Temple-Eastex, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1977

228 N.L.R.B. 203 (N.L.R.B. 1977)

TEMPLE-EASTEX, INCORPORATED 203
Temple-Eastex , Incorporated, its Operating Divisions
Southwestern Timber Co., Inc .; Temple Industries;
and Eastex Incorporated, All Wholly-Owned Sub-
sidiaries of Time , Inc. and United Paperworkers
International Union , AFL-CIO. Case 23-CA-5797
February 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 25, 1976, Administrative Law Judge Paul
L. Harper issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. We adopt the Administrative Law Judge's
conclusion that Respondent did not violate Section
8(a)(5) and (1) of the Act by allegedly withholding
from the Union information concerning the merger of
Temple Industries and Eastex Incorporated into
Temple-Eastex, Incorporated. We further adopt the
Administrative Law Judge's finding that Respondent
did not violate Section 8(a)(5) and (1) by unilaterally
granting a wage increase to those woodlands employ-
ees of Temple-Eastex Forests, who were employed by
Temple Industries prior to the aforementioned merg-
er.
2. The Administrative Law Judge further con-
cluded that Respondent did not violate Section
8(a)(5) and (1) of the Act by refusing to furnish to the
Union certain information, requested by letter dated
October 10, 1975, relating to all hourly paid employ-
ees of Temple-Eastex Forests, the timber division of
Temple-Eastex, Incorporated.' He found, inter alia,
that the information requested by the Union had no
probable or potential relevance to the Union's
statutory obligation to represent employees within its
certified unit comprised of "all production, mainte-
nance and forestry employees, including truck dri-
1 On December 31, 1974, the merger of Temple Industries and Eastex
Incorporated into Temple-Eastex, Incorporated, was finalized Following
the merger, Temple-Eastex Forests was a division comprised of the
woodlands employees formerly employed by Southwestern Timber Co., Inc.,
previously a division of Eastex Incorporated, and the woodlands employees
formerly employed by Temple Industries.
228 NLRB No. 26
vers," formerly employed by the Southwestern Tim-
ber Co., Inc., division of Eastex Incorporated, or to
police its current contract covering that unit. For the
reasons set forth below, we find that Respondent's
refusal to furnish to the Union the information
requested by its letter of October 10, 1975, was
violative of Section 8(a)(5) and (1) of the Act.
In March 1975, the Union executed a 1-year
collective-bargaining agreement with Respondent
covering the above unit of employees formerly
employed by Southwestern Timber Co., Inc. On July
7, 1975, the Union filed a grievance alleging that
Respondent, instead of posting and permitting bid-
ding on a tractor operator job pursuant to article
XIV, section 5, of the contract, had assigned the
position to an employee of the former Temple
Industries division.2
Subsequently, according to the uncontradicted
testimony of Reeves Brunk, an international repre-
sentative of the Union, during an August 1975
meeting with Respondent's officials concerning this
grievance, he stated:
[I In processing the grievance, I asked the compa-
ny what if the status of the Temple employees had
changed because it appeared to me that if they
were not part of the bargaining unit, then we had a
question of [the] company going outside the unit
to fill the vacancy, as well as not posting it.
If they were inside the unit, then we had a
seniority question. And Mr. Lowe [the company's
representative] told me he could not answer that
question. And I informed him if the Company
couldn't clear it up for us, then we would have to
file an unfair labor practice charge in order to get
the information so that we could determine how to
proceed on the grievance.
Thereafter, by letter dated October 10, 1975, the
Union requested Respondent to furnish the following
information with respect to all hourly paid employees
of the Temple-Eastex Forests division of Temple-
Eastex, Incorporated: names, addresses , and social
security numbers; all current job classifications and
rates of pay; and all fringe benefits. The Union
further sought from Respondent specific dates when
it would commence negotiations concerning the
merger and its possible effects on woodlands employ-
ees and the Union's current collective-bargaining
agreement.
2 Art. XIV, sec. 5, of the contract provides, in pertinent part.
All permanent job openings in any department shall be posted in all
departments for 5 working days. Any permanent employee may bid by
signing the bid sheet.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well established that Section 8(aX5) of the Act
imposes upon an employer the duty to furnish a
union, upon request, information relevant and neces-
sary to enable the union to intelligently carry out its
statutory obligations as the employees' exclusive
bargaining representative. And, under the standard
of relevancy as applied by the Board and the courts, it
is sufficient that the union's claim for information be
supported by a showing of "probable" or "potential"
relevance .3 Furthermore, the fact that the informa-
tion requested by a union may, as here, in part relate
to employees outside the scope of the unit it repre-
sents does not necessarily justify an employer's
refusal to provide such information.4
In the instant case, it is clear from the grievance
filed by the Union, the above-cited testimony of
Brunk with respect to that grievance, and the Union's
subsequent request for information in its letter of
October 10, 1975, that the information sought by the
Union was relevant and necessary to the performance
of its statutory obligations.5 Thus, the grievance
related not only to an alleged failure by Respondent
to abide by its contract with the Union, but, as
expressed by Brunk at the grievance meeting in
August 1975, concerned the possible erosion of unit
work by Respondent. In these circumstances, we
conclude, contrary to the Administrative Law Judge,
that the information sought by the Union was
relevant and necessary to its policing of the contract
between the parties and to the intelligent processing
of its then outstanding grievance. Accordingly, we
find that Respondent's refusal to furnish the informa-
tion requested by the Union violated Section 8(a)(5)
and (1) of the Act .6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Temple-Eastex, Incorporated, its operating divisions
Southwestern Timber Co., Inc.; Temple Industries;
and Eastex Incorporated, all wholly-owned subsidiar-
ies of Time, Inc., Jasper, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Paperworkers International Union, AFL-CIO, as the
exclusive bargaining representative of all production,
maintenance, and forestry employees (including
truckdrivers), formerly employed by Southwestern
Timber Co., Inc., by refusing to furnish the said labor
organization with the following information it has
requested with respect to all hourly paid employees of
Temple-Eastex Forests, a division of Temple-Eastex,
Incorporated: names, addresses, and social security
numbers; all current job classifications and rates of
pay; and all fringe benefits.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization , to form, join, or
assist labor organizations , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion 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 effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Paperworkers International Union , AFL-CIO, by
furnishing the said labor organization with the
following information it has requested with respect to
all hourly paid employees of Temple-Eastex Forests,
a division of Temple-Eastex, Incorporated : names,
addresses , and social security numbers ; all current
job classifications and rates of pay; and all fringe
benefits.
(b) Post at its Jasper, Texas, place of business
copies of the attached notice marked "Appendix." 7
Copies of said notice , on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's representative , shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous 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 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
3 NLRB. v. Acme industrial Co., 385 U.S. 432 (1967).
See, e .g., Curtiss- Wright Corporation, Wright Aeronautical Division, 145
NLRB 152 (1963), enfd. 347 F.2d 61 (C.A. 3,1965); Hollywood Brands, Inc.,
142 NLRB 304 (1963), enfd. 324 F .2d 956 (C.A. 5, 1963), cert . denied 377
U.S. 923 (1964).
S In so concluding, however, we do not construe that portion of the
Union's October 10, 1975, letter requesting dates for negotiations between
the parties with respect to the merger as a legitimate request for information.
Accordingly , we shall not include in our Order a provision therefor.
8 See, e.g., Western Electric, Inc., 225 NLRB 1378 (1976); General Electric
Company, 173 NLRB 164 (1968).
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
TEMPLE-EASTEX , INCORPORATED 205
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Paperworkers International Union, AFL-
CIO, as the exclusive bargaining representative of
all production , maintenance , and forestry employ-
ees (including truckdrivers ), formerly employed
by Southwestern Timber Co., Inc ., by refusing to
furnish the said labor organization with informa-
tion it has requested with respect to all hourly paid
employees of Temple-Eastex Forests, a division of
Temple-Eastex, Incorporated , as hereinafter set
forth in this notice.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist labor organizations , to bargain
collectively through representatives of their own
choosing, and to engage in other 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.
WE WILL , upon request, bargain collectively
with United Paperworkers International Union,
AFL-CIO, by furnishing to the said labor organi-
zation the following information it has requested
with respect to all hourly paid employees of
Temple-Eastex Forests, a division of Temple-
Eastex, Incorporated : names , addresses , and so-
cial security numbers; all current job classifica-
tions and rates of pay; and all fringe benefits.
TEMPLE-EASTER,
INCORPORATED, ITS
OPERATING DIVISIONS
SOUTHWESTERN TIMBER
Co., INC.; TEMPLE
INDUSTRIES; AND EASTER
INCORPORATED, ALL
WHOLLY-OWNED
SUBSIDIARIES OF TIME,
INC.
DECISION
STATEMENT OF THE CASE
PAUL L. HARPER , Administrative Law Judge : Hearing in
the subject case was held April 7 and 8 , 1976 , in Jasper,
Texas . On December 9, 1975 , a complaint was issued based
on a charge filed , October 14, 1975, alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, 29 U.S .C. Sec. 151, et seq., herein called the
Act.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, and to file briefs . Based upon the entire record, upon the
briefs filed on behalf of the parties , and upon my observa-
tion of the demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent has been at all times material a Texas
corporation maintaining its principal office and place of
business in Jasper, Texas, where it is engaged in forestry
and logging operations. It is a wholly-owned subsidiary of
Time, Inc. During the 12-month period preceding the
issuance of the complaint, a representative period , Respon-
dent sold and shipped products valued in excess of $50,000
directly to points outside the State of Texas . Accordingly, I
find Respondent is, and has been at all times material, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Paperworkers International Union , AFL-CIO,
herein called the Union , has been at all times material a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ISSUES
1. Whether Respondent withheld and misrepresented
facts with respect to the merger of Eastex Incorporated and
Temple Industries , Inc. (becoming Temple-Eastex, Incor-
porated), and thereafter refused to bargain regarding the
merger in violation of Section 8(a)(5) of the Act.
2. Whether Respondent, by unilaterally and without
bargaining with the Union, granted a wage increase to its
Temple Division employees (outside the agreed-upon
bargaining unit) thereby violating Section 8(a)(5) of the
Act.
3. Whether Respondent refused to furnish the Union
with requested information concerning the merger and
wage increase in violation of Section 8(a)(5) of the Act.
The General Counsel readily agrees that any violation of
Section 8(a)(5) must be predicated on a finding that the
overall unit of Respondent's combined woodlands opera-
tions, Temple-Eastex Forest, is the appropriate bargaining
unit rather than the present contractual unit.
To reach any understanding of the respective positions of
the parties and the complicated issues involved herein it is
necessary to attempt to unravel and at least come to a
partial if not complete understanding of the various
changes in the corporate structure of Respondent and its
interrelationship with related corporate entities.
Although never entirely clear during the hearing the
pertinent corporate acquisitions and mergers are fully
explicated in Respondent's brief. The relevant corporate
changes are revealed as follows : Time, Inc., acquired
Eastex, Incorporated, sometime in 1975 . On August 16,
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, Temple Industries, Inc., became a wholly-owned
subsidiary of Time, Inc. Thus both Temple Industries, Inc.,
and Eastex , Incorporated, became wholly-owned subsidiar-
ies of Time, Inc. Thereafter Time , Inc., created a new
corporation entitled Temple -Eastex, Incorporated (Re-
spondent herein). Stock shares were transferred from
subsidiary corporations to parent corporation and then
transferred to the newly created corporation. Thus in
September 1973 Temple-Eastex, Incorporated , became a
wholly-owned subsidiary of Time , Inc., with the sole
function of serving as holding company for Temple
Industries, Inc., and Eastex, Incorporated . Thereafter steps
were gradually taken to integrate the woodlands divisions
of Temple Industries , Inc., and Eastex , Incorporated. On
December 31 , 1974, Temple Industries, Inc., and Eastex,
Incorporated, merged into their parent corporation, Tem-
ple-Eastex , Incorporated. This new corporation was divid-
ed into these operating divisions only one of which, namely,
Temple-Eastex Forests, is involved in this proceeding. To
compound the already complicated interrelationships it
must be noted that even this third operating division,
Temple-Eastex Forests, is considered by Respondent as
composed of two separate groups of employees , one group
of ex-Temple employees , now designated as the Temple
operating division of Temple-Eastex, Incorporated, pres-
ently unrepresented by any union, and a second group of
ex-Eastex (Eastex and Southwestern now being inter-
changeable terms) employees , now designated as the Eastex
operating division presently represented by the Charging
Party Union.
A. Pertinent Background
On or about September 19, 1974 , the Union held its first
organizational meeting among the woodlands employees of
Southwestern Timber (division of Eastex Incorporated).
Two employees of Temple Industries , G. W. Kilcrease, and
C. B. Hooks attended , signed authorization cards, and were
given additional cards to distribute to other Temple
employees . Thereafter no further interest in the Union is
revealed among Temple employees.
On September 25, 1974 , the Union requested recognition
and filed a petition for certification (Case 23-RC-4146)
seeking to represent employees in the following bargaining
unit, with the usual exclusions:
All production and maintenance and forestry employ-
ees including truckdrivers employed by the employer in
their Woodland Division whose main office is located at
229 North Bowie , Jasper, Texas, 75951.
On October 18, 1974 , the Union and Respondent signed a
Stipulation for Certification Upon Consent Election. The
unit description was the same as that shown in the petition
except the phrase "All other employees" was added to the
usual exclusions.
On November 19, 1974, the election was held and on
November 27, 1974, the Union was certified as exclusive
representative of the bargaining unit described in the
petition and stipulation.
On December 19, 1974, the first of some approximate
eight bargaining sessions was held.
On December 31, 1974 , the merger of Temple Industries
and Eastex Incorporated into Temple-Eastex, Incorporated
(Respondent herein) was formerly finalized.
On March 10, 1975, a bargaining agreement was executed
by the parties . The contractual unit is the same as described
in the petition and stipulation.
On or about July 7, 1975, Respondent granted a 25-cent-
an-hour wage increase to its Temple woodlands employees.
The bargaining unit of Southwestern Timber woodlands
employees did not receive a similar wage increase at the
same time.
On October 10, 1975, the Union addressed a letter to
Respondent stating its awareness of the corporate merger
between Temple Industries and Eastex Incorporated (Tem-
ple-Eastex, Incorporated) and "Because of the merger our
union now represents all woodlands employees of Temple-
Eastex Forest." The letter also referred to the 25-cent
increase to Temple employees and requested Respondent
to "make this increase retroactive to said date for all
woodlands employees ." Additionally the Union requested
Respondent to furnish certain information including
names, addresses , classifications , benefits, rates of pay, etc.,
relating to all hourly paid employees employed by Temple-
Eastex Forest.
On October 20, 1975, Respondent refused to furnish the
requested information on the grounds the Union represent-
ed only the contractually agreed-upon bargaining unit and
therefore was not legally entitled to information pertaining
to employees outside the scope of the bargaining unit.
B. Contentions of the Parties
One of the principal thrusts of General Counsel's theory
of an alleged violation is that Respondent deliberately
withheld and misrepresented facts concerning the merger of
two corporate divisions of Time, Inc., viz Temple Indus-
tries, Inc., and Eastex , Incorporated; that such misrepre-
sentations and deception , which General Counsel charac-
terized at times as fraudulent , resulted in the Union
agreeing in the Stipulation for Consent Election to a
bargaining unit limited to certain employees of Southwest-
ern Timber Company , the woodlands division of Eastex,
Incorporated (and not the more comprehensive overall unit
of woodlands employees of the newly created Division of
Temple-Eastex Forest) and that such conduct constituted a
violation of Section 8(aX5) of the Act.
Secondly, the General Counsel alleges and contends that
on or about July 7, 1975, Respondent granted a 25-cent-an-
hour increase to only those woodland employees who
formerly worked for Temple Industries and who the
General Counsel alleges are now, and should have been
since the December 31, 1974, merger of Temple and Eastex,
part of the overall unit of woodland employees of Temple-
Eastex, Inc., Respondent herein ; that such increase was
made unilaterally and without consultation with the Union
thus violating Section 8 (aX5) of the Act.
Thirdly, the General Counsel alleges and contends that
on or about October 10, 1975, Respondent refused to
furnish the Union information concerning the wage in-
crease and the names, addresses , wage rates, fringe benefits,
etc., of employees in the unrepresented Temple Division.
TEMPLE-EASTER, INCORPORATED 207
Respondent , on the contrary , denies that it withheld
information or otherwise deliberately deceived the Union
regarding its corporate structure or the merger . It admits it
granted the July 7, 1975, wage increase to employees
formerly employed by Temple and not employees formerly
working for Southwestern Timber but denies that this
action constitutes a violation of Section 8(a)(5) of the Act.
It also admits its refusal to furnish requested information
on or about October 10, 1975 , contending that such
information is irrelevant to any matters concerning the
contractually agreed upon unit limited to woodland em-
ployees formerly employed by Southwestern Timber.
C. The Misrepresentation Question
In support of this contention General Counsel relies
heavily on the testimony of Union Respresentatives Brunk
and Young regarding their conversations with Respon-
dent's industrial relations consultant , Lowe. Brunk, who
assisted in organizing the employees of Southwestern in the
fall of 1974, testified that shortly before the election
stipulation was signed he asked Lowe , in a phone conversa-
tion, "what the status of the Temple employees that were
coming down from Diboll , working along with Southwest
Timber . Was that one company , or was it two companies?
And would that [Temple employees ] be part of the unit or
not be part of the unit?" Lowe responded, according to
Young, "that it was two companies ; that the Temple
employees were employed by Temple out of Diboll. And
that Southwest Timber was a separate company."
Again, at the preelection conference , the day before or
the day of the election, Brunk asked Lowe if any Temple
employees were on the Excelsior list. Lowe replied there
were none "as far as he knew" according to Brunk's
testimony.
Later , at a bargaining session on or about December 19,
1974, Brunk again asked Lowe "Where do the Temple
employees fit in?" and received the same reply to the effect
that Temple and Southwestern were separate companies.
Brunk testified he continued to ask questions of this nature
because he had received information that Temple employ-
ees were working in the same area as Southwestern
employees and in some cases "there was some interchange
of supervision at this time."
Still later, along the first of January 1975, again in a
bargaining session , Brunk asked Lowe if there had been any
change in the corporate structure that would change the
status of employees in regard to the bargaining unit. Lowe,
according to Young , responded "that he knew of no
differences , nothing that would change anything at that
point. That he couldn't tell me anything to what the
company's position would be, or what their status was."
Brunk then asked Lowe if he would find out and let him
know. Lowe said he would but thereafter Brunk never had
"any further communication with Mr. Lowe regarding this
subject."
Union Representative Young testified that at the first
employee organizational meeting on September 19, 1974,
two employees of Temple, G. W. Kilcrease and C. B.
Hooks , were present . Young testified that he had heard
rumors of the Temple-Eastex merger and therefore asked
them many questions about their conditions of employ-
ment, the area in which they worked , supervision , etc., after
which he became "fairly convinced it was two separate and
distinct companies." Nevertheless he gave the two Temple
employees a number of authorization cards , which they
signed at the meeting . Young continued, "I told them to go
back . If Temple woodlands employees were interested in
organizing, we'd set another meeting up . I gave them
authorization cards and instruction what to do. And
everyone left with many authorization cards ." Thereafter,
as far as the record shows , neither Kilcrease nor Hooks nor
any other Temple employee revealed any further interest in
the Union.
As noted above the consent election was held on
November 19, 1974, and the Union certified on November
27, 1974 . Thereafter, at a bargaining session on or about
January 9, 1975, Young testified that he asked Respon-
dent's consultant Lowe "Have there been any changes in
the position of the company in the employees ' relations to
each other as far as Temple and Southwestern ? And Mr.
Lowe's answer was `No, there was no change '." Thereafter,
during the course of half dozen or so more bargaining
sessions Young testified the question of the merger was
never again mentioned . The bargaining contract was signed
March 10, 1975, and as heretofore noted the bargaining
unit was limited to Southwestern Timber (a division of
Eastex, Incorporated) woodlands employees.
Lowe testified that he did not have any conversations
with any union representatives prior to the date of the
election. He recalled that all his dealings concerning the
election were conducted with the Board agent making the
investigation . He did recall that during the bargaining
session on December 19, 1974, Mr. Brunk raised questions
of "job classifications," the kind of work performed by
various employees, where located, etc. He testified nothing
was mentioned about the merger at this meeting . It was not
until on or about February 7 , 1975 , at another bargaining
session, that Mr. Brunk , according to Lowe, inquired about
the constituency of the bargaining unit. Lowe testified that
he told Brunk the Union "had filed their petition in the
name of Southwestern Timber Company; that we had
finished [furnished ) an Excelsior list on that basis; that
those were the employees who voted in the election. And
those people constituted the bargaining unit." Lowe was
asked on cross-examination if he knew the merger of
Temple-Eastex had been formalized on December 31, 1974.
Lowe testified he knew generally there was a merger in the
making since he had helped prepare a speech given by Mr.
Temple to the employees just before the election in which
the merger was mentioned . He stated he considered the
possible merger to be a matter of common knowledge. In
fact, on recall to the witness stand by Respondent 's counsel,
Lowe testified he was generally aware of proposed changes
in the corporate structure of Respondent as far back as the
fall of 1973. Lowe further testified that at the bargaining
session on December 19, 1974 , he furnished Union Repre-
sentative Brunk, upon his request, with information con-
cerning wages, hours, and conditions of employment of
Southwestern Timber employees . He recalled that Mr.
Brunk, at the preelection conference , had merely asked if
there were any Temple employees on the Excelsior list and
Lowe replied there were none . At the December 19 meeting
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brunk did not ask any questions concerning the status of
Temple or Eastex, according to the testimony of Lowe.
Lowe impressed me as a forthright and candid witness
acknowledging at one point a mistake he had made in
earlier testimony . His demeanor at all times was deliberate
and convincing and I fully credit his entire testimony of
record. I therefore credit his denial of the remarks attrib-
uted to him by Brunk and Young prior to the date of the
election. Even so, were I to fully credit the testimony of
Brunk and Young, I would still find Lowe's alleged
responses to their questions about the corporate structure
of Respondent, its acquisitions , merger of its subsidiaries,
and the impact of such corporate functions on the bargain-
ing unit, to fall far short of willful misrepresentation, much
less fraudulent concealment or deception . In reaching this
conclusion I have taken into account the obvious fact that
Lowe, a nonlawyer labor relations consultant, was simply
not privy to information concerning changes in corporate
structure, acquisitions, mergers, etc. Undoubtedly, such
corporate functions were conducted at a different level of
supervision than even those officials who testified at the
hearing.
The General Counsel, in addition to allegations and
contentions of misrepresentations on the part of Lowe,
presented evidence relating to Respondent's maintenance
of separate hiring facilities, pension funds, payroll offices,
and former corporate names on stationery. The General
Counsel contends all this was done to mislead and deceive
the Union into believing Temple and Eastex were two
separate and distinct corporate entities. Of course this
contention overlooks the fact that Temple and Eastex were
separate corporate entities, acquired by the parent corpora-
tion Time, Inc., at different times . It was not until
December 31, 1974, that the two entities were formally and
finally merged into one corporate entity but still maintain-
ing Temple and Eastex as operating divisions . Respondent
readily admits that certain stationery, payroll checks, etc.,
of both prior corporations were continued to be used until
the supply was exhausted . I see nothing more than business
expediency in this action . Certainly there is no evidence in
this record that such action was designed to deceive the
Union. Further, I have taken into account that both Brunk
and Young were aware that at least two Temple employees
were interested in the Union at the initial employee
organizational meeting in September 1974; that they were
also aware thereafter there was no evidence of any further
interest in the Union by any of the Temple employees; and
the Union made no additional effort to seek to represent
Temple employees . Likewise I find that the Union was
aware of the close working relationship of Temple and
Eastex woodland employees at all times material herein.
Undisputed evidence in the record establishes that as
early as the fall of 1973 Temple and Eastex woodland
employees worked side by each , under general, intermedi-
ate, and immediate supervision . Some of the crews were
intermingled , used the same equipment , and over a period
of time wages and other benefits were adjusted in an effort
to coordinate the wages and benefits of both groups. The
proposed merger which was finalized on December 31,
1974, had been well publicized in local newspapers and
periodicals.
It is clear from all the above that the Union was not only
aware of the situation but had several alternative courses of
action open. If the Union had been interested in represent-
ing Temple employees and had obtained the required
showing of interest it could have petitioned the Board for
certification either in the larger overall unit of woodland
employees, or if convinced there were two employers it
could have petitioned for separate bargaining units. It did
neither but instead petitioned for the limited unit of Eastex
woodland employees. It did so, in my opinion, and I so
find, because it did not have the required showing of
interest among Temple employees. In any event the unit
petitioned for was an appropriate bargaining unit, notwith-
standing the fact that the overall unit might also have been
an appropriate unit. Respondent agreed to the petitioned
unit and thereafter the parties executed a bargaining
agreement on March 10, 1975.
Based on all the above considerations I find insufficient
evidence in this record to support General Counsel's
complaint allegation that "Commencing on or about
January 9, 1975, until on or about July 9, 1975, Respondent
withheld from the Union all information concerning the
merger of Eastex Incorporated and Temple Industries" and
the conclusionary allegations that Respondent thereby
refused to bargain with the Union in violation of Section
8(aX5) and (1) of the Act. Accordingly, I recommend these
portions of the complaint be dismissed.
D. The Alleged Unilateral Wage Increase
The complaint alleges, and the answer admits , that on or
about July 7, 1975, Respondent granted a 25-cent-per-hour
wage increase to its Temple division woodland employees.
The General Counsel contends that since "the woodlands
division employees, who were formerly employed by either
Southwestern Timber Company (Eastex) or Temple Indus-
tries Inc., comprise the appropriate unit , which the Union
was certified to represent" Respondent thereby granted a
wage increase to only a "portion" of the bargaining unit
and in view of the fact it was made unilaterally without
bargaining or consultation with the Union , Respondent
violated Section 8(aX5) and (1) of the Act.
It must be noted here that the General Counsel does not
allege or contend that Respondent , by granting the wage
increase to unrepresented employees and failing or refusing
to grant such increase to those employees in the same
alleged and certified bargaining unit , intended to discourage
or encourage employees regarding union membership or in
any way discriminated against employees in violation of
Section 8(aX3) of the Act.
It must be also noted the General Counsel does not allege
nor contend that at any time material herein there has been
an accretion to the existing bargaining unit.
The General Counsel contends that since "the appropri-
ate bargaining unit , which the Union was cert!ed to
represent" (emphasis supplied) encompasses "the wood-
lands division employees , who were formerly employed by
either Southwestern Timber Company or Temple Indus-
tries, Incorporated" such unilateral wage increase to "only
a portion of the bargaining unit" constitutes a violation of
Section 8(aX5) of the Act.
TEMPLE-EASTEX, INCORPORATED 209
It must be noted that the General Counsel premises this
contention on alleged Respondent's conduct that misled
the Union and resulted in the Union's agreement to the
bargaining unit encompassing only former Southwestern
(Eastex) woodlands employees, excluding "All other em-
ployees," etc. It has already been found that the evidence
contained in this record fails to establish such alleged
misrepresentations , fraudulent concealment , or deception
on the part of Respondent. Moreover, the evidence clearly
establishes that the Union, fully aware of the lack of interest
in the Union among the employees of Respondent's
Temple Industries division sought to organize and to
represent only those woodland employees of Respondent's
Southwestern (Eastex) division of Temple-Eastex Forests;
petitioned for certification in such limited unit; agreed to
such unit in the stipulation for consent election ; and finally,
entered into a bargaining contract with the employer with
respect to only the limited unit.
It is clear that the General Counsel is mistaken in
contending the overall unit encompassing employees of
both the Eastex division and the Temple division is the
certified bargaining unit . It is also well-established prece-
dent that there can be more than one appropriate bargain-
ing unit among an employer 's employees and that the law
does not require representation in the most appropriate
unit. Obviously, at the time of certification, the Board,
through its Regional Director for Region 23, considered the
unit petitioned for and later agreed to by stipulation of the
parties, to be an appropriate bargaining unit. To find, in
agreement with General Counsel, that the Union ir now
entitled to represent employees of the Temple division
specifically excluded by the Petition, Stipulation and
Contract, would result in completely disenfranchising such
employees to choose for themselves whether or not they
desire union representation . This does not overlook Gener-
al Counsel's argument that but for Respondent's misrepre-
sentations regarding the constituency of the bargaining unit
the Union would have sought to represent the overall unit. I
find that the Union, as already noted, was fully aware of the
close working relationships of the employees in the employ-
er's two woodlands operating divisions, and with such
foreknowledge voluntarily sought to represent those em-
ployees of the employer's Eastex division to the exclusion of
those of the Temple division. Accordingly, since the
Temple division employees were not covered by the
bargaining contract between the parties the Respondent
was not obligated to bargain with the Union concerning the
wage increase to such employees on July 7, 1975. It follows
that employees under contract are not entitled to retroac-
tive pay as urged by the General Counsel. Based on all the
above considerations I find that the evidence of record does
not support a finding that Respondent, by granting a wage
increase to its Temple division employees on or about July
7, 1975, thereby violated Section 8(a)(5) of the Act.
Therefore, I recommend such allegations of the complaint
be dismissed.'
E. Respondent's Alleged Refusal To Furnish Certain
Information
The complaint alleges, and the answer admits , that on or
about October 10, 1975 , Respondent refused to furnish the
Union with requested information. The Union's letter, as
already noted above , requested Respondent to furnish
names, addresses , wages, eta., of employees in its Temple
division. Respondent refused on the grounds that such
employees were outside the scope of the contractual
bargaining unit and Respondent therefore was under no
legal obligation to furnish such information.
The General Counsel claims that because of Respon-
dent's misrepresentations relating to the merger and its
effect on the bargaining unit, the Union , at all times
material herein, represented all woodlands employees of
Respondent and therefore is entitled to the requested
information concerning the Temple division employees.
Respondent points out in its brief the General Counsel
does not contend the Union's request for such information
was necessary for proper representation of employees in the
certified bargaining unit ; that such request is in furtherance
of its claim of an expanded bargaining unit to include both
the Temple and Eastex divisions which directly resulted
from Respondent's alleged misrepresentations and conceal-
ment regarding the merger of its subsidiary corporations.
The evidence of record , as already noted, does not support
General Counsel's allegations of misrepresentation and
concealment . The record evidence likewise does not sup-
port a finding that the combined employee groups of
Respondent's Temple and Eastex divisions constitutes the
certified bargaining unit, or the most appropriate unit as
seemingly urged by the General Counsel. The record
evidence establishes only that the Union's requested,
petitioned for, stipulated , and contracted for unit of Eastex
division woodlands employees constitutes an appropriate
bargaining unit and was so certified by the Board . The fact
that the combined employee group of both the Eastex and
Temple divisions might also have been an appropriate
bargaining unit does not militate against the above finding.
The General Counsel , in its brief, cites Hollywood Brands,
Inc., 142 NLRB 304 (1963), enfd . 324 F.2d 956 (C.A.5),
N.L.R.B. v. Goodyear Aerospace Corporation, 388 F.2d 673
(C.A.6, 1968), and General Electric Company, 199 NLRB
286 (1972), as authority in support of its contention that
Respondent was legally obligated to furnish the Union with
the requested information.
In Hollywood the employer had published a wage policy
letter pertaining to its Montgomery , Alabama, plant
stating, in substance, that in keeping with its overall policy
of paying comparable wages in all of its plants many
employees would receive wage rate increases, the same rate
paid by the employer in its other manufacturing plants for
the same work being performed by employees at the
Montgomery plant. Such policy letter was published in
1947 and had not been rescinded when in 1960 the union
was certified as representative of the employees at the
Montgomery plant. Thereafter, in 1961 , the parties execut-
ed a bargaining contract . During negotiations for a re-
I In view of such findings and conclusions Respondent's arguments of
waiver , estoppel, and statutory limitations in defense of the complaint
allegations appear moot.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
newed contract the Union , in April 1962 , requested
permission to examine payroll records of the employer at its
headquarters plant in Centralia , Illinois . The employer
refused to comply with this request . Thereafter the employ-
er notified the Union of its intention to put into effect a
wage rate increase of 3 percent to its employees at the
Montgomery plant in accordance with its policy , previously
published, of coordinating such wage rates with its Centra-
lia plant . The Union requested negotiations on the subject
matter . Notwithstanding the Union 's request the employer
unilaterally put its announced wage increase into effect.
The Administrative Law Judge found, with Board approv-
al, that the employer had entered negotiations for a new
contract with the Union "with a predetermination to renew
the expiring contract in its exact terminology and language,
and to make no deviation from that position whatev-
er...." By taking such an adamant position the Adminis-
trative Law Judge found the employer to have refused to
bargain in good faith in violation of Section 8(a)(5) of the
Act.
Specifically, with respect to the employer 's refusal to
furnish the requested payroll information relating to the
employer's Centralia plant to determine the parallel
amounts as applied to both the Centralia and Montgomery
plants , as specified by the employer 's published policy
letter , the Board stated at 305 , fn. 2, "As the record shows
that the Union's request for wage information at both
plants followed Respondent 's statement that it would not
give its Montgomery employees a raise before one was
given to its Centralia employees , we fmd, contrary to the
dissent on this issue, that the Union was justified in
extending its request to Centralia although it was the
bargaining agent for only the Montgomery employees."
The facts in the cited case are clearly distinguishable from
those of the subject case . In the subject case there is no
published or announced policy of attempting to coordinate
wages , benefits, or other terms of employment between
Respondent's Temple and Eastex divisions of woodlands
employees . There is evidence that up until the contract was
executed in March 1975 an effort was made at such
coordination . However, after the March 1975 contract was
completed there has been a conscious effort on the part of
Respondent to separate the various crews of their two
woodlands divisions , including immediate supervisors of
such crews , although retaining integration of overall
supervision.
The facts in Goodyear are likewise inapplicable to the case
at hand . In the cited case the Union, which represented the
employer's production employees, requested information
relating to an unrepresented group of research and develop-
ment employees . The employer refused . The evidence
revealed there had been a longstanding argument between
the employer and union over the employer 's alleged
assignment of employees to the research and development
department who should have been assigned to production.
The Board found , with court approval, that the requested
information was relevant to the union's function as bar-
gaining representative of the production employees.
In General Electric the union had requested information
concerning employees in classifications excluded from the
scope of the bargaining unit . The employer refused con-
tending such requested information was neither necessary
nor relevant to the union 's obligation to police its contract
with the employer . Alternatively the employer argued that
the Union was really seeking evidentiary material to
support a unit clarification or amendment proceeding. The
Administrative Law Judge , in the cited case , with Board
approval, found that such requested information pertaining
only to employees outside the scope of the existing
bargaining unit, if shown to be relevant to the Union's
statutory duties and obligations, need not be related
directly to the employees in the bargaining unit.
In the cited case the evidence revealed the Union had
cause to believe that the employer was eroding the
bargaining unit by transferring job functions from bargain-
ing unit employees in classifications the employer contend-
ed were outside the scope of the unit . Some grievances were
filed but did not stop the practice . The Administrative Law
Judge found the record evidence supported the Union's
claim of relevancy, stating "As the standard of relevancy as
applied by the Board and the courts , it is not the obligation
of the Union to prove that its allegation of contract erosion
is absolutely and finally meritorious . It is sufficient that the
Union claim be supported by a showing of "probable" or
"potential" relevance" - citing Acme Industrial Co., 385
U.S. 432 (1967).
In the subject case , it is clear, from a fair reading of the
Union's October 10 letter , that the requested information
has no "probable" or "potential" relevance to the Union's
representation of employees in the agreed upon and
certified bargaining unit. Furthermore , there is no evidence
in this record, nor indeed any allegation or contention, that
by refusing to furnish the requested information, or by
engaging in any other alleged unlawful conduct, Respon-
dent has thereby attempted to erode the existing bargaining
unit . Nor is there any record evidence to show the Union's
need for such information in order to police its current
bargaining contract with Respondent . The contract be-
tween the Union and Respondent provides for only one
exception to reopening negotiations during its term and
that is "respecting the rates established by the company for
new or substantially changed job classifications." In such
eventuality specific procedures to be followed are pre-
scribed elsewhere in the contract . There is no evidence
herein, or contention, or allegation, that Respondent has in
any manner abrogated this or any other provision of the
contract.
As the information sought by the Union has no relevancy
to its obligations to represent employees in the existing
bargaining unit , nor to police its existing bargaining
contract with Respondent , I fmd the evidence herein does
not support the complaint allegations that Respondent, by
refusing to furnish the information requested by the Union
on October 10, 1975, thereby violated Section 8(a)(5) of the
Act. Accordingly I recommend such complaint allegations
be dismissed.
CONCLUSIONS 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 mean-
ing of Section 2(5) of the Act.
TEMPLE-EASTEX, INCORPORATED 211
3. The General Counsel has not established by a Section 8(a)(5) and ( 1) of the Act as alleged in the
preponderance of the evidence that Respondent has en- complaint.
gaged in unfair labor practice within the meaning of [Recommended Order for dismissal omitted from publi-
cation.]