Acme Industrial Co.

National Labor Relations Board - Board Decisions

Feb 1, 1965

150 N.L.R.B. 1463 (N.L.R.B. 1965)

ACME INDUSTRIAL COMPANY 1463
CIO Laundry Workers Union which is trying very hard to bring better pay and better
working conditions to Baltimore laundry workers.
God,helps those who help themselves ! You can help yourself and improve your lot
by voting for the AFL-CIO Laundry Workers Union in the coming election.
Yours in the fellowship of service,
Qe.^P-anvt.::
Dr. Lillie M. Jackson
President
Acme Industrial Company and Amalgamated Local Union No.
310, International Union , United Automobile , Aerospace and
Agricultural Implement Workers of America, AFL-CIO. Case
No. 13-CA-6396. February 1, 1965
DECISION AND ORDER
On October 7, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had. not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in' the attached Trial Examiner's Decision.
Thereafter, the General Counsel, the Charging Party, and the
Respondent filed, exceptions to the .Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and,finds'that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and finds merit in the exceptions of the General
Counsel and the Charging Party., Accordingly, the Board adopts
the findings of the Trial Examiner only to the extents consistent
herewith.
On April 23, 1963,1 the Union and Respondent settled a strike
which had lasted 8 months. Since the settlement, there have been
between 30 and 75 employees on layoff status. On the day of the
settlement, the Union and Respondent executed a collective-bargain-
ing agreement containing the following pertinent provisions which
are alleged by one or the other of the parties thereto to be relevant and
controlling :
1 The Trial Examiner inadvertently found that the agreement was dated April 23, 1964,
instead of April 23, 1963.
150 NLRB No. 144.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE I
Section 3. It is the Company's general policy not to subcontract
work which is normally performed by employees in the bar=
gaining unit where this will cause .the layoff of employees or
prevent the recall of employees who would normally perform
this work for the Company ... .
ARTICLE VI
Section 10. In the event the equipment of the plant or of
any department, entirely or partially, is hereafter moved to
another location of the Company, employees working in the
plant or in such department who are subject to reduction in
classification or layoff as a result thereof may transfer to the
new location with full rights and seniority, unless there is then
in existence at the new location a collective bargaining agree-
ment covering production and maintenance employees at such
location.
On or about January 8, 1964, the Union, upon discovering that
machinery was being removed from Respondent's Chicago plant,
began to seek information concerning this through its stewards.
The steward would in each case ask why the machinery was being
removed and where it was being moved. In each case -the Respond-
ent's foreman would state that he felt there had been no violation
of the contract and that the Respondent did not feel compelled to
give such information. The Union submitted 11 grievances related
to the removal of machinery and to the subcontracting of work at
the plant.
On April 3, 1964, William Antalek, president of the Union, wrote
a letter to Respondent requesting information concerning the approx-
imate date when each piece of equipment was moved out of the
plant; place to which the equipment was moved and whether such
place is a facility which is operated or controlled by the Company;
the number of machines or equipment moved out of the plant; the
the reason or purpose for moving the equipment; and whether the
equipment is used for production elsewhere. On April 16, 1964, the
Respondent wrote a letter in answer and therein refused to give the
requested information.
In dismissing the complaint, the Trial Examiner-found that the
parties clearly provided in their contract that contractual disputes
should be sent to arbitration, and for that reason would leave them
to the arbitration process. In so finding, the Trial Examiner viewed
the scope of the complaint as being limited to the failure of
ACME INDUSTRIAL COMPANY 1465
Respondent to provide information respecting the removal of,machin-
ery and not the failure to provide information respecting sub-
contracting.
The General Counsel and the Charging Party contend that the
requested information is necessary to the processing of pending
grievances and the administration of the existing collective-bargaining
agreement.
We find, contrary to the Trial Examiner, that the complaint is
sufficiently, broad to include the subcontracting provision of the
contract. The language of the complaint does not specifically men-
tion nor limit the scope of the complaint to any provision of the
contract. The information requested by the Union can be related to
either article I, section 3, or article VI, section 10 of the agreement.
As to the information requested by the Union, Respondent con-
tends a statutory duty to furnish information does not exist where
the information sought is irrelevant to the Union's function of
representing employees concerning their wages, hours, or conditions
of employment. Here the Respondent attempts to show that no
employees were affected by, the removal of machinery, thus making
the requested information immaterial.
It is clear that Section 8(a) (5) of the Act imposes an obligation
upon an employer to furnish upon request all information relevant
to the bargaining representative's intelligent performance of its
function .2 Applying this principle to the instant case, it is clear,
and we find contrary to the Trial Examiner, that the information
sought by the Union was necessary in order to enable the Union to
evaluate intelligently the grievances filed and to determine whether
such grievances were meritorious, and whether to press for arbitra-
tion. The denial of such information, deprives the Union of an
opportunity to know whether jobs and machinery have been moved
out of the plant under circumstances entitling employees, especially
those in layoff status, to follow the jobs or entitling the Union to
grieve over improper subcontracting. We note that the contract
does not contain a clause dealing specifically with the furnishing of
information necessary and relevant to'the processing of grievances
or any other clause by which the Union waives its statutory right
to such information. The mere existence of a grievance machinery
terminating in arbitration is not to be construed as a waiver of the
Unions statutory right to such information .3 Respondent was
remiss in performing its statutory duty in refusing to furnish this
information. We find that, by such conduct, the Respondent since
on or about January 13, 1964, has failed to bargain with the Union,
in violation of Section 8(a) (5) and (1) of the Act.
3 Timken Roller Bearing Co. v. N.L R B., 138 NLRB 15, enfd. 325 F. 2d 746 (C.A. 6).
3 The Fafnir Bearing Company, 146 NLRB 1582.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has engaged in and is engag-
ing in certain unfair labor practices affecting commerce, we shall
recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the purposes of the Act.
It has been found that by refusing to furnish information con-
cerning the removal of machinery from the plant, Respondent
refused to bargain collectively with Amalgamated Local Union No.
310, International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers' of America, AFL-CIO, and thereby
interfered with, restrained, and coerced its employees. We shall
order Respondent to furnish full information concerning the removal
of machinery and*equipment from its plant.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Acme Industrial Company, Chicago, Illinois, its
officers, agents, successors, and, assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Local
Union No. 310, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-CIO, as
the exclusive bargaining representative of its employees by refusing
to furnish to it or its agents information concerning the removal of
equipment and machinery from its plant.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, and its Local No. 310, 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 as
guaranteed in Section 7 of the Act, or to refrain from any or all
of such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by, the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act:
(a) Furnish, upon request, to the Amalgamated Local Union No.
310, International Union, United 'Automobile, Aerospace and Agri-
ACME INDUSTRIAL COMPANY 1467
cultural Implement Workers of America,, AFL-CIO, or its agents,
information concerning the removal of equipment and machinery
from its plant.
(b) Post at its plant in Chicago, Illinois; copies of the attached
notice marked "Appendix ." 4 Copies of the said notice , to be fur-
nished by the Regional Director for Region 13, after being sighed
by a representative of the Respondent , shall be posted by it imme-
diately upon receipt thereof , and' be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(c) Notify the said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
I 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals , -Enforcing an `Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby' notify , our employees that :
WE WILL NOT refuse to bargain collectively with Amalgamated
Local Union No. 310, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO, as the exclusive bargaining representative of our
employees by refusing to furnish to it, or its agents information
concerning the removal of equipment and machinery from our
plant.
WE WILL NOT in any like or -related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, 'AFL-CIO, and its
Local No. 310, or any other labor organization, to bargain col-
lectively through representatives' of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid, or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all of such
activities, except to the, extent that such rights may be affected
by an- agreement requiring membership in a -labor organization
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL, upon request, furnish to Amalgamated Local Union
No. 310, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-CIO,
or its agents, information concerning the removal of equipment
and machinery from our plant.
ACME INDUSTRIAL COMPANY,
Employer.
Dated---------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of
posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 219 South Dearborn Street, Chicago, Illinois, Telephone No.
828-7572, if they have any question concerning this notice or compli-
ance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE ' '
Upon a charge filed on May 7, 1964, by Amalgamated Local Union No. 310, Inter-
national Union , United Automobile, Aerospace and Agricultural Implement Workers
of America, herein called Local 310 or the UAW, against Acme Industrial Company,
herein called Acme or the Respondent, the General Counsel issued a complaint alleg-
ing Respondent violated Section 8(a)(5) by failing to provide Local 310 with infor-
matidn respecting the removal of certain machinery from its Chicago plant.
The answer of the Respondent set forth the contract as a defense and denied the
commission of any unfair labor practices.
This proceeding , with all parties represented , was heard before Trial Examiner
John F. Funke at Chicago, Illinois, on August 24, 1964. At the conclusion of the
hearing the parties were given leave to submit briefs and briefs were received from
the parties on September 28.
Upon my observation of the witnesses and upon the entire record herein , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation maintaining an office and principal place of
business at 200 North Laflin Street, Chicago, Illinois. It is engaged in the manufacture
of tools and metal products, and in the course of calendar year 1963 shipped products
valued in excess of $50,000 to places outside the State of Illinois.
Respondent is an employer engaged in commerce within the meaning of the Act.
H. LABOR ORGANIZATION INVOLVED
Local 310 is a labor organization within'the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The complaint is specific , alleging, paragraph VIII:
Commencing on or about April 1, 1964, and at all times thereafter, the
Respondent did refuse , and continues to refuse to bargain collectively with the
Union as the exclusive collective bargaining representative of all employees in the
ACME INDUSTRIAL COMPANY 1469
unit described above in paragraph V, in that on or about April 1, 1964, and at all
times since, Respondent has refused, and continues to refuse, to furnish to the
Union data relating to the removal of equipment and machines from Respondent's
plant, such information being necessary to the processing of pending grievances
and the administration of the existing collective bargaining agreement.
The contract between the parties dated April 23, 1964,1 contains the following
clauses which are alleged by one or the other of the parties thereto to be relevant and
controlling:
ARTICLE I
Section 3. It is the Company's general policy not to subcontract work which
is normally performed by employees in the bargaining unit where this will cause
the layoff of employees or prevent the recall of employees who would normally
perform this work for the Company. The Company will continue to purchase
components and sub-assemblies and to have other outside work done, including
the making of tools and dies, where it is not economic to perform this work in the
plant, or where production schedules, equipment, employee skills or other factors
make it impractical to perform the work in the plant. Violation of the above
will be subject to the grievance procedure.
It is understood that this Section shall have no application to subcontracts in
existence at the time of the execution of this Agreement.
* * * * * * *
ARTICLE IV
Section 1 . A grievance is a difference of opinion with respect to the meaning
and application of the terms of this Agreement .2
* * * * * *
ARTICLE VI
Section 10. In the event the equipment of the plant or of any department,
entirely or partially, is hereafter moved to another location of the Company,
employees working in the plant or in such department who are subject to reduc-
tion in classification or layoff as a result thereof may transfer to the new location
with full rights and seniority, unless there is then in existence at the new location
a collective bargaining agreement covering production and maintenance employ-
ees at such location.
During a period beginning January 3; 1964, and running through March 3, 1964,
Local 310 submitted 11 grievances (General Counsel's Exhibits Nos. 4-A through
4-K) related to the removal of machinery from Respondent's Chicago plant and to
the subcontracting of work at that plant.3 These grievances were pending at the time
of the hearing. On April 3 Local 310 wrote Respondent (General Counsel's Exhibit
1 General Counsel's Exhibit No. 3.
2 The grievance procedure provides for three steps , with final and binding arbitration
if agreement cannot be reached.
3 The Trial Examiner ruled, in view of the specificity of paragraph VIII of the com-
plaint, that he would limit his decision to the failure of the Respondent to provide in-
formation respecting the removal of machinery and would not consider the failure to
provide information respecting subcontracting. The, following colloquy took place when
the General Counsel sought to expand the issue:
MR. LAZAR: I have no further questions of this witness.
However, I'd like to reaffirm at this time my basic objection to the Trial Ex-
aminer's ruling and take exception to the ruling. I realize I have an automatic
exception. However, I want it understood that the reason for my exception to the
ruling with respect to testimony on subcontracting goes basically to the issue as to
whether or not this information would have elicited, if granted, would have elicited
such information . In other words, if the company had told the union why it was
removing the machinery and where it was removing it to, then it would necessarily
follow that if the company was subcontracting, the union would have had certain
rights under the contract and also under the law if not expressly by virtue of the
contract to demand bargaining over that subject.
Not having knowledge of that fact, the union was in no position to make any
demand or to process its grievances.
TRIAL EXAMINER. I am making the same statement . Your complaint very specifi-
cally refers to information related to the removal of equipment and machines. Now,
you have had an investigation in this case. Had you found a violation of the sub-
[Footnote continued on following page]
1470 DECISIONS OF' NATIONAL- LABOR RELATIONS BOARD
No. 5) requesting information with • respect to the moving of machinery from the
Chicago plant. This letter read:
DEAR MR. BELLUSH: The Union requests that the Company furnish the follow-
ing information at the earliest possible date:
1. The approximate dates when each piece of equipment was moved out of
the plant.
2. The place to which each piece of equipment was moved and whether
such place is a facility which is operated or controlled by the Company.
3. The number of machines or equipment that was moved out of the plant.
4. What was the reason or purpose of moving the equipment out of the
plant.
5. Is this equipment used,for production elsewhere.
The information we are asking for is essential to the Union for the servicing and
administration of the current contract.
Sincerely,
William Antalek, President
Local 310 UAW
Respondent replied by letter dated April 16 (General Counsel's 'Exhibit No. 6),
reading:
DEAR MR. ANTALEK: We were unaware that our relationship with your union
had reached the stage when correspondence such as your letter of April 3, 1964
has become necessary. However, while we are of the opinion that it is not the
scope and complexities of our relationship that dictates your use of this medium
but, rather, that you are now attempting to build an unfair labor practice charge
case, we shall, nevertheless, hereby respond.
We presume that your questions relate to Article VI, Section 10 of our labor
agreement, although you do not specify the relevance and/or utility of the ques-
-tions. We note that this section establishes a right of transfer, with certain limita-
tions, to employees ". . . who are subject to reduction in classification or layoff
as a result of . . ." the movement of any equipment to another location of the
Company. We also note that under Section 4 of Article IV of our labor agree-
ment, grievances relating to layoffs must be'filed within five (5) working days
thereafter, and grievances relating to transfers must be filed within three (3)
working days thereof.
We are aware of no layoffs nor of any reductions in any classification within
five (5) working days prior to your letter, and we, therefore, conclude that there
is no proper basis upon which your request for information may lie. You have
available all the information you need to determine whether or not any employ-
ees' rights are being violated. Furthermore, the broad scope of your questions
is indicative of a fishing and harassment expedition rather than a true desire for
necessary information.
Please be assured that we shall continue to cooperate with your union in pro-
viding whatever proper information you request for your aid in servicing and
administering our labor agreement.
This request and refusal was the only issue considered by me.
contracting clause in the investigation of this charge, you could have had-you could
have asked the union to amend the charge and brought all of that in.
Mr LAZAR: I might ask the witness-Mr. Bellush, were you ever permitted to talk
to me during the course of investigation in this case?
Mr KOVAR: Objection.
TRIAL E%AMINPR : Sustained.
Q. (Mr. LAZAR.) Did you at any time talk to any Board agent?
Mr KovAR: I object to the question again.
TRIAL EXAMINPR: Sustained.
Mr. LAZAR • I should like to point out, Mr. Trial Examiner, that it is very clear that at
no time during the course of this investigation was the Board permitted to receive
any information from the company other than that which it voluntarily submitted.
Mr KovAR: I will object to that comment.
TRIAL EXAMINER: Well, there is the power of subpoena if you thought they were
withholding I certainly agree with Respondent that that is an objectionable state-
ment. Of course you are only going to get the information which Respondent volun-
teers to you if you don't issue a subpoena. Why should he give it to you minus a
subpoena" It is an amazing thing to me that the respondents 'cooperate with the
Board as much as they do, and this goes to respondent unions and respondent
employers. ' '
LOCAL 1332 , INT'L LONGSHOREMEN 'S ASSN., AFL-CIO 1471
B. Conclusions
I regard the issue presented as administrative rather than juridical and, as was indi-
cated at the hearing, it is an issue which should have properly been submitted to the
Board in the first instance by way of stipulation. No question of either fact or law is in
dispute. The question is solely whether the Board should, when a contract providing
for binding arbitration has been executed by the parties and the dispute relates to a
matter covered by the contract, intervene to police and administer the arbitration
provisions under the guise of preventing an unfair labor practice. I am aware that
the Board and the courts, including the U.S. Supreme Court, have held that an
employer is obligated to provide information relevant and necessary to enable a labor
organization to bargain intelligently and that it constitutes an unfair labor practice
under Section 8 (a) (5) to refuse such information. My concern here is with the forum
which should take cognizance of this dispute. The parties have clearly stated that it
should be submitted to arbitration and the Charging Party has, in effect, attempted to
use the Board as a means to discovery and inspection in furtherance of its arbitration
proceeding .4 This is not, at least as I see it, a proper function of an agency already
overburdened by its caseload. Overburdened, one might add, to a point where it may
fail to serve as a functional apparatus for the prevention of unfair labor practices. If
the Board, as it indicated in its recent Cloverleaf decision,6 intends to leave the parties
to arbitration where the arbitration settlement would also put at rest the unfair labor
practice controversy in a manner sufficient to effectuate the policies of the Act then this
appears to be such a case. This is a matter of policy for the Board and not a Trial
Examiner to decide.6 The recommendation of this Trial Examiner is in favor of self-
restraint. I would not hold that the Respondent has committed an unfair labor prac-
tice by withholding information where the dispute has been contemplated by the
parties in making their contract and binding arbitration has been established to resolve
that dispute. We are approaching a point where an employer may well wonder if he
has anything to gain by engaging in collective bargaining if any disaffection with the
operation of the contract on the part of the contracting union may be taken to review
by the Board under Section 8(a) (5).
Upon the basis of the foregoing findings and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1 ) and (5) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
It would appear anomalous for the Board, which does not provide for discovery and
inspection in its own proceedings, to serve as an instrument for such procedure in
arbitration proceedings.
B Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410.
B For a statement of national policy respecting the priority which should be accorded
the grievance machinery provided for in a contract see United Steelworkers of America
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581.
Local 1332, International Longshoremen 's Association, AFL-
CIO and Elwood F. Gunther and Philadelphia Marine Trade
Association , Party to the Contract . Case No. 4-CB-975. Feb-
ruary 1, 1965
DECISION AND ORDER
On October 5, 1964, Trial Examiner Abraham H. Mailer issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of the National Labor Relations
150 NLRB No. 146.
775-692--65-vol. 150-94