Union Electric Steel Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1962

140 N.L.R.B. 138 (N.L.R.B. 1962)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as I find nothing in the Employer's conduct which
could reasonably have impaired the employees' ability to evaluate, on
the merits, the election issues, or their ability to vote objectively, with-
out fear or favor, and as, in any event, I agree with the Regional Di-
rector that the conduct involved is minimal and too isolated to consti-
tute a "technique," I would overrule the objection and certify the
results of the election.
Union Electric Steel Corporation and United Steelworkers of
America, AFL-CIO, and its Local 1552 . Case No. 6-CA-2348.
December 14, 1962
DECISION AND ORDER
On July 23, 1962, Trial Examiner Leo F. Lightner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
i The Respondent excepts to the Trial Examiner 's ruling whereby he rejected Respond-
ent's offer of proof to the effect that the Union 's sole purpose or motive in requesting the
subject information and data relating to the Respondent 's hourly employees ' incentive pay
plan was to enable it to harass , pressure , or otherwise dissuade employees from participat-
ing in the plan. The implementation of this purpose , according to the Respondent , would,
in turn, harass the Respondent through the resultant decrease in production
We are cognizant of the following circumstances in connection with the Respondent's
offer of proof . It was couched in general and conclusionary terms and failed to recite
the identity or description of the witnesses, or other evidence , to be introduced by the
Respondent . Further , the offer did not delineate the nature , content, or scope of any
such prospective evidence with any degree of exactitude . Indeed , the form of the offer
more nearly approximated a bare contention by the Respondent rather than an offer
of proof. For these reasons , we find that the Respondent 's offer failed to satisfy the
standards of specificity required by Rule 43 (c), Rules of Civil Procedure for the District
Courts of the United States. The Act, in Section 10(b), requires that any proceedings
under Section 8 shall be conducted , so far as practicable , in accordance with the rules
of evidence contained in these Rules of Civil Procedure.
Moreover , when Respondent 's counsel made the offer of proof, he admitted that all but
a "very small part" of the evidence he expected to develop in order to prove his con-
tention concerning the Union 's harassment objective would have to be adduced through
the testimony of union officials called by him as witnesses pursuant to Rule 43 ( b), Rules
of Civil Procedure, cited supra . Consequently , it appears that the Respondent only pro-
posed to prove its contention by means of the highly speculative and unpredictable method
of cross -exaarvaning adverse, of not hostile, w itnesses . Parenthetically , we note that at
the hearing the Respondent began its defense by calling the vice president of Local 1552
140 NLRB No. 15.
UNION ELECTRIC STEEL CORPORATION 139
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and brief, an-d hereby adopts the findings, conclusions,2 and
recommendations of the Trial Examiner, except as noted below.
ORDER
The Board adopts as its Order the Recommendations of the Trial
Examiner.'
to testify pursuant to Rule 43(b) and that this witness, In effect, denied that the Union
was seeking the incentive plan data for purposes of harassment.
Accordingly, we sustain the Trial Examiner's ruling rejecting the Respondent's offer
of proof.
2 Paragraph 3 of the Conclusions of Law set forth in the Intermediate Report is hereby
amended to read as follows:
3 By refusing, upon request, to supply the Union with a list of employees, in said
unit, who have received and are receiving incentive earnings beginning June 12, 1960,
including full information as to the hours worked, incentive hours, and Incentive
percentage for hours worked in arriving at the total incentive earnings for each of
said employees, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) of the Act.
g The notice appended to the Intermediate Report is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from
the date of posting."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Pittsburgh,
Pennsylvania, on December 4 and 5, 1961, on the complaint of the General Counsel,
and the answer, as amended, of the Union Electric Steel Corporation, herein referred
to as the Respondent.' The issue litigated is whether the Respondent engaged in
unfair labor practices and thereby violated Section 8(a)(5) and (1) of the Labor
Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act.
The parties waived oral argument. Briefs filedby the General Counsel and Respond-
ent have been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Pennsylvania corporation with its principal office in Pittsburgh,
Pennsylvania. Respondent's plant is located in Carnegie, Pennsylvania, where it is
engaged in the manufacture, sale, and distribution of forged hardened steel rolls
and related products. During the 12-month period immediately preceding the is-
suance of the complaint, a representative period, Respondent manufactured, sold,
and shipped from its Carnegie, Pennsylvania, plant finished products valued in excess
of $50,000 to points outside the Commonwealth of Pennsylvania. Respondent ad-
mits, and I find, that it is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and its Local 1552, herein jointly
called the Union, are labor organizations within the meaning of Section 2(5) of the
Act
"The charge was filed on September 19, 1961, and the complaint was issued on Novem-
ber 2, 1961.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issue
The principal issue raised by the pleadings and litigated at the hearing is whether
Respondent, as more fully set forth in the complaint, engaged in activity in contraven-
tion of the provisions of Section 8(a)(5) and (1) of the Act, by refusing to furnish
to the Union, upon its request, information and data with respect to hourly employees'
incentive plans, a part of the method by which wages are computed, on or about
July 14, 1961, and at all times thereafter.
B. The appropriate unit; Union's exclusive representative status in said unit;
existing collective-bargaining agreement
The complaint alleges, the answer admits, and I find, that at all times material
herein "all production and maintenance employees employed at employer's Carnegie,
Pennsylvania, plant, excluding salaried employees, foremen, supervisors (including
assistant foremen) in charge of any class of labor, watchmen, guards and clerical
employees," constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
The complaint alleges, the answer admits, and I find, that at all times material
herein the Union, having been duly designated by a majority of the employees in the
aforesaid unit, and having been designated as exclusive representative of said unit
since April 17, 1937, has been and is the exclusive representative of the employees
in said appropriate unit for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
The complaint alleges, the answer admits, and I find that the Union and Respond-
ent have been parties to collective-bargaining agreements from 1937 to the date of
the complaint, with the current agreement expiring by its terms on July 31, 1962.
C. Respondent's refusal to furnish the requested information and data
with respect to hourly employees' incentive plans
1. Background
There is no dispute of consequence as to the evidentiary facts. On an obscure, and
unimportant, date in 1959 the Respondent, inferentially pursuant to engineering
studies, introduced incentive earnings plans covering only a portion of the jobs in
its machine shop. While reference is made in the record to similar plans having
been introduced in the forge shop, we are here concerned with the machine shop.
These incentive plans were introduced under agreements for trial periods which ap-
parently continued until approximately October 15, 1960. Within this period the
Union's basic labor agreement of September 1, 1956, and other agreements between
it and Respondent were replaced by a new agreement. The new agreement was made
on January 23, 1960, effective as of January 1, 1960, with an expiration date of July
31, 1962. No reference to incentive plans was made in the new agreement. Infer-
entially, sometime between October 15 and November 10, 1960, the membership of
the Local voted (189 to 39) not to work incentives. Paul R. Normile, international
representative of the Union, advised Respondent, on November 10, 1960, that the
membership of the Local had voted against working under incentive plans. The
Respondent requested that the status quo be maintained until the matter could be
further studied.
On December 30, 1960, Respondent met with the Union. Among those present
representing Respondent were Donald B. Buerger and Elmer E. Myers, Respondent's
counsel, and Wald, Respondent's general superintendent. Among those present and
representing the Union were Paul R. Normile, international representative, and
John F. Mathias, president of the Local. This meeting was primarily concerned
with grievances. At the conclusion of the discussion on grievances, Buerger raised
the issue of the status of incentive plans. Normile stated that the Union recognized
the right of the Respondent to install incentive plans unilaterally but that Respond-
ent could not compel the men to work under incentive plans at an incentive pace.
Buerger agreed with the observations of Normile and a discussion of various problems
relating to incentive plans followed. Buerger then advised that Respondent did not
want to spend additional money for engineering studies unless the Union was willing
to cooperate in the matter. Buerger summarized his views of the consensus of the
parties as: (1) Respondent would keep the incentive plans in force; (2) Respondent
would initiate other plans when, as, and if "we like"; (3) employees were not re-
quired to work at an incentive pace; (4) employees will be advised by the Union
UNION ELECTRIC STEEL CORPORATION 141
to cooperate in studies-act normally; (5) when plans were completed for all men
to be covered, the Union "will consider plans in good faith and will agree or dis-
agree or negotiate or arbitrate."
On January 9, 1961, the Union posted a notice on the plant bulletin board, over
the signature of the president of the Local, which read:
The Corporation has informed us of their position concerning their attempts
to establish incentives in the plant.
The Corporation intends to continue the incentives they have installed in the
past. They, also, intend to install more incentives and continue with their
time-study methods.
The position of the Corporation is a unilateral position . That is to say
that in doing this they are within their legal rights, but it is definitely without
the agreement of the Local Union.
Your committee has again explained the Local Union's position to the
Corporation. Our position is:
We do not recognize Engineered Incentives in our plant.
Myers acknowledged that the Union had "from time to time" objected to incen-
tive plans based on engineering studies, and incentive plans "as such."
Respondent regularly provided the Union with a form which reflected the amounts
paid under existing incentive plans, to whom it was paid, and the method of com-
putation, for various pay periods, until June 12, 1960.2
Prior to March 1, 1961, the incentive plans provided for incentive payments where
work was performed beyond the criteria, the time allotted being computed at a 100-
percent performance level in terms of time. After March 1, a 70-percent performance
level was substituted, with provision for incentive payments where such level was
exceeded.
2. The Union's request and Respondent's refusal
On July 20, 1961, John F. Mathias, president of Local 1552, advised Re-
spondent, by letter to R. S. Wald, superintendent, that on July 14, 1961, a conversa-
tion was held between Buerger, counsel for Respondent, Picard, international staff
representative, and Mathias, at which time Buerger asked that the Union clarify,
in writing, what information the Union was requesting from the Company "concern-
ing payments made to individuals of the Union under the Company's unilateral
Incentive Plan." The Union attached, as an enclosure, a copy of the form previously
submitted to the Union by the Company showing the computation of incentive hours
worked, payments made, and to whom they were made, during a pay period, under
incentives then existing, and a continuation of this past practice was requested. The
Union further advised that since the last form provided was for the pay period
ending June 12, 1960, it was requested that the Union be presented with forms
relative to such payments for the pay periods after said date and for future pay
periods.
Respondent responded on August 2, 1961, by letter. Superintendent Wald advised
Mathias that in the latter's conversation with Buerger he agreed to state in writing
"the purpose for which you desired the information in order that he (Buerger) could
determine what the Company was obligated to do." The letter advised that since
the purpose was not set forth, clarification was requested.
On August 17, 1961, Mathias advised Respondent, by letter to R. S. Gorman, vice
president of production and plant works manager, that the Union requested "a list
of employees who have received and are receiving incentive earnings for the period
from June 12, 1960, to the present, and, in the future, if incentive earnings are
received beyond this date, including full information as to the hours worked, incen-
tive hours, and incentive percentage for hours worked in arriving at the total incen-
tive earnings for each of said employees." Mathias stated that the Union "desires
this information to properly and understandingly perform its duties in the general
course of bargaining, to properly evaluate the various rates of pay in the plant, and
to police the administration of the current agreement." Mathias also advised "that
the Union, in requesting the above information, does not agree that the Company
had authority, under the agreement, to institute such an incentive plan or that it
acquiesces in the continuance of such an incentive plan."
2 Elmer E Myers, Respondent's counsel, testified that he did not know if this type of
information was furnished to the Union after January 1, 1960 The unchallenged recita-
tion in the letter of John F Mathias, of July 20, 1961, to Wald, is that the indicated
information was supplied until June 12, 1960. 1 find accordingly
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmer E. Myers, Respondent's counsel, related that a copy of the August 17
letter was sent to his office while he was on vacation ,and came to his attention when
he returned "after August 29." Myers at the latter time ascertained that Buerger
was on vacation and would not be back until September 5. Myers and Buerger, in-
ferentially on September 5, attempted to reach Wald and learned that he was out of
the country and would return September 19.
On September 20, 1961, Myers, Buerger, and Wald met at Respondent's plant to
discuss the Union's request of August 17. During the course of this meeting a copy
of the Union's charge in the instant case, filed September 19, 1961, was delivered to
the conferees.
Myers acknowledged that the information requested was the same as the in-
formation previously furnished by Respondent to the Union relative to incentive
payments, that no hardship resulted from the Company furnishing this particular
information, nor would compliance with the request constitute a hardship, neither
is the information sought considered confidential by Respondent so far as the
Union is concerned. Myers acknowledged that Respondent had not compiled with
the request of the Union when he testified herein.
Myers asserted that the engineering studies relative to the introduction of incen-
tive plans had not been completed when he testified in December 1961.
D. Respondent's defenses and concluding findings
The Respondent admits, as alleged in the complaint, that at all times since on or
about July 14, 1961, it has failed to furnish the Union, upon request, with informa-
tion and data with respect to hourly employees' incentive plans, which were then,
and continue to be, a part of the method by which wages are computed. The
Respondent, however, asserts that its conduct did not constitute a refsual to bargain
in violation of the Act, for reasons next considered.
I have found that the Union requested "a list of employees who have received and
are receiving incentive earnings for the period from June 12, 1960, to the present,
and, in the future, if incentive earnings are received beyond this date, including full
information as to the hours worked, incentive hours, and incentive percentage for
hours worked in arriving at the total incentive earnings for each of said employees."
The Union stated its reason for desiring the information to be "to properly and
understandingly perform its duties in the general course of bargaining, to properly
evaluate the various rates of pay in the plant, and to police the administration of the
current agreement."
It is undisputed that no reference to the incentive plans, or payments pursuant
thereto, is incorporated in the current collective-bargaining agreement between the
Union and Respondent.
The Board and the courts have repeatedly held that the term "wages" mentioned
in Section 9(a) of the Act, as to which an employer is required by Section 8(a) (5)
to bargain with the exclusive representative of his employees, comprehends all
emoluments of value which may accrue to employees by reason of their employment
relationship Dickten and Masch Mfg. Company, 129 NLRB 112, 125.
There appears herein no dispute that the "incentive pay," relative to which the
Union requested information, is within the meaning of the terms "wages .. .
and conditions of employment" of Section 8(d) of the Act. An employer is under
a statutory duty to bargain collectively with representatives of its employees with
respect to incentive plans. East Texas Steel Castings Company, Inc., 99 NLRB 1339
(enfd. 211 F. 2d 813 (C.A. 5)).
An employer's refusal to furnish a union with wage information has been re-
peatedly held, by the Board and courts, to be a violation of Section 8(a)(5) of
the Act.3
Respondent asserts that the request of the Union was not made for any purpose
related to collective bargaining. In essence , Respondent asserts that since the union
membership voted to oppose working under incentive plans the Union sought the
requested information solely for the purpose of discouraging any of its members
who might be earning incentives from engaging in such activity. Respondent con-
3 See Aluminum Ore Company , 39 NLRB 1286 , modified and enfd 131 F. 2d 485
(CA. 7) ; J H. Allison & Company, 70 NLRB 377, enfd . 165 F. 2d 766 (CA. 6), cert.
denied, 335 U.S 814; Yawman & Erbe Manufacturing Company, 89 NLRB 881, enfd.
187 F. 2d 947 (CA. 2) ; Whitin Machine Works, 108 NLRB 1537, enfd . 217 F. 2d 593
(C A. 4), cert. denied , 349 U S. 905 ; The Item Company, 108 NLRB 1634, enfd 220 F. 2d
956 (C.A. 5 ) ; Boston Herald-Traveler Corporation , 110 NLRB 2097, enfd . 223 F. 2d 58
(C A. 1) ; F. W. Woolworth Company, 109 NLRB 196 , 197, enfd. 352 U S. 938.
UNION ELECTRIC STEEL CORPORATION 143
cedes that the Union is entitled to the requested information if there were mixed
motives for the request, including the purpose stated in the Union's letter. The
Union's right to wage information, during the term of a contract, to permit it to
properly police the administration of the agreement is established by numerous
Board and court decisions.
In Boston Herald-Traveler Corporation, supra, the Board set forth the doctrine
of presumptive relevance of wage data. It held:
The Board's rule, affirmed by the courts, is that an employer is required
to furnish the union representing its emplo3 ees with the name and earnings
of each employee in the appropriate unit in order to make collective bargain-
ing effective. In making its request for such information, the union need not
show the precise relevancy of the requested information to particular bargain-
ing issues under consideration. "It is enough . . . that the information relate
to the wages or fringe benefits of the employees. Such information is ob-
viously related to the bargaining process, and the union is therefore entitled
to ask and receive it." The Board's rule recognizes that "it is virtually im-
possible to tell in advance whether the requested data will be relevant except
in those infrequent instances in which the inquiry is patently outside the bar-
gaining issues."
The Board further noted, by way of explanation of the practical considerations sup-
porting the doctrine, the following:
Even if the Union had failed "initially to show the relevance of the infor-
mation" this does not negate the possibility that full disclosure of payroll in-
formation might reveal inequities and other factors in the wage structure upon
which the statutory bargaining representative his a right and a duty to negotia-
ate. . . . The Union cannot bargain with maximum effectiveness if it remains
ignorant of the salaries of other employees possessing comparable skills and
experience. Moreover, knowledge of full payroll information would enable
the Union to decide whether to press a demand respecting changes in classi-
fications or minimum wage scales. Even where individual wage rates do not
bear directly on the contract issues, the information may well serve as a guide
or suggest some field of compromise or other adjustment; for example, the
Union might decide to withdraw its request for an increase in the minimum
wage scale and propose instead the raising of wages for the specific groups
of employees.
The First Circuit in enforcing the Board Order in Boston Herald-Traveler, supra,
at page 62, said:
However, we think it would be unwise not to consider the statutory validity
of the concept of the presumptive relevance of individualized wage data to
collective agreement negotiations. Perhaps it is true that the Board first spe-
cifically enunciated this doctrine in the Whitin Machine Works case, supra,
yet it seems to have been adopted as an implied premise in the earlier Board
decisions and court decisions enforcing Board orders. Although the employers
almost uniformly have contested the relevance of the requested data, the Board
and the courts have found relevance in generalized avowals by the charging
union that the information was necessary for the purpose of policing existing
contractual provisions which made merit increases a matter for bargaining be-
tween the employer and individual employees or for the purpose of negotiat-
ing with respect to minimum wage rates or merit increase mechanisms. It
has apparently been considered enough to determine that the union might have
found it necessary or desirable to make demands for changes in existing sys-
tems, should evidence of inequities have been developed upon review of the
data which management refused to furnish.
In Taylor Forge & Pipe Works, 234 F. 2d 227 (C.A. 7) (enfg. 113 NLRB 693).
The court observed inter alia:
We agree with the Trial Examiner's statement that "Only full disclosure
of [petitioner's] wage structure based on the point values assigned to each
factor for all jobs would enable the Union to know whether to press or modify
a particular wage demand, whether inequities exist which merit discussion or
correction, and whether other elements are present in the wage structure which,
though impossible to visualize beforehand, appear to merit discussion once the
the full picture is available "
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The court further observed:
It perhaps is true, as asserted by petitioner, that the particular information
sought by the Union in the instant case has not been involved in any of the
court decisions. It is equally true, however, that the courts have announced
and applied the general principle that an employer is obligated to furnish
the union with data and information relevant to issues about which the parties
are obligated to bargain. Typical of such cases is the decision of this court
in the Aluminum Ore Co. case, 131 F. 2d 485, 487, wherein we stated: "This
[referring to the Act] contemplates exchange of information, ideas and theories
in open discussion and an honest attempt to arrive at an agreement. . . . In
determining what employees should receive increases and in what amounts,
it could have been only helpful to have before the bargainers the wage history
of the various employees, including full information as to the work done by
respective employees and as to their respective wages in the past, their re-
spective increases from time to time and all other facts bearing upon what
constituted fair wages and fair increases."
Respondent would seek to avoid its obligation to furnish the requested essen-
tial and requisite information on a "good faith" test of the Union's motives.
I find no merit in this contention. "In these cases it is sufficient that the informa-
tion sought by the Union is related to the issues involved in collective bargaining,
and that no specific need as to a particular issue must be shown." Whiten Machine
Works, supra. In the International Powder case 4 the Board held: "If the informa-
tion sought directly relates to setting up of wage rates, the Union is not obliged
to show specific need for such data, nor can any inference of harassment be
drawn from the failure to show such need."
The Board's rule, applicable to negotiations during the contract term with re-
spect to a subject which has been discussed in precontract negotiations but which
has not been specifically covered in the resulting contract, is that the employer
violates Section 8(a)(5) if, during the contract term, he refuses to bargain or
take unilateral action with respect to the particular subject, unless it can be said
from an evaluation of the prior negotiations that the matter was "fully discussed"
or "consciously explored" and that the Union "consciously yielded" or clearly
and unmistakably waived its interest in the matter. Proctor Manufacturing Corpora-
tion, 131 NLRB 1166, 1169.
Respondent contends that the Union waived its right to bargain on the incentive
plans and that Respondent is not required to furnish information on a subject on
which it is not required to bargain. Respondent contends that the oral agreement
of December 30, 1960, and the notice posted by the Union on January 9, 1961,
constitute such a waiver. In addition, Respondent cites the waiver clause in sec-
tion 21 of the current agreement which provides in part: "The Union hereby ex-
pressly waives and releases until July 31, 1962, any right it might have either to
open this Agreement or to bargain on any subject." General Counsel urges that
even if the Union waived its right to bargain with regard to the introduction of the
incentive plans this did not constitute a waiver by the Union of its right to the
requested incentive wage data. I concur with the latter view.
However, it is unnecessary to reach the question of waiver of the right to bargain
on the incentive plans. Rather the question here is whether there was a waiver
of the Union's right to insist upon a disclosure of information for the purpose of
policing the administration of the contract. In N.L.R.B. v. Item Company, 220 F.
2d 956, 959 (C.A. 5), enfg. 108 NLRB 1634, cert. denied 350 U.S. 36, the Court
held:
We agree with the Fourth Circuit in the Whitin case, supra, that wage data
appropriate for disclosure to a statutory bargaining representative in such in-
stances "should not necessarily be limited to that which would be pertinent to
a particular existing controversy," 217 F. 2d 594, but includes all information,
such as that here sought, which appears reasonably necessary for "the `policing
of the administration of any contract.' "
Respondent next insists that the Union has heretofore waived its right to
bargain or insist upon disclosure of information as to the only possible relevant
issue of merit increases, through having committed, contractually and other-
wise, the prerogative of granting such merit increases solely to respondent's
managerial discretion. We think sound reasons exist for rejecting this conten-
tion. First, there exists no substantial evidence of the requisite "clear and un-
mistakable" waiver of the statutory right to such information by the bargaining
4 International Powder Metallurgy Company, Inc., 134 NLRB 1605.
UNION ELECTRIC STEEL CORPORATION 145
agent here, it appearing without substantial dispute that in the bargaining con-
ferences which led to the signing of the new contract the Union clearly evidenced
its intention not to abandon or waive its right to the information sought, but to
seek redress from the Board for respondent's refusal to divulge it. Second, as-
suming arguendo that the new contract authorized respondent to bypass the
Union in granting individual employee merit increases, such a construction of
its terms would not ipso facto establish a waiver of the Union's right to obtain
information as to the merit increases thus unilaterally granted. The right to
grant merit increases without the consent of a statutory bargaining agent obvi-
ously should not imply the right to withhold information thereon, since such a
rule might foster discrimination against union adherents in the granting of merit
increases, and thereby promote that industrial strife and unrest which the Act
seeks to avoid.
There is not a scintilla of evidence in this record that the Union waived its right
to the requested information. I find accordingly. I find unnecessary a determina-
tion of whether the purported oral agreement of December 30 and the Union's notice
of January 9 constitute a "clear and unmistakable" waiver by the Union of its right
to bargain on the matter of incentive payments. The same observation has equal
application with respect to the provisions of section 21 of the current agreement.
Respondent asserts that it did not refuse to furnish the information and data re-
quested, but that the Union took precipitate action in filing the charge herein.5 The
initial request was made on July 14, 1961, admittedly the failure to supply the re-
quested information continued at the time of the hearing in December 1961. The
Board has found a 3-month delay in honoring a union's request for wage data un-
reasonable. Peyton Packing Company, Inc., 129 NLRB 1358, 1362.
Upon the basis of the entire record, I find that by failing, upon request, to supply
the Union with the requested information relative to "incentive earnings," including
a list of employees in said unit, who have received and are receiving incentive earn-
ings for the period from June 12, 1960, to the present, and, in the future, if in-
centive earnings were received beyond the date of the request, including full infor-
mation as to the hours worked, incentive hours, and incentive percentage for hours
worked in arriving at the total incentive earnings for each of said employees, the Re-
spondent refused and continues to refuse to bargain with the Union and that said
conduct is an unfair labor practice within the meaning of Section 8 (a) (5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent refused to bargain with the Union in violation
of Section 8 (a) (5) and (1) of the Act by failing and refusing, on request, to furnish
the Union with the incentive earnings of each of the employees in said unit, includ-
ing full information as to hours worked, incentive hours, and incentive percentage
for hours worked, I shall recommend that the Respondent be ordered to cease and
desist from engaging in such conduct and, upon request, to supply such data to the
Union.
Because of the limited scope of the Respondent's refusal to bargain, the absence
of any claim that Respondent's failure was in bad faith, and because of the absence
of any indication that danger of the commission of other unfair labor practices is to
be anticipated from the Respondent's conduct in the past, I shall recommend that the
Respondent not be ordered to cease and desist from the commission of any other
unfair labor practices.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
In this connection Respondent asserts, in Its answer, that the Union undertook to
furnish the Respondent with legal authority to support its request and failed to do so.
This asserted defense is predicated upon an assertion by union counsel, on September 25,
1961, after the charge was filed, that he had legal authority to support the Union's re-
quest and would supply it to Respondent's counsel I find this alleged defense without
merit.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. All production and maintenance employees employed at the employer's Car-
negie, Pennsylvania, plant, excluding salaried employees, foremen, supervisors (in-
cluding assistant foremen) in charge of any class of labor, watchmen, guards and
clerical employees, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
2. United Steelworkers of America, AFL-CIO, and its Local 1552, has been, at
all material times herein, the exclusive representative of all the employees in the
aforesaid appropriate unit for the purpose of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
3. By refusing, upon request, to supply the Union with a list of employees, in
said unit, who have received and are receiving incentive earnings for the period from
June 12, 1960, to the present, and, in the future, if incentive earnings were received
beyond the date of the request, including full information as to the hours worked,
incentive hours, and incentive percentage for hours worked in arriving at the total
incentive earnings for each of said employees, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Union Electric Steel
Corporation, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from refusing to bargain collectively with United Steelworkers
oof America, AFL-CIO, and its Local 1552 as the exclusive representative of the
employees in the appropriate unit described below, by refusing and failing to furnish
to said labor organization, upon request, a list of employees in said unit, who have
received and are receiving incentive earnings for the period from June 12, 1960,
to the present, and, in the future, if incentive earnings are received beyond this date,
including full information as to the hours worked, incentive hours, and incentive
percentage for hours worked in arriving at the total incentive earnings for each
of the said employees. The said unit is defined as follows:
All production and maintenance employees employed at the employer's Carnegie,
Pennsylvania, plant, excluding salaried employees, foremen, supervisors (including
assistant foremen) in charge of any class of labor, watchmen, guards, and clerical
employees.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, furnish to United Steelworkers of America, AFL-CIO, and
its Local 1552 a list of the employees in the appropriate unit who have received
and are receiving incentive earnings for the period from June 12, 1960, to the present,
and. in the future, if incentive earnings are received beyond this date, including full
information as to the hours worked, incentive hours, and incentive percentage for
hours worked in arriving at the total incentive earnings for each of said employees
(b) Post at its plant in Carnegie, Pennsylvania, copies of the notice attached
hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by the Respondent, be
posted by it immediately upon receipt thereof and maintained for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by any other material
(c) Notify the Regional Director for the Sixth Region, in writing, within 20
days from the date of the receipt of this report, what steps the Respondent has taken
to comply with the foregoing recommendations.
It is further recommended that, unless within 20 days from the date of the receipt
of this Intermediate Report the Respondent shall notify the aforesaid Regional
6In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
BYRDS MANUFACTURING CORP. 147
Director in writing that it will comply with the foregoing recommendations,7 the
National Labor Relations Board shall issue an order requiring the Respondent to
take the aforesaid action.
7 In the event that these Recommendations be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees .that:
WE WILL NOT refuse to bargain collectively with the United Steelworkers of
America, AFL-CIO, and its Local 1552 as the exclusive representative of all
our employees in the appropriate unit described below, by refusing or failing
to furnish to said Union , upon request, a list of employees in said unit who have
received and are receiving incentive earnings for the period from June 12, 1960,
to the present, and in the future, if incentive earnings are received beyond this
date, including full information as to the hours worked , incentive hours, and
incentive percentage for hours worked in arriving at the total incentive earnings
for each of said employees.
The bargaining unit referred to herein is described as follows:
All production and maintenance employees employed at the employer's
Carnegie , Pennsylvania , plant, excluding salaried employees , foremen, su-
pervisors ( including assistant foremen ) in charge of any class of labor,
watchmen , guards, and clerical employees.
UNION ELECTRIC STEEL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, 701-17 Liberty Avenue, Pittsburgh 22, Pennsylvania, Telephone
No. Grant 1-2977, if they have any question concerning this notice or compliance
with its provisions.
Byrds Manufacturing Corp. and International Ladies Garment
Workers Union , AFL-CIO. Cases Nos. 26-CA-1160 and 26-CA-
1220. December 18, 1962
DECISION AND ORDER
On July 11, 1962, Trial Examiner Harold X. Summers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices. Thereafter, the Re-
spondent, the Charging Party, and the General Counsel filed excep-
tions to the Intermediate Report and supporting briefs.
140 NLRB No. 14.
681-492-63-vol. 140-11