TRW, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1973

202 N.L.R.B. 729 (N.L.R.B. 1973)

UNITED-CARR TENNESSEE 729
United-Carr Tennessee , a Division of TRW , Inc. and
Local No. 3-281 , Oil, Chemical and Atomic
Workers International Union . Case 10-CA-9615
March 23, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Tennessee . During the year preceding issuance of the
complaint , Respondent had a direct outflow in interstate
commerce valued in excess of $50,000 . Respondent admits,
and I find , that it is engaged in commerce , and that the
Union is a labor organization , within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Issues
On December 21, 1972, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, United-Carr
Tennessee, a Division of TRW, Inc., Knoxville,
Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: This
proceeding was heard before me on August 24, 1972,1 in
Knoxville, Tennessee, upon a complaint by the General
Counsel2 alleging that the above-captioned Respondent
violated Section 8(a)(5) and (1) of the Act. Comprehensive
briefs filed by General Counsel and Respondent have been
carefully considered.
Upon the entire record,3 I make the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent manufactures and sells custom ordered
plastic items at its place of business in Knoxville,
I All dates are in 1972 except as otherwise specified
2 The Union's charge was filed, and served by registered mail, on June 2,
the complaint was issued on July 20
1 Respondent's motion to correct the transcript filed with its brief,
without objection, is hereby granted
It is undisputed that Respondent refused to furnish fob
performance evaluation records and standards on George
H. Hancock requested by the Union during the processing
of a grievance relating to Respondent's denial of a merit
wage increase for this employee. Such refusal to supply
requested information is the sole violation alleged in the
complaint. Denying the alleged violation, Respondent
contends that the issue should be deferred to arbitration
under the Board's Collyer doctrine,4 and that, in any case,
the requested information is not relevant or necessary for
the Union properly to carry out its representative duties.
B. Stipulated Facts5
A collective-bargaining agreement exists between the
Respondent and the Union for an effective term from
December 5, 1971, to December 4, 1973. It contains, in
four steps, grievance procedures culminating in final and
binding arbitration. Grievances are defined as any viola-
tion of the contract. In the termination clause, it is stated
that "all bargainable issues are settled" for the contract
term or any extension thereof. It is also specifically
provided that "favoritism or Union discrimination shall be
considered a contract violation and subject to arbitration."
(art. I, secs. 2 and 3.) The portion of the contract covering
merit increases states as follows:
Where rate ranges are in effect, each employee upon
completion of 6 months service on a job shall be
advanced to not less than one-fourth of the difference
between the top and the bottom of the rate range and
upon completion of 12 months service shall be
advanced to not less than one-half of the difference
between the top and the bottom of the rate range. The
remaining one-half of the difference shall be merit
increases and shall be governed by such standards as the
company may determine and apply. The Company will
review the status of each employee at the end of each 6
months period after the employee has attained 12
months seniority and will inform the employee of the
outcome of such employee's merit rating review and
give the employee the reason or reasons why such
employee has not received a merit increase. Any merit
increase granted shall be equal to at least one-fourth of
the rate range of the employee (until the maximum
thereof is reached) fractional parts of a cent being
awarded at the first increase. [Emphasis supplied ]6
4 Collyer Insulated Wire, 192 NLRB No 150
1 No testimony was taken, all facts are agreed as to authenticity
b Thus, it is observed that the contract provides for automatic wage
progression within the first half of the difference between the top and
bottom of an employee's rate range
202 NLRB No. 112
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above language has remained unchanged in con-
tracts since about 1960.7 During negotiations leading to the
present contract, the Union proposed, unsuccessfully, that
the existing merit system be abandoned in favor of a fully
automatic progression system.8
On January 24, a grievance was filed by Hancock and
the Union asserting that Respondent violated art. I, secs. 2
and 3, noted above, relating to "favoritism and discrimina-
tion," in that Respondent showed partiality to an employ-
ee-relative of management by granting such employee a
merit increase while denying the same to Hancock.9
Through three steps of the contract procedures, short of
arbitration, Hancock's grievance was considered, reviewed,
and formally rejected by officials of Respondent in dealing
with agents of the Union. In Respondent's second step
answer, on January 26, it notified the Union, inter aka, that
Hancock's supervisor had given him a "performance
evaluation" on January 12 denying the increase, had
discussed the evaluation with him, and had pointed out the
areas that needed improvement. During a third step
meeting on February 9, the supervisor's evaluation sheet
was shown to the Union, but the "evaluation system" was
not produced to explain the numerical figures used in the
evaluation. At this meeting, the Union made a specific
request for the "job performance evaluation records" on
Hancock, and Respondent refused. In a letter dated
February 11, Respondent Advised the Union-"The
Company can find no violation of the contract, nor a basis
for discrimination. By letter of February 16, the Union
requested (a) the exact reasons Hancock was refused a
merit increase; (b) a copy of the supervisor's "evaluation
report" on Hancock, (c) a 30-day extension of the
grievance. On December 22, Respondent replied, in
substance, (a) Hancock's performance did not justify an
increase at the time of the last evaluation; (b) "Perform-
ance Evaluation is based on a ten point scale. A score of
seven point five is the minimum an individual can score to
be eligible for a merit increase Mr. Hancock's total was
seven point zero. Mr. Hancock was rated excellent in
attitude toward fellow workers and in attendance. The
other areas in which he was rated indicate average
performance. An excellent rating indicates top perform-
ance. Average is what is expected A merit increase is
based on performance over and above what is expected";
(c) No -reason was found to extend the time limit of this
grievance. On March 9, at a further meeting under the
third step, the Union specifically requested the "job
performance evaluation records" on Hancock, and Re-
spondent again refused.
Initially, on February 26, the Union requested that
7 There is no indication whether, previous to the instant dispute, any
grievances were filed, or requests were made by the Union for information,
pertaining to the contract provision quoted above
a This proposed stipulation by Respondent, which was objected to by
General Counsel on grounds of relevance but not authenticity, was rejected
at the hearings subject to further study It is now admitted for purposes of
general background and as pertinent to Respondent 's contention that the
Union has "bargained away its rights to the information sought by agreeing
to the merit provisions of the contract "
9 Hancock was then within the "remaining one-half of the difference"
between the top and bottom of his rate range , and subject to merit increases
"governed by such standards as the company may determine and apply "
10 Cf, Boston Mutual Life Insurance Company, 170 NLRB 1672
Hancock's grievance be taken to arbitration (step 4).
Thereafter, arrangements were undertaken to select an
arbitrator and schedule a hearing date. On April 26, the
arbitration process was placed in a state of "limbo." On
June 2, the Union filed the instant charge with the Board.
On August 7, the Union informed Respondent that it
dropped the arbitration without prejudice. No hearing date
had been set, nor any evidence presented to the selected
arbitrator.
C. Conclusions
1. The Collyer question
It should immediately be clarified that the issue before
the Board does not involve the validity of Hancock's
grievance based on his failure to receive a merit increase,
but the admitted refusal of Respondent to supply the
Union with the data repeatedly requested during the
processing of the grievance under the contract procedures.
Respondent defends first on the ground that resolution of
the dispute between the parties requires an interpretation
of the contract, which provides gnevance-arbitration
machinery for such purpose, and should therefore be
deferred to arbitration pursuant to the Collyer policy of the
Board. Alternatively, Respondent contends that the re-
quested information is not relevant or necessary for the
Union to carry out its duties because, under express
language of the contract, Respondent is accorded complete
discretion to determine merit increases; thus, the Union
"bargained away," or waived, any right it might otherwise
have had to such information.
There is no language in the contract which specifically
deals with requests for data by the Union relating to
grievances, or for any other purpose,io and therefore no
direct question of contract interpretation by which an
arbitrator is bound to resolve this issue.li As an intrinsic
aspect of the collective-bargaining principle, it has long
been settled that an employer has the general obligation to
provide information sought and needed by the bargaining
representative properly to perform its statutory duties, in
conducting contract negotiations and administering the
executed contract, including the handling of grievances for
the represented employees.12 Viewing the factors relied
upon by Respondent, including the bargaining history of
the parties and the most recent contract negotiations
concerning merit increases , I can find no basis for holding
that the Union clearly and unmistakably waived its
statutory right to obtain the requested information 13 on
Hancock. While recognizing that the Board has certain
discretion to defer to arbitration before exercising its
11 It is of no avail that Respondent would agree to provide the
information if ordered by an arbitrator See Metropolitan Life Insurance Co,
I50NLRB 1478, 1484
12 Eg,NLRB v Truitt Mfg Co. 351 US 149, NLRB v C& C
Plywood Corp, 385 U S 421, and cases cited in N L R B v Acme Industrial
Co, 385 U S 432, 433 And see Fafnir Bearing Co v N L R B, 362 F 2d
716, 721 (CA 2)
13 See Unit Drop Forge Division Eaton Yale & Towne, Inc, 171 NLRB
600, 601, to the effect that , even when a waiver is expressed in a contract, it
must appear that the particular matter in issue was fully discussed or
consciously explored and the union consciously yielded or clearly and
unmistakably waived its interest in the matter , citing Rockwell-Standard
Corporation, 166 NLRB 124
UNITED-CARR TENNESSEE 731
jurisdiction in deciding the merits of an unfair labor
practice complaint, it is my opinion that the legal
considerations raised by Respondent's Collyer defense are
effectively answered in N.L.R.B. v. Acme Industrial Co,
385 U.S. 432.14 Acme similarly involved the issue of an
employer's obligation to furnish requested information to
the union relating to a grievance that the employer violated
the terms of a contract.15 The following'excerpt from the
Court's opinion is particularly significant:
For when it ordered the employer to furnish the
requested information to the union, the Board was not
making a binding construction of the labor contract. It
was only acting upon the probability that the desired
information was relevant, and that it would be of use to
the union in carrying out its statutory duties and
responsibilities. This discovery-type standard decided
nothing about the merits of the union's contractual
claims. When the respondent furnishes the requested
information, it may appear that . . . the grievances
filed are without merit. On the other hand, even if it
appears that such activities have taken place, an
arbitrator might uphold the respondent's contention
that no breach of the agreement occurred .... Such
conclusions would clearly not be precluded by the
Board's threshold determination concerning the poten-
tial relevance of the requested information. Thus, the
assertion of jurisdiction by the Board in this case in no
way threatens the power which the parties have given
the arbitrator to make binding interpretations of the
labor agreement. _
Far from intruding upon the preserve of the
arbitrator, the Board's action was in aid of the arbitral
process. Arbitration can function properly only if the
grievance procedures leading to it can sift out unmeri-
torious claims. For if all claims originally initiated as
grievances had to be processed through to arbitration,
the system would be woefully overburdened. Yet, that
is precisely what the respondent's restrictive view
would require. It would force the union to take a
grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the
claim. The expense of arbitration might be placed upon
the union only for it to learn that the machines had
been relegated to the junk heap. Nothing in federal
labor law requires such a result. [Footnotes omitted.]is
No cases have been cited to me, nor have any been
uncovered in my research, in which the Board passed on
the question of supplying requested information under the
Collyer rule since its inauguration. It may be assumed from
the Board's long experience that the occasion often arises
between parties subject to grievance-arbitration procedures
that, where the union requests data relating to a grievance,
the grievance usually involves the interpretation of some
contract clause. That such a dispute, when it comes before
the Board, directly or indirectly contains a contractual
14 Supra Opinion of the Court delivered by Mr Justice Stewart on
January 9, 1967
i5 There the disputed contract language giving rise to the grievance
concerned the employer's right to subcontract work normally performed by
unit employees The Board had ordered the employer to supply the
requested data (150 NLRB 1463), which holding was reversed by the
Seventh Circuit (351 F 2d 258) on the theory that the existence of a
defense does not ipso facto warrant invocation of a Collyer
deferral.17 Although arising before Collyer, the cogent and
highly opposite analysis of the full Supreme Court in Acme
must be given a full measure of respect to maintain the
Board's direct enforcement of "this discovery-type stand-
ard," i.e., supplying relevant information, as a vital element
in the continuing process of collective bargaining between
contracting parties. My finding is that where the employer
withholds requested information which is potentially
relevant in assisting a union intelligently to evaluate or
process a grievance-unless the statutory right to such
information is effectively waived in the contract-the
Board's Collyer doctrine is not applicable to such an issue.
Accordingly, this contention of Respondent is rejected.
2. Relevance of the data
Based upon its own contract construction that it was
accorded full discretion thereunder in awarding merit
increases, Respondent argues that the information desired
by the Union is irrelevant as to Hancock's grievance and
the Union's duty to represent. In essence, Respondent is
reiterating the position that the Union "bargained away"
its right to such information, upon the proffered reasoning
that the grievance, by the terms of the contract, could have
no merit. Such contention of a contract waiver has been
rejected, supra.
The contract provides (as applicable to Hancock) that
merit increases shall be governed by such "standards" as
the Company may determine and apply. It does not state
in haec verba that complete and absolute discretion is
granted the Company. It appears that such "standards"
were established and applied by Respondent, and that they
were not disclosed to the Union. The agreement also
specifies that "favoritism or Union discrimination" shall be
considered a contract violation and subject to arbitration.
Under the latter clause, Hancock's grievance alleged
"partiality" by Respondent in failing to grant him a merit
increase, while granting one to another employee related to
management-possibly a disparate application of the
existing standards erected by Respondent. The specific
information sought by the Union were the "job perform-
ance evaluation records" and a copy of the supervisor's
"evaluation report" on Hancock. It is not contested that
such information is available. Potentially, at least, I find
that the requested information is relevant and necessary
for the Union fairly to evaluate the merits of the grievance
and to decide for itself whether the grievance should be
taken to arbitration. In requiring the requested information
to be furnished, Respondent is not thereby caused to
recede from its interpretation of the contract and its
decisions relating to the grievance. Nor is the holding
herein to be construed as a binding construction of the
provisions of the contract in dispute between the parties.
On the sole issue presented, I conclude that Respondent's
provision for binding arbitration of differences as to the meaning and
application of the contract foreclosed the Board from exercising its
statutory power
ie 385 U S 437-439
17 E g , Kansas Meat Packers, a Division of Arisen Foods, Inc, 198 NLRB
No 2 And cf N L R B v C & C Plywood Corp, 385 U S 421, 428-429
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to supply the Union with the data it requested was ORDER 18
in violation of Section 8(a)(5).
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent in section I, 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.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 All employees of Respondent at its Knoxville,
Tennessee, operations, who are paid on an hourly or piece-
rate basis, excluding guard-firemen, watchmen, cafeteria
workers, quality control inspectors and clerks, clerical
workers, salesmen, timekeepers, designers, draftsmen,
administrative employees, chief engineer, foremen, and
supervisors as defined in the Act constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been, and is, the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit.
5. By refusing the Union's request to furnish the job
performance evaluation records and the supervisor's
evaluation report on George H. Hancock, relating to a
grievance being processed on behalf of such employee
under existing contract procedures, Respondent has
refused to bargain collectively with the Union as the
exclusive representative of its employees, and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
6. By the foregoing, Respondent has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record of the case, and pursuant to Section 10(c)
of the Act, I hereby recommend the following. -
Respondent, United-Carr Tennessee, a Division of
TRW, Inc., Knoxville, Tennessee, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No.
3-281, Oil, Chemical and Atomic Workers International
Union, as the exclusive bargaining representative of its
employees, by refusing to furnish it with requested
information consisting of the job performance evaluation
records and the supervisor's evaluation report on George
H. Hancock.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Furnish, upon request, to Local No. 3-281, Oil,
Chemical and Atomic Workers International Union, the
job performance evaluation records, and the supervisor's
evaluation report on George H. Hancock.
(b) Post at its Knoxville, Tennessee, plant, copies of the
notice attached hereto as "Appendix." 19 Copies of said
notice on forms provided by the Regional Director for
Region 10, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 10, in
wasting, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as prodded in Sec
102 48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local No. 3-281, Oil, Chemical and Atomic Workers
International Union, as the exclusive bargaining
representative of our employees, by refusing to furnish
it with the requested information consisting of the job
performance evaluation records and the supervisor's
evaluation report on George H. Hancock.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, furnish to Local No. 3-281,
UNITED-CARR TENNESSEE 733
Oil, Chemical and Atomic Workers International
Union the job performance evaluation records and the
supervisor's evaluation report on George H. Hancock.
UNITED-CARR TENNESSEE, A
DIVISION OF TRW, INC
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Peachtree Building, Room
Dated By 701, 730 Peachtree Street, NE, Atlanta, Georgia 30308,
(Representative) (Title) Telephone 404-526-5760.