A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1976

223 N.L.R.B. 838 (N.L.R.B. 1976)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. O. Smith Corporation and Local Union No. 663,
International Brotherhood of Electrical Workers,
AFL-CIO. Case 30-CA-3277
April 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 26, 1976, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, A. O. Smith Corpora-
tion, Milwaukee, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: Pursuant
to a charge filed on August 19, 1975, by Local Union No.
663, International Brotherhood of Electrical Workers,
AFL-CIO, hereinafter called the Union, a complaint is-
sued on October 29, 1975, alleging that Respondent re-
fused to furnish the Union upon request certain informa-
tion relating to the subcontracting of work in violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended. In its answer Respondent denies the
commission of any unfair labor practices.
A hearing in this case was held before me on November
18, 1975, in Milwaukee, Wisconsin. At the conclusion of
the hearing oral argument was waived. Briefs have been
filed by the General Counsel and Respondent.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged in the
manufacture of automobile frames at its Milwaukee, Wis-
consin, location. During the past calendar year, a represen-
tative period, Respondent shipped and sold goods and
services valued in excess of $50,000 from its Milwaukee,
Wisconsin, plant directly to points outside the State of
Wisconsin. I find that Respondent is an employer engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction here-
in.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The collective-bargaining relationship between the
parties
For many years Respondent has recognized and bar-
gained with the Union as the collective-bargaining repre-
sentative of a unit of all general journeyman electricians,
journeyman electricians, nondestructive test mechanics,
utilitymen, and apprentices employed at Respondent's Mil-
waukee plant. The Union and Respondent have entered
into a series of collective-bargaining agreements , the most
recent of which became effective August 1, 1974, and runs
until July 31, 1977. Since at least 1966 the parties have also
had an additional agreement in letter form relating to the
subcontracting of bargaining unit work. The most recent
such letter dated December 8, 1971, is still in effect. In
pertinent part it provides:
Because of the cyclical variations of work load,
brought about largely by the needs of our customers in
the Automotive Industry, coupled with a desire to
avoid frequent adjustments in the work force, it has
been and will continue to be our policy to attempt to
maintain in our own work force that number of em-
ployees which we expect to be able to retain on a year-
round basis.
It therefore follows that a certain amount of work,
representing load which cannot be postponed, but ex-
ceeds our available capacity, will normally be subcon-
223 NLRB No. 122
A. O. SMITH CORP. 839
tracted. We will discuss with the union , at any time,
the nature of the projected load and its probable effect
on manpower levels , work assignments and work
schedules.
During periods of layoff or reduced work weeks or
when employees are working out of their regular clas-
sifications , all work that has been previously regularly
done by the I.B.E.W. will be retained, to keep as many
of our employees working as possible . If cases arise
during such periods, where it is necessary to subcon-
tract because of time limitations, lack of equipment or
other unusual situations, the company will discuss the
matter with the union prior to subcontracting.
It has been the practice of the Company whenever it
intends to subcontract work which could be performed by
bargaining unit employees to give the Union advance no-
tice of its intent to subcontract and an opportunity to dis-
cuss the projected subcontracting. The amount of advance
notice in the past has varied from a number of months to
days apparently depending upon the 'Company's own abili-
ty to anticipate the need for subcontracting. The collective-
bargaining agreement between the parties provides a griev-
ance procedure and permits the filing of a grievance when-
ever any employee feels that he has been treated unjustly.
The long relationship between the parties has been harmo-
nious.
2. Respondent's notice to the Union of its intent to
subcontract electrical work in the paintshop
On June 19, 1975, Walter Winchowky, Respondent's su-
perintendent of construction and plant services, met with
Paul Grahovac, vice president of the Union and chairman
of its contact board, and other members of the contact
board. Also present was Marshall Erickson, Respondent's
foreman of construction. Winchowky told the contact
board that the Company was planning to subcontract the
rewiring of three vent fan motors and the installation of
three tachometer generators and associated equipment in
the paintshop. The contact board asked when the work was
going to be done and how long it would take. Winchowky
told them that the work would be done during inventory
week, which was the week starting June 29 when produc-
tion was scheduled to be suspended. Winchowky also said
that it was estimated that approximately 80 man-hours
were required for the job. The contact board asked why the
work had to be done during inventory week and why
Respondent's electricians could not do the work. Win-
chowky replied that there was no money available for over-
time work to be performed by Respondent's employees.' In
response to further questioning Erickson stated that there
were no construction electricians available to do the work
and that there was enough work available for the mainte-
Although it appears that Respondent wanted to have this work per-
formed when the paintshop was not in operation , it is not clear whether
Winchowky told the Union why the work had to be done during inventory
week . Grahovac was the only witness who testified about this meeting, and
I have credited his version of it.
nance electricians in their own areas to keep them busy for
their normal hours during the inventory week. Grahovac
expressed the opinion that if given the opportunity he
could find electricians employed by Respondent who
would be able to do the work.
There is no dispute that the work which the Company
intended to subcontract was of a kind normally performed
by bargaining unit employees and that bargaining unit em-
ployees had the requisite skills and experience to perform
the work. It is also undisputed that during the time in ques-
tion Respondent had a ban on overtime in effect which
prohibited scheduling of overtime work except in emergen-
cies . Further, it is undisputed that, if the bargaining unit
employees had been permitted to work overtime, there
would have been sufficient manpower within the bargain-
ing unit to perform the work in question at the time desired
by Respondent.
3. The Union's requests for information and
Respondent's responses
After meeting with Winchowky Grahovac told Union
President Leland Stanford about the meeting . Stanford
told Grahovac that the Union would want to know the
number of hours involved and the charging rate of the con-
tractor.2
On the next day, June 20, Grahovac and another mem-
ber of the contact board returned to Winchowky's office
and asked for the exact number of hours estimated for the
job, the charging rate of the outside contractor, a copy of
the subcontract if one existed, and Respondent's charging
rate .3 Grahovac told Winchowky that the Union had to
have this information so that it could decide intelligently
whether to file a grievance and whether it could argue that
it could do the work on weekends rather than during the
inventory week as proposed for the subcontractor. Graho-
vac again asked Winchowky if he would check out to see
whether the maintenance people could do the work and
asked again whether they could go on long hours to do the
work." Again Winchowky said there was no money avail-
able for overtime, and Grahovac again said that if he was
given a chance he believed he could find people to do the
work. Winchowky said he would check out the requested
information and get back to Grahovac with an answer.5
Grahovac testified that the Union was interested in ob-
taining the charging rates to find out whether the
Company's electricians could compete with the outside
2 The charging rate is the total hourly rate charged by the contractor for
each man-hour of service supplied. It reflects all costs per man-hour includ-
ing wages , fringe benefits , overhead, and contractor's profit.
Respondent 's charging rate reflects the total hourly cost charged to the
operating departments within the Company for the services of Respondent's
electricians . It is designed to reflect not merely the wage rate received by the
electricians but also the cost of other benefits received by them and over-
head items attributable to them. Respondent computes charging rates for
straight time hours, time and half hours, and double time hours . Because all
costs do not increase proportionately for overtime work, the latter two
charging rates are not simple multiples of the straight time charging rate.
Long hours referred to the scheduling of more than 8 hours work a day
which Respondent has done at other times when there was no ban on over-
time in effect.
5 Grahovac testified without contradiction as to this conversation with
Winchowky and is credited.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor. Specifically they wanted to know if the cost of
the job when performed by Respondent's electricians on
overtime would be no more than the cost of the job when
performed by an outside contractor on straight time so that
the Union could urge that Respondent's electricians should
be utilized on overtime. It does not appear, however, that
the latter explanation of the Union's reasons for wanting
the information was given to Winchowky on June 20 .6
On June 21 Grahovac received a memorandum from
Winchowky confirming that the contact board had been
informed on June 19 that the Company would use an out-
side contractor to perform the job described above. The
memo noted that the work was to be done in the paintshop
during the inventory week on July 2 and 3, 1975, and that
no premium time was involved.
On June 30 Grahovac had a further conversation with
Winchowky. Grahovac asked Winchowky if he had an an-
swer to his request for the charging rates and number of
hours required for the job. Winchowky told him that the
answer was no. Grahovac asked how he came to that deci-
sion, and Winchowky said he had spoken with Frank Erd-
mann in the labor relations office who had indicated that
the Union had no reason to have the requested informa-
tion?
Later that day Grahovac spoke with Stanford and told
him that Respondent was refusing to give them the infor-
mation they wanted. They then went to speak with Richard
Beck, Winchowky's superior and Respondent's manager of
maintenance and utilities. They pointed out to Beck that
they had asked Winchowky for the subcontractor's charg-
ing rate and the subcontractor's hours involved in the job,
that Winchowky had refused the information, and that
they still wanted it. Beck testified that he told them he
would need time to investigate it and would get back to
them.'
On July 3 Stanford and Beck again spoke about the re-
quest for information. Beck told Stanford that Respondent
felt that the information sought was company business and
that it would not give the information to the Union .9
On July 9 Stanford spoke by telephone with Charles
6 Although Grahovac testified that he alone made the initial decision as to
what information was wanted , Stanford 's testimony indicates that he and
Grahovac first conversed before Grahovac made the request and that Stan-
ford participated in the decision . However, it also appears from Grahovac's
uncontradicted testimony concerning his conversation with Winchowky
that initially he asked for more information than Stanford had indicated
that he should seek.
7 Grahovac 's testimony as to this conversation was again uncontradicted
and is credited.
8 Grahovac , Stanford , and Beck all testified to this conversation.
Grahovac 's testimony was in conflict with that of both Stanford and Beck
as to the specific information requested and whether he and Stanford gave
Beck any reason for wanting the information . I have credited Stanford and
Beck rather than Grahovac in these respects.
9 Stanford so testified . According to Beck , he told Stanford that the Com-
pany did not know the contractor's charging rate or the number of hours
required for the job and that if Stanford was not satisfied with the answer he
should file a grievance . While Respondent later took such a position,
Stanford 's version is consistent with what he later stated that Beck had said
in a letter to Respondent 's industrial relations director , Baumann, and Bau-
mann thereafter took a position similar to that which Stanford testified Beck
had taken . I have concluded that Stanford is to be credited and that the
response described by Beck was not communicated to the Union until a
later time.
Baumann, Respondent's director of industrial relations.
Stanford explained that they had a problem in that the
Union wanted information on the contractor's hours and
charging rate. Baumann stated that he had talked with
company officials and he felt it was not necessary for the
Company to furnish that information. He also told Stan-
ford that as a union official Stanford probably had access
to the rates and knew them better than Baumann . Stanford
told Baumann that if Respondent refused to furnish the
information the Union might be forced to file a charge.
Baumann replied that he thought that was premature be-
cause he had the grievance procedure to resort to first.
Stanford told Baumann that the Union wanted the infor-
mation to determine whether it could do the job costwise.10
On July 14 Stanford sent a letter to Baumann requesting
in writing the following information:
1. Number of hours involved in the Sub Contract-
ing of the wiring of (3) three tachometer-generators in
the paint oven exhaust fans.
2. Contractor charging rate per hour for the perfor-
mance of this work.
3. The charging rate of the Electricians employed at
the A.O. Smith Corp.
(a) Straight time charging rate.
(b) Time and one half charging rate.
(c) Double time charging rate.
Baumann denied Stanford's request by letter dated July
29 of which the following is the pertinent part:
The Company recognizes that in certain instances it
may be required to provide the union with informa-
tion reasonably necessary for it to administer its obli-
gations under the labor agreement. In this case, how-
ever, we feel that your request for additional
information does not represent one of those instances,
especially since timing and availability of manpower
were deciding factors in the Company's decision to
subcontract the subject work. The Company feels that
it has lived up to the spirit and intent of the sub-con-
tracting agreement , and, as you are aware, we have
only sub-contracted jobs within your jurisdiction twice
in 1975.
It is appropriate that any questions relating to the in-
terpretation of the sub-contracting agreement be pro-
cessed through the grievance procedure. We recognize
your right to file a grievance on this question. While
we are not in agreement with you on the issue, we will
certainly entertain such a grievance, should you de-
cide to file it.
On October 14, 1975, after the charge in this case had
been filed, the Union's attorney wrote Baumann restating
10 The testimony of Stanford and Baumann as to this conversation differs
in only the following respects . Contrary to Baumann , Stanford denied that
Baumann gave him any indication that he should file a grievance and he
placed the warning that he might file a charge in his earlier conversation
with Beck . I find it likely that the warning was given to Baumann and that
Baumann responded as he testified . Stanford also testified that he gave no
reason for wanting the information while Baumann testified as to the reason
given . I see no reason for Baumann to have added this detail unless it
occurred and I again credit him.
A. O. SMITH CORP.
the Union's request for information as follows: lt
It is my understanding that on or about June 19, 1975,
an outside contractor wired three tachometer-genera-
tors in paint oven exhaust fans in Building 15 Paint
Shop and that with respect to the work performed, it is
requested that you furnish to me the number of hours
involved in this job, together with the total cost of the
job with a breakdown, if possible, of the number of
subcontractor employees utilized in performance and
completion of same.
Respondent through its counsel initially replied on Octo-
ber 17 and sent an amended reply on November 13 with
the following response to this request:
The answers to the questions raised in your letter of
October 14 to Mr. Baumann are as follows:
(i) A.O. Smith did not know the number of hours in-
volved in the job when the Union first inquired in
June since the contract was on a bid basis rather
than on a time and materials basis, but thereafter a
representative of A.O. Smith contacted the subcon-
tractor and was told the number of hours. A.O.
Smith declines to submit that information to the
Union, taking the position that such is not necessary
to the administration of the collective bargaining
agreement since time and availability of manpower
were the factors which led to the decision to sub-
contract the work in question and cost was not a
factor in that decision.
(ii) A.O. Smith does not know the number of subcon-
tractor employees utilized in the performance of the
job.
(iii) While A.O. Smith does know the total cost of the
job, it declines to submit that information to the
Union, taking the position that such is not necessary
to the administration of the collective bargaining
agreement since time and availability of manpower
were the factors which led to the decision to sub-
contract the work in question and cost was not a
factor in that decision.
B. Concluding Findings
It is well settled that an employer's bargaining obligation
includes the obligation to furnish upon request information
relevant to the administration of a contract and enforce-
ment of its terms . The information sought by the Union in
this case falls in that category which may or may not be
relevant to the Union's collective-bargaining responsibili-
ties depending on the circumstances. 12 The General Coun-
sel contends that information from which the cost of sub-
contracting could be compared to the cost of performance
of the work by Respondent' s electricians was relevant to
the Union's determination of whether it should file a griev-
ance over the Company's decision to subcontract. Respon-
dent contends that cost had nothing to do with the decision
to subcontract and that indeed under the subcontracting
11 According to Stanford , he authorized this letter after his attorney told
him that the Respondent claimed that it did not have some of the informa-
tion previously requested.
12 Southwestern Bell Telephone Company, 173 NLRB 172 (1968).
841
agreement between the parties Respondent had agreed to
disregard cost and make its decision on the basis of timing
and availability of manpower even when there might be a
clear cost advantage to Respondent in deciding to subcon-
tract.
There is no question that Respondent never told the
Union in so many words that the decision to subcontract
the paintshop work was based on cost and at all times
asserted that the decision was based on timing and avail-
able manpower. But it is also undisputed that, when the
Union sought to question Respondent's determination that
no electricians were available, Winchowky told the Union
that there was insufficient manpower available because of
Respondent's ban on overtime work. It is conceded that if
there were no ban on overtime there would have been suffi-
cient manpower available among Respondent 's electricians
to perform the work at the time desired by Respondent. At
times when no ban on overtime was in effect Respondent
scheduled overtime work for the electricians, in lieu of sub-
contracting their work, and apparently considered over-
time as well as straight time hours in determining the avail-
ability of manpower under the agreement on sub-
contracting. It thus appears that the overtime ban was
directly related to the conclusion that there was not suffi-
cient manpower available to perform the work to be sub-
contracted.
The evidence also shows that the overtime ban was an
economy measure and that the plant manager of opera-
tions and services had authority to deviate from the over-
time ban if deviation would result in saving Respondent
money.. Thus, even though Respondent's decision to sub-
contract may not have been based directly on cost, its con-
clusion that there was not sufficient manpower available
on which it based the decision to subcontract rested direct-
ly on considerations relating to the cost of overtime work
in general.
In these circumstances it was relevant to any possible
grievance the Union might file over the subcontracting of
the paintshop work to determine the cost of subcontracting
so that the Union would know whether it could argue that
in this particular case the overtime ban would not save
Respondent money and that overtime hours should be con-
sidered in determining whether sufficient manpower was
available to perform the paintshop work. To be sure, if
furnished, the information might have demonstrated the
opposite, and even if the information supported the
Union's position it may not have carried the day. But the
point here is not what the information would have shown
or whether a grievance which might have been based on it
would have had merit. The point is that the information
sought was relevant to the Union's pursuit of its duty to
police the agreement. I conclude that information as to the
cost of performance of the subcontracted work was rele-
vant to the Company's decision that it lacked available
manpower to do the work in question.
In reaching this conclusion I have considered the
Board's decision in Southwestern Bell Telephone Compdny,
supra, but find it distinguishable on its facts. In that case
there was no agreement between the parties with respect to
subcontracting to be administered and there was no issue
as to what constituted available manpower under such an
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement . The cost information requested related to two
separate subcontracts . In the case of one of them , referred
to as the Pine Bluff removal contract , the evidence showed
that the Company's construction personnel, who would
otherwise have performed the work, were working overtime
to meet other demands , and management 's only choice was
to defer the work or contract it out. There appears to have
been no contention made with respect to that grievance
that there was available manpower within the Company to
perform the work at the time desired by the Company.
With respect to the other subcontract , referred to as the
Grady-Altheimer subcontract, there is evidence that the
Union sought to determine whether it would cost the Com-
pany less if it contracted out the work than if it used unit
employees to do the work at premium pay. The Company
took the position that overtime would be utilized only
when there was no practical alternative and that it would
not work its employees overtime because it was economi-
cally unsound to do so. However, despite the apparent sim-
ilarity between these facts and those in the instant case, the
facts in that case show further that the company employees
involved were working some overtime , and the decision in
that case makes clear that the expression "economically
unsound" did not refer to cost considerations but to com-
plexities of meeting the company 's total manpower needs
and prudent use of available manpower in meeting those
needs.13 Thus, in the case of both grievances the conclusion
was warranted that the Company had determined that it
lacked available manpower for reasons unrelated to cost so
that information concerning subcontracting cost was not
relevant to grievances challenging the decision to subcon-
tract . Here , as found above , the determination that ade-
quate manpower was not available followed directly from
the overtime ban which in turn was based on cost consider-
ations . Southwestern Bell does establish that information
about costs of subcontracting is not presumptively relevant
to contract administration. It does not hold that such infor-
mation is never relevant . Relevance depends on the cir-
cumstances of each case , and in this case the circumstances
show that cost information was relevant.
The question remains as to the precise information re-
quested by the Union and the extent to which Respondent
refused to furnish it.
Initially Grahovac asked Winchowky for four items-
the exact number of hours estimated for the job, the charg-
ing rate of the outside contractor, a copy of the subcontract
if one existed , and Respondent's charging rate . Then Gra-
hovac and Stanford asked Beck only for the contractor's
charging rate and hours . These requests were made before
the work was performed. After the work had been complet-
ed, on July 9 Stanford asked Baumann to include
Respondent 's charging rate for the electricians . Finally af-
ter the charge was filed the Union through its attorney
requested the number of hours involved in the job, the total
cost, and the number of employees utilized by the subcon-
tractor . Respondent contends that of these variations the
last should be the only one considered for purposes of this
Decision.
' 173 NLRB 175, 176, fn. 10.
One item, Respondent's charging rate, was requested by
Grahovac and later by Stanford but was conspicuously ab-
sent from the final request. That information was clearly
necessary to any meaningful comparison between the cost
of subcontracting and performance of the work by
Respondent's electricians. Respondent has not contended
that this information is confidential but to the contrary its
witnesses testified that they believed it was readily avail-
able to the Union in the plant. While it is unclear why the
Union dropped this request and it appears that Respon-
dent does not oppose furnishing its.charging rates to the
Union as such, it is clear that when the Union requested
Respondent's charging rates along with other information
which would have permitted a cost comparison, Respon-
dent refused to furnish them. There is no evidence that the
charging rates have been furnished directly to the Union,
and it appears at most that they may have been available
only because supervisors who had them did not attempt to
conceal them. The fact that the Union may have been able
to ascertain them otherwise did not nullify Respondent's
obligation to furnish them directly upon request. I find that
the Union made a clear request for this information, that
Respondent was obliged to furnish it, and that it refused to
do so.
With respect to the other items requested, the Union's
request changed as time passed and the work became an
accomplished fact rather than an expectation. Initially the
Union requested an estimate of the number of hours re-
quired for the job. Winchowky responded to that request,
and while the Union then asked for an exact estimate there
is no showing that Respondent had any estimate more ex-
act than that previously given by Winchowky. There is
thus no showing that Respondent refused to furnish the
Union any information it possessed with respect to the esti-
mated hours required for the job before it was done. After
the job was completed the possibility of a grievance still
remained and at that point the number of hours actually
required for the work was ascertainable. Respondent at
first did not have this information but later ascertained it.
Throughout it declined to furnish the information on
grounds of relevance. Since I have found this information
relevant to administration of the contract, Respondent
should have furnished it to the Union, and its refusal to do
so violated the Act.
The remaining items requested by the Union were the
contractor's charging rate, a copy of the subcontract, the
total cost, and if possible the number of employees utilized
by the contractor. Although at first Respondent denied the
charging rate on grounds of relevance, it later indicated
that it lacked information as to the charging rate as well as
the total number of employees utilized on the job. Since it
lacked this information it was not required to furnish it.
Respondent has never indicated that there was not a writ-
ten subcontract and concedes that it knew the total cost of
the job, which presumably would appear from the subcon-
tract. Particularly in view of its lack of knowledge of the
contractor's charging rate, Respondent should have made
available a copy of the subcontract or information as to the
total cost from which the Union could have assessed
whether or not there was a basis for a grievance. Although
the Union appears to have been willing later to accept
A. O. SMITH CORP. 843
either the charging rate or a total cost figure and did not
renew its request for the contract , Respondent's refusal to
furnish the subcontract when it was requested or at least
offer alternative information from which cost could be de-
termined violated its bargaining obligation.
I find that Respondent violated Section 8(a)(5) and (1)
of the Act by its refusal upon request to furnish informa-
tion as to its internal charging rates for work performed by
its electricians, the number of hours required for perfor-
mance of the paintshop electrical subcontract, and the cost
of services performed under that subcontract or a copy of
the subcontract.14
IV. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and take affirmative action de-
signed to effectuate the policies of the Act, including action
to make available the information sought by the Union in
order to determine whether to grieve Respondent's subcon-
tracting decision.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. A unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act consists of all gener-
al journeymen electricians, journeymen electricians, non-
destructive test mechanics, utility men, and apprentices
employed at Respondent's Milwaukee, Wisconsin, plant,
but excluding supervisors as defined in the Act and all
other employees.
4. At all times material herein the Union has been and
now is the exclusive representative of the employees in said
unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
5. By refusing since June 20, 1975, to make available to
the Union information relating to Respondent's decision to
subcontract electrical work in its paintshop to be per-
formed on July 2 and 3, 1975, Respondent has engaged in
and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the Act.
14 Although Respondent contends that this is a dispute uniquely suited
for the grievance and arbitration procedures under the collective-bargaining
agreement between the parties , a refusal to furnish information relevant to
contract administration and enforcement may itself be viewed as an ob-
struction to the grievance and arbitration process, and the Board will not
defer to grievance-arbitration procedures in cases alleging such refusals.
United-Carr Tennessee, a Division of TRW, Inc., 202 NLRB 729 (1972). See
also N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Joseph T. Ryerson
& Sons, Inc., 199 NLRB 461 (1972).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 15
Respondent, A.O. Smith Corporation, Milwaukee, Wis-
consin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment with Local Union No. 663, In-
ternational Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive representative of its employees in the ap-
propriate unit described in paragraph 3 of the section of
this Decision entitled "Conclusions of Law," by refusing to
furnish or make available to the Union information as to
its internal charging rates for work performed by its electri-
cians, the number of hours required for performance of an
electrical subcontract performed in its paintshop on July 2
and 3, 1975, the cost of services performed under that sub-
contract, or other relevant data and information necessary
to the administration of its collective-bargaining agreement
and its letter agreement on subcontracting with the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, furnish or make available to the ap-
propriate agent of the Union the information described in
paragraph 1(a) above.
(b) Post at its Milwaukee, Wisconsin, place of business,
copies of the attached notice marked "Appendix." 16 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 30, after being duly signed by
Respondent's authorized representative, shall be posted by
it 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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of the receipt of this
Order, what steps the Respondent has taken to comply
herewith.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
16 In the event that the Board's 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 "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 furnish or make available to
Local Union No. 663, International Brotherhood of
Electrical Workers, AFL-CIO, relevant data and in-
formation necessary to the administration of our col-
lective-bargaining agreement and letter agreement on
subcontracting with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
A. O. SMITH CORPORATION