Taylor Forge and Pipe Works

National Labor Relations Board - Board Decisions

Aug 16, 1955

113 N.L.R.B. 693 (N.L.R.B. 1955)

TAYLOR FORGE AND PIPE WORKS 693;
are no office clerical employees nor does the Employer contemplate the
employment of this classification of employees in the near future. We-
shall make no unit determination with respect to them.4
-e-find the following_ employees of the Employer constitute a unit-
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All employees at Employer's store #27, at Moses Lake, Washington,
including the grocery, produce, bakery sales, and snack bar employees,
but excluding employees working 8 hours or less per week, the store
manager, the assistant store manager, the retail meat cutters and
wrappers, bakery production employees, guards, and supervisors as-
defined in the Act.
[Text of Direction of Election omitted from publication.]
s American Smelting ,& Refining Company, 102 NLRB 1489.
Taylor Forge and Pipe Works and Forge and Machine Work-
ers Industrial Union. Case No. 13-CA-1727. August 16,1955-
DECISION AND ORDER
On March 15, 1955, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-_
spo ,dent, had engaged in and was engaging, in unfair labor practices..
within the meaning of Section 8 (1) and (5) of the Act and recom-
mending that it cease and desist therefrom and take certain afflrma--
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the In-
termediate Report with a supporting brief.'
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 Intermedi-
ate Report, the Respondent's exceptions and brief, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and rec--
oft xi hdlafiafis ^ of the Trial Examiner, with the following additions:
and modifications.
In adopting the findings and conclusions of the Trial Examiner.
that the Respondent, by refusing the requested information, thereby
violated'Section 8 (a) (5) of the Act, we do not mean to establish,
as claimed by our dissenting colleagues, that "an employer is required
to furnish every fact, occurrence and thought which can even, re-
motely be said to relate to wages."' In the present instance, however..
1 The Respondent also requested oral argument. In our opinion, the record, including-
the exceptions and brief, fully presents the issues and the positions of the parties. Ac-
cordmgly, the request for oral argument isdenied.
9 The Board has recognized that there are limits to the type of information an employer
is obligated to furnish the Union . See McLean-Arkansas Lumber Company Inc., 109<
113 NLRB No. 65.
,694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we believe that the evidence clearly establishes the relevancy and es-
sential necessity for the substantiating data requested by the Union.
Thus, it is undisputed that the substantiating data is part of the Re-
spondent's job evaluation system.3 Further evidence of relevancy is
the fact that the Respondent has agreed to supply such information
on any particular job if the Union should process a grievance on that
job.
We can see no essential difference in the need for wage data infor-
-lnation requested, as here, on an overall basis and the need for such
piecemeal information, the furnishing of which is agreed to by the
Respondent. Thus, it is clear that, if the data is relevant and neces-
sary in the case of individual grievances, it is equally relevant and
necessary where the object of the negotiation is to establish broad pay
-formulas which will eliminate the necessity of filing individual griev-
ances. Nor will the furnishing of such data be unduly burdensome
upon the Respondent, as it is not required to draw up accounts or
make extensive surveys, but only to turn over the existing information
-which is contained on the reverse side of the Respondent's job descrip-
tion sheets. In fact, it would appear that to supply the data support-
ing the Respondent's wage determinations does not differ in kind or
-performance from the recognized obligation of an employer to grant
-the union's request for original time study data developed by the em-
ployer's experts and applicable to a grievant's job.4
The Board has held, with judicial approval, that the failure of an
employer to furnish upon request of the bargaining representative
information reasonably available from the employer's records and es-
sential to the intelligent representation of the employees concerned,
violates Section 8 (a) (5) of the Act.5 We believe that this principle
is applicable to the present proceeding Accordingly, we find, in
:agreement with the Trial Examiner, that the Respondent's refusal to
furnish the job substantiating data upon request by the Union was a
violation of Section 8 (a) (5) of the Act.6 We shall therefore enter
an appropriate order, remedying the unfair labor practices as found
by the Trial Examiner and affirmed in the manner noted above.
NLRB 1022 ; Yawman & Erbe Mannafactitrang Co., 89 NLRB 881, enfd. 187 F. 2d 947
(C. A. 2).
3 It was testified that this system is "the heart of the determination of wage rates" at
the Respondent 's plant.
4 See Otis Elevator Company, 102 NLRB 770, enfd. as mod . 208 F. 2d 176 (C. A. 2).
6 See Whatin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A. 4), cert. de-
nied 349 U. S 905 The Item Company, 108 NLRB 1634.
6 The overall good faith of the Respondent is not a relevant consideration where the
Respondent's conduct is in itself a violation of the Act. See Whitin Machine Works,
supra. Nor does the fact that the Union and the Respondent have since bargained to
an agreement render the obligation moot or constitute a waiver of the right to insist
upon the information sought , where the parties' stipulation expressly negated any such
construction as to waiver . See The Item Company, supra . See also The Hughes Tool
SCompany, 100 NLRB 208.
TAYLOR FORGE AND PIPE WORKS 695
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Taylor Forge
and Pipe Works, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Forge and Machine
Workers Industrial Union, as the exclusive representative of all its
employees, at its Chicago, Illinois, plant, excluding all full-time man-
ual welders, cutters, and apprentices in department A-3, salesmen,
office employees, guards, executives, and all supervisors as defined in
the Act, by refusing and failing to furnish to said organization, upon
request, the "degree" or point evaluation assigned by the Respondent
to each of the factors evaluated in each of its hourly rated jobs in de-
termining the point range for such jobs of employees in the appropri-
ate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request furnish to Forge and Machine Workers Indus-
trial Union the "degree" or point evaluation assigned by the Respond-
ent to each of the factors evaluated in each of its hourly rated jobs
in determining the point range for such jobs of employees in the ap-
propriate unit.
(b) Post at its Chicago, Illinois, plant, copies of the notice attached
to the Intermediate Report and marked "Appendix A."' Copies of
said notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by the Respondent's rep-
resentative, be posted by the Respondent immediately after receipt
thereof, and be maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
CHAIRMAN FARMER and MEMBER RODGERS, dissenting :
We do not agree with the majority's finding of an 8 (a) (5) viola-
tion by the Respondent.
7 This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" the words "A Decision and Order ." In the event that this Order
is enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
(United States Court of Appeals , Enforcing an Order."
379288-56-vol. 113-45
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts in this case are simple and not in dispute. The Respond-
ent has its own method of arriving at wage rates for employees. It
starts off with a listing of every rank-and-file job in its plant. For
each listed job, the Respondent then prepares a detailed job descrip-
tion. The description includes, among other things, work performed,
purpose, machines and tools used, and working conditions. The Re-
spondent prepares a job rating for each position; the job rating con-
sists of 11 factors taken from the National Metal Trades Association
Job Rating Manual: education, experience, initiative and ingenuity,
physical demand, mental or visual demand, responsibility for equip-
ment or process, responsibility for material or product, responsibility
for safety of others, responsibility for work of others, working condi-
tions , and unavoidable hazards . The NMTA Manual defines each of
the 11 factors,8 establishes 5 possible degrees for each factor,9 and gives
a numerical point designation for each of the 5 degrees for each of the
11 factors.
The Respondent rates each job description on the basis of the 5 de-
grees in each of the 11 factors. This evaluation gives a point score
for each factor; the point scores are added to give a point total for
each job rating. The Respondent refers to a point conversion table
in the NMTA Manual to arrive at the hourly rate in money for each
job.
The Respondent has about 240 jobs in its plant. As each job is di-
vided into 11 factors for each of which there are 5 degrees, simple
computation establishes that there are more than 13,000 possible com-
ponents comprising the 240-point score totals.
During the negotiations for a new contract, the Union requested the
Respondent to supply the points scores for every factor, thus demand-
ing a breakdown of each job classification to the most minute detail.
In response, the Respondent furnished the Union with the master
index listing every job, a copy of each description, and the NMTA
Manual including the point conversion table. The Respondent agreed
to give the Union the point-score total for each job. Thus, at the
time of the negotiations, the Union knew the details of every job em-
8 For example , 9. Responsibility for work of others: This factor appraises the responsi-
bility which goes with the job for assisting, instructing , or directing the work of others.
It is not intended to appraise supervisory responsibility for results.
For example , 4. Physwal demand: 1st degree-Light work requiring little physical
effort 2d degree-Light physical effort working regularly with light weight material or
occasionally with average weight material. Operate machine tools where machine time
exceeds the handling time. 3d degree-Sustained physical effort, requiring continuity
of effort working with light or average weight material Usually short cycle work re-
quiring continuous activity. Or the operation of several machines where the handling
time is equivalent to the total machining time. 4th degree-Considerable physical effort,
working with average or heavy weight material . Or continuous strain of a difficult work
position . 5th degree-Continuous physical exertion working with heavy weight mate-
rial . Lard work with constant physical strain or intermittent severe strain.
TAYLOR FORGE AND PIPE WORKS 697
ployees performed, the rate of pay, and the complete mechanics by
which the rate was computed.'°
We believe that the majority's conclusion in this case establishes a
broadside principle for every issue even remotely resembling a wage
information situation. The Supreme Court has rejected such an ap-
proach to cases involving charges of per se 8 (a) (5) violations. It
has held that, "The duty to bargain collectively is to be enforced by ap-
plication of the good faith bargaining standards of Section 8 (d) to
the facts of each case. . . ." 11 The Respondent's overall good faith
in its dealings with the Union cannot be gainsaid.12 There has been
a history of successful collective bargaining between the Respondent
and the Union, and, even after the filing of the charge in this proceed-
ing, the Respondent bargained to a new agreement with the Union.
It agreed to give the Union the individual point designations for each
of the 11 factors on any particular job if the Union processed a griev-
ance on that job. In fact, even before the filing of the charge the Re-
spondent and the Union mutually agreed upon and established such
point designations for the 11 individual factors in 18 jobs. Such facts
establish that the Respondent's negotiations conduct has been in com-
plete conformity with the principle of collective bargaining pre-
scribed by the statute.
We do not view the recognized duty of an employer to furnish wage
information of the usual variety as an open sesame which requires'an
employer to furnish a union with all the minutiae leading to its sub-
conclusions, which in turn, are the bases for the ultimate bargainable
fact-the rate of pay an employer offers for each particular job.
Where the information line is to be drawn cannot be stated as a pre-
cise rule; each fact situation must be scrutinized to determine the ex-
tent of an employer's obligation. The facts of this case show that the
Respondent has fulfilled its duty of disclosure.
We believe the majority mistakenly presumes that the Whitin Ma-
chine 13 and related cases stand for the proposition that an employer
is required to furnish every fact, occurrence, and thought which can
even remotely be said to relate to wages. We do not so construe that
line of cases. Those decisions are in sharp contrast to the facts in-
volved here. The Board has found a refusal to bargain where, for
example, an employer refused to correlate named employees with spe-
10 The Respondent had supplied the Union with its point designations on the 11 indi-
vidual job factors for about 95 of its total of approximately 240 jobs
11 N L. R B. v. American National Insurance Co , 343 U S 395.
12 We note the undenied testimony that, at the time the Respondent assumed its posi-
tion pertaining to the particularized point scores , the Union's counsel stated, "That is
just what I wanted to hear you say Now I am going to file an unfair labor practice
charge I have waited 8 months for this chance."
13 Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A. 4).
I,
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cific wage rates ; 14 an employer refused to furnish the exact wages of
employees and the amounts of merit increases they received in the
prior year; 15 and an employer refused to furnish current salaries.16
The Whitin Machine case holds that the wages linked with the names of
employees have a presumptive relevance, and that it is unnecessary
for a union to establish the relevancy to particular negotiations of
such information. The courts have approved this principle. How-
ever, such information must, at least, inherently possess characteris-
tics that are significant in relation to wage negotiations generally.
The subordinate detail which the majority now forces the Respondent
to furnish the Union is far too remote to fall within the purview of
the Whitin Machine decision.
Indeed, it is not even clear that the subject of the Union's demand
is "wage information." The point designations which the Respondent
assigns to the 11 individual job factors represent the Respondent's
considered judgment based upon its introspective mental processes.
In this instance, the Respondent reduced to writing the finer points
of its thinking about the relative difficulty of the jobs in its plant,
the comparative skill, experience, training, and other traits the jobs
require. Another employer keeps these elements of-his mental proc-
esses in the abstract and does not reduce them to writing. If the more
methodical employer must expose the details of his inner thoughts at
the bargaining table for others critically to appraise, logically, a less
systematic one might be compelled to codify his thoughts in writing
for the benefit of his employees' bargaining representative. A union's
right to such information, if it is such a right and if information it is,
can hardly depend upon the form in which an employer keeps it.
In any event we see nothing in the statute which imposes upon an
employer the obligation to reveal, upon blanket request and with no
pretense of any showing of need or relevance, such remote "informa-
tion" or "facts" as are involved in this case. We believe, rather, that
argument whether certain work involves light, or sustained, or con-
siderable, or continuous physical effort, for example , involves the lan-
guage of the bargaining conference, and it properly belongs there.
The Respondent here gave the Union all the facts about job classi-
fications and descriptions, wage rates, individual earnings , and the
total point score equivalent to each employee's wage scale. It even
offered, if a dispute arose over any particular job, to reveal detailed
reasons-shown in the various designations for the 11 factors decided
upon by its experts-for the wage rate on the job. Under such cir-
cumstances, we find it impossible to decide that the Respondent
breached his obligation to bargain collectively which is all that under
the statute it was obligated to do.
14 Ibid.
15 The Item Company, 108 NLRB 1634, enfd. 220 F . 2d 956 (C. A. 5).
10 Yawman & Erbe Manufacturing Company, 89 NLRB 881, enfd. 187 F. 2d 947 (C. A. 2).
- -TAYLOR FORGE AND PIPE WORKS 699
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges timely filed by Forge and Machine Workers Industrial Union, herein
called the Union, the General Counsel by the Regional Director for the Thirteenth
Region (Chicago, Illinois ) of the National Labor Relations Board, herein called the
Board, issued his complaint, dated October 28, 1954, against Taylor Forge and Pipe
Works, herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and
the charge, together with notice of hearing, were duly served upon the Respondent
and the Union. -
With respect to the unfair labor practices, the complaint alleges that the Respond-
ent has failed and refused to bargain with the Union as the exclusive collective-
bargaining representative of employees in an appropriate unit by refusing during the
course of collective-bargaining negotiations, on or about April 16, 1954, to furnish
the Union with the job evaluation point schedules which disclose the points assigned
by the Respondent to each of the 11 factors evaluated in each of its hourly rated jobs
in determining the point range for such jobs and thus enabling the correlated rate
range at which each such job is compensated to be ascertained. In its answer, duly
filed herein, the Respondent admits the allegations concerning its operations and
that the Union was at all material times the exclusive collective-bargaining represent-
ative of employees in an appropriate unit, admits that the Union requested certain
evaluation and wage data information but denies that the information requested was
exactly as alleged in the complaint, denies that it refused to supply the requested infor-
mation , avers that the Respondent supplied the Union with all information necessary
to determine the occupational rate and offered to permit the Union to examine the
point evaluation of any specific occupation upon a showing of sufficient and proper
reason for such an examination, and denied the commission of any unfair labor
practices.
Pursuant to notice a hearing was held before me on January 11 and 12, 1954, at
Chicago, Illinois. All parties were represented at the hearing, and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce rele-
vant evidence, to present oral argument at the close of the hearing, and thereafter
to file briefs as well as proposed findings of fact and conclusions of law. The Re-
spondent's motions to dismiss the complaint, made at the conclusion of the hearing
and upon which I reserved ruling, are disposed of in accordance with the findings of
fact and conclusions of law made below. Subsequent to the hearing, all parties filed
--briefs which I have fully considered.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find, that the Respondent, an
Illinois corporation with its principal office at Chicago, Illinois, operates and main-
tains manufacturing plants at Chicago, Illinois, Fontana, California, and Pittsburgh,
Pennsylvania; that at its manufacturing plant at Chicago, Illinois, which is alone in-
volved in this proceeding, it is engaged in the business of manufacturing, forging,
and fabricating steel products for distribution and sale; and that in the conduct of its
business at said plant it has annually purchased and received supplies and materials,
valued in excess of $500,000, from outside the State of Illinois, and has annually
shipped its finished products, valued in excess of $500,000, to points located outside
the State of Illinois.
Upon the above admitted facts, I find, as the Respondent concedes, that the Re-
spondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that Forge and Machine
Workers Industrial Union is a labor organization within the meaning of Section 2 (5)
of the Act.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The issues raised in this proceeding are (1) whether the Respondent's refusal to
furnish to the Union, upon its request during negotiations for a new contract in April
1954, certain job rating substantiating data in the Respondent's possession, constitutes
a violation of Section 8 (a) (5) and (1) of the Act, and (2) whether the Regional
Director's refusal to issue a complaint in a prior proceeding upon a charge filed
approximately 8 months before the charge in the instant case, alleging a similar
violation because of the Respondent's refusal at that time to furnish the same data
upon the Union's request, is res judicata of the issue in this proceeding. The material
facts pertaining to these issues are not in dispute.
It is conceded, and I find, that at all times material herein (1) all employees of
the Respondent at its Chicago, Illinois, plant, excluding all full-time manual weld-
ers, cutters, and apprentices in department A-3, salesmen, office employees, guards,
executives of the Respondent, and all supervisors as defined in the Act, constitutes
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, and (2) the Union has been, and is, the exclusive repre-
sentative of all the employees in said appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9 (a) of the Act.
B. The refusal to bargain
1. Respondent's method of determining hourly wage rates
The wage rates for each hourly rated job at the Respondent's plant were initially
determined by the Respondent's use of a job evaluation system. The first step was
the preparation of a "Job Description" for each job listed in the Respondent's "Mas-
ter Occupation Index." A separate description for each job was prepared on a
sheet about 12 x 8 inches. At the top of the sheet appears the large heading "Job
Description." Above this heading are blank lines following the small legends
"Date Described," "Described by," and "Supersedes Description." Immediately be-
low the heading of "Job Description" is the small legend "Job`Title," followed by
-the title of the job such as "Service Driver-Janitor." Immediately below this is the
small legend "Machine No." The balance of the sheet contains a list of nine large
topic headings, with a description under each topic applicable to the job described.
These standard and constant topic headings are as follows: I. Purpose; II. Descrip-
tion; III. Machine, IV. Tools; V. Production; VI. Tolerances; VII. Inherent De-
lays; VIII. Supervision; and IX. Working Conditions.'
On the reverse side of this sheet, there is a large heading on the top entitled
"Job Rating" and, immediately underneath, "Substantiating Data." To the right of
this heading is a blank line following the small legend "Effective date"; to the left
are two blank lines, one following the small legend "Supersedes," with the word
"Date" under the line, and the other blank line following the small legend "Super-
sedes," with the words "Job. No." under the line. Underneath these legends and
the caption, almost covering the remainder of the sheet, is a chart containing three
vertical columns. The first column is headed by the legend "Factors"; the second
one is headed by the legend "Deg.," which is the abbreviation for degrees; and the
third one is headed by the legend "Basis of Rating." Under the heading of "Fac-
tors" are listed the following 11 standard and constant factors, each on a separate
line: Education, experience, initiative and ingenuity, physical demand, mental or
visual demand, responsibility for equipment or process, responsibility for material
or product, responsibility for safety of others, responsibility for work of others,
working conditions, and unavoidable hazards. The last topic listed in this column
is entitled "Remarks. At the bottom of the sheet are blank lines over the following
small legends: "Evaluation," "Authorization," "Job Title," "Machine No.," and
"Job No." s
After a job description was written, the Respondent's industrial engineering de-
partment, together with the "operating people," then reviewed the description and,
with the use of the National Metal Trades Association (herein called NMTA) Job
I The job description sheet, described in the text, appears in the record as Respondent's
Exhibit No 5-C
9 The job rating substantiating data sheet, which is described in the text and is the
reverse side of the fob description sheet, appears in the record as Respondent's
Exhibit No. 5-B.
TAYLOR FORGE AND PIPE WORKS 701
Rating Manual, proceeded to assign point values to each of the standard factors
listed in the chart contained on the job rating substantiating data sheet.
The NMTA Manual? contains a definition of each of the 11 standard factors
listed in the chart on the job rating substantiating data sheet. In this manual, each
"factor" is broken down into five "degrees," with a description of the requirements
for each "degree." On the inside of the cover is a table setting forth the different
number of points to be assigned to each "degree" for each "factor."
By examining the job description and comparing it with the requirements pre-
scribed in the NMTA Manual for the five degrees of each factor, the engineering
department determined the "degree" to be assigned to each "factor" listed on the
chart and recorded that "degree" in the appropriate column on the chart, opposite the
corresponding "factor," and the number of points assigned to that "degree" on
the table appearing on the inside cover of the NMTA Manual. When the rating
was completed on the chart, the points were totaled and converted into the money
rate for that job by the use of a point conversion table. This table shows what
rate is to be assigned to a particular job depending upon the total number of
point values computed for that job on the chart of the job rating substantiating data
sheet.
Paul Plevack, the Respondent's manager of industrial relations, admitted that
the following 3 elements entered into the evaluator's determination of which one of
the 5 "degrees" should be assigned to each "factor" on the chart contained on the job
rating substantiating data sheet: (1) A knowledge of the shop and its conditions,
(2) a knowledge of the NMTA job rating system, and (3) the exercise of a certain
amount of judgment.
At the time when the issue in this proceeding arose, the Respondent had in its
possession the job rating substantiating data sheets, containing the information
called for therein, for the approximately 238 jobs listed in its "Master Occupa-
tion Index."
2. The Union's request and the Respondent's refusal
Prior to April 16, 1954, representatives of the Union and the Respondent had
engaged in collective-bargaining conferences for the purpose of executing a new
agreement to succeed the one which was to expire April 30. Among the contract
proposals submitted by the Union was one for a wage increase. Although the
subject of wages had been discussed in prior conferences, no decision had been
reached by April 16 on the issue of a wage increase.
At the bargaining conference held at the Respondent' s plant on April 16, 1954,
Mozart G. Ratner, counsel and one of the bargaining representatives for the Union,
requested Paul Plevack, at that time Respondent's personnel manager and representa-
tive in the bargaining conferences, for an accurate copy of the job rating substantiat-
ing data sheet which the Respondent maintained in its files for each job. Ratner
told Plevack that the Union wanted this information for purposes of collective bar-
gaining concerning inequities and concerning the operation of the Respondent's
job evaluation system. Ratner stated that it was impossible for the Union to know
whether the Respondent was administering its job evaluation system equitably and
fairly, and whether the particular points were assigned by the Respondent to each
factor on the merits or whether points were distributed to the factors on an arbitrary
basis so that the total would correspond to a figure previously determined-by the
Respondent as the proper one for that job. He further pointed out that it was
important for the Union to see, for example, whether the points assigned to such a
factor as "working conditions" were the same where the job conditions were the same
or whether the points varied where the job conditions were the same, thereby
creating inequities. Ratner also emphasized that the Union needed the information
in order to check the points assigned to each of the 11 factors against the objec-
tive conditions that the Union and its stewards observed.
Plevack refused to furnish the requested information, stating that "we are not going
to give you our job evaluation system for you to pick apart." At the hearing, Plevack
testified that by the phrase "to pick apart" he had in mind "going on a fishing expedi-
tion to gather this information, not because they had a specific need necessarily,. but
to see whether or not they could find something on this fishing expedition to then
bring up for some prolonged discussion." Plevack stated to Ratner as his reasons
for refusing to furnish the requested data the fact that the Respondent had already
supplied the Union with copies of the material which the Respondent used in making
its job evaluations, that the Union had already obtained the point values for the jobs
concerning which specific individual grievances had been processed, and that the
Union now had sufficient information from which it could itself evaluate each job in
•
a This appears in the record as Respondent's Exhibit No. 5-E.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same manner as the Respondent had done. Plevack also stated that they already
had an "adjudication from the Board on this particular point," referring to the
Regional Director's refusal to issue a complaint on the earlier charge filed in 1953.
Ratner admitted that the Respondent had supplied the Union with a copy of the
"Master Occupation Index," 4 a copy of each job description sheet with the reverse
side in blank, a copy of the point conversion table, and the NMTA Manual. Ratner
further, testified that it was his understanding that the Respondent was willing to fur-
nish the Union with the total point score for each job. The parties also stipulated
that, as a result of the processing of individual grievances during the past 9 years,
the Respondent had supplied or made available to the Union the "degree" ratings
on an individual job basis for some 95 jobs out of the total of 238 jobs listed in the
master occupational index. In addition, Plevack testified that there had been in-
stances where a single formal grievance was enlarged into a discussion covering a
number of occupations or perhaps all the occupations of a given department and-that
during the course of such discussions the "degree" ratings were made available for
all the occupations involved.
The job rating substantiating data, which Ratner requested of Plevack, consisted
of the "degree" or point value which the Respondent had assigned to each of the 11
standard factors for each job evaluated. This data was already compiled on the
reverse side of each job description sheet. The Respondent neither claims nor con-
tends that this data has previously been furnished, or made available, to the Union
for all the jobs which had been evaluated. The reverse side of the job description
sheets submitted to the Union was blank. It was this data, which was omitted from
the reverse side of the job description sheets supplied to the Union, which the Re-
spondent refused to furnish on April 16, 1954. And the Respondent has steadfastly
adhered to this position to this day.
On May 21, 1954, after the filing of the charge in the instant case, the Union and
the Respondent executed a new collective-bargaining agreement to terminate on
April 30, 1955. The parties stipulated that, during the closing, negotiations attendant
upon the signing of this agreement , the Respondent and the Union agreed that the
execution of this contract was not to be interpreted as constituting a waiver of any
right any of the parties might have as a result of the processing of the charge in the
instant proceeding.
3. Concluding findings
The Board, with court approval, has consistently held that as part of the statutory -
duty_to bargain collectively "in respect to rates of pay" and "wages," as prescribed
by Sections 8 (a) (5) and 9 (a) of the Act, an employer, upon request, must furnish
the collective-bargaining representative with all relevant wage data, and its failure to
do so violates Section 8 (a) (5) and (1) of the Act. This principle was recently
reaffirmed in Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A.
4), where the Board said:
We are convinced that the authority conferred by Section 9 (a) of the Act
upon a union representing a majority of the employees in an appropriate unit
entitles the union to all wage information essential to the intelligent representa-
tion of the employees and that when such information is reasonably available
only from the employer's records, it is the employer's duty, on request, to accom-
modate the union. The courts have consistently agreed with this construction
of the Statute. [Footnote citing cases.] In the instant case no showing has
been made that compliance with the Union's request would have placed an
unwarranted and undue burden on the Employer.
Refusal by an employer to supply such necessary information makes impos-
sible the full development of the collective-bargaining negotiations which the Act
is intended to achieve. It therefore constitutes a violation-of Section 8 (a) (5)
of the Act. [Footnote citing cases .] . it is sufficient that the information
sought by the Union is related to the issues involved in collective bargaining,
and that no specific need as to a particular issue must be shown.
There can be no question but what the requested information was essential to the
Union's intelligent representation of the employees in the appropriate unit. The
Union and the Respondent were in the process of negotiating a new collective-
bargaining agreement and wages was still an unresolved issue. The wage rate appli-
cable to each job was directly dependent upon the total point score computed for that
job which, in turn , was dependent upon the "degree" or point evaluation placed by
'This document, which is in the record as Respondent's Exhibit No. 5-A, lists the
occupation title, the occupation number, and the rate range for each hourly rated job
evaluated by the Respondent.
TAYLOR FORGE AND PIPE WORKS 703
the Respondent on each of the 11 standard factors comprising the content of each
job. Plevack admitted that the requested information constituted the basic element
in the Respondent's determination of the incentive rates and that it went to the heart
of the Respondent's computation of wage rates at this plant. Ratner had informed
Plevack that the Union wanted this information for the purpose of collective bargain-
ing concerning inequities and the operation of the Respondent's job evaluation system.
Only full disclosure of the Respondent's wage structure based on the point values
assigned to each factor for all jobs would enable the Union to know whether to press
or modify a particular wage demand, whether inequities exist which merit discussion
or correction, and whether other elements are present in the wage structure which,
though impossible to visualize beforehand. appear to merit discussion once the full
picture is made available. Boston Herald-Traveler Corporation, 110 NLRB 2097.
The requested information was not unlike the time-study data, developed by the
Company's experts in their determination of standards applicable to a job, which, the
Board and the court held in the Otis Elevator case, the Company was obligated to
furnish the Union for the purpose of intelligently processing a grievance concerning a
specific job during the term of a contract. Otis Elevator Company, 102 NLRB 770,
777-779, enfd. as mod. 208 F. 2d 176 (C. A. 2).5 If the Respondent is obligated
by the Act to furnish such data for the purpose of processing a single grievance dur-
ing the term of a contract, then a fortiori is it required to supply such data during
the course of negotiations for a new contract for the purpose of general collective
bargaining and concerning the operation of the entire evaluation system.
While the Respondent had supplied the Union with material from which it could
make its own evaluation of the various "degrees" and arrive at a total point score for
each job, accurate information concerning the requested data was reasonably available
only from the Respondent's own records. Thus, the analysis and interpretation of
both the job description and the "degree" criteria in the NMTA Manual depends, as
Plevack admitted, on the judgment of the evaluator. This is so because of the
numerous intangible and frequently imponderable subjective elements peculiar to
the evaluator such as, for example, educational background, tendency to be precise
or not, general knowledge of the overall production process, knowledge of the specific
location or surroundings of the specific job, etc. Plevack admitted that the job de-
scription, on the basis of which the job was evaluated, did not include all the factors
which that job in practice comprehends and that the evaluator not only had to ex-
ercise his judgement but also had to have a knowledge of the shop and its con-
ditions.
That different evaluators could arrive at different point ratings for the various
"degrees" of each factor was graphically illustrated at the hearing by Plevack him-
self. Although Plevack neither supervised nor computed the Respondent's job evalu-
ations, he testified that in connection with the consideration of grievances he had fre-
quently ascertained the "degree" or point evaluation of each factor in the job under
consideration by using the NMTA Manual and had always succeeded in arriving at
the accurate rating. However, when he attempted at the hearing to evaluate the
"degrees" or point ratings of the 11 "factors" -ascertainable for the job description
of "Service Driver-Janitor," an admittedly simple job, his evaluation of the total point
score for the job fell from 13-23 points short of the range actually evaluated and as-
signed to that job by the Respondent. And Plevack admitted that there are many
jobs that are more complicated.
Moreover, as the NMTA Manual allocates points in multiples of 5 to the "degree"
evaluation of 6 "factors," in multiples of 10 to the "degree" evaluation of 2 "factors,"
and in multiples of 14 to the "degree" evaluations of still 2 other "factors," there still
exists an opportunity for evaluators to make different degree or point evaluations of
2 or more factors while reaching the same total point score for that job. Thus, even
if the total point score determined for a specific job by a union evaluator were to
happen to coincide with the total determined by the Respondent, the Union would
5 Contrary to the Respondent's contention in its brief that the contract in the Otis
Elevator case required the Company to supply the requested information, the Board and
the court held that the contract was silent on this point and therefore did not constitute
a waiver of the union's statutory right to have this information supplied, upon request.
Nor is Crompton-Haghlana Mills, Inc., 70 NLRB 206, cited in the Respondent's brief,
of any avail to the Respondent in the instant case. That case turned on its-own peculiar
facts and the Board carefully confined its decision to the "circumstances of this particu-
lar case" in a context where, among other things, the company contended that the re-
quested material was bulky and to supply it would impose an undue hardship on the
company. To the extent that the underlying principle in the Crompton-Highland case
may be regarded as paralleling that in the instant case, I believe that it is inconsistent
with, and has been sub silentio overruled by, a long line of subsequent decisions.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still have no way of knowing whether the various "degree " determinations, which
enable the respective computations to be made , were identical. As the rates of pay
are geared to the Respondent 's evaluation , and not to the Union 's, it is necessary for
the Union to be apprised of the "degree" or point evaluation of each factor relied
on by the Respondent in its determination of the total point score for each job. The
only source of accurate information of this kind is the Respondent 's records.
Finally, the Respondent 's contention that the Union could make its own com-
putations from the material already supplied by the Respondent , is not unlike the
contention , made in similar situations and rejected by the Board and -the courts,6
that the Union could obtain the requested wage information from its own members
or from employees . Even assuming that the Union actually could , by the use of
experts, arrive at the same "degree" or point evaluations as the Respondent in each
case, it is clear that to make this computation for the 238 jobs listed in the master
occupation index would be so burdensome and time consuming as to delay and im-
pede the process of collective bargaining . "In these circumstances , full com-
pliance with the duty to bargain required production of the information requested."
The B. F. Goodrich Company, 89 NLRB 1151, 1153.7
On the other hand, the record is clear, and the Respondent makes no contrary
claim , that compliance with the Union 's request would place no unwarranted or
undue burden upon the Respondent . The requested information has already been
compiled on the job rating substantiating data form , which comprises the reverse
side of the job description sheets reposing in the Respondent 's files. The Respond-
ent could readily furnish copies to the Union or permit the Union to make its own
copies from an examination of the data in the Respondent 's files.
The Respondent contends that if the Union 's computation of the total point score
for a specific job were to differ from the Respondent 's computation of the total
point score for the same job, the Union could invoke the contract grievance proce-
dure on an individual job basis and the Respondent would then furnish the re-
quested data for that job for the purpose of processing the individual grievance.
The Respondent further points out that it has been its policy to permit a member
of the Union executive board or an individual employee to see a breakdown of the
"degree" or point evaluations for a particular job if, in the opinion of the Respond-
ent, a "justifiable" reason is furnished . The Respondent conceded that it was the
sole judge of what constituted a "justifiable " reason and that , if it did not regard
the reason to be "justifiable ," or if no reason were furnished , the information would
be refused . The Respondent therefore contends that its position and policy in this
respect has satisfied any statutory obligation to furnish the requested information.
"The Board has held that `the collective bargaining requirement of the Act' is not
satisfied by a substitution of `the grievance procedure of the contract for its [Re-
spondent 's] obligation to furnish the Union with information it needed to perform
its statutory functions."' Hekman Furniture Company, 101 NLRB 631, enfd. 207
F. 2d 561 (C. A. 6); The B. F. Goodrich Company, 89 NLRB 1151, 1154. This
is so because resort to such a procedure would not only require the postponement
of discussion concerning the job evaluation system as a whole, but would also re-
sult in the substitution of "a series of narrow , individual controversies of remote
interest to the employees not directly involved , for broad collective bargaining with
the Union on behalf of and with the interested support of , all the employees in the
unit." Aluminum Ore Company, 39 NLRB 1286, 1296, enfd. as mod. 131 F. 2d
485 (C . A. 7). Moreover , it was necessary for the Union to have the breakdown
of the "degree" or point values for each factor before it could intelligently advise
an employee as to whether or not he had a meritorious grievance . The B . F. Good-
rich Company, 89 NLRB 1152, 1162; N. L. R. B. v. Yawman & Erbe Manufactur-
ing Company, 187 F. 2d 947, 949 (C. A. 2). I find no merit in the Respondent's
contention.
The Respondent 's further contention that the Union was seeking this information
for the purpose of harassing the Respondent has no record support . It is conceded
that Ratner told Plevack that the Union wanted the information for collective-bar-
gaining purposes concerning the inequities and operation of the Respondent 's evalu-
ation system . It cannot be disputed that the requested information was directly're-
lated to the computation of the wage rates at the Respondent's plant . And wages
was still an unresolved issue in the negotiations . Moreover , "in these cases it is suffi-
9 See e. g Hastenys & Sons Publishing Company, 102 NLRB 708, 714; J. H. Allison &
Company, 70 NLRB 377, 385, enfd . 165 F. 2d 766 (C. A. 6) ; Aluminum Ore Company v.
N. L R. B, 131 F. 2d 485 (C. A. 7)
7 See also Old Lind Life Insurance Company, 96 NLRB 499, 503 ; The Cincinnati Steel
Castings Company, 86 NLRB 592, 593; and cases cited in footnote 6, supra.
TAYLOR FORGE AND PIPE WORKS 705
cient that the information sought by the Union is related to the issues involved in
collective bargaining , and that no specfic need as to a particular issue must be
shown ." Whitin Machine Works, supra.
Nor was the Respondent 's obligation satisfied by the fact that , during the course
of a 9 -year period , the Respondent had supplied or made available to the Union
the requested data as to some jobs in a piecemeal manner during the processing of
individual grievances . The Union was entitled to have this information as to all
the jobs in order to have a complete understanding of the entire wage structure and
the relationship existing between jobs so that it could be intelligently utilized for
the purposes of collective bargaining.8
Finally, the Respondent contends that in refusing to furnish the Union with the
requested information , the Respondent was motivated by a good -faith belief that
the statute imposed no such obligation . In support of this defense the Respondent
contended that it relied on the fact that , in an earlier proceeding in 1953 where
the facts and the positions of the Respondent and the Union were the same as
in the instant case , the Regional Director informed the Respondent of its refusal
to issue a complaint upon the Union 's charge because of insufficient evidence of
violations of the Act. Assuming the facts to be as urged by the Respondent and be-
lieving, as I do, that the Respondent acted in good faith , it is no defense that the
Respondent was motivated either by the Regional Director 's or its own misconcep-
tion of the statutory obligation rather than by a rejection of the collective-bargaining
principle .9 Whitin Machine Works, supra . The Respondent 's duty "is predicated
upon the need of the union for such information in order to provide intelligent
representation of employees ." F. W. Woolworth Co., 109 NLRB 196. It is no de-
fense to a refusal to bargain that the Respondent acted upon an erroneous belief
as to its statutory obligation , because of a mistaken interpretation of the statute
by the Regional Director . 1° West Texas Utilities Company, Inc., 85 NLRB 1396,
1398, enfd . 184 F. 2d 233 ( C. A., D. C .), cert . denied 341 U. S. 939; Betts Cadillac
Olds, Inc, 96 NLRB 268, 272.
Upon the basis of the entire record , I find that , by refusing , upon request, to
supply the Union with the "degree " or point evaluations assigned by the Respondent
to each of the 11 factors evaluated in each of its hourly rated jobs in determining the
point range for such jobs for employees in the appropriate unit , the Respondent re-
fused and continues to refuse to bargain with the Union in violation of Section 8
(a) (5) and ( 1) of the Act."
C. The procedural issue
At the hearing the Respondent offered to prove that on October 7, 1953, the
Union filed a charge identical with the one in the instant case; that the Union
had requested , and the Respondent had refused to furnish , the same data and that
the position of the Union and the Respondent were identical with that in the in-
stant case; that the Regional Director refused to issue a complaint on that charge
because of insufficient evidence of violations ; and that the Union did not appeal the
Regional Director 's ruling to the General Counsel . The Respondent contends that
the Regional Director 's refusal to issue a complaint upon the 1953 charge is res
judicata of the issue in the present proceeding, requiring the dismissal of the present
complaint.
Assuming the correctness of the facts as offered to be proved by the Respondent,
there is no merit to its contention . "The doctrine of res judicata is clearly not
applicable where, as here, the prior charge was dismissed before the conduct of a
hearing and without opportunity for adjudication of the merits." Jersey City Weld-
ing & Machine Works, Inc., 92 NLRB 510, footnote 2. A motion to dismiss the
complaint on identical grounds was denied by the Board in that case. Such ad-
ministrative action by the Regional Director neither bars the General Counsel from
issuing a complaint on a new timely charge nor the Board from adjudicating the
9 Utica Observer-Dispatch, Inc ., 111 NLRB 58, where the company submitted the re-
quested wage data for all but four employees
9 Because of its immateriality to the issues in this case , I sustained objections to the
introduction of any evidence concerning the 1953 charge.
10 This is not a case , where -the Respondent has been lulled to sleep by the advice or
instructions of the Regional Director so that it failed to take the action which it other-
wise would have taken . The Respondent still refuses to furnish the requested information
and to this day adheres to its position that it is not obligated to do so by the Act
11 The Respondent 's violation has not been made moot by the execution of the contract
on May 21 , 1954, as the requested information continued to be necessary to the "intelli-
gent and equitable administration of the agreement ." F. W. Woolworth Co., supra.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merits, once a complaint has issued . Textile Machine Works, 96 NLRB 1333,
1334, footnote 1; N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51, 54-55 (C. A. 4).
"The task of making binding interpretations of the meaning of the Act is a judicial
function , vested in the Board members with ultimate power of review in the
Courts." West Texas Utilities Company, Inc., 85 NLRB 1396 , 1399 ; Betts Cadillac
Olds, Inc., 96 NLRB 268, 272; N. L. R. B. v. Baltimore Transit Co., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent refused to bargain with the Union in viola-
tion of Section 8 (a) (5) and (1) of the Act by refusing, on request , to furnish
the Union with the "degree" or point evaluation assigned by the Respondent to
each of the 11 factors evaluated in each of its hourly rated jobs in determining the
point range for such jobs of employees in the appropriate units, I shall recommend
that the Respondent be ordered to cease and desist from engaging in such conduct
and, upon request, to supply such data to the Union.
Because of the limited scope of the Respondent 's refusal to bargain , the Respond-
ent's good-faith belief that the requested data was neither material nor required
to be supplied by the Act, and because of the absence of any indication that
danger of the commission of other unfair labor practices is to be anticipated from
the Respondent's conduct in the past , I shall recommend that the Respondent not
be ordered to cease and desist from the commission , of any other unfair labor
practices.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All employees of the Respondent at its Chicago, Illinois, plant , excluding all
full-time manual welders, cutters, and apprentices in department A-3, salesmen,
office employees, guards, executives of the Respondent , and all supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
2. Forge and Machine Workers Industrial Union has been , at all material times
herein , the exclusive representative of all the employees in the appropriate unit for
the purpose of collective bargaining within the meaning of Section 9 (a) of the Act.
3. By refusing to supply the Union with the "degree" or point evaluation assigned
by the Respondent to each of the factors evaluated in each of its hourly rated jobs
in determining the point range for such jobs of employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Forge and Machine Workers
Industrial Union, as the exclusive representative of all our employees in the ap-
propriate unit described below, by failing and refusing to furnish said Union,
upon request , the "degree" or point evaluation assigned by us to each of the
factors evaluated in each of our hourly rated jobs in determining the point range
for such jobs of employees in said appropriate unit.
WE WILL furnish to the above-named Union, upon request , the "degree"
or point evaluation assigned by us to each of the factors evaluated in each of
TERRY INDUSTRIES, INCORPORATED 707
our hourly rated jobs in determining the point range for such jobs of employees
in said appropriate unit.
The bargaining unit is:
All employees at our Chicago, Illinois, plant, excluding all full-time manual
welders, cutters, and apprentices in department A-3, salesmen, office em-
ployees, guards , executives , and all supervisors as defined in the Act.
TAYLOR FORGE AND PIPE WORKS,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Terry Industries, Incorporated and American Federation of
Labor. Case No. 39-CA-451. August 16, 1955
DECISION AND ORDER
On April 12 , 1955, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above -entitled proceeding , finding that the Re-
spondent 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommended that those allegations of
the complaint be dismissed . Thereafter , the Respondent filed excep-
tions to the Intermediate Report and a supporting brief and argument.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the exceptions , the brief and argument , and the entire
record in this case , and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Terry Industries, Incorpo-
i We note a minor inconsistency in the Intermediate Report, which does not, however,
affect the correctness of its conclusions and our concurrence therein . At one place, the
Trial Examiner stated that Hem, 1 of the 7 dischargees involved herein, was working on
the third shift and that the other 6 dischargees had recently been transferred to the first
shift , at another place, obviously referring to about the same time , he stated that IIetzer
was the only 1 of the 7 working on the third shift. The record supports the latter find-
ing, and the Intermediate Report is corrected accordingly.
113 NLRB No. 82.