Tree Fruits Labor Relations Committee, Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1958

121 N.L.R.B. 516 (N.L.R.B. 1958)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents' discrimination against him from February 9, 1957,6 to March 8, 1957,7
according to the Board's usual formula Loss of pay shall be determined by
deducting from a sum equal to that which each would normally have earned during
that period, his net earnings, if any, in any other employment during the period
Upon the above findings of fact and upon the entire record in the case, the
Trial Examiner makes the following
CONCLUSIONS of LAW
1 Roy Price Inc and Engineers Limited Pipe Line Company, herein called the
Employer, constitute a single employer engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2 The Respondent, Hod Carriers, Building and Common Laborers Union of
America, Local No 324, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act
3 By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union and its agent, R Wright, have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the amended Act
4 By causing Roy Price Inc and Engineers Limited Pipe Line Company, an
employer, to discriminate against employees in violation of Section 8 (a) (3) of
the amended Act, the Union and its agent, R Wright, have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the
amended Act
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the amended Act
[Recommendations omitted from publication ]
6 The date of discrimination
7 The date of effective reinstatement
Tree Fruits Labor Relations Committee , Inc.; Ackley Fruit Com-
pany; Congdon Orchards , Inc.; Cubberly Fruit Company; Han-
sen Fruit and Cold Storage Co.; Highland Fruit Growers, Inc.;
C. M. Holtzinger Fruit Co.; Johnson Fruit and Cold Storage
Co.; W. W. Judy Fruit Co.; Matson Fruit Co. ; J. M. Perry Ice
and Storage Co.; Perham Fruit Corporation; Prentice Packing
and Cold Storage Co.; Rainier Fruit Co.; Richey and Gilbert
Co.; W. E. Roche Fruit Co.; Torvig Sealander Fruit, Inc.;
Stadelman Fruit , Inc.; Stubbs-Lamb Fruit Co.; Sundquist
Fruit and Storage Co.; Warren and Company ; Washington
Fruit and Produce Co .; Williams Fruit Company ; Yakima
Fruit and Cold Storage Co.; Nordberg-Selah Fruit, Inc.;
Nordberg-Westbrook Fruit, Inc. and Fruit and Vegetable Pack-
ers, Warehousemen and Helpers Union , Local 760, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case No 19-CA-1428
August 14,1958
DECISION AND ORDER
On October 23, 1957, Trial Examiner David F Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in any unfair labor practices and rec-
121 NLRB No 64
TREE FRUITS LABOR RELATIONS COMMITTEE, INC . 517
ommending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto.' Thereafter,
the General Counsel filed exceptions to the Intermediate Report and a
supporting brief, and the Respondents filed a brief supporting the
Trial Examiner's dismissal.
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 and briefs, and the entire record in
this case, and finds merit in the exceptions to the Intermediate Report
to the extent noted below. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
which are consistent with this Decision and Order.
1. The Trial Examiner found that the Respondents did not engage
in unfair labor practices within the meaning of Section 8 (a) (5) and
(1) of the Act. We do not agree. For the reasons stated below, we
find that the Respondents, except for Congdon Orchards, Inc., W. W.
Judy Fruit Company, and J. M. Perry Ice and Storage Co., refused
to bargain with the Union within the meaning of Section 8 (a) (5) - of
the Act by refusing to furnish the Union with certain wage data
requested by the Union on March 28, 1957.
The Respondents are an employer association, herein called Tree
Fruits, and 25 fruit-packing companies for which Tree Fruits acts as
bargaining agent. Tree Fruits and the Union have had contractual
relations since 1945.1 The, contract in existence at the time of the
instant controversy was dated September 3, 1956, was effective until
May 15, 1957, and contained an automatic renewal clause. At all
times pertinent herein, the contract was in effect, having been extended
by the parties for the purposes of contract negotiations. This con-
tract contains the piece-rate schedules at which packers are paid for
packing a variety of fruits in a variety of packs.
On November 9, 1956, the, Union asked the Respondents, through
Tree Fruits, for certain data pertaining to all the packers employed
by them for the entire 1956-57 season, i. e., for the period from June
1956 to June 1957, during which, it now appears, approximately
1,004 packers were employed.2 In its request, the Union expressed
its dissatisfaction with existing piecework schedules and stated that
' In view of this history of collective bargaining on an associationwide basis, we find
that the following employees who have been covered by the contracts between Tree Fruits
and the Union constitute a unit appropriate for bargaining purposes : All employees of
members of Tree Fruits performing work on any product or commodity in the packing
plants and warehouses located in Yakima, Kittitas, and Benton counties, Washington,
excluding outside salesmen , field men, managers , bookkeepers , office clerical employees,
engineers , engineroom employees, watchmen, and supervisors as defined in the Act. The
Evening News Association, d/b/a Detroit News, 119 NLRB 345.
2 The Union asked that the requested information for the period up to January 1, 1957,
be submitted by that date and that the information for the rest of the season be sub-
mitted on a weekly basis.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it desired the requested information for contract negotiations. Fol-
lowing this request for wage data, the Union and Tree Fruits met,
and also exchanged correspondence, regarding the material requested.
Certain of the data requested by the Union was not within the posses-
sion of the Respondents and, on November 26, the Union explained
to Tree Fruits that it was seeking only information which was avail-
able under the Respondents' existing records. On March 9,1957, Tree
Fruits advised the Union of the data which was available, and asked
it to resubmit its request "along the lines of what is, available." On
March 28, 1957, the Union revised its original request, confining its
request to the data admittedly within the possession of the Respond-
ents, to wit : (1) Number of packages carrying the same piecework rate
that were packed by each packer each day during the 1956-57 season;
(2) total number of hours worked per day by each packer; (3) num-
ber of hours of standby time paid for each day; and (4) total earnings
per week of each packer. The request stated that the Union needed
such data "in order to have a true picture of piece-rate worker,earn-
ings throughout the entire season and in each of the different prod-
ucts, for the intelligent and effective administration of our current
agreement and for future negotiations." At the hearing, Cotner,
business representative of the Union, testified that he had attempted
on many occasions to get similar wage data from the union members
themselves, but that the results were unsatisfactory.
On May 21, 1957, Tree Fruits provided the Union with the names
of the packers employed by 23 of the Respondents 3 for the entire
season, the weekly hours of those packers, and their weekly earnings.
Information with respect to the number of packages carrying the same
piece rate that were packed by each packer per day, the number of
hours worked by each packer per day, and the amount of daily paid-
for standby time, was not turned over to the Union.
It is well established that where the information requested by a
bargaining agent consists of wage data it is the employer's obligation
to provide such data as is relevant for the purposes of administering
a collective-bargaining agreement or for collective-bargaining pur-
poses, where compliance with such a request would not be unduly bur-
densome 4 The record in this case makes it plain, and we find, that
information of the type requested by the Union on March 28, and
denied it by the Respondents, was relevant to the Union's tasks as
3 Two Respondents , namely, W. W. Judy Fruit Company and J. M. Perry Ice and
Storage Co., did not employ any piere-rate packers during the season in question. For
this reason we shall, in accordance with the alternative recommendation of the Trial
Examiner in their cases, dismiss the complaint against these two companies
4 Prone Industrial Relations Committee , Inc., 118 NLRB 1055; Whitin Machine Works,
108 NLRB 1537, enfd . 217 F. 2d 593 ( C. A. 4), cert. denied 349 U. S. 905 ; Glen Raven
Knitting Mills, Inc, 115 NLRB 422, reversed on other grounds , 235 F. 2d 413 (C. A. 4) ;
F. W. Woolworth Co., 109 NLRB 196, enfd. 352 U. S. 938, reversing 235 F. 2d 319
(C. A. 9) ; J. I. Case Company, 118 NLRB 520, enfd . 253 F . 2d 149 (C. A. 7).
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 519
bargaining agent of the Respondents' employees within the meaning
of the cases, that it was within the Respondents' possession, and that
it would not have been unduly burdensome for the Respondents to
have furnished such information for the period following the request.
In the latter connection, it appears that the respondents maintain daily
tally sheets which show the number of packs of each piece rate turned
out by each packer for the day. In these circumstances, there can
be no justification- for the Respondents' refusal to comply with the
March 28 request for the period following its receipt .5
In so holding, we reject the Trial Examiner's finding that the
Union was not acting in good faith herein and that its requests for
wage data were made for -the sole purpose of harassing the Re-
spondents. Thus, although certain of the data requested on November
9 was not within the possession of Respondents, the Union advised'
Tree Fruits on November 26 that it was seeking only data which
was available under- existing records, and its March 28 request was
limited to data admittedly maintained by Respondents. Also,
although the Union did not ask Respondents' competitors for the same
wage information requested from the Respondents Cotner testified
that the requests were confined to Tree Fruits because it was the
"pilot" concern and a contract with it was usually followed by the
other firms in the valley. And, although the Union may not have
offered to share the costs for compiling the data requested by it, the
Respondents never asked for such a sharing of costs or indicated
that they would provide the requested information if the expenses
involved were shared by the Union. Finally, we reject as being
without adequate support in the record the Trial Examiner's findings
that the Union adamantly insisted upon obtaining information that
would be useless to it, and that the Union refused to "consider" Re-
spondents' counterproposals for furnishing information on a spot-
check basis. In the former connection, we also note an absence of
proof that the Union did not honestly believe that the requested wage
data would adequately serve its purpose. As for the Respondents'
counterproposals, if any counterproposal for a spot check was re-,
ceived by the Union about March 26, it was not rejected on the day
of its receipt, as found by the Trial Examiner, but a day or two
later; and it was rejected, Cotner testified, because the Union did
not believe that spot-check information would satisfactorily indicate
the hourly earnings of employees for each type of pack.
On the basis of all the foregoing, and the entire record, we find
that the Respondents violated Section 8 (a) (5) and (1) to the extent
5 Contrary to the Trial Examiner , in cases in which the information sought consists
merely of wage data the necessity for such information need not be shown , so long as
it is relevant to bargaining . See Pine Industrial Relations Committee, Inc, supra. Bye
this holding , however, we do not mean to imply that the data denied the Union herein
would not have served a useful purpose.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they rejected the Union's request of March 28, 1957, by refusing
the Union the wage data requested therein for the period following
the date of the request .'
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth above, which have been
found to constitute unfair labor practices occurring in connection
with the operations of the Respondents, described in the Intermediate
Report, 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 of
commerce.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom, and
,from. like and related conduct, and to take certain affirmative action
designed to effectuate the policies of the Act.
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 each of the Respondents, namely, Tree
Fruits Labor Relations Committee, Inc., Ackley Fruit Company,
Cubberly Fruit Company, Hansen Fruit and Storage Co., Highland
Fruit Growers, Inc., C. M. Holtzinger Fruit Co., Johnson Fruit and
Cold Storage Co., Matson Fruit Co., Perham Fruit Corporation,
Prentice Packing and Cold Storage Co., Rainier Fruit Co., Richey and
Gilbert Co., W. E. Roche Fruit Co., Torvig Sealander Fruit, Inc.,
Stadelman Fruit, Inc., Stubbs-Lamb Fruit Co., Sundquist Fruit and
Storage Co., Warren and Company, Washington Fruit and Produce
Co., Williams Fruit Company, Yakima Fruit and Cold Storage Co.,
Nordberg-Selah Fruit, Inc., Nordberg-Westbrook Fruit, Inc., its
officers, agents, successors, and assigns,.shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Fruit and Vegetable
Packers, Warehousemen and Helpers Union, Local 760, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of its em-
6 As already indicated , we find no violation herein against W. W. Judy Fruit Company,
J. M Perry Ice and Storage Co, or Congdon Orchards , Inc. We are dismissing the
complaint against Congdon Orchards , Inc., even though for some reason not satisfactorily
explained in the record , the data furnished the Union by Tree Fruits on May 21 covered
Congdon's employees . The record shows that Congdon withdrew from membership in
Tree Fruits on February 25, 1957 , prior to the unlawful refusal to bargain found herein,
and the record does not show that the Union thereafter was the majority representative
of Congdon 's employees.
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 521
ployees in the appropriate unit by failing and refusing to make avail-
able to said labor organization, on request, data as to the number of
packages carrying the same piecework rate packed by each packer
per day, the number of hours each packer works per day, and the daily
paid-for hours of standby time.
(b) In any like or related manner interfering with the efforts of
the employees' exclusive representative to bargain collectively on their
behalf.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, make available to the Union the wage data re-
quested by it for the period following March 28, 1957, including the
number of packages carrying the same piecework rate packed by each
packer per day, the number of hours each packer worked per day,
and the daily paid-for hours of standby time.
(b) Post at its operations, and in the case of Tree Fruits Labor
Relations Committee, Inc., at its office, in the State of Washington,
copies of the notices attached hereto marked "Appendix." 7 Copies of
said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the Respondents'
representative, be posted by each of the respective Respondents im-
mediately upon receipt thereof, and be maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable
steps shall be taken by each Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed insofar as it alleges that W. W. Judy Fruit Co., J. M. Perry
Ice and Storage Co., and Congdon Orchards, Inc., have violated the
Act.
7 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby, notify our employees that :
WE WILL NOT refuse to bargain collectively with Fruit and
Vegetable Packers, Warehousemen and Helpers Union, Local
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
760, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the ex-
clusive representative of our employees in the bargaining unit
described below, by failing and refusing to furnish to said Union
the wage data requested by it for the period following March 28,
1957, including the number of packages carrying the same piece-
work rate packed by each packer per day, the number of hours
each packer worked per day, and the daily paid-for hours of
standby time.
WE WILL NOT in any like or related manner refuse to bargain
collectively with said labor organization as the exclusive repre-
sentative of our employees in the bargaining unit described below.
WE WILL furnish the above-named Union the requested in-
formation detailed above in order that it may properly discharge
its function as the statutory bargaining representative of our
employees in the appropriate unit.
The bargaining unit is:
All employees of members of the Tree Fruits Labor Rela-
tions Committee, Inc., performing work on any product or
commodity in the packing plants and warehouses, located in
Yakima, Kittitas, and Benton counties, Washington, exclud-
ing outside salesmen, field men, managers, bookkeepers, office
clerical employees, engineers, engineroom employees, watch-
men, and supervisors as defined in the Act.
-------------------------------------
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
TREE FRUITS LABOR RELATIONS COMMITTEE, INC.,
Employer-Association.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Act, was duly heard at
Yakima, Washington, on July 16 and 17, 1957, pursuant to due notice to all parties.'
'In this report the Respondents, Tree Fruits Labor Relations Committee, Inc., and the
member companies named in the caption are referred to as the Respondents, or Tree
Fruits, or the Companies ; Fruit and Vegetable Packers, Warehousemen and Helpers
Union, Local 760, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, is referred to as the Union or Local 760;
the General Counsel of the Board and his representative at the hearing, as the General
Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management
Relations Act of 1947, as amended, as the Act.
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 523
The complaint, dated June 10, 1957, was based on charges filed by the Union and was
issued by the General Counsel and duly served on the Respondents.
The complaint alleged in substance that on or about November 9, 1956, and again
on or about March 28, 1957, the Union requested the Respondents to furnish it with
information on a daily basis as to wages earned, hours worked, and production of
Respondents' piecework employees for the entire 1956-57 packing season, and that
the Respondents (1) failed and refused to furnish the requested information and (2)
failed to answer the Union's request for the information, or to specify the informa-
tion they would make available to the Union, until after the time fixed for reopening
the current bargaining agreement, thereby violating Section 8 (a) (1) and (5) of
the Act.
The Respondents by duly filed answers denied the commission of unfair labor
practices, and alleged the following affirmative defenses: (1) The Respondents on
or about May 21, 1957, furnished to the Union information showing, for each and
every piece-rate packer employed by the Respondents, (a) earnings, week by week,
but not day by day; (b) hours worked per week, and (c) total earnings for the entire
season of 1956-57; (2) the requests of the Union were not made in good faith, but
to harass and embarrass the Respondents; and (3) the Respondents have at all times
been willing to furnish all information required by law, but (4) were unwilling to
comply with the excessive, unreasonable, and burdensome demands of the Union for
information which could serve no useful purpose.
At the hearing all parties were represented, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence bearing on
the issues, to argue the issues orally upon the record, and-to file briefs and proposed
findings.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMMITTEE AND THE COMPANIES 2
Respondent; Tree Fruits Labor Relations Committee, Inc., herein called Tree Fruits
or the Committee, is a Washington corporation with its principal office in Yakima,
Washington. It is organized to advise with and act in behalf of its members, business
firms in the fruit-packing industry in the vicinity of Yakima. It acts as the agent of
its members in labor disputes and in bargaining collectively with organizations that
represent employees of its members.
The following companies, herein collectively called the Companies, are, and at
all times material herein have been, members of Tree Fruits engaged in the vicinity
of Yakima in the business of packing and selling apples and soft fruits: Ackley Fruit
Company, Cubberly Fruit Company, Hansen Fruit and Cold Storage Co., Highland
Fruit Growers, Inc., C. M. Holtzinger Fruit Co., Johnson Fruit and Cold Storage
Co., W. W. Judy Fruit Co., Matson Fruit Co., J. M. Perry Ice and Storage Co., Per-
ham Fruit Corporation, Prentice Packing and Cold Storage Co., Rainier Fruit Co.,
Richey and Gilbert Co., W. E. Roche Fruit Co., Torvig Sealander Fruit, Inc., Stadel-
man Fruit Co., Stubbs-Lamb Fruit and Storage Co., Sundquist Fruit and Storage Co.,
Warren and Company, Washington Fruit and Produce Co, Williams Fruit Company,
Yakima Fruit and,Cold Storage Co., Nordberg-Selah Fruit, Inc., and Nordberg-West-
brook Fruit, Inc. During the last fiscal year the Companies packed and sold and
shipped to purchasers outside the State of Washington apples and soft fruits valued at
more than $10 million.
I also find that at all times material hereto Tree Fruits has acted on behalf of the
Companies and each of them in negotiating and signing collective-bargaining agree-
ments, and in dealing with the Union as the representative of its members' employees.
I also find that Respondent Congdon Orchards, Inc., herein called Congdon, is a
Washington corporation engaged in the vicinity of Yakima, Washington, in the busi-
ness of selling apples and soft fruits. During its last fiscal year Congdon packed and
sold and shipped to purchasers outside the State of Washington apples and soft fruits
valued at more than $50,000. Congdon was a member of Tree Fruits at all times
material herein until February 25, 1957, at which time it withdrew from membership
in Tree Fruits. During its period of membership it was represented by Tree Fruits
as its agent in the conduct of labor relations to the same extent and in the same
manner as the Companies.
I find that Respondent Tree Fruits, the individual companies including Congdon,
and each of them, are employers within the meaning of Section 2 (2) of the Act and
are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act .3
A The findings in this section of this report are based on the pleadings
s Hereafter, Congdon is included among those Respondents designated "the Companies."
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H THE LABOR ORGANIZATION, THE CONTRACT
It is undisputed and I find that the Union is a labor organization within the mean-
ing of Section 2 (5) of the Act and that at all times material hereto it has represented
employees of the Companies in an appropriate bargaining unit, and has entered into
collective-bargaining agreements with Tree Fruits which has signed such agreements
on behalf of its members, fixing wages and working conditions of such employees in
such unit
III THE UNFAIR LABOR PRACTICES
A No conflicting testimony
There are no conflicts in the testimony as to the basic facts disclosed by this
proceeding. The course of conduct of the parties is contained in correspondence
which was introduced into evidence, and in undisputed verbal testimony relating to
certain conferences
B Background, the packer's job, the variety of "packs," the variety, of fruit
The Companies operate plants in the vicinity of Yakima, Washington, at which
they pack the fruits grown in that orchard region These fruits are of considerable
variety, including apples, pears, cherries, plums, apricots, prunes, and peaches.
It is undisputed by the parties that some of the fruit-packing seasons overlap with
the result that there are days and weeks during which the packers who are employed
at piece rates are engaged in packing combinations of fruit such as pears, apples,
and cherries The piece rates for the employees are further complicated by the
fact that there appears to be a large variety of "packs " For example, on apples
the "standard pack" consists in placing the apples in a wooden box which contains
1 bushel In a second pack, each apple is wrapped in tissue paper, cellophane,
or foil In a third pack called "Friday," the apples are placed in a cardboard box
with the top layer on a tray, this too may be varied by wrapping There are other
packs in which the apples are placed in plastic bags, or cellophane bags, and all
of these may vary in size or weight In other packs, the fruit is put loosely into
various sized boxes, containing anywhere fiom 20 to 48 pounds of apples, according
to the size of the box Sometimes the top layer of the box is wrapped in foil or
cellophane, sometimes all the apples are wrapped
The system of packing also varies Some fruit is packed from a moving belt,
and this fruit is sorted by sorters at the head of the belt so that the packer has
merely to pack Other fruit may be packed from a belt but without sorters, so
that the packers perform the function of sorting the fruit for size, color, and
quality as they pack it Some fruit is packed from bins in which the packers sort
as well as pack
It is also undisputed that oftentimes packers will pack 5 or 6 types of pack
at the same time, for example, as the apples come to the packer, she will put
those of one variety in a deluxe or fancy pack, some wrapped, some unwrapped,
some into a Friday pack, some into 20-pound cardboard containers, some into
wooden boxes of various sizes, and still others in bags It is also agreed that in
the course of a day a packer may work on several different kinds of fruit, when
the seasons overlap, such as peaches, apricots, and plums, and again each of these
fruits may be packed in a variety of packs
C The piece rates
The Union and Tree Fruits have had contractual relations since 1945, approxi-
mately 12 years During most of that time the relationship of the parties, has been
covered by a yearly contract which had an expiration date in May, and which
gave the Union the right to reopen on the subject of wages in February or March
of the year At the time this controversy arose the relationship of the parties was
governed by a contract dated September 3, 1956 At all tunes perttent hereto
this contract was in effect, having been extended by the parties for the purpose
of negotiations This contract sets up the piece-rate schedule at which the packers
are paid It demonstrates the variety of fruits, and the variety of packs It reads
as follows
TREE FRUITS LABOR RELATIONS COMMITTEE, INC.
PIECE RATE SCHEDULE
Male or Female
525
Apple and Pear Standard Box
Packer:
Cell pack wrapped:
With polyethylene liners-------------------------------- 0.271/4
Without polyethylene liners----------------------------- .261/4
Wrap or place pack---------------------------------------- .12
With tier pads, including end cards--------------------------- .121/4
Friday packs (tray) :
Unwrapped ------------------------------------------ .11
Wrapped -------------------------------------------- .13
Wrapped, top tray only------------------------------------ .111/2
Combination loose pack (standard box)---------------------- .053/4
Loose pack, 47# carton----------------------------------- .063/4.
Face and fill--------------------------------------------- .063/4
Packing off belt (in addition to regular rate)---------------------- .01
Packers required to place poly bag liners in box, (in addition to regular
rate) ----------------------------------------------------- -.003/4
Packers required to fold carton (in addition to regular rate) ---------- . 01
Bagging apples and packing bags:
10-4 lb. bags placing in master container----------------- . 12
12--4 lb. bags placing in master container----------------- . 14
12-4 lb. bags (special container) packers required to place
in separators and tier pads---------------------------- .153/4
14-3 lb. bags, placing in master container---------------- . 14112
Ring Facing Apples
Full bushel baskets--------------------------------------- .05
Half bushel---------------------------------------------- .04
Apple and Pears Half Boxes
Wrapped or placed pack----------------------------------- .061/4
Packing off belt (in addition to regular rate)------------------- .00112
Face and fill (also 20 lb. lug):
Apples --------------------------------------------- .041/4
Pears ----------------------------------------------- .04
Face and fill-35 lbs. or pears------------------------------- . 061
14 lb. pear lug, face and fill--------------------------------- .033/4
Special L. A. lug, wrapped and packed, 32 to 34 lbs----------- .091/2
Special L. A. lug, 31 lb. loose------------------------------- .043/4
24 lb. lug, loose pack, apples------------------------------- .033/4
Packers required to line lugs---------------------------- . 04
Apricot and Plums
Not sorted: -
Double row face and filled, 14 lb. box------------------------ .071/4
Single row face and filled, 12 or 14 lb. box-------------------- .053/4
Loose pack, 12 and 14 lb. box------------------------------ .033/4
4 basket crate-------------------------------------------- .19
Pre Sorted :
Double row face and filled, 14 lb. box------------------------ .063/4
Single row face and filled, 14 lb. box------------------------- .051/4
Double row face and filled, 12 lb. box------------------------ .061/4
Single row face and filled, 12 lb. box------------------------- .051/4
Shake F and F or loose pack, 12 and 14 lb------------------- . 031
4 basket crate-------------------------------------------- .181/
Double row facing only------------------------------------ .051/4
Double row crease facing only------------------------------%Single row facing only-------------------------------------
. 053/4
.043/4
Single row crease facing only------------------------------- . 051/4
Cup pack------------------------------------------------ .093/4
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prunes
Double row face and fill------------------------------------ 081
Single row face and fill------------------------------------ 063/4
Double row facing only------------------------------------ 07V
Single row facing only------------------------------------- 053/4
Ping face 1/a bushel--------------------------------------- 053/4
Peaches
Wrap and pack unsorted fruit------------------------------- 053/4
Wrap and pack sorted fruit--------------------------------- 051/4
Cup pack------------------------------------------------ 093/4
Loose pack, 26 lb box------------------------------------ 043/4
L A or Sanger lug, wrap and pack-------------------------- 053/4
With tier pads---------------------------------------- 06
2 layer-Friday pack, unwrapped--------------------------- 071/4
Cherries
Bangs and Lamberts
Unsorted
Double row face and fill, 13 row and larger-------------------- 0
Bunch face and fill ----------------^----------------------- 121/4
Loose pack-per.lb---------------------------------------- . 01
Sorted
Double row facing only------------------------------------ 261/4
Bunch face---------------------------------------------- 091
1 lb bag----------------------------------------per bag-- 013
The foregoing rate for unsorted cherries are predicated on fruit which con-
tains 10% or less culls For each percent in culls in excess of 10% up to
and including 20%, the base rate for packing unsorted cherries is to be in-
creased by 1¢ per box for each 1% increase in culls In cherries averaging
more than 20% culls, 1/20 per box increase in the accumulated base rate shall
be paid for each 1% in excess of 20% culls Cherries packing 13 row and
smaller are to be added into the daily cull total Culls are to be computed
on a daily basis On days when culls run 10% or less, packers are to be paid
off at the base rate If during any week, the culls on one or more days exceed
10%, the percentage of culls for said day or days of the week shall be com-
puted on the totals for said days and the base rate for said days determined
by the said average The culls of the minus days are not to be included in
the average of those days which exceed 10%. Culls are to be based on the
daily packout and posted on the bulletin board the following day
In event the employer or the Union finds that the foregoing packing formula
results in an unduly low wage, the employer or the Union may submit all his
data to the other, and the matter shall be taken up and adjusted by negotiating
procedure
Black Republicans
The foregoing formula shall apply to black republicans excepting the maxi-
mum cullage including 13 row and smaller packs shall not exceed 30% and
the maximum packing rate shall not exceed 550 per box
It is undisputed that the rates contained in the piece-rate schedule are the result
of the bargaining negotiations between the Union and Tree Fruits, through the
past 12 years, as the rates for new "packs" are negotiated by the parties before the
new packs are used by the Companies
D The Companies' records, the tally sheet, no record of employees' time on
each pack
The records upon which the earnings of a piece-rate worker are computed are
simple and apparently efficient When a packer finishes a, pack, she marks it with
her number or distinguishing mark Then the pack is conveyed, by the moving
belt or manually, in front of the "checker," whose duty it is to credit the packer
with one completed pack on the checker's tally sheet This sheet may be described
as a sheet of paper with margins to the left and at the top of the sheet, with the
remainder of the sheet divided into squares by vertical and horizontal lines In
one marginal column are placed the names or numbers of the packers In the other
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 527
marginal column are marked the kinds of pack which may be packed in the course
of the day. As each pack passes before the checker, that person credits the pack
to the proper packer in the proper "pack column." Thus at the end of the day, a
simple count establishes how many packs of each piece rate the packer has com-
pleted in the day. Two packers who testified said that most of the packers, who
are women, kept track of the number of packs which they completed in the course
of a day. Some used mechanical counters while others made a pencil or chalk
mark at a convenient place for each pack. Still others counted out a certain
number of containers of a certain pack and when they had completed them, they
knew how many packs they had made.
It is undisputed that it is the custom of the Companies here invoived to post on
the packers' bulletin board each day the company's tally sheet for the previous
day in order that each packer might compare it with her own record, and verify
the accuracy of the checker's tally sheet. The packers who testified stated that
occasionally discrepancies were found between the company's count and the indi-
vidual employee's count, but in general this simple method of keeping track of
the numerous types of pack and of fruit was satisfactory to all concerned. At the
end of the week the company added the daily packs of each individual, multiplied
the packs by the proper piece rate set out in the contract, and obtained the indi-
vidual's gross earnings for the week. The packers were paid weekly.
It is clear from all the testimony that the Companies did not attach much im-
portance to the tally sheets after they had served their purpose; they made no
effort to preserve them as part of their permanent records. The testimony indicates
that usually tally sheets were posted one upon the other until they became too
numerous for convenient posting, whereupon they were taken down and stored
with other records of little importance, or were destroyed. From all the testimony
on this point it is clear that when the employees were paid at the end of the week
the tally sheet had served its purpose and was considered of little or no importance
thereafter . Some companies had these tally sheets for some periods in their miscel-
laneous records, others apparently did not have them, and it is apparent that none
of the Companies regarded them as valuable records to be preserved for a definite
length of time.
One other point as to the tally sheets is important. Though counsel devoted
substantial time in attempting to show the availability of tally sheets among the
several employers, it is undisputed that the Union did not ask at any time pertinent
hereto that the tally sheets still in existence be made available to it.
' One other fact, in regard to the records, is of paramount importance to an under-
standing of this controversy. That fact is that no company here involved ever
tried to keep track of the number of hours and minutes the packers worked upon
each different type of pack, or upon each different type of fruit, within the 8-hour
day. No record was kept by any company, for example, which would show that
all packers, or Packer Jones, in the course of 8 hours, worked 3 hours on standard
pack, 3 hours on Friday pack, 2 hours bagging; nor was any record kept that on
a certain date all packers, or Packer Jones, packed cherries 3 hours, pears 2 hours,
and apples 3 hours. The only breakdown kept by the Companies was in accordance
with the contract which set a piece rate per type of pack.
The element of time is not a factor in determining the earnings of piece-rate
workers, except that the contract provides that "standby time" will be paid, in case
of "breakdown beyond the control of the employer or interruption of electric power
or water supply.. . The employer may avoid paying standby time by declaring
a recess of "not less than 1/2 hour or more than two hours." The undisputed testimony
establishes that the necessity for the payment of standby time to piece-rate workers
occurred very rarely. On -the few isolated occasions when breakdowns occurred,
if standby time became due the Companies paid it but kept no record that would
show what part of the piece-rate worker's earnings was the payment for standby
time. Company officials testified that the hours of standby time which occurred,
if any, could be obtained only by an examination of the sorters' timecards. Usually
the sorters worked the same number of hours as the packers, but since the sorters
were paid on an hourly basis a more complete record of their hours was kept.
However , the computation would involve examination of the sorters ' timecards,
and if a breakdown or standby time was not noted thereon, the computation would
be subject to error , and in the last analysis , the computation was based on the
assumption that the sorters ' hours were the same as the packers' hours, which was
not entirely correct.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be noted that the above schedule sets out a specific piece rate for 65
different "packs" of the various fruits
E The first request for information, the reply of Tree Fruits, sequence of events
The first demand of the Union for information was made in its letter of November
9, 1956 This letter, written by Ralph L Cotner, business representative of the
Union, and addressed xo F W Shields, Jr, secretary-manager of Tree Fruits, reads
as follows
For the past several years we have discussed numerous times the inequities
that exist in our present piece-rate schedule, however, no agreement has resulted
from these discussions
It is our intention to renew our efforts in this matter during next years ne-
gotiations and it is necessary that we have all available information on piece rate
workers earnings if we are to be prepared to carry on satisfactory negotiations
Therefore, in accordance with past National Labor Relations Board de-
cisions, we request that each member of your Association furnish our office with
a daily breakdown of the following information per individual packer for the
entire 1956-57 season, cherries through apples inclusive
The size of the container and type of pack, number of boxes packed of each
size container and type of pack, product and variety packed, number of boxes
packed of each product and variety, total number of boxes packed for the day,
amount of time spent on each size container and type of pack, amount of time
spent on each product or variety, total number of hours worked for the day,
amount of time required to stand out during the day, and total earnings for the
day
Please instruct the members of your Association to supply our office with
the above requested information by January 1, 1957, completed up to that date
and for the remainder of the season, please request that they submit the above
requested information on a weekly basis until the season is completed
Your cooperation in obtaining the above information will be greatly ap-
preciated and we believe greatly facilitate negotiations. [Emphasis supplied
In connection with this request,,it should be noted that it applied to approximately
1,004 packers employed by the Companies 4
On November 15, 1956, Shields replied, acknowledging receipt of Cotner's letter
and stating that the Union's request would be considered by the board of directors
of Tree Fruits, and that the Union would be advised later of the committee's position
in regard to the request
On January 8, 1957, Shields again wrote Cotner, stating that the Union's request
had been given very careful consideration at meetings of the members of Tree Fruits
Shields' letter then stated the following "Because of the complex nature of your
request, under the present record keeping facilities, the information requested is not
and could not be available This information is not needed, nor required, nor
essential to the efficient operation of the business and therefore is not kept as part
of the wage records "
F. The filing of the original charge
On January 8, 1957, the Union filed the original charge herein with the Regional
Office of the Board
G Meeting of January 14, Tree Fruits suggests a "spot check"
On this date, according to Cotner's testimony, Ernest Falk, counsel for Tree
Fruits, Shields, and Cotner met to discuss several other matters, and in the course of
this conference they discussed the supplying of information to the Union. Cotner
suggested that they take up the Union's letter point by point, and to try to boil it
down, to see what records were available He pointed out to Shields and Falk that
the Union had covered every factor that had a bearing on individual piece-rate
earnings Shields and Falk then pointed out that the employers kept no record as
to the variety of product, or variety of pack, or the time spent by packers on each
The company representatives said that they kept records such as the tally sheet, but
that sheetF showed only the employees' production, on the basis of like piece rate
Shields and Falk pointed out that there would be no indication as to the variety of
4 Respondents' Exhibits Nos 4-29
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 529
product, or variety of pack, only that the packer packed, for example, 100 containers
at $.12, 20 containers at $.261/z, and 10 containers at $.081/2. Furthermore they
did not keep records on the amount of time spent on each type of pack or variety
of fruit. Shields indicated that the records would show the total number of boxes
packed at each piece rate and the number of hours spent in actual packing operations.
Cotner then asked them if they were willing to furnish that information and they
replied that they were willing to do so on a limited basis. They proposed that a system
of "spot checks" be worked out in which some particular employer would furnish
information during peach season or apple season, another for the pear season, etc.,
so that one employer would furnish part of the information, and not all employers
be required to furnish all the information, for all the employees, for the whole
season. The meeting ended with Cotner suggesting that Tree Fruits send the Union
a letter setting out exactly what information they were willing to furnish. Shields
agreed to do this. Shields and Falk also said it would be necessary to talk to the
individual employer-members to determine exactly what information was available
in the records of the individual employers.
On February 11, 1957, Cotner wrote Shields pointing out that at the meeting of
January 14 Shields had agreed to let the Union know what information was avail-
able regarding piece-rate workers and that approximately 30 days had passed since
the meeting, and that up to that time the Union had not heard anything.
On March 9, 1957, Shields answered as follows:
As agreed at our meeting January 14th, I have discussed what information
is available from the office records of our members with three of our members.
We are not sure just exactly what you want but have boiled it down in our
language,to show our interpretation of what you requested.
1. You want to know the number of boxes of each size container, type
of pack, product, and variety, packed each day by each individual packer
in each of the warehouses covered by the Tree Fruits Labor Relations
Committee Contract.
2. You want the amount of time spent each day by each packer in each
of the warehouses to produce each item as listed under No. 1 above.
3. You want the total number of hours worked each day by each packer
in each warehouse.
4. You want the total number of hours each packer is required to stand
by each day in each warehouse.
5. You want the total amount earned by each packer each day in each
warehouse.
As to No. 1, this information is not available except as to number of packages
packed for each unit of like piece work rate. For example, the rate for packing
standard boxes of apples and pears is the same . They do not have a breakdown
to show what each packer packed of each product, and in no case do they have
a breakdown by variety for each packer.
Regarding No. 2, no record whatever is kept of the amount of time spent by
each packer for each individual item packed. They do have the number of
hours spent each day by each packer at the over-all packing operation.
No. 3, they do have available the total number of hours worked for the day
by each packer as stated above.
No. 4, we are not entirely clear as to what you mean by "time required to
stand out." If you refer to time that a packer might lose by reason of lot
change, or perhaps lack of sufficient fruit to keep a packer working at a maxi-
mum, such information is not kept. If you refer to the number of hours each
packer is required to stand by on account of machinery breakdown or hours a
packer is paid for time not worked because of insufficient hours covered by a
call to work, this information is available.
No. 5, no records are kept showing total amount earned by each packer
each day. All payroll records are kept on a weekly basis and computation is
only made for weekly earnings and not daily earnings.
We do not know whether all our members would have all of the above
information or not.
From the above information, you can see that it would be impossible to
comply with your original request and if you will resubmit your request along
the lines of what is available, our board will consider your request along
those lines.
487926-59-vol 121-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 Meeting of March 25, discussion of records available and "spot check"
On this date, Cotner again met with Shields, who on this occasion was accompanied
by Schooley, president of Tree Fruits The conferees discussed what records were
kept by the Companies and the Tree Fruits representatives said that they might be
willing to commit themselves to give the information on a limited basis of spot
checks At this meeting Cotner pointed out to Schooley and Shields that the tally
sheets were available, but the representatives of Tree Fruits said that old tally sheets
were not filed permanently or with any particular care, if available at all, they would
be distributed through each company's old, miscellaneous files The Tree Fruits rep-
resentatives again proposed a system of spot checks
2 Meeting of March 26, McClaskey, field examiner of the Board, and
Tree Fruits representatives, the Respondents' proposal of a "spot check"
On March 26, the following day, Mr McClaskey, field examiner of the Board, met
with Shields and Falk After discussing the matter with those representatives he
agreed to convey to the Union a suggestion or proposal by Tree Fruits representatives
for a "spot check " Pursuant to a stipulation at the hearing, a confirming letter of
McClaskey was read into the record Its pertinent part is as follows
accordingly, I informed Mr Cotner that you indicated generally that the
Association might be willing to produce the following information
I Apples and fall pears
The number of units packed by weekly totals for each packer employed by
five member companies for three weekly periods, the weeks to be selected by
the Association [Emphasis supplied ]
Hours worked per week by each employee of five member companies, the
total for a three-week period for each company
The number of hours per week each employee of five selected member com-
panies was required to stand by because of breakdowns or pursuant to work-calls
during which employees did not work (this list has reference to the collective
bargaining agreement that the company pay each employee called two or four
hours pay when they are called and no work is available for them)
2 Cherries
The number of units packed per week for each different piece work rate by
each employee of the two largest member companies packing cherries for a
period of two weeks, but excluding beginners or learners (mostly high school
students who were employed on a short-time basis during the height of the
cherry season)
3 Apricots, peaches, plums, and Bartletts
The number of units packed weekly per each piece work rate by each em-
ployee of four selected member companies for a period of three selected weeks
In connection with the above letter, the first paragraph ending "selected by the
Association" should be noted The General Counsel contends that the Union had
a right to reject summarily this proposal for a spot check of employers to be selected
by the Association However, Cotner in his testimony said that the representatives
of Tree Fruits and he had "no discussion along the line" of who would select the
particular weeks and companies for the spot check Cotner said that the Union
rejected the proposal for a spot check as "unsatisfactory," because the Union feared
the spot check would not give a true picture of the hourly rates for each type of pack
H Proposal for spot check unanswered, Union's revised request, Tree Fruits'
final answer
On March 28, 1957, the Union wrote the following letter to Tree Fruits
In view of our recent meeting, of March 25, 1957, we wish at this time to
revise out original request for information on piece rate worker earnings, which
was dated November 9, 1956
We feel that the following information is that which is available, under the
present record keeping facilities of your members, and therefore request that
you instruct your members to furnish our office with the following information
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 531
1. Number of packages packed, per each packer, per day, for each unit of
like piece work rate.
2. Total number of hours worked per day, per packer.
3. Number of hours of stand-by time, each day, paid for by employers.
4. Total earnings per week, per packer.
You will note that we have requested the above information to be furnished
on a daily basis. It is our understanding that daily records are available and
that according to Wage and Hour Division regulations Section 516.2, Section
516.6, Section 516.12, Section 516.14, and Section 516.17 employers are re-
quired to maintain daily supplementary wage information as to how weekly
earnings are computed where piece rate wages are involved.
We are still of the opinion that it is necessary that we have the above infor-
mation from each member of your association for the entire 1956-1957 season
in order to have a true picture of piece rate worker earnings through out the
entire season and in each of the different products, for the intelligent and effec-
tive administration of our current agreement and for future negotiations.
I believe this states our position in the above matter as I agreed to do in our
meeting of March 25, 1957. We would appreciate hearing from you, not later
than April 5, 1957, as to whether or not you are willing to furnish the above
information as requested. [Emphasis supplied.]
On April 8 Shields wrote a letter to Cotner saying that as soon as he could arrange
for a meeting of the board of directors of Tree Fruits he would advise the Union
of its position in regard to the Union's new request.
On April 26, 1957, Shields wrote Cotner as follows:
DEAR SIR: At a Board meeting of the Tree Fruits Labor Relations Com-
mittee yesterday, they asked me to communicate with members to furnish us
with wage and hour information of piece-rate employees. As soon as this in-
formation is received we will forward it to you.
On April 29, 1957, Cotner wrote Shields pointing out that Shields' letter of April
26 did not state to what extent the members of Tree Fruits were willing to furnish
information.
On May 2, 1957, Tree Fruits responded to the Union as follows:
We have instructed our members to furnish the information which we are
reliably informed is required by law.
It is less than you requested but it is what we believe the law requires us
to furnish.
The payroll records will be submitted as soon as we receive a substantial
number of reports from our members. Unless you prefer that we wait until
we have received all of them and submit them all atone time.
1. The data submitted by Tree Fruits
On May 21, 1957, Tree Fruits submitted to the Union the records of 24 employers
for the entire season of 1956-57. The letter also set out the piece rates upon which
the earnings had been calculated. These are the same as those set out in the
contract.
The letter also stated that when a packer worked overtihe, the Companies took
the average hourly earnings for the week, and added one half hour's pay to each
hour worked overtime. Standby time was included in the hours worked, and was
paid for, on the average hourly earnings of the week in which it occurred.
The data supplied by each of the respondent members of Tree Fruits furnished
a record for the entire 1956 season, showing the names of packers employed, the
number of hours worked by week, and the amount of weekly earnings. The data
supplied was introduced into evidence as Respondents' exhibits. Even• a cursory
examination of these documents shows that their compilation is the result of an ex-
tensive amount of work. The documents are voluminous, and to illustrate the num-
ber of employee records involved, and the number of weeks for which the records
are compiled, I have constructed the following chart, which I think is self-explanatory.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ANALYSIS, RESPONDENTS ' EXHIBITS
Company RExhNo
Number of
packers
Number of
Weeks
covered covered
Congdon------------------------------------------------------------ 4 10 18
Ackley - ------------ -------------------------------------- ------ 8 11 15
Cubberly--------------------- ------------------------------------- 9 12
Hansen------------------------------------------------------------- 10 43 39
Highland - --- ----------------------------------------------------- 11 21 27
Holtzmger--- °------ ---------------------------------------------- 12 19 16
Holtzmger No 2---------------------------------------------------- 13 30 29
Johnson -- -------------r------------------------------------------- 14 22 38
Matson--------------------------- --------------------------------- 16 18 23
Selab- -------------------- ---------------------------------------- 17 68 40
Perham - ------------------------------------------ --------------- 18 49 20
Prentice - - -------------------------- ---------------------------- 19 63 28
Ramier-- ----------------- ----------------------------------------- 20 10 20
Judy Fruit - ------------------------------------------------------- 15 (') C)
Richey Gilbert ---- ------------------------------------------------- 21 74 33
Roche-- -- --------------------------------- ------------ ---------- 22A 80 17
Torvig ---- ------------------------------------------------------- 22B 10 42
Stadelman, S..................................................... 23 212 33
Stubbs, L-- -------------------------------------------------------- 24 90 13
Sundquist -- -- --------------------------------------------------- 25 13 16
Warren ------------------------------------------------------------ 26 22 10
Washmgton-- ------------------------------------ ----------------- 27 85 19
Williams -- - ------------------------------------- ----------------- 28 12 8
Yakima --------------- --------------------------------------------- 29 30 14
Totals - --- -------------------------------------------------- 1 004 536
Average work weeks 23 3
`No piecework packers in 1957
J The verbal testimony
In the course of his testimony, Cotner, the representative of the Union, said that
the Union was interested in as fine a breakdown on the piece rates as it could get
The Union wanted to find out how much workers were able to produce of each pack,
of each fruit, per hour, so it could determine how much the average worker made
per hour by each pack In the course of Cotner's examination he was asked why it
was necessary to have the records for every employee, for every day, of every em-
ployer in Tree Fruits, to ascertain or determine the norms for each of the piece
rates set out in the contract, why a spot check as proposed by the Companies would
not afford the information He replied that in the Union's view, the spot check
would not be "satisfactory," that the only way in which the Union could arrive at
the figures it desired was by means of the records for each packer for the entire
season
In the course of his cross-examination Cotner agreed that there might be a very
considerable variance between the earnings of the same individual packer, on dif-
ferent days, even when she was occupied on the same pack He agreed that the
packer's position on the moving belt made a difference, and for that reason the
packer's position on the belt was rotated on a half-hour basis He also agreed that
the size of the fruit, and the amount of cullage, also affected the packers' earnings
He also agreed that on many occasions a packer simultaneously packed in as many
as 5 or 6 containers
The witness also said that he was employed as a packer for approximately 5 years,
and that he had been business representative of the Union for 7 years, and that
the only record he ever saw in that period of time, as to what a packer packed, was
contained on the tally sheet He admitted that he had never seen an employer's
operation in which the employer kept track of how long each individual packer was
employed on a particular pack, or a particular fruit, or a particular container, in
the course of the day
On cross-examination Cotner stated that the Union had contractual relations with
four principal packers in the Yakima area, they were the Yakima Growers Associa-
tion, Pacific Fruit and Produce Company, Forney, and Tree Fruits He said that
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 533
the company packing the largest output of fruit in the season was Yakima , and the
second largest Pacific, but that the Union had not asked either Yakima , Pacific, or
Forney to supply the information which was requested of Tree Fruits , although the
Union had the same problem with those Companies.
Cotner also stated that the representatives of Tree Fruits told him in the course
of their conferences that the collecting of the information requested would entail a
substantial amount of work, and that it would be a very burdensome and expensive
task . He admitted that the Union did not offer at any time to share any of the
cost or expense of gathering the information . When he was asked what benefit
information about "learner" cherry packers would add to the knowledge of the
situation , he admitted that it would have no bearing on the earnings of experienced
packers; that information on experienced packers would give the Union everything
it needed , but that the "learner" figures were considered as being helpful to the
Union.
In the course of his examination Cotner also admitted that J. M. Perry Company
and Judy Fruit Company employed no piece-rate packers in the course of the 1956-57
season . Cotner admitted that the proposal for a spot check was initiated by the
representatives of Tree Fruits and that the main subject of discussion was an effort
to find some method of spot check , so that each employer would not be required to
furnish information for each and every employee for the entire season.
Cotner said that , the Union was trying to get , "the average hourly earnings, which
could be realized from a particular piece rate ." To determine that he agreed that it
was necessary to know ( 1) the number of boxes packed and (2) the hours worked
on that particular type of pack . Cotner admitted that the Companies kept no track
of the time during which a packer worked on a particular pack.
John M . Schooley, assistant manager of the Perham Fruit Corporation, and
president of Tree Fruits, testified credibly. This witness explained the system by
which the employers arrived at the earnings of the piece-rate workers, which is in con-
formity with the practice set out in a prior section of this report . He testified that
none of the Companies keeps a record of the amount of time a packer spends packing
a particular type of container or a particular fruit . He said that the information
requested in the first union letter was impossible to furnish because the employers
did not have it. Viewing the request as a future prospect , it was possible to obtain
the information for the Union for it would be possible to hire new employees whose
duties it would be to keep a record of the time when each packer switched from one
container to another , or from one fruit to another , but even then , it would be
impossible for these new employees to keep track of the relative time when a packer
was packing in six different containers.
Schooley said that when the Companies received the second request of the Union
for information , they realized that it meant a complete transcript of each company's
entire payroll record for packers for the entire year. How much it had cost the_
Companies to provide that transcript he had no way of estimating accurately, but
he knew that the expense was substantial. Schooley also said that the tally sheets
were posted by the Companies for the employees ' information in most packing
houses, or were made otherwise available to the packers, as a regular practice. The
tally sheets remained posted usually until there were too many of them for con-
venient posting , then in most packing houses they were torn down , and thrown away.
The witness further testified that none of the Companies can tell from their existing
records how much a packer makes per hour on a particular pack.
Charles Boone, general manager of Congdon Orchards, Inc., testified that his
company packed apples and winter ' pears. His company is set up to pack six con-
tainers at the same time. He said that his company did not keep track of the
packers' time. They simply hired enough packers to handle the fruit , and give
the packers steady employment . After that, they permitted the packers who were
piece-rate workers to, more or less, "go their own speed ." The girls worked out
between themselves who would start early , who would stay late, and who would
work overtime . At his plant the packers used a slide system , whereby the girls
moved up and down the belt to pack the fruit , as it came to them, depending upon
the speed and quality and size. In that way no girl had an advantage from any
assigned position on the belt.
Robert G . Hauser . office manager of the Yakima Fruit and Cold Storage Com-
pany, testified credibly that he had been a strawboss in the packine room for 8
years. He explained the operation of packing and checking which illustrated that
the Companies had no need for daily or hourly records. The basis of their records
was the week.
Herbert Frank . secretary and treasurer of Yakima Fruit and Cold Storage Com-
panv,,and vice president of Tree Fruits and a member of the board of directors,
testified that his company packed apricots , peaches, prunes, Bartlett pears, and
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plums. He said that there were times when the 'packers were packing at least 3
of the soft fruits on the same day, and sometimes when apples were in season they
packed 3 of the soft fruits and the apples at the same time. His plant was set up
to use 3 packing lines, and on occasions when the company was "basketing " prunes
they used 4 packing lines. This company also shifted the packers from one line
to the other and in different positions on each line so that all packers would have
the same opportunity to earn. The witness explained that sometimes the flow of
fruit on the belts varies, and some fruit is packed as a rush order; consequently
the positions of the packers are varied in fairness. This witness also said that the
earnings of the packers varied greatly according to their desire to earn. Some were
content to work moderately and make a moderate wage, while others worked very
fast. In his plant they had no standby time for packers in the past 3 years:
On cross-examination he said that the packers kept records of their own; some
made marks on a paper or a board, others counted out the number of boxes, others
kept track of theirs in other ways, and one of the packers-at his company had her
records in a school composition book and kept it for the whole season , using a
different page for each week. At his plant the tally sheets were left posted for
the year, so if any girl wanted to go back and look at her earnings for any day or
week she could . If any girl wanted to make a copy for her own use, or the
Union 's use , the company had no objection . He saw no objection to giving the
documents to the Union, when they had fulfilled their purpose for the employees.
He said the original tally sheets were filed and stored in the basement with miscel-
laneous records. He pointed out that since the tally sheets have no time recorded
upon them , it would be impossible for the Union to ascertain how long it takes to'
pack any particular package, or to ascertain the packers' hourly wage per pack.
Arthur E . Marsh , office manager of Washington Fruit and Produce Company,
testified that his company had a record of the hours worked by day of the indi-
vidual packers , and that it also had a record of the amount of production in terms
of boxes packed by individual piece rate on a daily basis of the individual employee.
They also had records of weekly earnings . His company keeps no record of
standby time, but to his knowledge in the 3 past years there had been no standby
time. However, if standby time did occur, the packer foreman simply credited the
standby time to the girl's time, and unless he made a note of it the office would not
know that any allowance for standby time was made.
This witness testified that the compilation of records envisioned in the Union's
request was a "large operation ." He said that when his company closed their
books at the end of the year , it was a month 's work for the office force, even
though they were working from permanent records kept for that purpose . He said
the finding of the tally sheets among the miscellaneous records, -their sorting, and
ordering , and their examination , compiling, and typing would be a larger job than
the company 's closing of the books at the end of the year . He said that his
company had approximately 100 packers in the course of the season , cherry packers
for 4 weeks and the rest of the packers for 4 months . According to his computation,
the packers ' work for the season at his company alone would be reflected on 648
tally sheets.
F. W. Shields , secretary-manager of Tree Fruits and secretary-manager of Yakima
Traffic Association, testified that on May 21, 1957, he submitted to the Union with
a letter of transmittal the Respondents ' payroll information , mentioned previously.
This witness said that Tree Fruits did not fail or refuse to give the information
requested by the Union because of any desire to avoid bargaining. He said that on
February 22 the Union wrote Tree Fruits that it intended to open the contract on
the subject of wages. On the same day, Tree Fruits acknowledged receipt of the
letter, and asked the Union to advise it as soon as possible what proposed changes
the Union had in mind. On April 20, Tree Fruits received from the Union their
proposed changes, and on May 2, Tree Fruits advised the Union that it had gone
over their proposals with its board of directors and that it would like to meet with
the Union. On May 6, Tree Fruits arranged a meeting with Cotner for May 14,
and on adjournment of that meeting, Tree Fruits agreed to meet with the Union
during the week of June 10. The parties finally met in a conference on June 13.
There were no subsequent negotiations . On July 15, the association notified the
Union that it was ready to meet at any time the Union desired.
Shields also gave the- following history of the dates upon which prior contracts
were signed. He said the 1945 contract was signed December 8; the 1946 contract
signed June 8: the 1947 contract signed August 12; the 1950 contract signed
October 13. For 1951 the parties had no new contract. In 1952 the new contract
was signed June 9. In 1953 no new contract was signed. The association was
offered wage increases on September 9 and 13 and October 30, and in a • letter
I
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 535
dated October 30, Tree Fruits advised the Union that because certain nonunion
firms had put wage increases into effect, Tree Fruits felt that its employees were
entitled to the same raise. The Union consented to the increase going into effect.
Wage increases went into effect on September 26 in the year 1955 without the
Union's consent. In 1956 a new contract was signed on September 3. Shields said
that all of these contracts provided for an expiration date in May with reopening
in February or March. He said that no meetings were held between the parties in
January and February of this year because both Shields and Cotner were attending
legislative meetings at the State capitol.
Shields said that the largest shipper of fruit in the area was Yakima Fruit Growers
Association and the second largest was Pacific Fruit and Produce Company, neither
of whom are members of the association . He testified that neither of those com-
panies was asked to furnish the information which the Union had asked of Tree
Fruits, and he charged that the Union was not in good faith in its request for informa-
tion. The only purpose of the request was the Union's desire to harass and embarrass
Tree Fruits. He said that he based his statement on the fact that the Union did not
ask the information from any of Tree Fruits' competitors , and because the Union
knew that the majority of the information asked was not available , and could not
be secured.
Mrs. Mildred Price , a packer employed by the Nordberg -Selah company, was
sworn in rebuttal by the General Counsel. She testified that the record of each
packer 's production on one day was posted on the tally sheet on the following day.
She kept her own records, but only a week at a time , until she received her paycheck
for the week and saw that it tallied out . In her work she used a mechanical counter,
which she said worked well unless she was packing too many different kinds of pack.
She said if the packer watched closely, she could keep track of all the different kinds
of pack but if she became hurried she could very easily lose her count . She said that
practically all of the packers kept track of what they packed until the end of the
week to see that it tallied out . She said that the Union could not get accurate
records from the employees , because the nonunion employees would not cooperate,
and the union employees did not keep good records . This packer said that she
knows she makes more money on the standard pack because she is an experienced
packer . She stated that the inexperienced packers made more money at other packs,
and that all the packers knew on what packs they made the most money, and on
what packs they made the least. She said that the packers figured on making about
$2 an hour or more. She said that on some occasions her pay ran as high as $2.75
or $2.88 an hour on an average 8 -hour day. On a Friday pack she estimated that
she made about $1.50 an hour, because her company was not set up to make the
Friday packs, and the girls had to go and get their own trays.
On cross -examination she said that her earnings might vary considerably from day
to day depending upon the quality and size of the fruit; that it was possible that she
might have a good day packing the same fruit in the same container and on the next
day have a bad day. She said that she had good weeks and bad weeks, and good
days and bad days, but over the course of the season it tended to average out. Over
the season , her earnings averaged above $2 an hour.
Jessie Sterling, a packer at Sundquist Fruit Company for the past 14 years, also
testified. She said that at her company the tally sheet was not posted on the board,
but that the foreman came around and informed each girl each day what she had
earned on the previous day. This witness said that she did not keep any record as it
was pretty hard to keep an accurate record of a week's work. She took the com-
pany's word or the checker's word for it. She said that of the 12-16 girls in her
plant about 2 of them kept records, 1 kept her records in a little notebook, which
she kept permanently.
This witness said that the standard pack was the easiest for the experienced packers,
but the younger packers found it difficult, and found the "Friday pack" and "bagging"
much easier. On the Friday pack the younger packers made close to $2.50 an hour.
Ralph H. Cotner was recalled in rebuttal by the General Counsel. He stated that
the Union had attempted on many occasions to get the information which the Union
desired from their members, that the Union had even gone to the extent of furnish-
ing the members with books in which to keep the records, but the results were not
good. From handling grievances he also knew that the employees did, not keep good
records. Cotner said that the information was requested of Tree Fruits alone be-
cause they seemed to be the "pilot" concern in the valley. When the Union reached
a contract with Tree Fruits the rest of the firms usually followed.
Cotner said that he was aware that the packing houses had tally sheets which they
posted on the wall in most places.
On cross-examination he was asked what company was the first to sign a contract
with the Union in 1955. Cotner answered that the Yakima Fruit Growers Associa-
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion signed up first . Cotner denied that the Union was trying to harass Tree Fruits
when it asked for the information.
Cotner also said that Shields suggested the spot check but that no specific method
of spot check was ever proposed to the Union.
In connection with the suggestion for a spot check , Cotner said that he did not
recall any discussion along the line as to who would select the particular weeks, and
companies , for the spot check. He said that the Union did not accept the spot
check because it feared that taking a few employers would not show a true picture.
As to the credibility of the witnesses , I have in general accepted the testimony of
all, except Cotner . His testimony I will discuss hereafter.
Concluding Findings.
The instant case presents a new facet of a question which has appeared frequently
before the Board in the past . Each counsel presented his case on his understanding
of the law, and each has supplied an excellent brief containing numerous citations of
the Board and court decisions . It would appear salutary to review , briefly, some of
these decisions , before turning to a consideration of the issues here involved.
It has been said in many decisions that an employer 's duty to furnish information
to the representative of his employees springs from Section 8 (a) (5) of the Act,
which requires the employer to bargain in good faith with that representative on
wages, hours, and conditions of employment . I believe it would be more accurate
to say that this duty springs from Section 8 (a) (5) and Section 8 (b) (3) of the
Act, which require employers and the representatives of employees to bargain in
good faith with each other. The mandate of the Act falls on both , and the rights
and duties of each finds equal and reciprocal rights in the other.
After having decided many complex cases on this duty, the Board ultimately came
to its landmark decision in Whitin Machine Works , 108 NLRB 1537. There the
majority stated the basic Board doctrine in the following language:
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 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 . [Emphasis supplied.]
Chairman Farmer concurred , but said that he thought that a clear -cut rule relating
to this issue was desirable . He wrote, in, a separate opinion:
Knowledge of the method of payment and of the earnings of the employees
represented by a union is a necessary ingredient in the amalgam of factors in the
collective-bargaining process, if the bargaining is to proceed without interruption
and lead to harmonious and peaceful industrial relations. The exact phrasing
by which it is requested , or the specific reason for requesting it, if any, are not
controlling. In the event that other cases of this kind reach the Board here-
after , therefore , I will give less weight to disputes over the relationship of the
material sought to bargaining issues, and will give greater significance to the
nature of the knowledge sought and its general materiality in the entire collective-
bargaining process.
I would not require that the union show the precise relevancy of the re-
quested information to particular current bargaining issues. It is enough for
me that the information relate to the wages or fringe benefits of the employees.
Such information is obviously related to the bargaining process, and the union
is therefore entitled to ask and receive it.
My interpretation of the employer 's obligation under Section 8 (a) (5) in
this respect , of course, also presupposes that the bargaining agent , in this
area as in all others, will seek the wage-rate information as a good-faith act
in the discharge of its duty as the representative of the employees . I would,
therefore , hold that, short of evidence that union requests for wage data are used
as an harrassing tactic and not in good-faith effort to secure pertinent bargaining
information , the employer has a continuing obligation to submit such data
upon request to the bargaining agent of his employees . This does not, of course,
preclude the employer from requiring the union to enter into reasonable ar-
raneements for the compilation of the requested data including provisions for
bearing the additional cost to the employer of furnishing the requested informa-
tion . [Emphasis supplied.]
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 537
It should also be noted that Member Beeson, in dissenting, pointed out that "No
controlling precedent requires that an employer supply financial data to a union
unrelated to the latter's bargaining needs."
Some time later, the Board reached the case of Oregon Coast Operators Asso-
ciation, 113 NLRB 1338. In its decision the Board furnished a short history of
the development of its basic doctrine, and laid down a rule governing cases of this
nature. The rule stated that an employer was required to furnish information which
was relevant and necessary to the collective bargaining of the parties . The Board
wrote:
Necessarily a part of this duty of the Respondents to engage in good-faith
collective bargaining is the requirement that they furnish information in their
possession requested by the Unions which was relevant and necessary to assist
the Unions in presenting their proposals and engage in bargaining with respect
thereto in the most intelligent and efficacious manner.
The general proposition that an employer is under a statutory duty to furnish
data to the employees' bargaining representative, upon request, provided that
the data is relevant and needed by the representative for purpose of collective
bargaining, has been decided in many Board and court cases and is established
doctrine . [Emphasis supplied.]
Pursuant to this general principle , the Board has required employers , upon appro-
priate request and in particular circumstances , to furnish information on a variety
of subjects , such as: Names, job classifications , job descriptions, rates of pay in
form of wages , salaries, commissions ; with dates of employment or seniority stand-
ing, or with number of hours worked ; or with rate ranges or rate history; piece rates
and related data ; recipients of merit increases ; employers ' basis for incentive pay;
pension data; group insurance data; time-study data ; pay adjustments or changes;
performance ratings; methods and rates of time -work payment for lost time owing
to machine breakdowns , and other reasons .5
After Oregon Coast Operators the problem apparently continued to vex the Board
for in Glen Raven Mills, 115 NLRB 422, the Board changed or refined its Oregon
Coast rule. In this case, the majority decided to "order the Respondent to furnish
the Union wages and related data relevant to wages."
Member Rodgers' dissent shows clearly that the majority had changed the rule
in this case for he wrote that he was unable to subscribe to the majority decision
because "This suggests that `relevance ' is the sole criterion for determining an em-
ployer 's obligation to furnish a labor organization information for collective-bargain-
ing purposes."
Continuing , he wrote:
But in Oregon Coast Operators Association, which is the Board's most recent
pronouncement on the matter, and which all of the members of the majority
signed, the Board stated that "an employer is under a statutory duty to furnish
data to the employees' bargaining representative, , upon request, provided that
the data is relevant and needed by the representative for purposes of collective
bargaining." [Emphasis supplied.] The Board relied as authority for this
statement of the law upon the Whitin Machine, Skyland Hosiery, and Yawman
& Erbe cases, inter alia, which the majority would now cite in support of their
claim that relevance is the sole criterion . The Board , moreover , referred to
wage data as one of the types of data to which this statement of the law was
applicable . In view of the foregoing and the clear language of the Oregon
case, quoted above, it can scarcely be questioned that at the time of the Oregon
case, the-Board , including the present majority, interpreted the Whitin and re-
lated cases , as do I , to require that the information requested by a union be
necessary as well as relevant to collective bargaining.
Meanwhile, the Court of Appeals, Ninth Circuit, had reached the same question
of necessity in F. W. Woolworth Co., 235 F. 2d 319, which set aside the Board's
order, in the same case, reported at 109 NLRB 196. The court of appeals wrote:
Assuming the right to complete payroll information under some circumstances
for purposes of "intelligent administration" of the agreement, it perhaps could
be that a bona fide assertion that a substantial number of employees were not
getting their minimum rates would justify a request for payroll information on
all of the employees . Moreover , poor observance in general by management
of the terms of an agreement might justify a request for payroll information
to see if wage contract provisions were being flouted. But the board was told
6 See collated cases , Oregon Coast Operators Association , supra, at page 1346.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing of the employee grievances which the representative said he had
for his attention . Further, the representative had no idea whether the serious
grievances (character unknown ) had been adjusted . Objectively the local
request does not seem to meet a test of reasonable usefulness, and there is no
showing of anything in the subjective minds of the parties showing need.
[Emphasis supplied.]
We cannot believe that if any serious violations of an agreement are going
on that they will customarily remain wholly unknown . There will ordinarily
be the necessary inkling and evidence to justify the request for specific informa-
tion as to a specific individual and the gounds suggesting an immediate need
for information for all also will rear themselves.
Our appraisal of this record is that the claim of unfair practice when closely
analyzed , condenses to no more than , "Well, we might find something." If we
are correct in that analysis of the nature of the claim , then we are confident
of our conclusion that there was no unfair labor practice.
If the complainant is entitled to information highly personal to employees,
we think the lesson is in N. L. R. B. v. Truitt, supra, and in N. L. R. B. v. Ameri-
can National Insurance Co., 343 U. S. 395, 30 LRRM 2147, that there must
under all of the circumstances be a showing of reasonable need of the informa-
tion to meet a condition . If the reason is not obvious , then he who asserts the
claim should demonstrate to him against whom it is asserted some relevant
particularity.
We do hold that the information does not have to be produced on a "Well,
we want it" or "It is a handy thing to have around" basis.
In its discussion of the case , the court of appeals referred to the then recent
decision of the United States Supreme Court in N. L. R. B. v. Truitt, 351 U. S. 149,
pointing out that , "The Supreme Court held, under the circumstances, information
of the company ordinarily private, had to be supplied. The majority opinion
makes clear that the right is not a universal one and depends on each case's peculiar
circumstances. What the 'circumstances' are will have to be hammered out in
successive cases before the Labor Board and the Courts of Appeal with further
delineation eventually by the Supreme Court when cases are 'ripe' or conflicts in
circuits become serious."
It is also worthy of note that in reversing the decision of the court of appeals
in F W. Woolworth Co., the Supreme Court wrote as follows: (352 U. S. 938)
Per Curiam: The petition for writ of certiorari is granted and the judgment of
the Court of Appeals is reversed. The Board acted within its allowable dis-
cretion in finding that under the circumstances of this case failure to furnish
the wage information constituted an unfair labor practice. N. L R. B v.
Truitt [supra]; cf. Universal Camera Corp. v. N. L. R. B., 340 U. S. 474, 27
LRRM 2373.
One more precedent should be mentioned. In N. L. R. B. v. The Item Company,
220 F. 2d 956 (C. A. 5) enfg. 108 NLRB 1634, cert. denied 350 U. S. 905, the
opinion of the Court indicates that the employer is not required to furnish infor-
mation which is "just as conveniently and accurately available to the union through
its own membership," or which "would be unreasonable or burdensome. .
With this background of the law we may turn to "hammer out" the circumstances
of this case. It seems apparent to me that the proper rule herein is that stated
in Oregon Coast Operators, supra, which requires that the employer furnish infor-
mation which is relevant and necessary. I cannot follow the reasoning of Glen
Raven Knitting' Mills, Inc., which transforms the coextensive and reciprocal rights
and duties of the employer and the union to bargain in good faith with each other
into an absolute right of the union to demand and receive information, and an
absolute duty on the part of the employer to furnish it, subject only to a test of
relevancy. The relative and reciprocal rights of the parties cannot be transformed
into absolutes by any logic; and a test of relevancy alone is obviously no test at all,
as the instant case demonstrates.
When we consider the request of the Union in this case, we immediately note
several particulars, in which the request is unlike the specific requests noted previ-
ously. In those cases. the request usually arose from a specific lack of knowledge,
on the part of the Union, as to some action taken by the company alone; for
example, a request by a newly chosen representative for information as to current
wage rates, and information as to how they were determined by the company in
TREE FRUITS LABOR RELATIONS COMMITTEE, INC. 539
the past, or a request by an established representative as to what merit raises had
been granted to employees by the company alone, in the preceding contract period,
or a request that the results of time studies conducted by the employer alone be
disclosed to the'Union. In each case, the union sought information on a subject
about which it had no knowledge, and the information sought related to some
action or activity taken by the employer alone.
In the instant case, the Union and the Respondents have had a contractual rela-
tionship for upwards of 12 years. Through this period, the Union, with full
knowledge of how the Respondents operate their businesses, has met with Tree Fruits
and negotiated piece rates covering every type of pack, and every variety of fruit
in the industry. During a long history of bargaining, the parties have proceeded
on the basis that piece rates were the proper wage basis for the packers. By the
13th year of this history, I deem it fair to conclude that the Union knew as much
about how the piece rates worked out in practice as did Tree Fruits, or the indi-
vidual Companies.6 However, at that point, according to Cotner, the Union became
concerned over possible inequities in the piece rates which might have crept into
the piece-rate schedule as a result of the give-and-take of collective bargaining;
it feared that the rates for some packs were disproportionate, so it determined to
find out if in fact such inequities existed, and in which rates. It desired to make
a survey, or special study, of 1 year's operations, by which each of the 65 piece
rates would be transposed into an hourly rate for each pack. In that way it would
discover the inequities. Of course, such a survey or study, if it were to be made
with highest accuracy, would require examination, study, and compilation of all the
records, of all the companies, relating to all employees, for the entire season. At
this point, I must point out that the furnishing of a year's records for all employees,
in order that the Union might make a survey of piece rates as transposed to hourly
rates, is something not heretofore requested of an employer by any union, or
ordered by the Board in any proceeding such as this. Furthermore, it is admitted
that if inequities exist in the piece rates, they have come into being by the joint
action of the parties, in their long history of collective bargaining.
Undeterred by either the magnitude of the task it imposed on the Companies or
the special nature of the information it sought, the Union demanded the records it
desired from Tree Fruits. Here also, a significant feature emerges from the facts.
It is not disputed that the Union demanded information as to time spent on each
pack, and each variety of fruit, when it well knew that the Respondents had no such
records, and no such information. Cotner testified that in 5 years as a packer, and
in 7 years as the union representative, he had neither heard of, nor seen, a packing
operation in which a record of such time was kept. At this point it is not idle to
inquire, Why then did he demand that the Respondents furnish him with this informa-
tion which he knew the Respondents did not have?
As might be expected, when the Union made its first request for information, the
Respondents displayed no eagerness to accept the burden so facilely assigned to them.
Representatives of Tree Fruits met with Cotner, and told him that the Union's
request imposed upon them a task they considered (1) burdensome, (2) expensive,
(3) impossible, and (4) of very doubtful value. Cotner was obdurate. He insisted
that the Respondents comply with the Union's request. I think it is significant that
in these conferences Cotner displayed no disposition to alleviate the burdensome
character of the union request This he could have done by offering to pay a fair
share of the expense of compiling the necessary data, or to furnish some of the
clerical help needed to compile the data, but he made no such offer. Nor, appar-
ently, did he follow the good-faith principles of collective bargaining and give any
consideration to the Respondents' proposal for a spot check of several Companies in
place of supplying all the records, of all Companies, for every employee, for the
entire season.
However, after conferences he consented to modify the Union's request to the
extent that the Union would no longer ask the employers to supply records and data,
which Cotner knew the employers did not have. As to the remainder of the records
and information he was adamant.
Then began a series of conferences based upon the Union's second request. Tree
Fruits very seriously proposed to Cotner, and formally proposed to the field ex-
aminer of the Board, that if Cotner sought information it was available without all
employers being required to furnish the entire season's records for every employee.
6 The testimony of packers Price and Sterling supports this conclusion.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tree Fruits proposed that certain employers who packed certain fruits be chosen as
typical, and their operations "spot checked." Spot checks, like time studies, are
now in such general use in the mechanics of collective bargaining as to be almost
standard procedures. Evidently Cotner gave scant consideration to this proposal,
received through an agent of the Board, in writing, for on the day it was received he
reiterated his second demand, and ignored completely Tree Fruits' counterproposal.
He insisted on the records for every company, for every employee, for the entire
season . His summary rejection of this counterproposal appears to me to be an act
in derogation of the Union's duty to bargain with Tree Fruits.
One other point is significant. In these conferences, the representatives of Tree
Fruits pointed out that each season several hundred high school students were em-
ployed as cherry packers on a part-time basis, and that the records of these inexperi-
enced part -time employees would be of no value in determining piece rates, as set
up in the contract. They asked to be spared that portion of the task. Again,
Cotner was adamant. However, at the hearing, on examination, he agreed that those
records would have no bearing on the contract piece rates of full-time packers.
Also, in the course of these final conferences Tree Fruits pointed out that the
total packs for each packer, on a daily or weekly basis, were of no use to the Union
for its stated purpose without the data as to time per pack and variety of pack. If
Cotner's purpose was to determine an hourly rate per pack , he could not do it on
the basis of production figures alone; hence the supplying of those figures was a use-
less task . On this point, too, Cotner was obdurate so ultimately the Respondents
furnished a record of hours and earnings for each and every employee , for the entire
season , but on a weekly basis.
Upon all the evidence , and after a consideration of the conduct of the representa-
tives of the parties as disclosed by the evidence , I find as follows:
1. In view of Cotner 's demand for information which he knew the Respondents
did not have, his refusal to consider the Respondents ' counterproposal for a spot
check, his failure to offer to share some of the expense or work of compiling the data
embraced in the Union 's various requests , his adamant insistance on receiving in-
formation that would be of no use and throw no light on the piece rates transposed
into hourly rates, I find Cotner's testimony that he wanted the record of every em-
ployee, of every employer , for the entire season , for the purposes of gaining knowl-
edge as to the piece rates, incredible , and I therefore reject it . I find that the requests
of the Union herein, purportedly for information, were in reality pretexts used by
the Union to harass and embarrass the Respondents , and were not requests for in-
formation made in good faith . From Cotner 's conduct , I can reach only one con-
clusion , that his purpose here was not to gain useful information , but to cause the
Respondents maximum inconvenience , expense, and hardship . The Act may not be
used for that purpose.
2. I further find that the Respondents have furnished to the Union all the data as
to the hours and wages of packers for the entire season of 1956-57 that it might be
required to supply under the law by a bona fide request, and that thereby the Re-
spondents have fully discharged their duty to provide information as required by
Section 8 (a) (5) of the Act.
3. I further find that the Respondents , under the law, were not required to furnish
the other items of information requested because ( a) the collection , the compilation,
and supply of those items would be unreasonably burdensome, and serve no useful
purpose, and ( b) they were not necessary to the collective bargaining of the parties.
4. I further find that the Respondents acted in good faith . They did not reject the
Union 's request for any of the information because they sought to avoid good-faith
bargaining with the Union.
5. I further find that the Union 's summary rejection of the Respondents ' proposal
for spot checks constituted an act in derogation of the Union 's duty to bargain in
good faith with the Respondents , and that thereafter the Respondents could not be
found in violation of Section 8 (a) (5) for failure to supply the information
requested.
6. I further find that W. W. Judy Fruit Company and J. M. Perry Company em-
ployed no piece -rate packers in the season of 1956-57, and therefore were im-
properly included in the Union's request for information . The complaint as to these
two Respondents is dismissed on this special ground , in addition to the grounds for
dismissal expressed elsewhere.
For the above reasons, it is recommended that the complaint , as to all Respond-
ents, be dismissed in its entirety.