Westinghouse Air Brake Co.

National Labor Relations Board - Board Decisions

Dec 19, 1957

119 N.L.R.B. 1118 (N.L.R.B. 1957)

1'118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tool Corporation, 163 F. 2d 376, (C. A. 2) cert. denied 332 U. S. 824. It is there-
fore concluded and found upon the record as a whole that on or about February
20, 1956, and at all times thereafter, Respondent, in violation of Section 8 (a) (5)
of the Act, failed and refused to bargain collectively with the Union as,the duly
designated representative of the majority of the employees in the unit hereinabove
found appropriate, thereby also interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 340, the Truck Drivers Committee, and the Warehouse Committee are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By assisting, contributing to the support of, and interfering with the adminis-
tration of the said Committees, Respondent has engaged in unfair labor practices
proscribed by Section 8 (a) (2) and (1) of the Act.
3. All warehousemen, truckdrivers, and helpers of Respondent, employed at its
Bangor, Maine, operations, excluding office clerical employees, salesmen, guards,
professional employees, the plant manager, and all other supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the-meaning of Section 9 (b) of the Act.
4. At, all times on and after February 18, 1956, the Union has been and now is the
exclusive bargaining representative of Respondent's employees in the aforesaid unit.
- 5. By failing and refusing to bargain with the Union on and after February 20,
1956, Respondent has engaged in unfair labor practices proscribed by Section 8 (a)
(5) and (1) of the Act. -
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act_
7. The aforesaid unfair labor practices having occurred in connection with the
operations of Respondent's business, as set forth in section I above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
states and substantially affect commerce within the meaning of Section 2 (6) and (7)
of the Act.
8. Respondent did not engage in unfair labor practices by stopping payment of the
safety bonus to truckdrivers at Bangor or by permitting and allowing David Foster
to participate in the business of the Warehouse Committee.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act as more fully outlined in the
section below, which action I find necessary to remedy and to remove the effect of
the unfair labor practices.
I shall recommend, among other things, that Respondent not only withdraw and
withhold all recognition from the Committees in the respects specified below, but that
it also terminate, cancel, and cease giving effect to its contracts with said Committees
dated February 17, 1956, as well as any extensions or renewals thereof and any
amendments thereto.
I shall also recommend that Respondent, upon request, bargain collectively with
the Union as the exclusive representative of its Bangor employees in the appropriate
unit herein found.
[Recommendations omitted from publication.]
Westinghouse Air Brake Company (Air Brake Plant ) and West-
inghouse Air Brake Office and Technical Union . Case No. 6-CA-
1082. December 19,1957
DECISION AND ORDER '
On July 18, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
119 NLRB No. 135.
WESTINGHOUSE AIR BRAKE COMPANY 1119
spondent 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 copy of the Inter-
mediate. Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Westinghouse Air Brake
Company (Air Brake Plant), Wilmerding, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively with
Westinghouse Air Brake Office and Technical Union 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, the individual salaries or wages of employees in the
appropriate unit where there has been no specific authorization by
the individual employee to the Respondent for the release of such
information. The said unit is defined as follows :
All office, clerical, technical, and inspection employees at Respond-
ent's Wilmerding, Pennsylvania, plant, excluding plant guards, time-
study observers, sales and commercial engineers, buyers, patent attor-
neys, personnel department employees except messengers , confidential
employees, and supervisors as defined in the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1 The Respondent' s request for oral argument is hereby denied as in our opinion the
record, exceptions , and brief adequately present the issues and positions of the parties.
2 The Board finds it unnecessary to pass upon the Trial Examiner's broad statement in
the Intermediate Report that "It is well settled that the mere execution of a contract
which is silent on a controverted issue discussed during the negotiations does not con-
stitute a waiver by the Union of any rights secured under the Act." The facts in this
case adequately establish that there was no clear and unmistakable waiver of the right to
the requested information such as the Board requires in cases of this type. Cf. Inter-
national News Service Division of The Hearst Corporation, 113 NLRB 1067.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, furnish to Westinghouse Air Brake Office and
Technical Union the individual salaries or wages of employees in the
appropriate unit even where there has been no specific authorization
by the individual employee to the Respondent for the release of such
information.
(b) Post at its plant in Wilmerding, Pennsylvania, copies of the
notice attached to the Intermediate Report marked "Appendix A." 3
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
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the 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 ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
3 This notice shall be amended by striking from the first paragraph thereof the words
"The Recommendations of a Trial Examiner" and substituting in lieu thereof the words
"A Decision and Order." In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Westinghouse Air Brake Office and Technical Union,
herein called the Union, the General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board, respectively, by the Regional Direc-
tor for the Sixth Region (Pittsburgh, Pennsylvania), issued his complaint, dated
April 17, 1957, against Westinghouse Air Brake Company (Air Brake Plant), herein
called the Respondent.
With respect to the unfair labor practices, the complaint alleges in substance that:
(1) At all times material herein the Union has been the exclusive collective-bargain-
ing representative of .all the employees in a specified appropriate unit; (2) at all times
since on or about May 15, 1956, the Union has requested the Respondent to furnish
the individual salaries or wages of employees in the appropriate unit; (3) the
Respondent has refused to bargain collectively in good -faith with the Union by fail-
ing and refusing to furnish the requested wage data unless and until the employees
involved present individual written authorizations to the Respondent for the release
of the requested wage data; and (4) by the foregoing conduct the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( a) (1) and ( 5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
In its duly filed answer the Respondent ( 1) admits the allegations concerning its
operations and that the Union was. at all material times the exclusive collective-
bargaining representative of the employees in an appropriate unit; (2) admits that
since about May 16, 1956, the Union has requested the specific amounts of individual
salaries or wages of employees in the appropriate unit and that Respondent has re-
fused to furnish this data where there has been no specific authorization by the in-
dividual employee. to the Respondent for the release of such information; (3) avers
that Respondent's action in this regard was in accordance with an agreement between
the. Respondent. and the Union and that Respondent has furnished the Union with
voluminous documentary material containing adequate salary information for all
WESTINGHOUSE AIR BRAKE COMPANY 1121
collective-bargaining needs and the Union 's functions under existing agreements;
and (4 ) denies the commission of any unfair labor practices.
Pursuant to due notice, a hearing was held on May 27; 1957, at Pittsburgh,
Pennsylvania. All parties were represented at the hearing and afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence , to present oral argument at the close of the hearing , and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. Subsequent to the
hearing, all parties filed briefs which I have fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation with its principal office and place
of business at Wilmerding, Pennsylvania, where it is engaged in the manufacture,
sale, and distribution of railroad brake systems and associated equipment . During
the 12-month period ending May 1957, the Respondent has shipped its products,
valued in excess of $1,000,000 , from its plant at Wilmerding , Pennsylvania , to points
outside the Commonwealth of Pennsylvania.
Upon the above admitted facts, I find that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find, that Westinghouse Air Brake
Office and Technical Union is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The sole issue in this case is whether the Respondent failed to bargain in good
faith by refusing to furnish to the Union, upon request, the specific amounts of in-
dividual salaries or wages of employees in the appropriate unit where there has been
no written authorization by the individual employee to the Respondent for the re-
lease of such information.
A. The appropriate unit; the Union's exclusive representative status in said unit
The complaint alleges, the answer admits, and I find, that at all times material
herein all office, clerical, technical, and inspection employees at Respondent's Wil-
merding, Pennsylvania, plant, excluding plant guards, time-study observers, sales
and commercial engineers, buyers, patent attorneys, personnel department employees
except messengers, confidential employees, and supervisors as defined in the Act,
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 certified by the Board as exclusive representative of said unit,
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.
B. Respondent 's refusal to furnish the requested wage data
1. Prior to November 1951
At the time of its certification by the Board on December 19, 1945, the Union had
no information as to the specific individual salaries or wages of the employees in
the appropriate unit. From that time until November 1951, the Respondent con-
sistently refused the Union's request for such information with respect to any
employee in the unit. The Respondent 's position was that the salaries of individual
employees were confidential matters which the Respondent was not required to
disclose to the Union.
2. The arrangement of November 1951
By letter dated October 5, 1951, and addressed to Respondent's Vice President
Landis, Union President Rowles requested certain data , including the rate of pay,
476321-58-vol. 119-- 7 2.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merit increases, or wage adjustments for each individual employee in the unit on
"the 206 Roll" for the year 1951 in order "to enable the Union to bargain intelligently
in regard to present and future contracts and also to assist us in our investigation of
complaints in regard to inequities and adjustments of the employees" in that depart-
ment. At a meeting between representatives of the Respondent and the Union held
on November 5, 1951, the Union's request for the salary information of each
individual employee in the unit was discussed. The Union took the position that it
needed this information for all the employees in the unit but was willing to start
with the inspection department, which was the "the 206 Roll." After some discus-
sion, the Respondent "agreed to give to the Union individual salary rates and informa-
tion on merit increases or wage adjustment when made, for all employees who
petition the Company to do so, either individually or in a group." Thereafter, the
Union solicited signatures of its members to petitions authorizing the Respondent to
release to the Union the specific salary data for the individual employees whose
signatures appeared therein. The Union then submitted to the Respondent such
petitions, containing signatures of some of the employees in some of the departments.
Upon receipt of these petitions, the Respondent furnished the Union with the requested
information for the employees whose signatures appeared on these petitions. The
Respondent, however, continued to refuse to supply the Union with similar wage
data for any employees who did not sign a written authorization for the Respondent's
release of such information.
3. The 1953 and 1954 contract negotiations
During the negotiations for the 1953 contract, the Union again requested the salary
data for each individual employee in the unit. The Company adhered to its position
of furnishing said data only with respect to those employees who had signed a written
authorization to the Respondent for the release of such information to the Union.
However, since the petition form of authorization had proved to be inconvenient
and cumbersome for both the Union and the Respondent, Vice President Landis
suggested combining the wage release authorization with the dues deduction authori-
zation signed by members of the Union. The new language respecting release of
salary rates was adopted on February 3, 1953, after approval by the Respondent,
and incorporated with language authorizing dues deductions in a card which was
combined with the union membership authorization card. The top half constituted
the union membership authorization card; the bottom half constituted the dues
deduction authorization and salary information release card. An employee who
chose to become a member of the Union signed both cards in their combined form at
the same time. The top half was then detached and retained by the Union, while
the bottom half was forwarded to the Respondent. Upon receipt of the bottom
half, the Respondent supplied all wage and salary data with respect to the employee
whose signature appeared therein.
During the 1954 contract negotiations, the Union again contended that it needed
the individual salary rates of all the employees in the unit and requested that informa-
tion with respect to those employees who had not signed a salary information release
card or petition. The Resnondent again refused to furnish this information. James
D. Perley, Respondent's director of emnlnyee relations who was the Respondent's
spokesman in the 1954 negotiations, testified that "we consistently took the position
that we had an arrangement to give them all the information that they 1ngically could
need, that was sufficient and satisfactory, and we did not change from that position."
He further testified that the arrangement to which he had reference was the one
made on November 5, 1951. as modified in February 1953. It was at that time that
the portion of the card which contained the dues deduction authorization and salary
information release was revised to its present form by omitting reference to the
exact amount of dues.'
. None of the contracts negotiated between the Union and the Respondent contained
any provisions pertaining to the disclosure of information by Respondent.
4. The 1956 contract negotiations
The 1954 contract was to remain in effect until June 1, 1956, with a 60-day annual
automatic renewal clause thereafter. Pursuant to this clause, the Union gave timely
1 This portion of the card reads as follows :
WESTINGHOUSE AIR BRAKE OFFICE AND TECHNICAL UNION
I hereby authorize and direct the Westinghouse Air Brake Company to give to the
Westinghouse Office and Technical Union all information pertaining to my salary
WESTINGHOUSE AIR BRAKE COMPANY 1123
notice of its desire to negotiate a new contract, and early in April 1956 submitted to
the Respondent a 14-page document containing the Union's proposals for changes in
the current agreement. Included on page 10 of this document was a proposal that
the new contract contain a clause that "the Company will furnish the-Union with
information concerning individual classification and rates at reasonable intervals
upon request." The Union and the Respondent participated in numerous .negotiating
meetings from April until June 28, when a contract was executed and made effective
as of June 1, 1956. At these meetings the Respondent was represented by a negoti-
ating committee consisting of James Perley, director of employee relations, William
Patton, assistant to the works manager, and Kenneth Jackson, its attorney, with Perley
and Jackson acting as the spokesmen. The Union was represented by a negotiating
committee consisting of President Stewart Rowles, Vice President James Leech, and
Albert Shapira, its attorney.
When the 1956 negotiations began, the Union had in its possession the individual
salary or wage data concerning all its members, who constituted about two-thirds
of the employees in the unit. This information had been received in the manner
heretofore described, whereby the member had signed a petition or dues deduction
authorization card which also authorized the Respondent to release this information
to the Union. Although previously requested on many occasions, as heretofore
found, the Union did not have the individual salary data with respect to the non-
union employees, who constituted about one-third of those in the unit, as these
employees had not signed an authorizaiton to the Respondent for the release of this
information.
During the negotiations, the Union repeatedly requested the individual salary
rates of the nonunion employees in the unit. Perley admittedly wanted to know
why the Union was always "trying to tie in the salaries of people they didn't have,"
people who had not signed the cards authorizing the Respondent to release this in-
formation. It is not disputed that Rowles replied that the Union needed to have
the individual salary rates of all the employees in the unit in order to determine
whether to ask for a cents-per-hour or a percentage wage increase, in order to bargain
intelligently on wages, to bargain on a workable "Performance Appraisal" clause,2
and to police the "Performance Appraisal" clause and the other terms of the con-
tract. The Respondent's position was that they had an arrangement dating back
to 1951 for the release of such information when authorized by the individual em-
ployee, that this arrangement was satisfactory and sufficient to give the Union all the
information it could logically need, and that the Respondent had a strong moral
feeling against revealing such information, which it regarded as confidential, where
the individual employee gave the Respondent no written release for such disclosure.
Although this matter was discussed many times during the bargaining sessions, the
Respondent admittedly steadfastly adhered to its position of not revealing the indi-
vidual salary or wage of employees who had not executed a written authorization
to the Respondent for the release of this information to the Union. The Respondent
also admittedly refused to agree to the insertion in the contract of any disclosure-of-
information clause.
status and any changes made therein, and to deduct from the wages paid me on the
last pay day of each month the amount of my regular Union dues for that month
and to promptly remit the same to the treasury of the Westinghouse Air Brake Office
and Technical Union.
This authorization shall continue in effect unless revoked by me by letter to the
Company and the Union.
----------------------------------------------------
(Employee 's signature).
(Section)
--------------------------------
(Roll No.)
----------------------------------------------------
(Date)
9 The 1954 contract contained a "Performance Appraisal" clause which admittedly was
a merit increase type of clause. The Union had been dissatisfied with the application of
this clause because it contained no standards and permitted the Respondent to take uni-
lateral action with respect to merit increases.
1124 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
By June 8, 1956, the issue concerning the disclosure of individual salary rates and
three other issues were the only matters remaining to be resolved between the parties.
A State mediator and a Federal commissioner were present at the bargaining session
of June 8. After being informed of the outstanding issues between the parties, Com-
missioner Moran first talked privately with the Union's negotiating committee, then
with the Respondent's negotiating committee, and finally with both committees to-
gether. Perley and Patton testified that after Moran had talked privately with the
Union's negotiating committee, Moran announced to the Respondent's committee,
and also later to both groups, that "we only have three issues because the issue of
furnishing the salary information is out." They further testified that thereafter the
issue with respect to the disclosure of salary' information was no longer discussed.
The contract which was finally executed on June 28 contained no reference to any
disclosure of information by the Respondent.
Rowles testified that he did not remember whether Moran discussed the salary
disclosure issue in his private discussion with the Union's committee, and denied
that, after the two groups met together again, Moran announced that the Union was
withdrawing its request for the salary information. Leech testified that he did not
remember whether Moran made the statement that the salary information issue was
dropped. He admitted that the Union "more or less" dropped its "contract demand"
for the inclusion of a salary information clause. He testified, however, that Rowles,
Leech, and Attorney Shapira told Perley and Attorney Jackson that in dropping this
demand "we did not waive our right to secure this information; that we were going
to file charges to get it." He further testified that "when we signed the '56 contract,
if you [Attorney Jackson] recall-you were in there-we told you emphatically `we
will sign this contract, but we are going to file unfair labor practice charges on this
salary information.' We made that very clear." Leech's testimony in this respect
remains undisputed in the record. The record also shows, without contradiction, that
after the execution of the contract the Union continued to request the Respondent
to furnish the individual salary rates of the nonauthorizing employees in the unit, and
on October 17, 1956, filed its charges with the Board in the present proceeding.
Under all the circumstances, I find, upon the basis of the entire record including
the demeanor of the witnesses, that (1) at the meeting of June 8, 1956, the Union
withdrew its demand for a contractual clause on salary information disclosure, and
(2) the members of the union negotiating committee emphatically told Perley and
Attorney Jackson that by doing so and by signing the contract the Union was not
waiving its right to secure this information but would pursue its right before the
Board by filing unfair labor practice charges.
5. Rose Marie Brecht grievance
On July 17, 1956, the Union filed a grievance on behalf of one of its members,
Rose Marie Brecht, claiming a violation of the "Performance Appraisal" clause of
the 1956 contract in that her performance appraisal was made about 6 weeks late and
in the failure to give her a merit increase when her supervisor conceded that such
an increase was warranted. This grievance was processed until the various, steps
of the contract grievance machinery were exhausted in September. The Respond-
ent's position on this grievance was that the lateness of the performance appraisal was
caused by a change in supervision and that, although Miss Brecht was doing satis-
factory work and was entitled to a merit increase, no increase could be granted
in view of the situation caused by the steel strike. The Union took the position
that under the contract this was an improper basis for the failure to grant Miss
Brecht a merit increase and was inconsistent with the granting of other merit
increases.
Miss Brecht was employed by Respondent as a stenographer, a classification in
the unit represented by the Union. By letter dated August 23, 1956, the Union re-
quested the Respondent to furnish the salary rates of all employees within the job
classification of stenographers "in order that we may prepare to discuss the enclosed
grievance, Rose Marie Brecht, with the Company Negotiating Committee." By
letter dated September 4, the Union received a reply from Respondent's personnel
manager that "this grievance arises out of a claim of Rose Marie Brecht for a merit
increase and does not involve the salary rates of any other employee." By letter
dated September 14, 1956, the Union set forth its position again and urged the per-
sonnel director to reconsider his position. With, respect to the complaint that Miss
Brecht was not given a merit increase. in accordance with the terms of the contract,
the letter stated as follows:
Miss Brecht's supervisor, Mr. James Mirro, in discussing results of the review
with Miss Brecht, stated to her that her work was very satisfactory, that she was
WESTINGHOUSE AIR BRAKE COMPANY 1125
entitled to a merit increase, but that it could not be granted in view of the
uncertain situation caused by the steel strike.
Our complaint is that the reasons set forth by Mr. Mirro for denying a merit
increase are inadequate under the contract, and that Miss Brecht should be
given an appropriate increase dating to the date on which her performance
appraisal should have been made. In addition, it is our belief that Miss Brecht
is receiving less than she should under all of the circumstances, especially in-
cluding a comparison of her rate with that of others similarly situated.
In the processing of this grievance, it became apparent to us that in order to
most fully present our case and argument to you, it was necessary that we
know the rates currently being paid to persons whose job classifications are the
same as Miss Brecht's. This is essential here where we complain that she
should be getting more money. We must be able to compare her salary and her
performance with the salaries and performances of others similarly classified.
We, of course, know the rates of all persons who are members of the Union.
We need to know the whole story, not part of it. We need to know the rates
of those who are not members.
You refused this information to us in your letter of September 4, 1956.
We have in the past repeatedly requested you to furnish us with the rates
paid to those we represent who are not members of the Union. We pointed
out to you that this information was essential to us for bargaining on general
increases, and for processing grievances under Article VIII of the contract. As
you know, we are obligated by law to fully represent those who are not mem-
bers of our organization and we want to fulfill our obligation.
Despite all of the foregoing, you have refused to furnish us with the rates
paid to non-members of our organization on the basis that it is none of our
business.
We again ask you to reconsider and furnish us with the rates of all non-
members classified similarly to Miss Brecht. Otherwise, while we hesitate to
do so, we shall have no other choice than to employ all legal processes we can
to compel you to do so.
The Respondent refused to supply the Union with the requested wage data and
adhered to its position on the Brecht grievance.
6. Refusal of May 15, 1957
The agreement of June 1, 1956, is to remain in effect for 2 years, with a 60-day
automatic annual renewal clause thereafter. The agreement also permits reopening
on w,g^ negotiati^ns after April 1, 1957. When the parties were engaged in wage
negotiations on May 15, 1957, pursuant to this reopening clause, the Union again
requested the individual salary rates of all the nonunion employees in the unit. As
the Respondent had no written authorization from the nonunion employees for the
release of this information, Assistant to Works Manager Patton, who was acting as
chief snokesman fnr the Respondent's negotiating committee, admittedly refused to
furnish the requested "data unless "the law required us to give it."
C. Respondent's defenses and concluding findings
The Respondent admits, as alleged in the complaint, that at all times since on or
about May 15, 1956, it has refused to furnish to the Union, upon request, the
specific amounts of individual salaries or wages of employees in the appropriate unit
where there has been no written authorization by the individual employees to the
Respondent for the release of such information. The Respondent, however, asserts
the following grounds in support of its position that its conduct did not constitute
a refusal to bargain in violation of the Act:
1. The requested information was not necessary
The Respondent contends that the requested information was not necessary to
enable the Union to negotiate intelligently or to police the contract, because the
Respondent has supplied the Union with a description of all job classifications within
the unit, the job titles and rate ranges (including the minimum and maximum rates)
of all job classifications within the unit, the seniority status of all employees in the
unit, and the names of all employees who have been reclassified together with their
new job titles. In addition, the Respondent has supplied the Union with the indi-
vidual salary rates of the employees, constituting about two-thirds of those in the
unit, who have signed a written authorization for the Respondent to release this
information to the Union, as previously found. This data, the Respondent contends,
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is sufficient to enable the Union to bargain intelligently and to police the contract.
It is now well settled that as part of the statutory duty to bargain collectively
in respect to rates of pay" and "wages," as prescribed by Section 8 (a) (5) and
9 (a) of the Act , an employer , upon request, must furnish the collective -bargaining
representative with all relevant wage data, and its failure to do so violates Section
.8 (a) (5) and ( 1) of the Act .3 There is absolutely no record support for the Re-
spondent 's assertion in its brief that "the continued demands by the Union for the
additional information is for the purpose of union propaganda in attempting to or-
ganize the nonunion members of the unit." Wages was cne of the most important
issues in the negotiations for a new contract . It is self-evident that, as the Union
informed the Respondent , the individual salaries of all4 the employees in the unit,
was relevant to enable the Union to determine whether to seek a cents -per-hour
wage increase or a percentage wage increase , and to enable the Union to bargain
intelligently on wages and on the standards for a merit increase clause, known in this
case as the "Performance Appraisal " clause. "Such data was relevant to the nego-
tiation of even minimum wages , because without such data the Union might nego-
tiate minimum scales which would have no eff ect whatever on salaries above minimum
actually received by the employees ." Utica Observer-Dispatch, Inc., 111 NLRB 58,
63-64, enfd. 229 F. 2d 575 ( C. A. 2). Moreover , "even where individual wage
rates do not bear directly on the contract issue, 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 specific groups of employees."
Boston-Herald Traveler Corporation , 110 NLRB 2097, 2099 , enfd. 223 F. 2d 58
(C. A. 1).
Equally self-evident is the Union's need for this information during the term
of the contract and for the purpose of policing the contract . The statutory duty
imposed on the Respondent to bargain in good faith with the Union is not satis-
fied by the Respondent 's willingness , mentioned in its brief , in the event an employee
has a grievance concerning his rate of pay not being within the range set by the
contract , to "disclose his rate of pay if necessary ." The Union 's right to the re-
quested information is a statutory right, the exercise of which may not be lodged in
the discretion of the Respondent nor "made dependent upon processing a particular
grievance through the grievance procedure adopted by the parties ." J. I. Case Com-
pany, 118 NLRB 520.5 Moreover , as the Union is obligated to accord equal repre-
sentation to nonunion employees in the unit ,6 it must have this information as to
all the employees in advance so as to enable it to determine whether inequities exist
which merit discussion or correction , whether a grievance should be filed, and
whether grievances which have been filed are sufficiently meritorious to warrant
processing through the grievance procedure of the contract .7 Thus, for example,
when the Union learned that one of its members, Sprowles , was being paid $15 less
than his contract classification , it filed a grievance which resulted in a correction
of his wage to conform to the contract . But without the requested information,
the Union has no way of knowing whether or to what extent the contract is being
violated in this respect as to nonunion employees in the unit . Such information
is also necessary to enable the Union to determine whether there is disparate treat-
ment of employees in the application of the "Performance Appraisal " clause, as
was demonstrated in the Rose Marie Brecht grievance . For, even assuming that
this clause gave the Respondent the unilateral right to grant merit increases, "the
8 See, e. g., 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), cert. denied 350 U. S. 905; Boston-Herald Traveler Corporation, 110 NLRB
2097, enfd. 223 F. 2d 58 (C. A. 1) ; F. W. Woolworth Co., 109 NLRB 196, 197, enfd.
352 U. S. 938.
4 Utica Observer-Dispatch, Inc., 111 NLRB 58, 62-64, enfd. 229 F. 2d 575 (C. A. 2).
In this case a refusal to bargain was found even though the employer furnished the
requested data for all but four employees in the unit.
5 See, e. g., Utica Observer -Dispatch , Inc., supra ; Hekman Furniture Company, Inc.,
101 NLRB 631, 632, enfd. 207 F. 2d 561 (C. A. 6) ; General Controls Co., 88 NLRB
1341, 1344.
6 Ford Motor Company v . Huffman, 345 U. S. 330 , 337; N. L. R. B. v. Die and Tool
Makers Lodge No. 113 et al ., 231 F. 2d 298 ( C. A. 7), enfg. 111 NLRB 853 ; Hughes Tool
Company, 104 NLRB 318, 325.
7 See, e. g., F. W. Woolworth Co., 109 NLRB 196, 197 , enfd. 352 U. S. 938; Electrio
Auto-Lite Company , 89 NLRB 1192, 1196-1197.
WESTINGHOUSE AIR BRAKE COMPANY 1127
right to grant merit increases without the consent of a statutory bargaining agent
obviously should not imply the right to withhold information thereon, since such a
rule might force discrimination against union adherents in the granting of merit
increases, and thereby promote that industrial strife which the Act seeks to avoid." 8
Finally, the need for this information is further apparent from the mere fact that
the contract expressly gives the Union the right to reopen its wage provision during
its term and provides for a grievance procedure. American Smelting and Refining
Company, 115 NLRB 55, 62.
The Board has consistently held, with court approval, that "an employer is under
a duty to accommodate a union's request during contract negotiations for relevant
wage information" of the kind involved in this proceeding, and "that such duty con-
tinues after a collective-bargaining agreement has been executed." 9 It is equally
well settled that such data must be supplied with respect to all employees in the
unit, whether or not the employer has been authorized by the individual employee
to release this information. As the Board stated in Utica Observer-Dispatch, Inc.,
111 NLRB 58, at 64, enfd. 229 F. 2d 575 (C. A. 2),
The right of a collective-bargaining representative to wage data cannot
be made contingent upon the consent of the individual employees, any more
than it can be made contingent upon the consent of anyone else. Otherwise,
the right becomes an empty one which is controlled by other persons. The right
must be, and is, certain to enable the union to perform properly its function
as the collective-bargaining representative of the employees.
2. Parties have operated under an oral agreement, still in effect, on when such in-
formation will be supplied
The Respondent contends that on November 5, 1951, the parties orally agreed that
specific salaries of individuals within the bargaining unit would be furnished to the
Union when and if the individual employee did authorize and direct the Respondent
to do so, that the parties have continuously operated under this agreement, that this
agreement has never been changed or amended with respect to the information to be
divulged although the issue of disclosing such information was discussed during
subsequent contract negotiations, and that therefore this agreement is still effective
and is a valid defense to the Respondent's refusal to furnish the requested informa-
tion for nonauthorizing employees in the unit.
I find no merit in the Respondent's contention that the 1951 oral arrangement, pre-
viously described in this report, constituted a binding agreement whereby the Union
waived its right to the individual salaries of employees who did not sign an author-
ization for the Respondent to release this information. The record considered as
a whole clearly demonstrates, and I find, that the Union followed this procedure only
because that was the only way it could get this information at all as to any of the
employees and that it did not thereby abandon or waive its right to the information
for the nonauthorizing employees, as is demonstrated by its repeated and continuous
efforts and requests to obtain such information. Certainly, there is nothing in the
1951 arrangement and the conduct followed by the parties thereafter to warrant a
finding that there was a "clear and unmistakable" or "clear and unequivocal" waiver
of the Union's statutory right to the requested information, the sine qua non required
for sustaining the Respondent's defense.1° Moreover, even assuming, contrary to
the facts and my findings, the existence of such a binding agreement and waiver
by the Union, it admittedly existed only for the duration of the written collective-
bargaining agreement in effect at the time when the Union's requests were made.
However, the Union's requests for the information during the 1956 negotiations were
8N. L. R. B. v. The Item Company, 220 F. 2d 956, 959 (C. A. 5), cert. denied 350 U. S.
905; B. F. Goodrich Company, 89 NLRB 1151, 1153; General Controls Co., 88 NLRB
1341,1342-130.
1P. W. Woolworth Co., 109 NLRB 196, 197, enfd. 352 U. S. 938; J. I. Case Company,
118 NLRB 520.
10 See, e. g., International News Service Division of The Hearst Corporation, 113 NLRB
1067, 1070; California Portland Cement Company, 101 NLRB 1436, 1438-1439; General
Controls Co., 88 NLRB 1341, 1343; N. L. It. B. v. Otis Elevator Co., 208 F. 2d 176, 179
(C. A. 2) ; N. L. R. B. v. J. H. Allison & Company, 165 F. 2d 766, 768 (C. A. 6), cert.
denied 335 U. S. 905; N. L. It. B. v. The Item Company, 220 F. 2d 956, 958-959 (C. A. 5),
cert. denied 350 U. S. 905; N. L. It. B. v. Hekman Furniture Company, 207 F. 2d 561
(C. A. 6), enfg. 101 NLRB 631, 632.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made for the sole purpose of negotiating and policing the new contract to replace
the one then in effect and expiring June 1, 1956. Furthermore, in these negotiations
the Union expressly informed the Respondent, as previously found, that it was not
waiving its right to the requested information and would file charges with the Board
to enforce it, as in fact it did. Hence, the alleged agreement relied on by Respond-
ent could not in any event be a valid defense to the Union's requests for the infor-
mation for the purpose of negotiating and administering the 1956 contract; otherwise
the Respondent could forever effectively prevent any change and force the parties
to be frozen in perpetuity to their positions on this point."
3. The Union bargained away and waived its right to the requested information by
the 1956 negotiations and execution of the 1956 contract
The Respondent further contends that any right which the Union may have had
to the requested information was bargained away or waived as a result of the 1956
negotiations and execution of the 1956 contract, which contained no reference to
any requirement of any disclosure of information by the Respondent. However, as
previously found, the Union never compromised its position on this issue; on the
contrary, the Union clearly expressed its intention not to abandon or waive its
right to the requested information but to seek redress from the Board for the
Respondent 's refusal to divulge it, a course which it was forced to pursue as a result
of the Respondent's persistent adherence to its position of refusing to disclose this
information .'? The most that can be said of the 1956 negotiations is that the Union
withdrew its request that the Respondent be bound contractually to furnish this in-
formation by including a clause to that effect in the contract. It is well settled that
the mere execution of a contract which is silent on a controverted issue discussed dur-
ing the negotiations does not constitute a waiver by the Union of any rights secured
under the Act.13 Especially is this so in the instant case where at the time of the ex-
ecution of the contract the Union informed the Respondent that it was not waiving
its right to the requested information but would pursue it before the Board. Any
other "interpretation would seem to be disruptive rather than fostering in its effect
upon collective bargaining, the national desideradum disclosed in the broad terms of"
the Act. (J. H. Allison & Co. case, supra, 165 F. 2d at 768.) The fallacy of the
Respondent's position in its brief stems from its erroneous belief that this statutory
right is waived unless expressly reserved in the contract itself.
4. Conclusions
I find no merit in any of the Respondent's defenses. Upon the basis of the entire
record considered as a whole, I find that by its conduct since on or about May 15,
1956, in refusing to furnish the Union, upon request, the specific amounts of individual
salaries or wages of employees in the appropriate unit where there has been no
written authorization by the individual employees to the Respondent for the release
of such information, the Respondent has failed and refused to bargain in good
faith in violation 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
connection with the operations of the Respondent, described in section I, above,
u See, e. g., Boston Record-American-Advertiser Division, The Hearst Corporation, 115
NLRB 1095, 1102, 1104; General Controls Co., 88 NLRB 1341, 1342-1343.
13 See, e. g., The Item Company case, supra, 220 F. 2d at 958-959; Boston Record-
American-Advertiser Division, supra.
Obviously distinguishable is International News Service Division, 113 NLRB 1067,
1071, 1072, where two members of the Board found that the Union had "clearly and
unmistakably" bargained away any right it had to receive the requested information on
the facts of that case which disclosed that the parties, after bargaining with respect to
an information clause, "came to terms on the matter" and "inserted in their contract,
not what one party originally sought, but a measure that compromised their differences."
13 See, e. g., N. L. R. B. v. Yawman d Erbe Manufacturing Co., 187 F. 2d 947, 949
(C. A. 2) ; American Smelting and Refining Company, 115 NLRB 55, 62; and The Item
Company, J. H. Allison & Co., Otis Elevator Co., and Boston Record-American-Advertiser
cases, supra.
WESTINGHOUSE AIR BRAKE COMPANY 1129
have a close , intimate , and substantial relation to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
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 refusing, on request, to supply the Union
with the individual salaries or wages of employees in the appropriate unit where
there has been no specific authorization by to mmviduai employee to the Respondent
for the release of said information, I will 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 and the
absence of any indication that danger of the ccmmission of other unfair labor
practices is to be anticipated from the Respondent's conduct in the past, I will not
recommend that the Respondent 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:
CONCLUSIONS OF LAW
1. All office, clerical , technical, and inspection employees at the Respondent's
Wilmerding, Pennsylvania, plant, excluding plant guards, time-study observers, sales
and commercial engineers, buyers, patent attorneys, personnel department employees
except messengers, confidential employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
2. Westinghouse Air Brake Office and Technical Union has been at all material
times herein, the exclusive representative of all the employees in the aforestated
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9 (a) of the Act.
3. By refusing, upon request, to supply the Union with the individual salaries or
wages of employees in the appropriate unit where there has been no specific authoriza-
tion by the individual employee to the Respondent for the release of such information,
the Respondent h?s 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
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
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 Westinghouse Air Brake Office
and Technical Union as the exclusive representative of all our employees in
the appropriate unit described below, by refusing and failing to furnish to said
Union, upon request, the individual salaries or wages of employees in the
appropriate unit where there has been no specific authorization by the employee
to us for the release of such information.
WE WILL furnish to the above-named Union, upon request, the individual
salaries or wages of employees in said appropriate unit even where there has
been no specific authorization by the individual employee to us for the release
of such information.
The bargaining unit referred to herein is described as follows:
All office, clerical , technical, and inspection employees at Respondent's
Wilmerding, Pennsylvania, plant, excluding plant guards, time-study
observers, sales and commercial engineers, buyers, patent attorneys,
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel department employees except messengers , confidential employees,
and supervisors as defined in the Act.
WESTINGHOUSE AIR BRAKE COMPANY
AIR BRAKE PLANT),
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.
Ozark Hardwood Company and General Drivers and Helpers,
Local 373, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.' Case No. 32-CA-72.
December 19,1957
SUPPLEMENTAL DECISION AND ORDER
On November 3, 1950, the Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that Respondent had
violated Section 8 (a) (3) and (1) of the Act by discharging certain of
its employees, herein called the Claimants. The Board therefore
ordered that the Respondent and its "officers, agents, successors, and
assigns" make the Claimants whole for any loss of pay which they may
have suffered as a result of the discrimination against them.
On March 7, 1952, the Court of Appeals for the Eighth Circuit en-
forced the Board's Order.3 Thereafter, on March 11, 1953, on motion
of the Board, the court authorized the Board to conduct a supplemental
proceeding to determine whether Ozark Hardwood Manufacturing
Company, herein called Ozark Manufacturing, was a "successor" of
Respondent, responsible for remedying its unfair labor practices.
On March 23, 1953, the Board directed that the record in this case
be opened and remanded the case to the Regional Director for the
Fifteenth Region for the purpose of conducting a further hearing on
the question of whether Ozark Manufacturing is a "successor" of
Respondent jointly obligated with it to comply with the Board's
Order, as enforced, and to determine the specific amounts of back pay
due under the back-pay provisions of its Order. Pursuant to said
remand, a hearing was held before Trial Examiner Reeves Hilton.
On June 11, 1956, Trial Examiner Hilton issued his Supplemental
Intermediate Report, a copy of which is attached hereto, in which he
found that most of the claimants were entitled to certain specific
amounts of back pay.
1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi-
cate of affiliation revoked by convention action, the identification of this Union is hereby
amended.
2 91 NLRB 1443.
3194 F. 2d 963.
119 NLRB No. 129.