for improved fringe benefits, was met with
Respondent's refusal to furnish the former on the grounds
Respondent would not bargain over costs. and the latter on
the grounds that no separate fund had been maintained.
and therefore the information was not available. On No-
vember 9. following the execution of the new collective-
bargaining agreement containing the identical language
contained in section 13.14(C) of the expired agreement. the
Union requested a further accounting of the money di-
verted from the cost-of-living adjustment and the hours
used in computing that amount. As of the date of the trial.
Respondent had not responded to the request.
It is clear from the record that pay negotiated for unit
employees in the form of cost-of-living increases was by
contract withheld for the purpose of paying a portion of the
increased costs of fringe benefits under the 1975 78 con-
tract. Thus, by contract, the fringe benefit plans were not
"non-contributory" as Respondent claims. However.
whether or not "non-contributory," Respondent was obli-
gated to furnish the Union with the cost information it re-
quested regarding the benefit plans. which, clearly it has
refused to do. The East Dalton Tool and Die Co.. supra; The
Nestle Company. Inc., supra. Further, it cannot escape the
obligation of accounting for the cost-of-living pay increase
which it was contractually required to use for the partial
payment of the increased cost of benefits. The Union may
find, upon an accounting, that the amounts diverted pursu-
ant to Section 13.14(C), exceeds the increased cost of fringe
benefits, in which case it may wish to negotiate that clause
of the contract. Or it may find, as appears from the record.
that these funds were never in fact used by Respondent for
the purpose for which they were intended under the con-
tract. Respondent's reasons for declining to furnish an ac-
counting or the cost data requested, are rejected. While it
argues that furnishing the cost data requested would cause
it undue hardship, such was not the reason given the Union
for refusing to furnish the information. nor was any evi-
dence introduced to support that contention. Nor is the ar-
gument that it is excused from making an accounting of the
amount "waived and diverted to partially pay the increased
' Carter estimated the amount of the cost-of-llsing adjustment diverted
for this purpose amounted to oer $900.000 oser the life of the old agree-
ment.
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cost of fringe benefits" under section 13.14(C) convincing.
Contrary to Respondent's argument, that section clearly
provides the use to be made of the money withheld. It is no
answer to say that the collective-bargaining agreement does
not require or create a right to an accounting, or that the
information is not available since a separate fund from
which an accounting be made was not set up. The response
is that the Union is entitled to the information, and if the
information is not available, it should be made available. If
Carter could estimate that about $900,000 had been di-
verted over a 3-year period, I find it incredible that the
Respondent has no record of the amounts diverted under
section 13.14(C). In light of a statement made by Respon-
dent's counsel during the trial, it may well be that the funds
have not been used "to partially pay the increased cost of
fringe benefits," a fact which the Union is entitled to know
and which may affect its bargaining position. It cannot be
disputed that the Union has a fiduciary obligation toward
the employeees it represents and might well be subject to an
action for failing properly to carry out its obligation. Thus,
Respondent was required to furnish the cost data regarding
the benefit plans whether or not "non-contributory." The
Union clearly had a need for the cost data, especially in
light of the fact Respondent was again proposing the em-
ployees share in the cost of the increased benefits. Viewed
in light of the fact Respondent, until the trial, never claimed
that Carter's requests for information were too broad, and
its position throughout negotiations that it would not nego-
tiate or divulge the cost of benefit improvements, its claim
that it acted in good faith in submitting the limited infor-
mation it did to the Union, is not convincing.
The problem here is not the ineptness of the Union in
describing what was wanted but Respondent's belief that it
was not obligated to furnish the information. Here the facts
show that in refusing to furnish all of the information, Re-
spondent at no time questioned the sufficiencies of the de-
mand, and nothing in the record indicates it would have
complied with any demand of a more specific nature. There
is not an iota of evidence from which I can infer that Re-
spondent did not have or could not obtain the requested
information. Indeed, the weight of the evidence is to the
contrary and indicates Respondent had "control" over the
information requested by the Union.
Based on the foregoing and for the reasons stated, I find
that Respondent has violated Section 8(a)(5) and (1) of the
Act by refusing to furnish information relevant and neces-
sary for the Union to properly conduct collective-bargain-
ing negotiations and to properly assess Respondent's collec-
tive-bargaining proposals pending before the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRA(II('ES UPON
(COMMERCE
The activities of Respondent set forth in section 111.
above, occurring in connection with the operations of Re-
spondent as described in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several states, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. IIIHt REMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( ) and (5) of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain action designed to effectuate the
policies of the Act. Specifically, I shall recommend that it
be required to furnish certain information to the Union,
which information is necessary and relevant to the Union's
administration of its statutory obligations as collective-bar-
gaining representative.
Upon the foregoing findings of fact, and the entire record
in this proceeding, I make the following:
CON(LUSIONS OF LAW
1. Respondent is an employer 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.
3. All production, maintenance and indirect employees
of Respondent employed at its facilities in San Diego
County, California; excluding all other employees, office
clerical employees, professional employees, guards, and su-
pervisors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. The Union is and at all times herein has been the
exclusive representative of the employees in the unit de-
scribed above within the meaning of Section 9(a) of the Act.
5. By refusing to furnish the above-named Union upon
request with (a) all relevant information pertaining to Re-
spondent's cost of health, dental, pension, and other fringe
benefit plans, improvements in which were part of Respon-
dent's proposed collective-bargaining agreement; (b) cost
data pertaining to past fringe benefit plans into which
union member-employees had contributed a portion of the
cost-of-living wage increases agreed to in previous collec-
tive-bargaining agreements; and (c) data concerning the
number of hours worked by bargaining unit employees
used to calculate the amount of money diverted to in-
creased cost of fringe benefits out of the first cost-of-living
adjustment due pursuant to article 13.14(C) of the current
collective-bargaining agreement. the Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'"
The Respondent, Solar Turbines International, an Oper-
ating Group of International Harvester Co., San Diego,
California, its officers, agents, successors, and assigns, shall:
i] In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of' the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
180
SOLAR TURBINES INTERNATIONAI.
I. Cease and desist from:
(a) Refusing to bargain with Aeronautical Mechanics
Lodge No. 50. International Association of Machinists and
Aerospace Workers, AFL CIO. as the exclusive bargaining
representative of its employees in the unit described above.
by refusing to furnish the Union with (I) cost data pertain-
ing to past fringe benefit plans into which union member-
employees had contributed a portion of the cost-of-living
wage increases agreed to in previous collective-bargaining
agreements: (2) its cost of the increased health. security,
pension, supplemental income security. and any other
fringe benefit plan improvements contained in the 1978 81
collective-bargaining agreement: and (3) data concerning
the number of hours worked by bargaining unit employees
used to calculate the amount of money to he diverted to
increased cost of fringe benefits out of the first cost-of-living
adjustment due pursuant to article 13.14(C) of the current
collective-bargaining agreement.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist the above-
named or any other labor organization. to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed
by Section (7) of the Act, or to refrain from any or all such
activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request furnish to the above-named Union (1)
cost data pertaining to past fringe benefit plans into which
union member-employees had contributed to a portion of
their cost-of-living wage increases agreed to in previous col-
lective-bargaining agreements; (2) its cost of the increased
health, security, pension, supplemental income security.
and any other fringe benefit plan improvements contained
in the 1978-81 collective-bargaining agreement: and (3)
data concerning the number of hours worked by bargaining
unit employees used to calculate the amount of money to be
diverted to increased costs of fringe benefits out of the first
cost-of-living adjustment due pursuant to article 13.14(C)
of the current collective-bargaining agreement.
(b) Post at its San Diego, California, facilities copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 21, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
12 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 21. in writ-
ing. within 20 days from the date of this Order, what steps
have been taken to comply herewith.
APPENDIX
No l( t To EMPIOYI tFS
PosII'D BY ORDIFR ()- 1III
NAIoNA. LABOR RIAII()NS BOARD
An Agency of the United States Government
W-) .iti Not refuse to argain collectively with
Aeronautical Mechanics Lodge No. 685. and Silver-
gate District Lodge No. 50, International Association
of Machinists and Aerospace Workers, AFL CIO, by
refusing to furnish said Union with information neces-
sary and relevant to the Union's performance of its
collective-bargaining functions. The appropriate bar-
gaining unit is: All production, maintenance. and in-
direct employees of Respondent employed at its facili-
ties in San Diego County. California; excluding all
other employees. office clerical employees, professional
employees, guards, and supervisors as defined in the
Act.
WE WIlt. NOI in any like or related manner interfere
with. restrain, or coerce employees in the exercise of
their rights to self-organization: to form. join, or assist
the above-named labor organization, or any other la-
bor organization; to bargain collectively through rep-
resentatives of their own choosing: and to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities.
WE W It.L, upon request, furnish the above-named
labor organization with (a) cost data pertaining to past
fringe benefit plans into which union member-employ-
ees had contributed a portion of the cost-of-living wage
increases agreed to in previous collective-bargaining
agreements: (b) cost of the increased health, security,
pension supplemental income security, and any other
fringe benefit plan improvements contained in the
1978 81 collective-bargaining agreement: and (c) data
concerning the number of hours worked by bargaining
unit employees used to calculate the amount of money
to be diverted to increased costs of fringe benefits out
of the first cost-of-living adjustment due pursuant to
article 13.14(C) of the current collective-bargaining
agreement.
SOI.AR TRBINIS INIERNAIONAL.. AN OPIRATIN
GROIP OF INTIRNA11NAI. HARVESIrER CO.
181