West Point Pepperell, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1988

290 N.L.R.B. 1242 (N.L.R.B. 1988)

1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
West Point Pepperell , Inc. and Local 305T, Amalga-
mated Clothing, and Textile Workers Union,
AFL-CIO, CLC. Case 1-CA-25192
September 26, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 23, 1988, Administrative Law Judge
Michael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, West Point Pepperell, Inc., Biddeford,
Maine, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraphs 1(a)
and (b).
"(a) Failing and refusing to timely furnish Local
305T, Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, with requested informa-
tion that is relevant and necessary to the perform-
ance by the Union of its obligations as statutory
bargaining representative of the Respondent's em-
ployees.
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
' We agree with the judge that the Respondent violated Sec 8(aX5)
and (1) by refusing the Union's request for the names and average earn-
ings records of piece rate employees on a monthly basis Because we
agree with the judge that the Union had legitimate reasons for its infor-
mation request , we find it unnecessary to pass on the judge 's alternative
finding that even if the Union sought this information for the same rea-
sons that the binders had previously sought weekly posting of individual
earning averages (i e , to embarrass the high producers ), a conclusion of
bad faith would not be warranted We also do not rely on the judge's
discussion of Scofield Y. NLRB, 394 U S 423 (1969), and 393 F 2d 49 (7th
Cir 1968)
£ The judge inadvertently misstated the Union's name in his recom-
mended Order and notice We shall modify the Order and issue a new
notice to correct these errors We shall also modify the judge's narrow
cease-and -desist language to conform to that customarily used by the
Board
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Local 305T, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC, as the exclusive
representative of our employees in the appropriate
unit by failing and refusing, on request, to timely
furnish it with information relevant and necessary
to the performance of its obligations as collective-
bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish Local 305T, Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
CLC as exclusive representative to all employees in
the appropriate unit, the information that it request-
ed in the grievances filed on May 21, 1987, and
September 2, 1987, and in its letter of October 6,
1987, to wit: the names and average piece rate
earnings of each of the employees working on
piece rate, in each group, on a monthly basis.
WEST POINT PEPPERELL, INC.
Don Firenze, Esq., for the General Counsel.
Rodger W. Lehr Jr., Esq. (Herbert H. Bennett & Associ-
ates, P.A.), of Portland, Maine, for the Respondent.
Ralph Oliver, Manager, of Biddeford, Maine, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law judge. This
matter was tried before me at Boston, Massachusetts, on
May 3, 1988, based on a charge filed by Local 305T,
Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC (the Union), on December 30, 1987, as
amended on January 26, 1988, and a complaint issued by
the Regional Director of Region 1 of the National Labor
Relations Board (the Board), on February 24, 1988. The
complaint alleged that West Point Pepperell, Inc. (Re-
spondent), violated Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act (the Act), by refusing to supply
the Union with requested information relevant to the
290 NLRB No. 165
WEST POINT PEPPERELL
Union's performance as exclusive collective-bargaining
representative of Respondent's employees Respondent's
timely filed answer denied the commission of any unfair
labor practice
All parties were afforded full opportunity to examine
and cross-examine witnesses, argue orally, and submit
briefs Counsel for the General Counsel's oral argument
and Respondent's brief have been carefully considered
Based on the entire record , including my observation
of the witnesses and their demeanor , I make the follow-
mg
FINDINGS OF FACT
I THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a corporation with an office and place
of business in Biddeford , Maine, where it is engaged in
the manufacture and sale of blankets , comforters, and re-
lated products Jurisdiction is not in dispute The com-
plaint alleges and Respondent has admitted facts suffi-
cient to establish jurisdiction I therefore find and con-
clude that Respondent is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
The complaint alleges, Respondent has admitted, and I
find and conclude that the Umon is a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICE
A Collective-Bargaining History
The Umon has represented Respondent 's employees in
the following collective-bargaining unit, admitted to be
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act, since the
early 1940s
All production and maintenance employees em-
ployed at the Biddeford facility but excluding all
executives, managers, general superintendents, gen-
eral foremen , office clerical employees , laboratory
employees, firemen, guards and supervisors as de-
fined in the Act
Respondent 's recognition of the Umon has been em-
bodied in a series of collective-bargaining agreements,
the most recent of which is effective for the period of
June 16, 1986, to June 18, 1989
There are approximately 275 employees in the unit,
about 75 percent of these, including those in the binder
category, work on piece rates
In 1982, in settlement of a grievance over the down-
ward adjustment of certain piece rates , and to remedy
what Respondent saw as a problem of "runaway" piece
rates, Respondent and the Union entered into an agree-
ment, supplementing their then-current contract That
settlement provided, inter alia
1243
1 All piece rates shall be set to yield expected
earnings of 120% of average standard guaranteed
base rates
2 Whenever group monthly average earnings for
any job classification equal or exceed 130% of the
standard guaranteed base rate , the COMPANY
shall have the right to reduce the piece rates for
that job classification to yield a group average of
125% of the standard guaranteed base rate for that
classification Such downward adjustments in piece
rates shall be made without the necessity of time
studies
3 THE COMPANY shall supply the UNION
with monthly reports on the group average earn-
ings, as a percentage of standard guaranteed base
rates, for all piece rate job classifications , exclusive
of Learners
The foregoing provisions have been embodied in each
subsequent contract and are set forth in the current
agreement as articles 9 4, 9 6 , and 9 7 respectively
The information that the Respondent supplies to the
Union each month pursuant to article 9 7 of the contract
provides the group piece rate averages , specifically the
amount by which the group has exceeded the hourly
rate, for each month Respondent does not regularly
supply the Union with the piece rate averages of any of
the individuals in the group
B The Dispute
1 Background
During 1986, Respondent made two downward adjust-
ments in the binder's piece rates , pursuant to article 9 6
of the contract, when the monthly averages for that
group exceeded 130 percent of the standard On January
9, 1987 , 1 27 binders signed a grievance (grievance 1,
G C Exh 8) requesting that the Employer post the in-
centive earnings over base rate of each of the binders on
a weekly basis As the employees told Ralph Oliver, the
Union's business manager , "they were sick and tired of
being cut they want to know who was making
the high or causing the rate to be inflated some
of them felt they didn't know how they were doing it
To them , it felt impossible They wanted to know
who was the cause of the [downward] adjustments in the
rates creating the problem " Binder and Union Shop
Steward Joanne Dusseault similarly explained that the
binders were "tired of being cut," i e , of having their
rates adjusted downward Weekly posting, the binders
believed, would embarrass those who were the cause of
the downward adjustments, the highest producers, and
cause them to be "very careful "E
A second-step grievance meeting was held on Febru-
ary 19 regarding grievance 1 At that time, Dusseault ex-
plained
i All dates hereinafter are 1987 unless otherwise specified
' Both Oliver and Dusseault testified that even without postings, the
employees in the department knew who the fastest workers were
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Four of twenty-two binders are exceeding one
hundred and thirty percent. They are affecting the
slower operators . . . that have to work that much
harder. Pretty soon . . . we will all have tendonitis.
All binders agree to posting . . . . If posted, the
ones over a hundred and thirty percent said they'd
slow down.
She denied that the intent was to pressure those higher
producers but acknowledged that something akin to em-
barrassment would help prevent further downward ad-
justments.
Respondent refused to post the individual averages on
a weekly basis. However, on March 17, in response to
grievance 1, it furnished the Union with the average
earnings deviation for each of the binders, by name and
number, for the 13-week quarter ending on December
28, 1986, and the 4-week period ending February 22,
1987. The Union is not pursuing the demand for weekly
posting of individual averages.
2. The current information requests
On May 21 the Union filed grievance 8, alleging that
the Respondent had failed to include five low-producing
binders in calculating the group averages that resulted in
the downward adjustments of June 23, 1986 (4.09 per-
cent) and December 29, 1986 (3.98 percent) It sought
restoration of the rates and backpay. Additionally, it
sought the following, which is the basis for the instant
charge and complaint:
The Union is also requesting . . . the names and
the average piece rate earnings of each individual
employee that's on piecework, in each group, be
submitted on a monthly basis to the Union in order
for the Union to calculate the average earning accu-
rately and to assure that no employee was omitted
from the group.
Respondent denied the grievance, asserting that all the
appropriate employees had been included in the group.
Only learners, those employees not achieving base rate,
had been excluded, it stated. (The issue of who is a learn-
er is now pending arbitration.) Respondent further re-
jected the Union's demand for monthly lists of the incen-
tive earnings of all employees by named individuals, as-
serting that it was providing all the information required
by the contract. Respondent did, however, furnish the
Union with the average piece rate earnings of the binders
for the 4-week periods preceding each of the downward
adjustments. It agrees now that it will furnish such infor-
mation each time there is a downward adjustment.
On September 2 and October 6 the Union reiterated its
demand for monthly listings of the average piece rate
earnings of all employees working on incentive. The Re-
spondent rejected both requests, insisting that it will only
provide the information required by contract. As noted,
the Employer has also agreed to furnish individual earn-
ings information of the employees in affected depart-
ments subsequent to any downward adjustments.
Respondent's personnel director, Carl Frechette, testi-
fied that it is to the Employer's economic benefit to have
fewer employees working faster and producing more
pieces per individual than to have a greater number of
employees working more slowly, even if the hourly
earnings of both groups are the same. The savings, he
claimed, is in fringe benefits.
C. Analysis and Conclusions
The General Counsel correctly asserts , and Respond-
ent does not dispute, that the information requested by
the Union, the names of the unit employees performing
work on piece rate and their incentive earnings averages,
is wage data that is presumptively relevant and generally
must be furnished to the Union on request. That princi-
ple is too well established to be argued again . See, for
example, WCCO Radio v. NLRB, 844 F.2d 511 (8th Cir.
1988); Oil Workers Local 6-418 v. NLRB, 711 F.2d 348
(D.C. Cir. 1983); Proctor & Gamble Mfg. Co. v. NLRB,
603 F.2d 1310, 1315 (8th Cir. 1979); and Whitin Machine
Works, 108 NLRB 1537 (1954). The General Counsel
further correctly asserts, and Respondent does not
appear to dispute, that a union does not waive its statuto-
ry right to such information by agreeing to a contract
providing that the employer will furnish something less.
Southwestern Bell Telephone Co., 247 NLRB 171 (1980);
General Electric Co., 173 NLRB 164 (1968). A waiver of
a statutory right must be "clear and unmistakable." Met-
ropolitan Edison Co. v. NLRB, 460 U.S. 698 (1983);
Univis, Inc., 169 NLRB 37, 39 (1968).
Respondent contends, however, that the Union's right
to such information is not absolute. Information sought
in bad faith, for the purpose of harassing the employer or
employees, it argues, need not be furnished. NLRB v.
A. S. Abell, 624 F.2d 506 (4th Cir. 1980), denying enf.
230 NLRB 112 (1977); Boston Herald-Traveler Corp. v.
NLRB, 223 F.2d 58 (1st Cir. 1955); Whitin Machine
Works, supra. In this case, Respondent, on whom the
burden of proof on this issue falls," argues that the facts
establish that the Union sought the piece rate earnings of
the individual employees for a bad-faith purpose, to
effect a slowdown and prevent future downward adjust-
ments of piece rates. Such bad faith on the part of the
Union, Respondent asserts, legitimizes its insistence that
it will only furnish the group averages on a monthly
basis, as required by contract, and provided information
about individual earning averages after it imposes a
downward adjustment. The record does not support Re-
spondent's contention that the Union's request was made
in bad faith.
Respondent's defense is premised on statements about
why the employees in the binder classification filed
grievance 1, seeking weekly posting of individual earning
averages, e.g., to embarrass the high producers into re-
stricting their productivity. The request for weekly post-
ing, however, was dropped and those statements carry
significantly less weight now. The Union presently seeks
only that Respondent furnish it with the monthly aver-
ages, identified by individuals. Oliver explained that he
sought that information "to calculate the average earning
See Washington Gas Light Co, 273 NLRB 116 (1984), Pfizer, Inc, 268
NLRB 916 (1984)
WEST POINT PEPPERELL 1245
accurately and to ensure that no employees was omitted
from the group " Where, as here, the Respondent has
previously made downward adjustments in the piece
rates that were based on questionable assumptions (the
alleged exclusion of certain low-producing binders from
the group), the Union need not await the next such
downward adjustment to question the Employer's calcu-
lations and assumptions It is entitled to seek to avoid,
not merely prosecute , grievances The Union has thus
proffered credible and valid reasons for its pending infor-
mation requests, no inference of bad faith is warranted
from the employees ' earlier voiced reasons for wanting
the averages publicly posted
Even if one were to assume that the Union sought this
information for the same reasons that the binders had
sought weekly posting, however, a conclusion of bad
faith would not be warranted Unions have traditionally
opposed or sought to impose ceilings on piecework for a
variety of reasons related to the obligation to promote
the welfare of the greater number of their members
Such reasons include fears that the employees will work
themselves out of their jobs by overproduction , that (as
here) higher productivity will result in lowered rates and
compensation for actual production , that there will be
morale-threatening jealousies, and (again as here) that the
higher pace required to maintain earnings might threaten
the employees' health Scofield v NLRB, 393 F 2d 49, 53
(7th Cir 1968) These are legitimate union interests that
contravene no national policy or statutory scheme Sco-
field v NLRB, 394 U S 423, 436 (1969) Moreover, while
Respondent alludes to the prohibition of slowdowns set
forth in the contract's no-strike clause (art 25) as evi-
dencing a bad-faith motive here , Scofield teaches that a
ceiling on piecework is not necessarily a slowdown as
that term is used in the context of a strike or partial
strike I note that neither the Union nor the employees
sought the information to bring about a "slowdown" as a
means of adjusting a "dispute, difference or grievance,"
the conduct prohibited by the no -strike clause I note
further that the Union has expressly sought the informa-
tion for legitimate purposes and it is only Respondent's
surmise, from an earlier request, that the Union 's inten-
tion is to cause a "slowdown "
In the instant case, the Union requested presumptively
relevant wage data and supported that request with le-
gitmiate explanations of its need for that information Re-
spondent rejected that request, asserting a fear that the
information would be used to its disadvantage , the slow-
ing down of production by a few of its highest produc-
ers That fear, while not mandated by the record, was
not totally unreasonable or unwarranted and the interest
Respondent sought to protect, higher production, was le-
gitimate Respondent's rejection of the Union 's request,
moreover, was not absolute Respondent conditionally
offered to disclose the information after any downward
adjustment in rates, rather than on a regular monthly
basis as requested by the Union Thus , even with Re-
spondent 's "bad faith" contention rejected , there remains
the question of whether Respondent 's conditional offer
satisfied its statutory obligations In Detroit Edison v
NLRB, 440 U S 301, 314-315 (1979), the Supreme
Court, faced with substantial confidentiality concerns
held, with respect to one class of requested information
(aptitude tests and answers), that both the duty to supply
information and the type of disclosure required to satisfy
that duty turned on "circumstances of the particular
case " With respect to a second class of information,
clearly confidential test scores, it stated at 318
The Board's position [requiring the employer to
furnish the mofrmation] appears to rest on the prop-
osition that union interests in arguably relevant in-
formation must always predominate over all other
interest, however legitimate But such an absolute
rule has never been established , and we decline to
adopt such a rule here There are situations in
which an employer's conditional offer to disclose
may be warranted
The Court required the Board to balance the Union's
need for information against "any legitimate and substan-
tial" confidentiality interests established by the employer,
accommodating the parties' respective interests insofar as
feasible in determining the employer 's duty to supply the
information " Minnesota Mining & Mfg Co, 261 NLRB
27, 30 (1982)
Assuming , arguendo, the applicability of the Detroit
Edison balancing test to information requests that do not
involve confidentiality,' I cannot conclude that Re-
spondent's conditional offer to furnish individual earn-
ings averages only after there has been a downward ad-
justment satisfies its statutory obligations First, I note
that the Union, by requesting that the information be fur-
nished on a monthly basis, seeks to avoid grievances, a
salutary objective If the Respondent 's position here
were to prevail , the employees could be subject to re-
ductions in their piece rates which, although ultimately
reversed, would cause them to earn less or work faster
to maintain their prior earnings This, in turn, could ex-
acerbate tensions in the workplace , lower morale, and
expose those employees to unnecessary physical injury
Even a subsequent reduction in the rates and the pay-
ment of backpay after successful prosecution of a griev-
ance might not fully restore the status quo ante Second,
Respondent 's proposed compromise would not necessari-
ly achieve its stated objective As the General Counsel's
witnesses pointed out, the employees know, at least gen-
erally, who the highest producers are If they desire to
cause those employees to "slow down," they can "em-
barrass" or "harass" them as well without the records or
on the basis of records furnished after an adjustment, as
they can on the basis of records furnished on a regular
monthly basis Third, Respondent only surmises that the
information might be used to reduce productivity, that is
not evident from the current requests or any impermissi-
ble conduct described in this record These latter two
points convince me that Respondent 's concerns, while le-
gitimate, are not substantial (Cf Detroit Edison , supra)
* Compare New Jersey Bell Telephone Co. Y NLRB, 720 F 2d 789 (3d
Or 1983), and Washington Gas Light Co, 273 NLRB 116 (1984), with
K W Buschman Co, 277 NLRB 189 (1985), Carpenters Local 608 (Van-
ous Employers), 279 NLRB 747 (1986), and Roadway Express, 275 NLRB
1107, 1110 (1985)
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, it takes no great leap of the imagination to see
that the regular receipt of individual earnings records
might enable the Union to discern patterns or trends
from which it might formulate new bargaining proposals,
a purpose implicit in any request for wage data. The
Union might, for example, notice a wide disparity in
earnings over an extended period of time and seek an ad-
justment in the rates, reassignment of employees, or
greater training. It might conclude and propose that the
use of the median, rather than the average, as the basis
for a rate adjustment, would better protect the majority
of its unit members. It might bargain for a different defi-
nition of learner. The irregular receipt of the earnings
records might arguably be insufficient for these valid
bargaining purposes.
Accordingly, I must conclude that by refusing the
Union's request for the average earnings records, naming
individual employees, on a monthly basis, Respondent
has failed to fulfill its statutory bargaining obligation, in
violation of Section 8(aX5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to timely furnish the Union
with the records and information it requested, which are
relevant and necessary to the performance of the Union's
duties as statutory bargaining representative of Respond-
ent's employees in an appropriate collective-bargaining
unit, Respondent has violated Section 8(a)(5) and (1) of
the Act.
2. The unfair labor practices set forth in paragraph 1,
above, affects commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) as set forth above, I recommend that it be re-
quired to cease and desist from such conduct or related
conduct. Affirmatively, in order to effectuate the policies
of the Act, I recommend that Respondent be required to
furnish the Union with the names and average piece rate
earnings of each of the employees working on piece rates
in each group each month.
On these findings of fact and conclusions of law, I
issue the following recommended5
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
ORDER
Respondent , West Point Pepperell , Inc, Biddeford,
Maine, its officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to timely furnish Local 305T,
Amalgamated Clothing and Textile Workers Union of
America, AFL-CIO, CLC with requested information
that is relevant and necessary to the performance by the
Union of its obligations as statutory bargaining represent-
ative of Respondent 's employees.
(b) In any like or related manner interfering with the
efforts of the Union to bargain collectively with it on
behalf of the employees in the appropriate unit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish Local 305T, Amalgamated Clothing and
Textile Workers Union , AFL-CIO, CLC as exclusive
representative of all employees in the appropriate unit,
the following information heretofore requested by the
Union : the names and average piece rate earnings of
each of the employees in each group who work on piece
rates , on a monthly basis, as requested in grievance 8,
dated May 21 , 1987, grievance 13, dated September 2,
1987, and its letter of October 6, 1987.
(b) Post at its plant in Biddeford, Maine , copies of the
attached notice marked "Appendix ."e Copies of the
notice, on forms provided by the Regional Director for
Region 1 , after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
a If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "