White Farm Equipment Co.

National Labor Relations Board - Board Decisions

Jun 22, 1979

242 N.L.R.B. 1373 (N.L.R.B. 1979)

WHITE FARM EQUIPMENT CO.
White Farm Equipment Company, a Subsidiary of
White Motor Corporation and International Union
of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, and its Local 745. Case 9-CA 8835
June 22, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On May 30, 1975, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party, herein called the Union, filed excep-
tions and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
Following a Board-conducted election in June
1971, the Union was certified as the exclusive bar-
gaining representative of a unit of Respondent's
warehouse employees at its parts depot in Columbus,
Ohio. Thereafter, Respondent and the Union entered
into a collective-bargaining agreement effective from
August 15, 1971, through August 15, 1974. The par-
ties subsequently executed a second agreement, effec-
tive from August 15, 1974, through August 13. 1977.
On June 28, 1974, prior to expiration of the
Union's then-applicable agreement with Respondent,
Ronald H. Janetzke, general counsel for the Union's
District Council Seven, wrote Respondent requesting
the following information:
I. The master plans and summary booklets con-
taining the agreements between Respondent and in-
surance carriers who provide medical insurance cov-
erage, sickness and accident insurance coverage, and
life insurance coverage for the unit employees.
2. The total number of males, females, whites,
blacks, and other minority applicants who sought em-
ployment from January 1, 1973, to the date of the
'The Firestone Tire & Rubber Company filed a motion for oral argument.
as well as a request to submit a brief amrricus curiae. Firestone's request to file
a brief as aumcus uriae was granted by the Board b) telegraphic order:
however, its motion for oral argument is hereby denied as the record and
briefs adequately present the issues and positions of the parties. The Equal
Employment Opportunity Commission (EEOC) also filed a motion for leave
to file a brief umi us curiae. which was opposed b Respondent. We hereby
grant the EF(X"s motion, and have considered its brief which was submitted
along with the request
letter, and the total number in each respective group
who were actually hired, on a monthly basis.
According to Janetzke's letter, the information was
sought in furtherance of an internal union program
calling for the elimination of all forms of discrimina-
tion in plants represented by lUE.2 The letter further
explained that the information was needed by the
Union in order for it to complete an analysis of
whether plant practices of Respondent might be in
conflict with Title VII of the Civil Rights Act of
1964., and in order to assure that no contractual pro-
visions discriminate against employees. The following
provision with respect to discrimination is contained
in the parties' collective-bargaining agreements:4
ARTICLE 16--DISCRIMINATION
Neither the Company nor the Union shall dis-
criminate in any manner whatsoever against any
employee because of race, sex, political or reli-
gious affiliation, nationality, marital status, phys-
ical or mental handicap, or membership or non-
membership in any labor or other lawful organi-
zation.
Having received no reply to its June 28. 1974, let-
ter. the Union reiterated its information request on
August 8. On August 19. Respondent replied to the
Union's letters, supplied the Union with a booklet
describing the insurance programs as they applied to
the bargaining unit, and summarized several changes
in previous insurance benefits which had resulted
from recent contract negotiations. These changes re-
lated to a new collective-bargaining agreement, effec-
tive from August 15, 1974, through August 13, 1977,
which was agreed upon by the parties during negotia-
tions occurring from July 10 to August 14, 1974.
Janetzke, the union agent making the information re-
quest and to whom Respondent's reply was ad-
dressed, had not participated in the negotiations for
the new collective-bargaining agreement.
Although Respondent supplied the descriptive in-
surance booklet, it failed to provide either the insur-
ance master plans or the applicant and hiring data
requested, claiming with respect to the employment
statistics that it had maintained no tabulation of data
2 Janetzke testified at the hearing that the nternational Union (UE) in
March 1973 commenced implementation of a program to eliminate all race
and sex discrimination in plants represented by it. pursuant to resolutions
adopted at is convention in 1972. After first attempting to implement the
program through local unions and its staff representatives working with local
unions, the districts of the International were eventually assigned responsi-
bility for the program. Thus. the information request letter was sent to Re-
spondent by Janetzke after he had first met with representatives of Local 745
and ascertained that officials cf the L.ocal had neither the insurance master
plans nor information regarding Respondent's hiring practices.
342 U.S.C. 2000e
The agreement which expired on August 15 1974, did not include the
phrase "physical or mental handicap": the provision is otherwise identical in
the two agreements
242 NLRB No. 201
1373
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsive to the Union's request and therefore did
not have the information available. Respondent did,
however, advise the Union that of the 12 active bar-
gaining unit employees, all were male and I was
black.
In ensuing correspondence, more fully described in
the Administrative Law Judge's Decision, Respon-
dent reaffirmed its refusal to comply with the Union's
information request. When subsequently asked by the
Union in a letter from Janetzke dated August 29,
1974, why it had no female employees and only one
black employee in the bargaining unit, Respondent
declined to respond specifically, but, by letter dated
September 18, 1974, advised the Union of its position
regarding the other information requested. Thus, with
respect to the insurance master plans, Respondent
took the position that its contractual commitment
was one of providing negotiated benefits and that the
manner in which it chose to fulfill that obligation was
its own prerogative. Regarding the applicant and hir-
ing data requested, Respondent stated that the Union
was requesting information "covering an activity in
which the Union has no responsibility or accountabil-
ity under the terms of our Agreement." and denied
the information request. On October 3, 1974. the
Union filed the charge initiating this proceeding.
The Administrative Law Judge, relying upon the
uncontradicted testimony of Respondent's industrial
relations director that Local 745 negotiators made no
mention of possible discrimination in fringe benefits
or hiring practices during the ongoing negotiations
for a new collective-bargaining agreement. concluded
that the Union had not established its right to the
requested information. Noting the Union's failure to
advert to the pending information request throughout
the negotiations, while reaching a contract accord on
subjects as to which the information had been re-
quested, the Administrative Law Judge found that
the Union's purpose in requesting the information
could not have been either to negotiate a new con-
tract or to police the administration of an existing
contract. While observing that "fulfillment of its duty
of fair representation under Title VII" appeared to be
the Union's purpose in making the information re-
quest, the Administrative Law Judge speculated that
the Union did not even want the information for that
purpose, "but rather for the purpose of creating the
appearance of fulfulling it." Thus, he concluded that
the Union's silence in the face of its foreknowledge of
possible discrimination, as evidenced by its informa-
tion request letters, warranted the conclusion that the
Union did not want the requested information for a
legitimate collective-bargaining purpose. Accord-
ingly, he dismissed the complaint in its entirety.
Contrary to the Administrative Law Judge, we find
that the failure of the Local's representatives to reiter-
ate the Union's information request during negotia-
tions for a new collective-bargaining agreement does
not warrant a conclusion that the information was
not relevant to the Union's collective-bargaining
function. Both the International Union (IUE) and its
local 745 are the recognized bargaining representa-
tive, and the International clearly had a right to re-
quest the information. That the Union subsequently
executed a new collective-bargaining agreement with-
out the benefit of Respondent's prior disclosure of the
information requested does not establish that the in-
formation was not relevant. Rather, as stated by the
United States Court of Appeals for the Second Cir-
cuit with respect to a union's execution of a contract
without the disclosure of requested information, "The
most that can be inferred from the Union's action is
that the advantages of a contract in hand outweigh
those which the Union might later obtain when all
relevant information would be available to it."1
Consequently, the issue in this case is not what the
Union's purpose was in requesting the information,
but rather whether the information is relevant to the
Union's proper performance of its duties as bargain-
ing representative "Once requested information is
found to be relevant to the Union's representative
function, it is not controlling that such information
might also be used for other purposes." We have
considered the relevancy of information such as that
sought by the Union herein in several recent deci-
sions8 and, unlike the Administrative l.aw Judge, find
the information requested is relevant to the Union's
proper performance of its bargaining obligation.
Specifically, with respect to the copies of the master
agreements between Respondent and various insur-
ance carriers, we have held in The East Davtonl Tool
and Die (o., supra, as well as in Automation & Mea-
surementr Diivion, 7he Bendix ('orporationr supra, that
such information is presumptively relevant insofar as
it pertains to unit employees.? Nor does the fact that
N 1 R B v. Yawman & Erhe Manujailcriulrg (Co. 187 F:.2d 947. 949 12d
(Cir. 1951).
It is. of course. well established that the dut to hbargain cllectively
includes a duty to provide relevant in!ormationr needed hb a labor organiza-
tion fr the proper performance of its duties as the emploees' bargaining
representative. NI..R.B v. Truitt .ntuautt/t-uring (C., 351 S 149 (1956):
VI. R.R . A.,me Industrial Co., 385 U.S 432 (19671. Detri Edow,,, (onl-
panm v. N.I. R.B., 99 S.(Ct. 1123, 85 LC I 1. 129 (March 5. 1979).
7 The Eust Dauton T.)l & Die ( , 239 NLRB 141 (1978), n 6 Indeed. as
:e have recently observed. "lI informlation is relevsant to collective hargain-
ing. it loses neither its relevance nor its aailahilit, merels because a uniion
additionally might or intends toi use it to attllempt to enlorce statutor and
contractual rights before an arbitrator. the Board. or court" 14 etinghoulre
Eklclri (rprration. 239 NLRB 106 (1978)
8 See. e.g., Wfesting 'ott¥ Electrim, (orporaton ltril, he Eal Dt l ) To)ol
toil Die (',, supra, .utoealion& iteluremcnt i[i)imii,. the Rendti ( 'orpo-
ratio, 242 N.RB 62 (1979).
4 See also Sstoe-Wod lrd 1nc., 123 NlRB 287. 288 (1959L) and (,/hit
(,oninltliilattoil. In , 72 NL RB 1909 ( 19681.
1374
W'HITE FARN EQUIPMENT (O().
the master insurance agreements may apply to em-
ployees of Respondent other than those included in
the bargaining unit serve to relieve Respondent of its
obligation to provide those portions of the master
agreements which apply to the unit employees. Such
master agreements are clearly relevant to the Union's
policing and administration of its contract with Re-
spondent, and Respondent has not effectively rebut-
ted the presumed relevancy of this information. Ac-
cordingly, we find that by refusing to furnish copies
of the master plans, insofar as they relate to the unit
employees, Respondent violated Section 8(a)(5) and
(1) of the Act.
With respect to the applicant and hiring data
sought by the Union, we have likewise held such data
to be presumptively relevant, inasmuch as it is "inte-
gral to the Union's fulfillment of its functions as
statutory bargaining representative of unit employ-
ees."' 0 The Board has stated, "an employer's hiring
practices inherently affect terms and conditions of
employment."" As we do not find Respondent to
have effectively rebutted the presumption of rele-
vancy of the requested applicant and hiring informa-
tion, we conclude that by refusing to supply informa-
tion as to the race and sex of applicants for
employment and of bargaining unit employees hired.
Respondent also violated Section 8(a)(5) and (I) of
the Act.
Finally, the General Counsel has alleged that Re-
spondent additionally violated Section 8(a)(5) and (1)
of the Act by its failure to respond to the Union's
query as to why it had no female and very few black
employees. We do not find this request relevant to the
Union's duties as the employees' bargaining repre-
sentative, however, as it would appear to seek a sub-
jective response or argument rather than objective
data to be employed by the Union in furtherance of
its representative function. Accordingly, we shall not
require Respondent to provide the Union with its rea-
sons for not hiring more female and black employ-
ees.'2
CON(CI.USI()NS ()F LA
1. White Farm Equipment Company, A Subsid-
iary of White Motor Corporation, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Electrical, Radio and
Machine Workers, AFL. CIOCLC. and its Local
745, are each labor organizations within the meaning
of Section 2(5) of the Act.
° Au1tonai11lwn & alItIure'IntI D o,,ron,. The Bendl ,t C (7jra1r lttn, ltipra
" Tanner l,fotor l.iwrn. Itd.. 148 NLRB 1402. 1404 1064). entt;rcemenl
denied on other grounds 419 F.2d 216 (9h (it 14h969).
12 7tf e Eatno D E, 1w,, ariand Die (.. uipra
3. All warehouse employees employed by the Re-
spondent at its parts depot in Columbus, Ohio, ex-
cluding all office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. International Union of Electrical, Radio and
Machine Workers, AFL CIO-CLC, and its Local
745, are, and at all times material herein have been.
the exclusive representative of the employees in the
unit described above within the meaning of Section
9(a) of the Act.
5. By refusing to furnish the above-named Union
with copies of the master plans, insofar as such plans
pertain to unit employees, containing the agreements
between Respondent and insurance carriers who pro-
vide medical insurance coverage, sickness and acci-
dent insurance coverage, and life insurance coverage
for unit employees. as requested by the Union on
June 28. 1974, Respondent has engaged in. and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. By refusing to furnish the above-named Union
with information respecting the race and sex of appli-
cants for employment during the years 1973 and
1974, including the race and sex of those applicants
hired, as request by the Union on June 28, 1974, Re-
spondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
TIl RMEDY
Hlaving found that Respondent has committed vio-
lations of Section 8(a)(5) and (1) of the Act, we shall
require it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act. As we have found that Respon-
dent violated Section 8(a)(5) and (1) of the Act b
failing and refusing to furnish the Union certain in-
formation, we shall order Respondent to furnish the
I U E and its Local 745 with copies of the current mas-
ter plans, insofar as they pertain to unit employees.
containing the agreements between Respondent and
insurance carriers who provide medical insurance
coverage, sickness and accident insurance coverage.
and life insurance coverage for unit employees. \'We
shall also order Respondent to furnish the Union with
current data respecting the race and sex of applicants
tor employment, as well as those actually hired. as
described in the Union's letter of June 28. 1974. re-
questing such data. Hiouever. in view of the dlax in
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this proceeding necessitated by the holding of oral
argument and our considered deliberation as to the
proper approach to be taken in cases involving union
information requests such as that made by the Union
herein, we shall order Respondent to furnish current
race and sex information rather than the data for
1973 and 1974 as originally requested by the Union.
Thus, we shall order Respondent to, on request, fur-
nish the Union with the total number of males, fe-
males, whites, blacks, and other minority applicants
who sought employment during the 12 month period
immediately preceding the date of our Order herein,
and with the total number in each respective group
who were actually hired, on a monthly basis. Finally,
inasmuch as we do not find Respondent's unlawful
conduct to warrant a broad remedial order, we shall
order Respondent to cease and desist from the unfair
labor practices found and from in any like or related
manner infringing upon the employee rights guaran-
teed in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
White Farm Equipment Company, A Subsidiary of
White Motor Corporation, Columbus, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with International Union
of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, and its Local 745, as the exclusive bar-
gaining representatives of Respondent's employees in
the appropriate unit described below, by refusing to
furnish copies of the master plans, insofar as such
plans pertain to unit employees, containing the agree-
ments between Respondent and insurance carriers
who provide medical insurance coverage, sickness
and accident insurance coverage, and life insurance
coverage for unit employees, as requested by the
Union on June 28, 1974. The appropriate unit is:
All warehouse employees employed by the Re-
spondent at its parts depot in Columbus, Ohio,
excluding all office clerical employees, profes-
sional employees, guards, and supervisors as de-
fined in the Act.
(b) Refusing to bargain with the above-named la-
bor organizations, as the exclusive bargaining repre-
sentative of the employees in the unit described
above, by refusing to furnish the information re-
quested on June 28, 1974, respecting the race and sex
of applicants for employment during the years 1973
and 1974, including the race and sex of those appli-
cants hired.
(c) In any like or related mannei interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist the above-named or any other labor organiza-
tion, to bargain collectively through representatives
of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all such
activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, furnish the above-named Union
with copies of the current master plans, insofar as
such plans pertain to unit employees, containing the
agreements between Respondent and insurance carri-
ers who provide medical insurance coverage, sickness
and accident insurance coverage, and life insurance
coverage for unit employees as requested in the
Union's letter of June 28, 1974.
(b) Upon request, furnish the above-named Union
with current data respecting the race and sex of appli-
cants for employment, including those hired, during
the 12-month period immediately preceding the date
of this Order, as described in the Union's letter of
June 28, 1974, requesting such data.
(c) Post at its Columbus, Ohio, facility copies of
the attached notice marked "Appendix."' 3 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 9, after being duly signed by Respon-
dent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER MURPHY, dissenting in part:
I agree with my colleagues on the majority that
Respondent violated Section 8(aX5) and (1) of the
Act by refusing to supply its employees' recognized
bargaining representative with copies of master insur-
ance plans, insofar as they pertain to unit employees.
As stated in my separate opinion in Automation &
Measurement Division, The Bendix Corporation, 242
11 In the event that 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 National Labor Relations Board" shall read "Posled Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1376
WHITE FARM EQUIPMENT CO.
NLRB 62 (1979), 4 1 agree that such information re-
garding group insurance is presumptively relevant to
the Union's collective-bargaining function."
However, I register my vigorous dissent from my
colleagues' infringement into matters properly left to
the expertise of the Equal Employment Opportunity
Commission through their finding of an additional
violation of Section 8(a)(5) and (1) of the Act by Re-
spondent's failure to supply this Union with re-
quested data regarding the race and sex of both appli-
cants for employment and those actually hired. As I
have fully articulated my views regarding this issue in
previous cases wherein similar information was
sought, however, suffice it here to simply reiterate my
deep concern that the Board majority in these matters
shortsightedly embarks upon unfathomed seas with-
out the benefit of compass, sextant, or chart.'6
' At fn. 5.
" My conclusion in this regard is based solely upon the fact that group
insurance has long been recognized as emcompassed within the concept of
wages (see. e.g., Sowe-Woodward Inc, supra). and thus presumptively rel-
evant to collective bargaining. and not upon any interest or authority of this
Board to intrude itself into matters properly left to the administrative aegis
of the Equal Employment Opportunity Commission. Thus, while I note that
Congress has, since issuance of the Administrative Law Judge's Decision.
legislatively mandated the sexual neutrality of insurance provisions such as
some of those involved herein. through passage of the Pregnancy Discrimi-
nation Act, Public Law 95-555, 92 Stat. 2076. amending Title VII of the
Civil Rights Act of 1964 to specifically forbid discrimination on the basis of
pregnancy, childbirth, or related medical conditions, this factor does not
affect the Board's authority to pass on issues such as this which fall within
established collective-bargaining principles.
'6 See my dissenting opinions in The East Dayton Tool & Die Co., supra.
and A utomaion & Measurement Division, The Bendix Corporation, supra. See
also my separate opinions in Westinghouse Electric Corporation, supra: Safe-
way Stores, Incorporated, 240 NLRB 921 (1979): and The Bendix Corpora-
tion, 242 NLRB 1005 (1979).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, and its
Local 745 by refusing to furnish information rel-
evant for the Union to fulfill its obligation to
represent the bargaining unit employees. The ap-
propriate unit is:
All warehouse employees employed by the
Respondent at its parts depot in Columbus,
Ohio, excluding all office clerical employees,
professional employees, guards, and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization: to
form. join, or assist the above-named labor or-
ganization, or any other labor organization; to
bargain collectively through representatives of
their own choosing; and to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL, upon request. furnish the above-
named labor organization with copies of the cur-
rent master plans, insofar as such plans pertain
to unit employees, containing our agreements
with insurance carriers who provide medical in-
surance coverage, sickness and accident insur-
ance coverage, and life insurance coverage for
unit employees.
WE WI.L, upon request, furnish the Interna-
tional Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, and its Local 745
with current data respecting the race and sex of
applicants for employment and those actually
hired during the 12-month period immediately
preceding the date of the Board's Decision and
Order.
WHITE FARM EQUIPMENr COMPANY, A Sun-
SIDIARY OF WHITE MOTOR CORPORATION
DECISION
STATEMENT OF TIIE CASE
HENRY L. JAI.EIIrE, Administrative Law Judge: This case
presents the question of a bargaining representative's right
to information from an employer relating to matters of mi-
nority groups and women as they may affect the Union's
duty to fair representation. The proceeding was initiated by
a charge filed b) the International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO-CLC, and its Local
745' on October 3. 1974. pursuant to which complaint is-
sued on December 12, 1974. On January 22. 1975, a hearing
was held in Columbus, Ohio.
Upon the entire record, including my observation of the
witnesses. and after due consideration of the briefs filed by
the parties. I make the following:
FINDINGS OF FAI
1. IHE ALLEGED REFLSAL ro BARGAIN
Factual Setting
Respondent is engaged in the operation of a warehouse
in Columbus. Ohio. employing about 13 employees.2 Since
June 23. 1971. the Union has been certified representative
The International and Local 745 are referred to collectively as the Union.
Jurisdiction is not in issue. The complaint alleges. the answer admits. and
I find that Respondent meets the Board's $50.000 direct outflow standard for
the assertion of jurisdiction,
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's employees in a unit of all warehouse em-
ployees and has been party to collective-bargaining agree-
ments with Respondent covering such employees, the most
recent of which is effective from August 15, 1974, until Au-
gust 13, 1977.
On June 28, 1974. the Union wrote to Respondent advis-
ing it of a program it had adopted for the elimination of all
forms of discrimination in plants represented by it. The
Union stated that in pursuance of this program it was nec-
essary for it to analyze plant practices which were not
spelled out in the collective-bargaining agreement but
which might be in conflict with Title VII of the Civil Rights
Act of 1964 and in which it requested that Respondent sup-
ply it with the master plans and summary booklets for
medical insurance, sickness and accident benefits insurance,
and life insurance; for the period from January 1, 1973. to
June 1974. the total number of applications for employ-
ment, the number of female applicants, the number of male
applicants, the number of black applicants, the number of
other minority applicants, and the number of white appli-
cants; and for the period from January 1, 1973, a list of the
number of female, male, black, white, and other minorities
hired on a monthly basis.
On August 8, not having received a reply, the Union
renewed its request. On August 19, Respondent replied to
the request by enclosing a booklet describing the insurance
programs as they applied to the bargaining unit. Respon-
dent stated that the information requested concerning job
applications was not available because application forms
contained no question on race, and tabulation of persons
who came to the warehouse to make application had been
maintained. Finally, Respondent stated that it could not
state exactly how many people had been hired since Janu-
ary 1, 1973 by breakdown as the Respondent requested. It
advised the Union that there were currently two white male
employees in the bargaining unit who had been hired since
January 1, 1973 and a third employee hired during that
period had recently quit. Respondent stated that the change
in management made it difficult to retrace history prior to
January 1, 1974. Respondent added that of the present 12
active employees all were male and one was black.
On August 29, 1974, the Union acknowledged receipt of
the Respondent's reply and reiterated its request for the
master insurance policies in order to make a full analysis of
certain provisions of the plan which, it stated, appeared to
be discriminatory based upon sex. The Union adverted to a
bridge benefit for Class A and Class B survivors which ap-
peared to it to be discriminatory toward females, and it
adverted to several provisions which appeared to discrimi-
nate against females in pregnancy cases.
With regard to Respondent's reply that it kept no tabula-
tion of persons who came to the warehouse to make appli-
cation, the Union requested that Respondent undertake to
make a tabulation or in the alteriative that it supply the
Union with all job applications for January 1, 1973, to the
date of its letter to enable the Union to make its own com-
putation. Furthermore, the Union expressed inability to un-
derstand why Respondent's records would not show which
persons had been hired since January 1, 1973. Finally the
Union reiterated its request for a statement of the reasons
why there were no female employees in the unit and why
only one black. The letter concluded with a request that
Respondent advise the Union if it was willing to meet con-
cerning such matters.
On September 18, 1974. Respondent replied denying the
request for applicant flow and hiring activity on the ground
that the data requested covered an activity in which the
Union had no responsibility or accountability under the
terms of the collective-bargaining agreement. Respondent
expressed the belief that it was in compliance with appli-
cable legislation and executive orders and offered to pro-
vide the Union with a written statement to such affect for
its protection.
As to the master insurance policies. Respondent declined
to furnish them on the ground that its contractual commit-
ment with the Union was to provide negotiated benefits but
that the manner in which it did so was its prerogative. Re-
spondent noted that the master policies in question in-
volved company locations other than the one involved
herein. As to the specific insurance benefits to which the
Union had adverted in its letter of August 8, Respondent
replied in detail. For example, it acknowledged that there
was no weekly indemnity benefits in maternity cases, but
denied this was discriminatory. Respondent denied that a
transplant donor benefit was not available to pregnant fe-
males pointing out rather that it was denied to females only
in those instances where the confinement or surgery bring-
ing about the transplant was by reason of the pregnancy or
complications therefrom. Respondent acknowledged that
pregnancy was not covered under the long term disability
benefits pointing out, however, that this coverage was un-
available under certain other situations. In each of the situ-
tations described by the Union, as well as with any other
not identified, Respondent stated that if the Union wanted
benefit coverage altered bargaining demands could be pre-
sented and cost considered at the appropriate time. Respon-
dent did not offer to meet or expressly respond to the
Union's request in that connection.
Thereafter, the Union filed a charge in the instant case
the complaint which issued pursuant thereto alleged that
Respondent had violated Section 8(a)(5) and () of the Act
by refusing to furnish the Union with the master insurance
agreements described above; by refusing to furnish the total
number of' males, females, whites, blacks, and other minor-
ities who sought unit positions of employment and the total
number in each group actually hired in unit positions in-
cluding their names, dates of hire, departments in which
each was placed, starting rate of pay from January , 1973
to date of the issuance of complaint: and by refusing to
furnish information concerning the reason or reasons why
Respondent did not employ any females and only one black
in unit positions.
11. ANAIYSIS AND) (O()N(I.tSIONS
Respondent asserts a variety of defenses to the allega-
tions that it has violated the Act by refusing to furnish the
requested information. It does not appear to question the
basic legal principle that the Union owes a duty of fair
representation to all unit employees pursuant to Section 9
and 8(b) of the Act. nor does it appear to question the
proposition that this duty is applicable in matters of possi-
1378
WHITE FARM EQUIPMENI CO.
ble race or sex discrimination in matters of employment.'
However, it asserts that the Union has, in effect, waived its
right to the requested information. Respondent's assertion
is based on the undisputed fact that, although the initial
demand for intformation was made on June 28. 1974, the
Union made no mention of possible discrimination in tringe
benefits or in hiring practices during negotiations for a new
collective-bargaining agreement beginning on JulN 10, 1974.
and concluding on August 14. 1974. 4
I am not persuaded that the waiver principle is the
proper legal principle to apply to the [Union's failure to
mention in negotiations possible discrimination based on
sex or race. Rather, it appears to me that such failure is
persuasive evidence that the Union did not request the in-
formation for any purpose relevant and necessary to fulfill
its obligations under Section 9 and 8(h) of the Act. Except
for wage and related information, which is presumptivel\
relevant, a union's right to information is dependent on a
showing of relevancy and necessity. This may be done by
showing that it is relevant to negotiating a new contract or
to police the administration of an existing contract. The
Union's purpose for its request herein cannot have been for
either of these purposes because it w.as in negotiations while
its request was pending, voiced no objection over Respon-
dent's failure to reply to the request of June 28. and made
no claim that it needed the information for anx purpose
during negotiations. Thus, as to master insurance policies. if
the Union believed they contained discriminatorN provi-
sions, or if it was too ignorant of the insurance provisions
even to form a judgment. why did it remain silent in nego-
tiations and agree not only to a continuation of medical
insurance benefits in the new contract, hut also to some
changes in benefits unrelated to possible discrimination on
the basis of sex and without even adverting to the issue of
possible discrimination? As to Respondent's employment
practices. the Union knew the composition of Respondent's
work force, knew that Respondent employed no females
and only one black in the unit, and et it made no mention
during negotiations of possible discrimination in hiring. In
the circumstances, the Union's silence warrants a finding
that it did not want the information for the purpose of ne-
gotiating any contract changes, nor to police the adminis-
tration of any contract, past or present.
The finding that the Union's purpose in requesting the
Emporium (apwell ( o. v. Western ddtton (orlntuntt Orgazs:ation,
420 U S. 50 (1975); Indepeendent Metal i4',orAers nion. l.al ,o 1. 147
NLRB 1573 (1964): Local 1367, Internlational I,onglhl,rcnitl A.4iswatiion,
AFL ('10. South Ailantic and Gul! (oaust Dsvirit. Interilainal l.ongshore-
man' Associa'tion, A FL (10 and local I .ti. nternatl,.ll ILang o horertl ',l,
s.rsoctation. 4 Fl. (10. 148 NI.RB 897 (1964), enfd 368 1.2d 1010 (5th (ir.
1966). cert. denied 389 S. 837 (1967).
' This is based on uncontradicted testimons ot industrial relations director
Robert Finle. According to Attorney Janeike. gave specific language pro-
posals to Local 745 negotiators and he assumed theN were proposed at the
bargaining table No eidence was adduced to show l.ocal 745 made ans
proposal related to possible discrlmination on sex or race
information in question w.'as not a collecti, e-bargaininle
purpose (in anx sense of the term as applied under the Act)
finds further support in AttorneN Janetzke's letter of June
28. 1974. wherein he referred to practices which ". . may
be in conflict with Title VII of the ivil Rights Act of
1964." Such language suggests that the LInion's purpose
was fulfillment of its dutD of fLair representation under itle
VII, rather than any dut\ under Section 9 and 8(b). Gen-
eral Counsel and the linion appear to contend that even if
such is the Ulnion's purpose it is entitled to the inf'ormation.
One answer to such a contention is that it is not the func-
tion of the Board to ensure compliance b a union with
Title VII. As the Board stated.' "'While the Board must
interpret the Act with due regard for Federal policy against
racial or other arbitrary or invidious discrimination. we
should not attempt to usurp the functions which Congress
entrusted to the Equal Enmplo ment Opportunitl Commis-
sion and other agencies." See also Ermotriunl ( pic/li/(', v.
I .teri 4(ddtilttott ('omltmiunlltt OrglliC