United States Steel Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1969

178 N.L.R.B. 444 (N.L.R.B. 1969)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Atlas Cement Division of United States
Steel Corporation and Local 115, United Cement,
Lime & Gypsum Workers International Union,
AFL-CIO. Case 4-CA-4721
September 17, 1969
DECISION AND ORDER
By MEMB1 • RS BROWN, JENKINS, AND ZAGORIA
access to payroll cards and payroll records, the Trial
Examiner recommended that the Respondent cease
and desist from such conduct, but concluded that it
was redundant and unnecessary affirmatively to
order the Respondent to produce the requested data.
We disagree. In our view, it will serve to effectuate
the basic policies of the Act affirmatively to direct
the Respondent to make available to the Union,
upon request, the necessary payroll cards and
payroll records, and we shall so order.
On April 1, 1969, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled
proceeding. finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief The General Counsel filed
cross-exceptions to the Trial Examiner's Decision, a
brief in support thereof, and a brief in answer to the
Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(h) of the
Act. the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 Trial
Examiner's Decision, the exceptions,
cross-exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner with the following modification:
THN RI.MFDY
Having found that the Respondent violated
Section 8(a)(5) by refusing to grant the Union
'Contrary to our dissenting colleague, we agree with the real Examiner
that the information requested by the Union is relevant to a union
determination on whether to process further grievances under the principles
of the Seitc award As such , the information has potential relevance of the
sort described by the Supreme Court in N L R B v Acme Industrial Co .
385 L S 432 The dissent asserts that the Union was engaging in a fishing
expedition , apparently because the Union first agreed to have Respondent
search the records for situations similar to that underlying the Seitz award,but
later requested that union personnel be allowed to make their own study,
at union expense , when Respondent reported that pursuant to its search
"found no schedule controlled by" the arbitration award however, as the
parties had been unable to agree on the meaning or application of the Sciti
award (the Employer contending that it had no general application) and as
the Employer , following its study, had furnished the Union with a bare
conclusion unaccompanied by supporting data, the Union s request for
permission to conduct its own study, at its own expense, was reasonable
and would not have unduly burdened Respondent . While our dissenting
colleague argues that "At no time did the Union document its alleged
belief that the results of the Respondent ' s starch and analysis were other
than factually correct,' the dissent would deny the Union the only
available avenue to investigate and establish its contention
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Universal Atlas Cement Dnision of
United States Steel Corporation. Easton,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following as a new paragraph 2(a) to
the Trial Examiner's Recommended Order, and
reletter the present paragraphs 2(a) and 2(h)
accordingly'
(a) Upon request, make available to Local 115,
United Cement. Lime and Gypsum Workers
International Union. AI-L-CIO, all payroll cards
and other payroll records setting forth the hours
worked by, and compensation paid to employees in
the bargaining unit of all the hourly paid employees in
Respondent's Northampton plant covered by the
contracts between the Respondent and the Union in
effect from October 1965 to the date of this
decision.
2. Add the following as the first indented
paragraph of Appendix B.
WE WII.Lcease and desist from refusing to make
available to Local 115. United Cement. Lime and
Gypsum Workers International Union, AFL-CIO,
all payroll cards and other payroll records setting
forth the hours worked by, and compensation
paid to, employees in the bargaining unit of all
the hourly-paid employees in our Northampton
plant covered by the contracts between us and the
Union in effect from October 1965 to the date of
the Board's Decision.
MEMBERZAGORIA, dissenting:
I find no support in the record to warrant the
conclusion of my colleagues that the Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to accede to the demand that the Union's
personnel be allowed to examine the Company's
payroll records. This dispute arose as a result of a
grievance filed by the Union on behalf of employee
Milisfts, which culminated in an arbitration award
dated October 6. 1967. The Respondent complied
with the arbitrator's decision by paying to Mtlisits the
amount specified in the arbitration award.
178 NLRB No. 75
UNIVERSAL ATLAS CEMENT 445
Thereafter, on April 4, 1968, the Union requested
that "the Company conduct a search into its records
to determine which employees, how often and how
many times had suffered the hour-work history, at
various times, which would entitle them to any one
or more of the premiums on principles set forth [in]
the [arbitrator's] award." The Respondent orally
agreed to search its records and furnish the Union
with the identity of any employees situated similarly
to Milisits, and on April 15. 1968, the Respondent
assured the Union in writing that the search would
be made and that the data compilation would be
commenced promptly and pursued with dispatch.
On April 21. 1968, after having initiated the
search of its records, the Respondent advised Union
President Mikisits that the compilation requested by
the Union, which would require a search of
timecards numbering over 250,000. was not
susceptible to analysis by a "computer run," but
would require a crosscheck of each day's tirnecard
for each employee with the employee's timecard for
the previous and following days. On May 28, 1968,
in response to the Respondent's announcement to
Union President Mikisits of the difficulties involved
in the search and compilation, the Union wrote a
letter to the Respondent accusing it of having
reneged on its April 4 agreement, and threatening to
commence litigation unless the data was
forthcoming within the next week or two.'
In July 1968, in accordance with its commitment
to make the search, the Respondent hired three
temporary employees who spent 2 weeks reviewing
and analyzing the timecards. On August 8, 1968, the
Respondent advised the Union in writing that a
search of the records of the Northampton plant had
been completed and no schedule had been found
which was controlled by the Milisits award. In
response, on August 30, 1968. the Union advised the
Respondent by letter that the Company's position
that the records failed to disclose any circumstances
controlled by the Milisits award was contrary to
indications consistently given to the Union, and
demanded for the first time that union personnel be
granted access to the payroll records. On September
19, 1968, the Respondent • denied the Union's
demand, relying, inter alia , on its compliance with
the Union's request of April 4, and the absence of
The record in my view does not support the Trial Examiner' s finding
that President Mikisits requested perrtussion for access to the Respondent's
payroll records on April 21. and that this request was repeated by the
Union in its letter of May 28 Mikisits ' testimony that he asked to "look"
at the cards appears to me to have been merely a casual request to
examine a representative number of them, resulting from advice by the
Respondent of the difficulties involved in making the search and data
compilation , and was not tantamount to a request that the union personnel
be permitted access to the records for purposes of making their own
analysis and compilation Moreover , there is nothing in the Union's letter
of May 28, either express or implied, to warrant the finding that the Union
was requesting that its personnel examine the Company's records. On its
face the May 28 letter refers specifically to the Union's request and the
Respondent' s agreement of April 4, 1968, that company personnel would
conduct the search and make the necessary information available to the
Union.
any assertion by the Union of any factual situation
controlled by the Milisits award. At the same time,
Respondent assured the Union that Company
records would be available, as in the past, to provide
data relevant and necessary to the processing of a
grievance.
In the light of the facts as established in the
record, I would find that the Respondent adequately
fulfilled any requirement it had under the Act. At
the U nion 's request. and at a considerable
expenditure of time and money, the Respondent
conducted a search of its records and advised the
Union of the results. Dissatisfied with the results.
the Union for the first time asserted the right of its
own personnel to conduct a search and analysis of
the records, solely on the grounds of the broad
naked allegation that opposite facts had been
consistently indicated to the Union. At no time did
the union document its alleged belief that the results
of the Respondent's search and analysis were other
than factually correct, or that access by it to the
Company's records was necessitated by any
grievance, pending or contemplated. The law
requires an employer to make available to the
bargaining agent data relevant and necessary to the
bargaining process, but it does not require access to
an employer's records where the only relevance or
necessity shown is the off-chance that something
untoward may be discovered. The right to necessary
information is a precious one and should not be
subverted into authorization for fishing or
harassment because of disappointment in earlier
expectations.
TRIAL EXAM INER'S DECISION
STATEMENT Of THE CASE
THOMAS F. MAHER, Trial Examiner. Upon a charge
filed on October 17, 1968. by Local 115, United Cement,
Lime & Gypsum Workers International Union,
AFL-CIO, herein called the Union, the Regional Director
for Region 4 of the National Labor Relations Board,
herein called the Board. on December 31, 1968, issued a
complaint on behalf of the General Counsel of the Board
against Universal Atlas Cement Division of United States
Steel Corporation, Respondent herein, alleging violations
of Section 8(a)(I) and (5) of the National Labor Relations
Act, as amended (29 U.S.C. Sec. 151, et seq ), herein
called the Act. In its duly filed Answer the Respondent,
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Pursuant to notice a trial was held before me in Easton,
Pennsylvania. on February 10, 1969, where all parties
were present, represented by counsel, and afforded full
opportunity to be heard, to present oral argument. and to
file briefs with me Briefs were filed on March 12, 1969.
Upon consideration of the entire record, including the
briefs of the parties, and specifically upon by observation
of the witnesses , 1 make the following-
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDiN(,s OF FACT AND CONCLLSIONS OF LAW
1. I IIE BUSINESS 01 THI' Rl: SPONDEN I
The Respondent is a Delaware corporation with its
principal office in Pittsburgh, Pennsylvania, and a plant in
Northampton, Pennsylvania, where it is engaged in the
manufacture and sale of cement and related products
During the most recent annual period, in the course and
conduct of its business operations, it had gross sales in
excess of $500.000 of which in excess of $50,000 was
derived from sales and shipments made directly to
customers located outside the Commonwealth of
Pennsylvania: and it purchased and received at its
Northampton, Pennsylvania, plant goods valued in excess
of $50,000 shipped to it from points outside the
Commonwealth of Pennsylvania Upon the foregoing
agreed upon facts I conclude and find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
IT. TiIF LABOR ORGANILATiON INVOLVED
It is admitted and I accordingly conclude and line that
Local 115, United Cement, Lime & Gypsum Workers
International Union, AFL-CIO, is a labor organiLation
within the meaning of Section 2(5) of the Act.
Ill. THE ISSUFS
The obligation of an employer to supply payroll data to
a union for the purpose of determining whether or not
there is a basis for tiling a grievance under the contract.
IV. THE LNFAIR LABOR PRAC fiti-s
A. Introduction
Since 1940 the Union has been the certi6ied bargaining
representative of the employees involved in this proceeding
in a bargaining unit stipulated among the parties to he as
follows.
All of the hourly paid employees in the Northampton
plant of the Respondent, excluding clerical, salaried,
watchmen and supervisory employees.
During this period collective-bargaining agreements
have been in force between Respondent and the Union.
the most recent of these being one executed on October
20, 1965, which expired on April 26, 1967. and a successor
agreement due to expire on April 30, 1969
Pursuant to the terms of the agreement, spelled out in
detail hereafter. a grievance was instituted on behalf of
Employee Joseph Stephen Milisits' involving the
application of certain provisions of the contract to the
work schedule and pay of Milisits as it was affected by his
working of an unusually extended number of hours.
Not to be contused with Employee Stephen Joseph Mikisrts, the
president of Local 115 and an active protagonist in this matter, or with
Peter Seitz , an arbitrator whose award is the basis of it
The Milisits grievance culminated in an arbitration
award rendered by Arbitrator Peter Seitz on October 6,
1967, which forms the basis of this controversy Because
of its significance to the issue presented here it is
reproduced as Appendix A to this Decision.
B The Substance of the M ili.sits grievance
As detailed more specifically in the Seitz award (infra),
Employee Milisits, on November 2. 1966. worked his
regular shift from 7 30 a.m to 4 p.m., less a lunch period,
for a total of 8 hours After returning home he was called
out at 10 p m and worked continuously thereafter,
excluding the lunch period, through his regular shift on
November 3, until 4 p m., for a total of 17 1/2 additional
actual working hours. In u)to Milisits actually worked 25
1/2 hours from 7.30 a.m . November 2 to 4 p.m.,
November 3.
By virtue of the applicability of certain clauses of the
contract which relate to the calculation of overtime and
call-out pay and which involves certain duplications, the
total number of hours was in dispute; the Respondent
claiming that Milisits was entitled to pay for 34 3/4 hours
of work, the Union 49 3/4 hours of work. A reading of
the Seitz award (infra) discloses an intricate solution to
this dispute which includes "call-out" pay for a minimum
of four hours at time and a half, without reference to
additional payment to he made for the same hours worked
- the theory of the arbitrator being that this constituted an
additional duplicate entitlement for the inconvenience
caused the employee by being called from his home to the
plant for work outside of his regular shift hours.
Additionally. where, as here, Milisits worked almost
uninterruptedly for an excess of 24 hours, other provisions
of the contract provide for the computation of time and a
half at one point, double time at a subsequent point, as
well as additional instances of duplication. all of which
were controlled by the limitations and directives placed
upon the computations by the several applicable sections
of the contract.
Suffice it to say that the method of computation was a
complicated one, involving in some instances duplicate
amounts of money for the same hours of work This, and
the conflicting interpretations. were noted by the
arbitrator whose expertise in such matters is readily
evident from a reading of his decision. Alter outlining the
hours worked by Milisits, relating these working hours to
the applicable contract provisions. and making his
computations (with full reasons therefor) he arrived at the
conclusion that for the period in question Milisits was
entitled to pay for a total of 48 1/2 hours, 13 3/4 hours
more than that claimed by the Respondent and I 1/2
hours less than claimed by the Union. In compliance with
the requirements of the arbitrator's award Milisits was
paid for the specified hours
A summarization of the compilation of Milisits
entitlement follows.
UNIVERSAL ATLAS CEMENT
November 2, 1966
7 30 a.m.
4 00 p.m
10 00 p.m
November 3, 1966
2.00 a m.
Regular shift, excluding one hall hour lunch, compensated
at straight time
Non-working time Because this is only 6 hours and
employee is entitled to one 8-hour rest period, the
difference. 2 hours is comnensated at double time.
8 hours
4 hours
447
Called out on emergency duty. Compensated for 4 hours 6 hours
as "call-out" pay, at time and a half.
From start of work period at 10 p.m. until 7:30 a m
November 3, (the end of a work day) work time is "in
excess of eight hours in any work day This 9 1/2 hours
is compensated at time and a half
After the twelfth hour of work in any work day there is
an entitlement for the excess number of hours,
compensated at double time Thus, from 2 a.m. to 7.30
p m there are 5 1/2 to be compensated, not at time and a
half but at double time, by adding half time computation
to previously computed time and a half.
7 30 a m. The regular scheduled shift compensated at straight time
10 00 a.m.
4 00 p.m
Any work in excess of 12 consecutive hours of work,
regardless of workday, here 6 hours (less 1/2 hour lunch),
compensated at double time
End of regular shift
Total hours compensated
C. The Request and Refusal of Information
Understandably, the Respondent was not completely
satisfied with the outcome of the Milisits case, particularly
as it m%olved substantial duplication of benefits.
Therefore, according to Respondent's then Supervisor of
Personnel Services Richard T. Thomas, it initially rejected
the Union's contention that the Seitz formula should
apply to any other employee in the bargaining unit who
had worked under a situation similar to Milisits The
situation appears to have crystalized in the months
following the issuance of the award Thus, on April 4,
1968. in a conversation between the Union's counsel,
Bernard N. Katz, and Respondent's Manager of Labor
Relations, R R. Furlong. Attorney Kati "requested of
the company that the company conduct a search into its
records to determine which employees, how often and how
many times had suffered the hour-work history, at various
times, which would entitle them to any one or more of the
premiums on principles set forth the Seiti award.
Furlong testified ait the hearing that on behalf of
Respondent he agreed to "look at our records in an effort
to determine whether or not you could even identify
people who were similarly situated to Mr Milisits," and if
such were found to give that information to the Union.
An exchange of correspondence between the Company
and Union on this subject natter followed the April 4
conversation Thus on April 5 Katz wrote Furlong
expressing the need for a prompt calculation of the
specific benefits due under the terms of the Seitz award in
14 1/4 hours
2 3/4 hours
2 1 /2 hours
I1 hours
48 1 /2 hours
terms of money amounts and individuals working in
situations which arose since the time the Mikisits
grievance was instituted. In closing Katz requested the
Company's prompt attention to the computation of the
data from the records. By reply of April 15 Furlong
assured Katz that "the data compilation which we agreed
to undertake following our discussion on April 4 will be
commenced promptly and pursued with dispatch."
Thereafter on April 21, Respondent's Richard I.
Thomas visited with Local President Mikisits at his work
place and in the course of their ensuing conversation
discussed the compilation of the information requested by
the Union. Thomas testified that he informed President
Mikisits that it was a tremendous task, bordering upon
the impossible. He then brought Mikisits to the payroll
records office and showed him the filed timecards
numbering over 250,000 He also showed him data
compiled on what was referred to as a "computer run."
An inspection of this type compilation introduced into the
record substantiates the Union's and Company's
statement that it was not adequate to provide the
necessary work-hour information.
Thomas correctly analysed the iob as one requiring a
cross-check of each day's timecard of a given employee
with his card for the previous and the following day; and
in this regard he again impressed upon Mikitis the
difficulty involved. Despite the apparent insurmountability
' The credited testimony of Katz, corroborated by Supervisor of Personnel
Sersic.es Richard F Thomas
448 DECISIONS O F NATIONAL LABOR RELATIONS BOAR D
of the task it was turned over to temporary help, Kelly
Girls, and a check of all the cards was thereafter
accomplished. Thomas testified that up to this time no
representative of the Union had requested that these cards
be made available for its compilation nor was such an
offer made to it by the Company. Mikisits, on the other
hand, testified that he did ask to look at the cards on the
occasion of his visit to the office with Thomas but was
only shown the uninformative "computer runs."
I am not disposed to accept Thomas' testimony on this
matter. On May 28, Attorney Katz wrote Furlong on the
subject and, referring to the availability of the data,
suggested that Thomas was taking a position contrary to
an earlier agreement to make the data available. He also
mentioned Mikisits' proposed use of foremen's records for
the purpose. On this state of the documented record I
reject Thomas' testimony that the Union had not asked
that payroll cards be made available and rely upon
Mikisits' statement that he had so requested. In any event,
and irrespective of President Mikisits' request. Katz, by
his letter of May 28 to Furlong commented upon the
failure of the Company's local personnel to make the
necessary information available and requested that the
data be forthcoming within the next week or two.
The checking of the timecards was performed by the
Company during July by the temporary staff of Kelly
Girls and the report of the search was made to the Union
in August in a one sentence letter under the signature of J
T. Bartley, the successor to Furlong, as follows.
We have completed our search of the Northampton
Plant records and have found no schedule controlled by
the award in UAC-N66-1 [the Seitz award].
Katz' reply of August 30 in behalf of the Union took issue
with the Company, thus,
We do not understand the company position that the
records did not disclose any circumstances in any way
falling into the principles of the Seitz award. Just the
contrary has been indicated to us consistently. At this
juncture . it is necessary, therefore, to have
arrangements made for union personnel to review the
pay records available Union President Mikisits will
shortly take this up with the appropriate company
official at the Northampton plant and we assume he
will be given complete cooperation in reviewing the
records. [Emphasis .supplied.)
Mikisits never did take this matter up with the Company
for the reason that he was foreclosed from doing so by
Bartley's September 19 reply to Katz' August 30 request
in behalf of the Union. Thus Bartley stated in relevant
part:
The following is in response to your letter dated
August 30, 1968.
The Company is aware that the Union has not been
completely satisfied with the manner in which the
award in the subject grievance has been implemented
and has repeatedly advised the Union that no
appropriate challenge by the Union was foreclosed or
expanded by virtue of the Company's position. At the
same time, the Company has earnestly tried to arrange
for negotiations with the Union's representatives in an
effort to finally resolve any and all problems with
respect to Grievance UAC-N66-I In fact, as late as
August 23 , 1968, during a Step 3 Meeting at
Northampton , I advised the Grievance Committee that
I was willing to sit down with them in an attempt to lay
UAC-N66-I to rest for once and for all. My offer to sit
down and meet with the designated representative of
the Union at a time and place mutually agreeable
remains open . In the meantime, let me again state the
Company's position that the award in Grievance
UAC-N66- 1 has been completely and properly
implemented.
At this time, we find no reasonable basis spelled out
for your request that payroll records be made accessible
to the Union on a broad-stroke, random-access
exploration. To the extend (sic) that Company records
are the only source of information available to provide
data relevant, and, necessary to the processing of a
grievance , those records will be available to the Union
as in the past.
Your `demand' that the parties ` again ' proceed to
arbitration really assumes the point in issue. Unless you
advise us. with some particularity , of a factual situation
controlled by N66-1, or spell our how we have failed to
implement the award in N66-1. there is nothing
between us on this subject to arbitrate. We believe that
a charge of failure to implement would properly be
instituted by a grievance. Since we have fully paid the
computation spelled out by Arbitrator Seitz in N66-1,
there seems to be no problem between us there. If your
allegation, on the other hand, really amounts to an
assertion that N66-1 is a class grievance, then it
seems incumbent on you to advise us which other
employees are involved. To the extent that this might
be revealed in the records, we have employed outside
help and pursued our tiles and find no cases controlled
by N66-1 No employee has advised us through his
Grievance Committeeman that he has worked a
schedule controlled by N66-1. It is not our intention to
invite problems which do not now exist Since we have
made every reasonable effort to satisfy the Union on
this case , we propose to conclude the matter on the
basis of this letter. The record does not indicate that
you have presented any substantive matter beyond the
grievance in N66-1 which requires adjustment. Our
position on this has been clear through our entire
correspondence. and we have always acknowledged that
you could pursue your remedies if you had serious
disagreement. Unless there is some set of facts on
which a new complaint might be bottomed, we suggest
the files be closed on this matter. [Emphasis supplied.]
On September 23, Katz repeated the Union's request,
stating to Bartley, in part:
Accordingly. would you please regard this letter as the
appropriate demand upon the company to make
available to the union its time-payroll records and any
other records which would show hours worked, nature
of the work, e.g., call out, overtime, etc.. and pay received
It is necessary in view of the nature of' the problem that
the records for all employees in the bargaining unit
showing this data be made available.
Would you please advise me as promptly as possible
when we may have representatives of the union appear
at the company office for purposes of examining these
records.
Bartley's rejection of the union request closed the matter
insofar as the Respondent was concerned. On October 21
he wrote Katz, as follows.
In response to your letter of September 23, 1968.
please be advised we find no reasonable basis for your
demand that the Northampton Plant payroll records be
made available for examination by Local Union
representatives.
We have repeatedly stated our position that the
award in UAC-N66-1 has been fully and properly
UNIVERSAL ATLAS CEMENT 449
implemented. Although the Union has not agreed,
neither has it sought to present a specific and detailed
complaint setting forth its position in the grievance
procedure or any other forum which it might deem
appropriate. As stated in my letter of September 19,
1968, the Company will continue to make its records
available to the Union only to the extent that they
contain information relevant and necessary to the
investigation and processing of a particular complaint
which is not otherwise available to the Union. The
Company is not prepared to open its records so that the
Union can embark upon a fishing expedition in an
attempt to establish specific grievances. I trust that this
statement will obviate the need for additional
correspondence on this matter.
In an off-the-record discussion at the hearing before me in
this matter counsel for the Union undertook to obtain
from Respondent counsel, Bruce D. Campbell, access to
the records in question. Later in the day a colloquy
occurred which I deem significant to the issue at hand. It
follov