Stahl Specialty Co.

National Labor Relations Board - Board Decisions

Mar 27, 1969

175 N.L.R.B. 129 (N.L.R.B. 1969)

STAHL SPECIALTY COMPANY
Stahl Specialty Company and United Steelworkers of
America , AFL-CIO. Case 17-CA-3543
March 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
129
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Stahl Specialty
Company, Kingsville, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
On October 25, 1968, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof,
and the Charging Party filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
STATEMENT OF THE CASE
SIDNEY J BARBAN, Trial Examiner. This matter was
heard before me at Kansas City, Missouri, on August 27,
1968, upon a complaint issued on May 27, 1968 (based
upon charges filed on April 18, 1968), alleging that the
above-named Respondent had violated Sections 8(a)(l)
and (5) of the Act, by refusing to give the Charging Party,
herein called the Union, upon request, certain information
concerning employees in the unit represented by the
Union
The answer admits allegations of the complaint
sufficient to support the assertion of jurisdiction under
current standards of the Board, and to support a finding
that the Union is a labor organization within the meaning
of the Act. The answer denies the commission of any
unfair labor practices
Upon the entire record in this case, and after due
consideration of the briefs filed by the General Counsel
and the Respondent, the Trial Examiner makes the
following
FINDINGS OF FACT AND CONCLUSIONS
The Alleged Unfair Labor Practices
Facts
'As noted in the accompanying Trial Examiner ' s Decision, the Union
seeks certain wage data from Respondent in order to determine whether
Respondent has been discriminating against union members in the granting
of certain merit increases Respondent declined to furnish the requested
information , contending that discrimination in the granting of such
increases , even if established , would not be arbitrable since the Employer
has authority to grant such increases in its "sole discretion " Two portions
of the contract are relevant First, article Iii ("Management Clause")
provides that "nothing herein will be used to discriminate against an
employee because of his union membership " Article VI, section 2,
provides that an employee will receive increases beyond the midpoint of the
salary range "provided his performance merits it " The parties with
reference to article VI, section 2 only, have stipulated that it was "entirely
discretionary whether or not they ( Respondent) gave merit raises above the
mid-range " Obviously, in this stipulation , the General Counsel and the
Union were not conceding that the Union had no contractual right under
Article iii to grieve if Respondent discriminated on the basis of union
membership in the granting of such increases Such a concession could not
be reconciled with the theory upon which this case was pleaded and
litigated Thus, in our judgment , the only reasonable construction that can
be given to the above-quoted contract clauses is that , under the contract,
Respondent can determine in its sole discretion which employees , based on
their work performance deserve merit increases above mid -point, but that
in making such a determination , Respondent cannot discriminate against
union members Such discrimination , if established , would give the Union
cause to grieve This case, therefore , does not present the kind of
arbitrability issue that was before the Board in Hercules Motor Corp and,
for that reason , we regard the Trial Examiner's reference to that case as
inapposite
The Union and the Respondent are parties to a
collective-bargaining contract effective from November 12,
1967, until April 30, 1969, subject to automatic renewal in
the absence of notice' This contract, which is the first
between Respondent and the Union, does not compel
Union membership, although it provides that employees
who join must maintain their membership. The contract
also provides, inter alia , that the Respondent may grant
merit increases to employees who have reached the
midpoint in the wage structure of their labor grade It is
conceded that this provision of the contract, which is set
out herein below, makes the grant of merit increases
above the midpoint of the labor grade a matter within the
Respondent's unilateral discretion.
A complaint was made to Arly Price, a local Union
officer, in early 1968, concerning two men working
together who were receiving disparate rates of pay Price
took this up with Whaler, an agent of Respondent, who
explained Respondent's reason for the difference in pay.
'The complaint alleges and the answer admits that the Union is the
exclusive bargaining representative, within the meaning of the Act, of "All
production and maintenance employees, including truck drivers and part
time employees, employed by the Respondent at its Kingsville, Missouri,
plant, excluding office clerical employees , office janitors, guards,
professional employees and supervisors as defined in the Act "
175 NLRB No. 19
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Price asked Whaler for a list of all employees in the unit
covered by the contract with their rates of pay, and
Respondent provided him with a list of employees, with
the rates of those at the midpoint or below, but merely
noting those who were receiving above the midpoint,
without giving their current rates of pay. Of the 178
names listed, it appears 142 were above the midpoint.
Price then complained to Union Representative
Andrew, stating his concern that the Respondent was
discriminating against Union members, and in favor of
nonunion employees in the granting of merit increases (the
higher-rated employee in the instance complained of
apparently being nonunion), and his feeling that the
practice was more widespread than the one instance which
had been brought to his attention.
Andrew wrote Whaler asking for the rates of pay and
classifications of all employees covered by the contract,
assertedly to check Respondent's compliance with sections
1 and 2 of article VI of the contract (set forth
hereinafter). Respondent sent Andrew a copy of the
material previously given Price (which did not contain job
classifications). Andrew replied that since the Union "feels
that the [Respondent] is discriminating between members
and non-members of the union," he did not consider the
material provided to be sufficiently "explicit," and
requested the "actual wage rates" of all employees "along
with their classifications." Whaler thereafter wrote
Andrew, refusing his request, stating, in part, as follows:
Since the rates above midpoint are based upon merit
and are paid solely at the discretion of the Company up
to the top rate of the job, we do not believe this is a
matter of legitimate concern of the Union. We point
out you had individual rates of all employees of the
bargaining unit during negotiations which preceded the
existing contract. Of course, we are not now engaged in
any negotiation requesting rates of pay.
No formal grievance was filed against Respondent
under the grievance procedure set forth in the contract,
which provides for arbitration of grievances not otherwise
settled, upon appropriate request. The Union elected to
file charges in this matter, instead.
The provisions of article VI, Wages, in the
collective-bargaining contract are as follows:
Section 1 - Classifications - Rates
(A) The Company has prepared job descriptions and
completed a job evaluation program and a base hourly
wage rate has been established for each job
classification.' Job classifications and rates of pay are
listed in appendix "A" and are hereby made a part of
this Agreement.
(B) The Company will have the right to classify and
grade all new jobs and reclassify jobs where the duties
involved change from those currently existing.
(C) Each employee will be paid a rate within his job
classification.
Section 2 - Increase Procedure
Each employee will be considered for an increase
each month. He will receive an automatic increase of
five cents ($.05) each month in a new job classification
until he has reached the midpoint of the range. He will
receive increases beyond this point provided his
performance merits it.
Section 3 - Incentive or Bonus Pay
'The contract contains an extensive job evaluation article providing for
Union participation , with which we are not directly concerned, and is
therefore not reproduced herein
(A) The Company will have the right to continue the
present incentive or bonus plan as it is presently in
effect. However, if in the sole judgment of the
Company the best interests of the Company can be
served by making changes in the incentive system or by
eliminating all incentive or bonus pay the Company
shall have the right to do so.
(B) No questions or disagreements connected with
any incentive or bonus plan shall be subject to the
grievance procedure.
Conclusions
It is now well established that a labor organization
which is obligated, under the Act, to represent employees
in a bargaining unit with respect to the terms and
conditions of their employment is also entitled, by
operation of the statute, upon appropriate request, to such
information as may be relevant to the proper performance
of that obligation. As the Board stated in its recent
decision in Cowles Communications, Inc., 172 NLRB
No. 204 (citations omitted):
The law is clear and well-settled that "wage and
related information pertaining to employees in the
bargaining unit should, upon request, be made available
to the bargaining agent without regard to its immediate
relationship to the negotiation or administration of the
collective-bargaining agreement." As such information
concerns the core of the employer-employee
relationship, it is presumptively relevant and "a union is
not required to show the precise relevance of it, unless
effective employer rebuttal comes forth .. " As the
court stated in Yawman & Erbe, "it is virtually
impossible to tell in advance whether the requested data
will be relevant except in those infrequent instances in
which the inquiry is patently outside the bargaining
issues."
Inasmuch as the merit increases granted to the
employees represented by the Union are unquestionably a
part of the employees' wages, information concerning
those increases is, therefore, presumptively relevant to the
performance of the Union's obligations under the Act, and
must be given to the Union in the absence of good cause
to the contrary shown by the Respondent. See, i.e., Otis
Elevator Company, 170 NLRB No. 59
The Respondent asserts, primarily, that the Union had
no "need [for] the exact wages of the employees above the
mid-rate," because "the Union has no right under the
Agreement to dispute wage increases above the mid-rate,"
on the basis that "[s]uch increases are . solely within
Respondent's discretion." (Brief p. 6.) Carrying this
argument further, Respondent contends that the issue is
essentially one of contract interpretation to be determined
in the first instance by an arbitrator under the contract,
and that a duty to supply the information sought would
arise only upon an arbitrator's decision which might make
the information necessary under the contract, citing
Hercules Motor Corporation, 136 NLRB 1648; Square D
Co. v. N L.R.B., 332 F.2d 360 (C.A. 9, 1964); and
Sinclair Refining Company v. N.L.R.B., 306 F.2d 569
(C.A. 5, 1964). Both of the court decisions cited, relying
heavily on the Board's decision in Hercules Motor Corp.,
which support Respondent's position, hold, in effect, that
where it is claimed by an employer that the issue raised by
the union has been left to the employer's unilateral control
by the contract , and is thus not gnevable, there is no
obligation to furnish information until the arbitrator has
determined the validity of the contract claim.
STAHL SPECIALTY COMPANY
However, even when these decisions were issued, it
would appear that they ran counter to the previous weight
of authority, as discussed by the Court in Sinclair. And
since the decisions in Sinclair and Square D, it has
become firmly settled that the Board is not divested of
jurisdiction to decide the right of a union to information,
as those decisions held, merely because construction of a
collective-bargaining contract is necessary to determine
whether there has been a violation of the Act. Cf.
N L.R.B. v. C & C Plywood Corporation, 385 U.S. 421
(1967); see Washington Hardware and Furniture Co., 168
NLRB No. 72 Nor is the Board precluded from deciding
such an issue because the contract provides for arbitration
of the alleged dispute See N.L.R B. v. Acme Industrial
Co., 385 U.S. 432 (specifically referring at p. 437 to the
contrary view in Sinclair Refining Co., supra); N.L R.B
v. Scam Instrument Corp , 394 F.2d 884, 887 (C.A. 7,
1968).'
Moreover, although the statutory right to information
concerning employee working conditions may, in
appropriate circumstances, be waived, "an employer
cannot refuse [to provide such information] unless there
has been a `clear and unmistakeable' waiver by the
union." See N L R B v. Perkins Machine Company, 326
F.2d 488. Here, however, it is far from clear that the
Union has waived its right to information concerning
merit raises granted by Respondent, or even that the
Union has foregone all right to question Respondent's
actions, if they be arbitrary, capricious, or discriminatory.
Thus, it is noted that where the parties intended that
working conditions should be subject to the "sole
judgment" of Respondent and not subject to the grievance
procedure, the contract specifically so provides (see article
VI, section 3, Incentive or Bonus Pay), though it does not
so provide in the case of merit increase payments.
The reasoning of the Court in N.L.R.B. v. The Item
Company, 220 F.2d 956 (C.A. 5, 1955), which follows,
seems particularly apt to the situation here presented. The
court said at 959•
. assuming arguendo that the new contract
authorized respondent to bypass the Union in granting
individual employee ment increases, such a construction
of its terms would not ipso facto establish a waiver of
the Union's right to obtain information as to the merit
increases thus unilaterally granted. The right to grant
merit increases without the consent of a statutory
bargaining agent obviously should not imply the right to
withhold information thereon, since such a rule might
foster discrimination against union adherents in the
granting of merit increases, and thereby promote that
industrial strife and unrest which the Act seeks to
avoid.
Nor is the information sought any less relevant to the
Union's obligation to represent the employees because
there is no pending formal grievance between the Union
and the Respondent, as Respondent contends. What is
significant here is the "potential value of [the information
sought] as pertinent data with which the Union should be
supplied in order to assist it in its task of deciding whether
'The Board ' s decision in Hercules Motor Corp. supra , is cited by
Respondent in support of the principle of the court decisions in Square D
and Sinclair, which , as noted above , does not express the current state of
the law At most , today, the Hercules decision (as the Board, itself,
indicated therein ) constitutes an exercise of the Board 's informed discretion
to defer to the arbitral process, rather than exert its own jurisdiction in an
unfair labor practice proceeding , where it finds this would effectuate the
purposes of the Act See N L R B v Thor Power Tool Company, 351
F 2d 584 , 587 (C A 7, 1965)
131
to institute grievance proceedings or use other policing
tools under the existing bargaining agreement and to guide
the Union in contract negotiations themselves." See
Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61, 70
(C.A. 3, 1965). As the Court further stated, "Demands for
information are usual precursors to the submission of
complaints and grievances to grievance and arbitration
machinery. This is only natural, for as the Trial Examiner
pointed out, unions would be forced to grope blindly
through the very stages of the grievance procedure unless
adequate information were preliminarily available." (347
F.2d at 71.) See also Fafnir Bearing Company v.
N.L R.B., 362 F.2d 716, 721 (C.A. 2, 1966). Nor is there
any reason to believe, on this record, that the Union is
seeking the information requested in order to "harass"
Respondent, as is claimed, rather than for the purpose of
determining whether Respondent has complied with its
obligations (express or implied) under the contract. The
fact that with the information sought, the Union may be
able to present a more intelligent and effective grievance
(or perhaps determine that it has no basis for complaint)
can hardly be classed as "harassment."
There is similarly no factual basis shown for the further
argument that the information sought is to be used by the
Union for the purpose of renegotiation of the contractual
basis for wage increases above the midpoint prior to the
date for reopening the contract.'
In summary, it is found that the Union's right to the
information requested is derived from the statute, rather
than from the contract, as Respondent seems to contend;
that the information sought is presumptively relevant to
the Union's statutory obligation to represent Respondent's
employees in an appropriate unit ; and that the Union has
not waived its right to the information requested, nor has
the Respondent shown good cause justifying its refusal to
supply the information. It is therefore held that the
Respondent, by refusing and failing to furnish the Union,
upon request, the classifications and exact wage rates of
each named employee in the unit represented by the
Union, has engaged in and is engaging in unfair labor
practices in viclation of Sections 8(a)(1) and (5) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Sections 2(6) and (7) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act, which, at all times
material, has been and continues to be the exclusive
representative of Respondent's employees in an
appropriate unit for the purposes of collective bargaining
within the meaning of Sections 9(a) and (b) of the Act.
'Anaconda American Brass Company, 148 NLRB 474 , and Avco
Manufacturing Company, Ill NLRB 729, also cited by Respondent, have
been carefully considered, but are considered distinguishable from the
present matter In Anaconda, the Board held that the union was not
entitled to information relating to a specific grievance which had been
disposed of a considerable period prior to the Board 's decision , and which
the Board found had no bearing upon the union's general obligation to
represent the unit In Avco, the Board held the union was entitled to
current information which the employer used in making merit ratings, but
was not entitled to older material which was not used in making such
ratings. Though furnishing some support for Respondent ' s contentions,
when considered on the basis of their own particular facts and
circumstances , as the Board and the Court have admonished us, see
General Aniline and Film Corporation , 124 NLRB 1217, in 1, it is clear
that these cases are not dispositive of the issues here presented
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 By the acts and conduct herein found violative of the
Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and (5) of the Act, which unfair labor practices
affect commerce within the meaning of Sections 2(6) and
(7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Sections 8(a)(l)
and (5 ) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act
provided by the Regional Director for Region 17, after
being duly signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all 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 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
`In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Respondent, Stahl Specialty
Company, Kingsville, Missouri, its officers, agents,
successors, and assigns, shall
I Cease and desist from refusing to bargain collectively
with United Steelworkers of America, AFL-CIO, by
refusing to furnish to said labor organization the
classifications and actual wage rates of each named
employee in the appropriate unit represented by the said
labor organization
2. Take the following affirmative action which will
effectuate the purposes of the Act
(a) Upon request, furnish to United Steelworkers of
America, AFL-CIO, the name, classification, and actual
wage rate then being paid for each named employee in the
appropriate unit of Respondent's employees represented
by the said labor organization
(b) Post at its premises copies of the attached notice
marked "Appendix."5 Copies of said notice, on forms
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
WE WILL, upon request , furnish to United
Steelworkers of America , AFL-CIO, the name,
classification , and exact wage rate being paid to each
employee in the unit represented by the Union at the
time the request is made
STAHL SPECIALTY
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone 816-FR 4-5181