Anaconda Wire And Cable Co.

National Labor Relations Board - Board Decisions

May 1, 1970

182 N.L.R.B. 272 (N.L.R.B. 1970)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anaconda Wire and Cable Company and Local Union
Nos. 1543 , 983, 2224 , and 1000 , International Brother-
hood of Electrical Workers, AFL-CIO. Cases
38-CA-639, 38-CA-670, 38-CA-671, and 38-CA-672
May 1, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 10, 1969, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that Respondent had not violated the Act as
alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions
to the Trial Examiner's Decision and briefs in support
thereof, and the Respondent filed a brief in answer
to the exceptions and brief of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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, briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The facts are not substantially in dispute, and are
set forth fully by the Trial Examiner. Each of the
Charging Parties' represents one of four distinct bargain-
ing units at four of the Respondent's plants,. at Marion,
Indiana; Muskegon, Michigan; Sycamore, Illinois; and
Watkinsville, Georgia. They were engaged in joint negoti-
ation of new contracts during which period an economic
strike occurred at each plant, all of which were ultimately
resolved by separate strike settlement agreements.
The Union had requested a provision concerning the
incentive plan at each plant to satisfy the demands
of the membership prior to the signing of the strike
settlement agreements . In the course of the discussions
which ultimately resulted in settlement , the union repre-
sentative, Lucas, stated that he thought that inclusion
of language in the contract "describing an incentive
plan . . . like Marion, except that the Marion one is
not complete" would be acceptable. The Company stated
it would require many weeks to prepare the information,
and it was agreed, on suggestion of the Respondent
Vice President Leader, that in order not to delay settle-
ment of the strike the Respondent would reduce the
existing incentive plans to writing after the strike was
over and present them to the Union for approval. Each
of the written strike settlement agreements contained
the following provision respecting this matter:
' The Local Unions are herein referred to collectively as the Union
As soon as practicable after the employees return
to work, the Company will prepare a memorandum
in which it will reduce to writing the incentive
plan in effect at the time of the strike and will
meet with the Union Representative to discuss such
memo and include this as an addendum to the
labor agreement.
The agreement at Sycamore included, in addition, a
handwritten note that this description of the plan was
to provide for arbitration.
Pursuant to the agreement, a union representative,
industrial engineer Zalusky, met with a company repre-
sentative, industrial engineer Maher, on five occasions
between November 1968 and March 4, 1969. It is clear
from the record, and the Trial Examiner found, that
when Zalusky asked questions of Maher at their various
meetings, Maher responded mostly in general terms.
For example, when Zalusky asked how much bonus
opportunity was being built into the machine controlled
elements, Maher responded merely that it would vary
between the machines and with the type of operation.
A similar exchange occurred with relation to the bonus
opportunity data.
It is clear from the above summary of the facts
that the parties agreed to continue the existing incentive
plan at each plant, but a dispute arose as to whether
they agreed as to the nature of the description to be
included in the contracts. It is apparent, however, contra-
ry to the Trial Examiner's view, that the parties did
agree that the Respondent's descriptions would be sub-
ject to negotiations with the Union,but there was no
agreement that they were to be limited solely to the
precise form or language contained in the Marioncon-
tract. Not only did Vice President Leader propose, to
present the "writeups" to the Union for approval accord-
ing to the Trial Examiner's findings, but the strike settle-
ment agreements provided specifically for discussion
of such memoranda. A provision for such discussion
would have little meaning if the description were to
be left to the company's unilateral, final decision. How-
ever, there is also no basis for finding that the agreement
of the parties was intended to mean that all details
of the plans were to be included in the description,
as sought by the Union.'
As we can only conclude that there was no agreement
on the extent of the details to be included, but rather
that was a matter for discussion and negotiation between
them, we find no obligation on the part of the Respondent
to include any specific details in the descriptions. Accord-
ingly, the failure to comply with the Union's requests
was not violative of the' Act unless the Respondent
acted in this fashion in order to avoid reaching agree-
ment. There is no indication in the record that the
Respondent had such an unlawful motive. Therefore,
2 In view of the agreement of the parties to negotiate concerning
the memoranda to be appended, we need not consider the General
Counsel's contention that the Respondent, merely by agreeing to continue
the existing plans, would be under a statutory duty to include a fully
detailed description of such plans in the contracts
182 NLRB No. 35
ANACONDA WIRE AND CABLE CO.
we adopt the Trial Examiner's recommendation that
this allegation of the complaint be dismissed.
With respect to the Union's request for information,
a different situation exists. There is no dispute concerning
the general principles applicable, but there is disagree-
ment as to whether the Respondent had satisfied its
obligation . Thus, all parties agree that incentives are
a mandatory subject of bargaining and that the Respond-
ent has a statutory duty to supply relevant information
for the purposes of bargaining or administering a con-
tract. Of course, a Union may waive its right to such
informaiton , but such a waiver will be found only where
established by clear and unequivocal evidence.
We have already found above that the Trial Examiner
erroneously deemed the discussions concerning the mem-
oranda not to be negotiations. Further, unlike the Trial
Examiner, we find no basis for concluding that the
Union waived its right to such information in the instant
case or contractually limited the information to which
it would be entitled, for, nothing contained in the strike
settlement agreements or in the discussions preceding
them is indicative of any such intention.3 Nor do we
understand the Respondent to argue that there was
such a limitation or waiver. Rather, we construe the
Respondent ' s position as being solely that no proper
request was made for incentive information and, in
any event, the Trial Examiner correctly found that the
Respondent provided sufficient data to satisfy its obliga-
tion. We find no merit in the Respondent's contentions.
It is quite clear the the Union's representatives
requested specific information concerning the operation
of the plan, during the course of the discussions, for
purposes of working out the written description, and
the Trial Examiner so found. But, there is no basis
in the record for finding that this information was sup-
plied at' any time before the discussions of Zalu'sky
and Maher , and it is clear that during the meetings
with Maher, Zalusky asked questions which were met
by uninformative responses . Further, the Union's written
request for information concerning the "earnings oppor-
tunity" for purposes of the discussions received no
direct response and the particular, data were not forth-
coming. It is not sufficient, contrary to the Trial Examin-
er's conclusion, that "rate sheets" were posted at each
work station and the employees were briefed by supervi-
sory personnel and/or the plant's industrial engineer,
at which time a union representative could be present,
with regard to the method of calculating the operator's
rate.4 Furthermore, the Trial Examiner's statement that
"the written data is available to the Union upon request"
is not sustained by the Respondent's conduct as estab-
lished by the evidence, since Respondent in fact refused
to supply it in any form.
Since the parties agreed merely to negotiate concerning
the language to be appended to the contract, the Union's
3 See, e g , N L R B v Acme Industrial Co , 385 U S 432, affg
150 NLRB 1463, The Press Company, Inc ,121 NLRB 976, 978
° See, e g , Weber Veneer & Plywood Company, 161 NLRB 1054,
1056, cf Zenith Radio Corporation, 177 NLRB No 30 (TXD), Northwest-
ern Publishing Company, 144 NLRB 1069, 1071, 1083, Ingalls Shipbuild-
ing Corporation, 143 NLRB 712, 717
273
right to information rests on the statute rather than
on contractual interpretation.5 There is no doubt about
the fact that the information requested related to the
incentive plan and how it worked and that this, in
turn, was at least potentially relevant to the administra-
tion and further negotiation of the contract i' The
Respondent contends that the information was sought
for inclusion in the memorandum, but the Union's right
to the information would not vary with whether or
not, at the same time, it also made demands which
the Employer could lawfully refuse to entertain.7 It
is well settled that wage and related data pertaining
to the employees in the bargaining unit are presumptively
relevant to the administration or negotiation of a contract
because such data concerns the core of the employer-
employee relationship."
These principles are equally applicable here. This
is so without regard to the accuracy of the Union's
contention herein that such data must be incorporated
into the written description of the plan. For it is entitled
to determine, by examination of the relevant information,
what details it wished to request be included, and it
is entirely possible that upon such examination the Union
might agree that more detail would not be desirable."
For the above reasons, we find that Respondent violat-
ed Section 8(a)(5) by failing to supply the Union with
requested information which was pertinent to the negotia-
tion of the language to be incorporated in the descriptions
of the incentive 'wage plans and to the administration
of the collective-bargaining agreements. iii
THE REMEDY
Having found that the Respondent has engaged in
unfair, labor practices violative of Section 8(a)(5) of
the Act, we'shall order that it cease and desist therefrom
and'take certain affirmative action designed to effectuate
the policies'of the Act.
Having found that the Respondent refused the Union's
request for disclosure of incentive wage plan data which
Therefore, contrary to the Trial Examiner , the General Counsel
did not have the burden of establishing an agreement to supply the
information sought
In agreeing with the Trial Examiner that there is no merit in the
contention that the resolution of the issues should be left to arbitration,
we rely on the reasons set forth by him but rely , in addition, upon
our conclusion that no question of contract interpretaion is involved
See, e g , N LR B v Acme Industrial Co , supra, Timken Roller
Bearing Co , 138 NLRB 15, enfd 325 F 2d 746 (C.A 6) In this
connection we note that the terms of the strike settlement agreements
providing for discussions of a description of the incentive plans to
be appended to the collective-bargaining contracts at each plant, in
connection with which discussions the information was sought, are
not themselves clearly subject to any existing contractual arbitration
clauses
" See, e g , N L R B v Acme Industrial Co , supra, cf Cowles
Communications , Inc , 172 NLRB No 204, Weber Veneer and Plywood
Company, supra , 1055-56
Cf , P R Mallory & Co , Inc , 171 NLRB No 68, enfd 411
F 2d 948 (C A 7)
" N L R B v Curtiss-Wright Corporation, Wright Aeronautical Divi-
sion, 347 F 2d 61, 69 (C A 3), enfg 145 NLRB 152
Cf , N L R B v Acme Industrial Co , supra
Cf , BFR Broadcasting Corporation dibla Radio Station WLOL,
181 NLRB No 77
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was sought for the purpose of administering the collec-
tive-bargaining agreement, we shall order that the
Respondent furnish the Union with information as to
the incentive wage plan in effect at the time of the
strike at Respondent's plants in 1968, relevant and neces-
sary to assist the Union in the appraising of grievances
to which the incentive wage information relates.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Anaconda
Wire and Cable Company, Sycamore, Illinois; Marion,
Indiana; Watkinsville, Georgia; and Muskegon, Michi-
gan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union
Nos. 1543, 983, 2224, and 1000, International Brother-
hood of Electrical Workers, AFL-CIO, as exclusive
bargaining representatives of all employees in the
appropriate collective-bargaining units by failing and
refusing to furnish them with relevant incentive wage
data regarding unit employees for its use in bargaining
for and administering the collective-bargaining contracts.
(b) In any like or related manner interfering with
the efforts of the Union to bargain collectively with
it on behalf of the employees in the appropriate units.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Furnish to Local Union Nos. 1543, 983, 1000,
and 2224 as exclusive bargaining representatives of all
employees in the following appropriate collective-bar-
gaining units, respectively , incentive wage plan data
regarding unit employees, heretofore requested by the
Union, for its use in bargaining concerning and adminis-
tering the collective -bargaining contracts:
All hourly-rated employees of Respondent
employed at its Sycamore plant, excluding foremen,
assistant foremen , guards and supervisors as defined
in the Act;
all hourly-rated employees of Respondent employed
at its Muskegon plant , excluding watchmen , guards,
employees who perform office duties, and supervi-
sors as defined in the Act;
all hourly-rated employees of Respondent employed
at its Marion plant , excluding foremen , subforemen,
supervisors , matrons, gate guards, maintenance
employees in the Machine Shop and Power House
employees represented by Local 135, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, guards and supervi-
sors as defined in the Act;
all hourly-rated production and maintenance
employees of Respondent employed at its Watkins-
ville plant, excluding all salaried employees, office
clerical employees, quality control inspectors, tech-
nical and professional employees, guards and/or
watchmen and supervisors as defined in the Act.
(b) Post at its Sycamore, Illinois; Marion, Indiana;
Watkinsville, Georgia; and Muskegon, Michigan, plants,
copies of the attached notice marked "Appendix." Cop-
ies of said Notice, on forms provided by the Regional
Director for Subregion 38, after being duly signed by
a representative of the Respondent , shall be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to plant employees are customarily posted. Rea-
sonable 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 Regional Director for Subregion 38,
in writing, within 10 days from the receipt of the Deci-
sion, what steps the Respondent has taken to comply
with the foregoing Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not herein found.
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
Local Union Nos. 1543, 983, 1000, and 2224, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of our
employees in the respective appropriate bargaining
units described below, by failing and refusing upon
request to furnish them with incentive wage plan
data regarding unit employees , for use in bargaining
concerning and administering the collective-bargain-
ing contracts.
WE WILL NOT in any like or related manner
interfere with the efforts of the Union to bargain
collectively on behalf of the employees in the
appropriate units. ,
WE WILL furnish to Local Union Nos. 1543,
983, 1000, and 2224 as exclusive bargaining repre-
sentatives of all employees in the following
appropriate collective -bargaining units, respec-
tively, incentive wage plan data regarding unit
employees for use in bargaining concerning and
administering the collective-bargaining contracts:
all hourly-rated employees of Respondent
employed at its Sycamore plant, excluding
foremen , assistant foremen , guards and super-
visors as defined in the Act;
all hourly-rated employees of Respondent
employed at its Muskegon plant , excluding
watchmen, guards, employees who perform
office duties, and supervisors as defined in
the Act;
all hourly-rated employees of Respondent
employed at its Marion plant, excluding fore-
men, subforemen , supervisors, matrons, gate
ANACONDA WIRE AND CABLE CO.
guards, maintenance employees in the Machine
Shop and Power House employees represented
by Local 135, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America, guards and supervisors
as defined in the Act;
all hourly-rated production and maintenance
employees of Respondent employed at its Wat-
kinsville plant , excluding all salaried employ-
ees, office clerical employees , quality control
inspectors , technical and professional employ-
ees guards and/or watchmen and supervisors
as defined in the Act.
ANACONDA WIRE AND
CABLE COMPANY
Dated By
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, Savings Center Tower, 10th Floor, 411 Hamilton
Boulevard, Peoria, Illinois 61602, Telephone
309-673-9282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: Pursuant to separate
charges filed by four local unions affiliated with Interna-
tional Brotherhood of Electrical Workers, AFL-CIO
(herein collectively called the Union), the General Coun-
sel of the National Labor Relations Board (herein the
General Counsel and the Board, respectively), through
the officer-in-charge of Subregion 38 of the Board, on
May 14, 1969,' issued four individual complaints and
notices of hearing against Anaconda Wire and Cable
Company (herein the Company or Respondent). On May
15 the said officer-in-charge, "deeming it necessary in
order to effectuate the purposes of the Act2 and to
avoid unnecessary costs or delay," issued an order
consolidating the four cases for hearing.3 On May 29,
' All dates hereinafter refer to the calendar year 1969, unless otherwise
specified
' The National Labor Relations Act, as amended (29 U S C A Sec
151, et seq )
3 The dates of filing of the original charges are as follows Case
38-CA-639 filed March 13, Case 38-CA-670 (formerly 7-CA-7300) filed
April 18, Case 38-CA-67l (formerly 10-CA-7753) filed April 18, and
Case 38-CA-672 (formerly 25-CA-3386) filed April 21 The reason
for filing these cases in the different regions of the Board, as aforesaid,
was because the Respondent owns and operates various facilities in
these regions, as will be more fully discussed hereinafter As indicated,
275
the Respondent duly filed separate answers to the individ-
ual complaints in which it generally denied the commis-
sion of any unfair labor practices, and alleged certain
matter in the nature of affirmative defenses.4
The principal, substantive issues raised by the plead-
ings are whether the Respondent violated Section 8(a)(5)
of the Act by assertedly failing and refusing to furnish
to the Union certain data relating to the incentive wage
plans extant at the several plants of Respondent, hereina-
bove referred to, and by refusing to reduce to writing
the said incentive plans pursuant to memorandums of
agreement entered into on July 1, 1968, between the
Respondent and the Union as part of a strike settlement.
A hearing on these issues was held before me in Peoria,
Illinois, on August 19 through 22, in which all parties
were present and represented by counsel, and were
afforded full opportunity to present evidence, examine
and cross-examine witnesses, to argue orally, and there-
after to submit briefs. Helpful, posthearing briefs were
submitted by all parties, which have been duly consid-
ered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and has been at all times material,
a Delaware corporation with offices and places of busi-
ness located in several States of the United States,
were it is engaged in the business of manufacturing
and selling electrical wire and cables. The four facilities
of Respondent involved in the instant proceeding are
located in Sycamore, Illinois; Marion, Indiana; Muskeg-
on, Michigan; and Watkinsville, Georgia.
Respondent, during the past 12 months, which period
is representative of all times material, sold and shipped
from each of the aforementioned locations goods and
materials valued in excess of $50,000 to points outside
the respective States. During the same period, the
Respondent purchased and caused to be transferred
and delivered to the aforesaid locations, goods and
materials valued in excess of $50,000 which were trans-
ported to said facilities directly from States other than
the State where such facility is located.
Respondent is an employer engaged in commerce
within the meaning of the Act.
At the hearing, Respondent moved that the Board's
jurisdiction not be asserted in these cases, leaving the
resolution of the issues to the parties pursuant to the
grievance and arbitration provisions of the contracts
existing between Respondent and the local unions at
the respective plants. Counsel for the General Counsel
the cases filed in regions other than Subregion 38 were subsequently
transferred to that subregion for disposition, inasmuch as they involved
related issues
' The Respondent, on May 29, also moved to sever the cases previously
consolidated, which motion was denied by a Trial Examiner by order
dated June 13
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Charging Parties opposed the motion on the
grounds, inter aha that the issues involve statutory
interpretations inappropriate for resolution by an arbitra-
tion, and, in any event, in at least one of the contracts
the grievance procedure did not terminate in arbitration
Whatever may be the merits of having this dispute
resolved by an arbitrator chosen by the parties rather
than through intervention of a governmental agency
(and this Trial Examiner believes that, in the circum
stances posed by this case, there are strong reasons
in favor of such a course), I am unaware of any case
where the Board has deferred to the parties where
the contractual grievance procedure did not provide
for final determination through arbitration 5 Since the
Muskegon contract did not so provide, and counsel
for Respondent could not assure that the Company
would agree to arbitrate outside the contractual provi-
sions '' and since there is a common issue in all these
cases, the Trial Examiner could see no justification
for deferring some of the cases to an arbitrator and
leaving one to be decided by the Board I accordingly
denied the motion
iI THE I ABOR ORGANIZATIONS INVOLVED
Local Union Nos 1543, 983, 2224, and 1000, and
each of them, all of whom are affiliated with the Interna-
tional Brotherhood of Electrical Workers, AFL-CIO
are labor organizations within the meaning of the Act
Iii THE Al I EGED UNFAIR LABOR PRACTICES
A Background
The parties stipulated that the aforesaid local unions
have been the exclusive bargaining representatives of
the employees at their respective plants in an appropriate
unit as alleged in the complaints ' for the period of
time as indicated
Local 1000-Marion , Indiana-since 1939
Local 983-Muskegon , Michigan-since 1941
Local 1543 -Sycamore , Illinois-since 1946
Local 2224-Watkinsville, Georgia-since 1958
It appears that prior to the events giving rise to
the issues in the case , the Respondent had been in
contractual relations with the aforesaid local unions
at their respective locations since approximately the
time such locals had been recognized as the exclusive
bargaining representatives of employees at such
locations
The last contract expiring prior to July 1, 1968 was
as follows
Cf Jos Schutz Breit'inj Company 175 NLRB No 23
Certainly the parties could possibly agree to arbitration I am
not certain that they would But certainly that could be agreed upon
which would be outside the contractual provisions
The units generally encompass the production and maintenance
employees it their respective loc itions
At Sycamore-November 15, 1968, at Muskegon-
August 16, 1967, at Marion-March 28, 1967, at
Watkinsville-May 31, 1968
Following the expiration of the aforesaid collective
bargaining agreements," the parties were unable, initially,
to resolve their differences, and eventually the Union
went on strike in an effort to enforce its demands
Such strike continued at each location until the end
of June 1968, when representatives of the parties met
in Washington D C , in an effort to settle the matter
B The Washington Meetings
The first meeting of the representatives occurred on
Friday afternoon, June 28, 1968 Present for the Union
was Michael Lucas, a representative of the International
Union (as distinguished from one of the local unions),
present for the Company were Al Leader, a vice presi
dent, and Jerry White, personnel administrator The
discussion that afternoon and later that evening was
centered primarily on procedural problems and the for-
mat of the negotiations It was agreed that negotiations
would be conducted individually with each local union,
but that a representative of the International would
be a spokesman for each of the four locations involved
accompanied by the president of the respective local
union There was some discussion of the economic
issues and the term of the proposed contracts, but
there was no discussion of incentives or of incentive
plans It was, however, agreed that the subject of incen-
tives would be discussed as a local issue '
Negotiations commenced on Saturday, June 29, in
Washington about 9 or 10 a in The format of the negotia-
tions was, as noted, that the Company would negotiate
with each local union , such meeting being chaired by
International Representative Lucas The negotiations
were continuous that day, however, nothing significant
respecting the issues in this case, i e , incentives, tran-
spired until approximately midnight At that time, when
it appeared that the parties were fairly close to settlement
on other issues, the question was raised as to what
if anything, was going to be done about incentives iI
'
The contract at Sycamore was apparently opened pursuant to its
provisions
N It should be noted at this juncture that at each location involved
many if not most of the workers in the bargaining unit were paid
pursuant to an incentive plan as distinguished from a straight hourly
rate There is no disagreement that such incentive programs had been
in existence at each plant for some period of time prior to the strike
settlement negotiations and that each such plan at one location differed
in some respects from that at the other locations The plans were
administered solely by the Company subject only to the grievance
and arbitration provisions of the collective bargaining agreements (how
ever at that time incentives were not encompassed under the arbitration
provisions of the Sycamore agreement of which more anon)
It should also be noted that during the negotiations between the
parties prior to the strike settlement negotiations in Washington the
unions had placed on the bargaining table various proposals looking
toward improvements in the incentive programs at their respective
plants or in the case of Marion sought to do away with the incentive
program altogether However the Company had consistenly rejected
all such union proposals
"' Testimony varies as to which party actually raised the issue each
party attributing the initial statement to the other However I am
ANACONDA WIRE AND CABLE CO.
After the company representatives had pointed out that
they had rejected all proposals by the Union to alter
or eliminate the incentive programs, Lucas replied that
many members felt that the plans were not being adminis-
tered properly and indiscriminately, and accused the
Company of changing the plans arbitrarily in some
instances It was pointed out that this kind of conduct
could be easily accomplished since the plans were, for
the most part, not reduced to writing." Leader then
asked Lucas if the latter meant that the Union wanted
a description of an incentive plan, to which Lucas
replied, "Well, I would expect that incentive plan to
be the normal language that would appear in a contract
describing an incentive plan . . . such as the Hastings
agreement . . or like Marion, except that the Marion
one is not complete. 1112
Lucas further testified that Leader stated, "You mean
we would write down the incentive plan that was in
effect prior to the strike, that this would settle this
whole matter"" Lucas said he thought it would-that
he would have to "check with the boys" but he thought
it would.
On Sunday, June 30 the parties resumed discussion
at the headquarters of the International Union in Wash-
ington at about 11 a.m. There is some variance in
the testimony as to what actually transpired at this
particular time as respects the agreement concerning
the incentive plan. Lucas testified that Leader met with
him privately (without White) to discuss the remaining
issues that had not been settled the day before and
that when they reached the incentive question, Leader
inquired how important that was. Lucas responded that
it was "an item that would have to be settled before
we could reach agreement ." Lucas explained that if
the Company would write up the plans as they existed
at each plant prior to the strike, that possibly the Union
could accept it but that he would have to check with
the boys. Leader pointed out that if the writeups had
to be presented prior to the signing of the strike settle-
ments, that such strike settlements would be delayed
for weeks in order to give the Company time to confer
with the plant engineers and have the plans reduced
to writing, and suggested to Lucas that the Company
would incorporate language in the settlement agreements
to the effect that the Company would reduce the incentive
plans to writing after the strike was over and present
them to the Union. Lucas then conferred with his associ-
ates after which he came back and told Leader that
inclined to credit the Company's witnesses on this point, i e , that
Lucas raised the issue, since I am inclined to doubt that the company
representatives would inject any such element in the negotiations at
that point
" At that time the only description of an incentive plan extant
in either of the four locations which had been reduced to writing
and incorporated in a collective-bargaining agreement, was at the Marion
plant
" Testimony of Lucas Hastings refers to another plant of the Compa-
ny where the workers are represented by another labor organization
The record reflects that the Company had recently consummated a
labor agreement there, which agreement apparently incorporated some
language respecting an incentive plan However, such language was
not offered into evidence in this record
.277
he had encountered some difficulty in selling the idea
to the delegates; however, Leader suggested that the
Company draft some language and present it to the
union representatives and see if they would approve.
Lucas agreed with this procedure. 13
Early Monday morning, Leader and White commenced
drafting the memorandums of agreement which purport-
edly reflected the understandings reached in the negotia-
tions. Incorporated in each such memorandum of agree-
ment for the four locations (except Marion) was the
following language.
As soon as practicable after the employees return
to work, the Company will prepare a memorandum
in which it will reduce to writing the incentive
plan in effect at the time of the strike and will
meet with the Union Representative to discuss such
memo and include this as an addendum to the
labor agreement.
White testified that the foregoing language was not
incorporated in the Marion memorandum because there
had been no agreement to provide any writing to Marion.
However, when International Representatives Clarence
Young and Michael Lucas came to the Anaconda offices
later in the morning to proofread the documents, they
objected to the absence of such language in the Marion
memorandum. When White pointed out that there was
already incentive language in the contract at that there
was already incentive language in the contract at that
location, Lucas reminded him that the agreement was
that the language would be submitted to the Union's
industrial engineer for discussion, and that he (Lucas)
was not an industrial engineer . Whereupon, after some
discussion, White had the language included in the Mar-
ion memorandum (G.C. Exh.'9).
The only other change in the language of the memoran-
dums of agreement, as respects incentives, involves
the Sycamore plant, where, after some discussion with
the union representatives respecting arbitrability, Leader
penned in the following sentence immediately after the
above-quoted paragraph: "Such language will include
arbitration. 1114
Accordingly, all memorandums of agreement for all
four plants were signed in Washington on July 1, 1968
C. The Discussions to Implement the Memorandums of
Agreement
On July 25, 1968, Personnel Administrator White draft-
ed a memorandum to the Company's then director of
industrial engineering which doubtless reflected his
" The foregoing findings are based upon the testimony of Lucas
which I credit in its essence, although this should not be construed
as suggesting that I credit all the embellishments which are contained
therein In other words, I am well aware of the fact that the three
parties who testified that they were present and involved in consummating
the strike settlement agreements were highly interested in the outcome
of the proceeding As such, I believe that all parties were prone to
present their testimony in a light most favorable to their principal's
case, and, while I believe them to be essentially honest, I do not
credit either party in toto but tend to believe that, as in many cases,
the truth lies somewhere in the middle
11 G C Exh 3
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(White's) understanding of the memorandums of agree-
ment recently negotiated with the Union, as respects
incentives:
As you know, in concluding contract negotiations
for the IBEW units at Marion, Muskegon, Syca-
more, Watkinsville, the Company agreed to prepare
a memorandum for each location. This memoran-
dum will reduce to writing the incentive plan or
plans in effect at the time of the strike.
There is to be no negotiating with the union at
any of these locations. We are merely to draft
our incentive practices at the time of the strike.
It is suggested that our memorandum be somewhat
along the lines of the incentive language that we
had in our last Marion IBEW contract.
As soon as we have readied these memorandums,
we will then sit down at each location and discuss
only the contents of the memorandum with John
Zaluski, the IBEW Industrial Engineer , from the
IBEW Washington headquarters.
At Sycamore only, the memorandum should also
include language provided for the arbitrationability
[sic] of incentives, again , along the lines of our
recent Marion IBEW language.
We should have each of the four memorandums
ready for discussion by the end of September.
The IBEW plans to incorporate each of the incentive
memorandums into their new labor contracts.''
After several telephone conversations between Lucas
and White in August looking toward commencement
of discussions to implement the memorandums of agree-
ment , White suggested that Lucas and Zalusky come
t9 New York to inspect the language which the Company
had drawn up before they went out to meet the four
locations. Lucas had no objection to this procedure,
but it apparently became a problem to arrange a time
suitable for all four participants (Lucas, Zalusky, White,
and Maher, the Company's industrial engineer). Finally,
it was agreed that Maher and Zalusky would get together
at their convenience without Lucas and White; accord-
ingly, the first meeting between the two men was
arranged to be held in New York on November 22,
1968.
1. The New York meeting
The meeting between the two chief industrial engineers
for the parties in New York in November, being the
first meeting between the two following the signing
of the memorandums of agreement, may be said to
have been one in which each man expressed essentially
his client's understanding of its obligations under the
agreement, and what his client desired and expected
of the other party pursuant to the agreements. Thus,
Zalusky testified that he "stated specifically . . the
information we needed to administer the wage incentive
plan at the various Anaconda plants and what we expect-
ed to have included in these statements, the description
" Resp Exh 8
of the plans." He requested that the statements include,
for example, the kind of stopwatch timestudies which
were being used, which predetermined time systems
were being utilized, the types of allowances (fatigue,
unavoidable delay, personal, etc.), the percentages of
such allowances which were incorporated into the basic
rate, and a "specific' statement as to the expectancy
of the wage incentive plans at the various locations."
Then, according to Zalusky's testimony, "Mr. Maher
commented that he was not going to give the union
a guarantee minimum statement, and I said that presented
no problem with the union ; with the exception of the
variations in the amount of expectancy the language
associated with the Marion agreement would be satisfac-
tory."
Maher testified that he informed Zalusky at the outset
of the discussion that the 1964 Marion contract would
be the outline to be used for all of the plants and
that Zalusky responded that he did not think that "we're
going to have any problems." He testified that Zalusky
was primarily interested in the bonus opportunity and
the allowances to which Maher responded that "they
would be along the lines of Marion." According to
Maher's testimony, the remaining discussion concerned
the general topics of the Marion outline and how they
were to be incorporated into the local plans."!
2. The meeting at Sycamore
The first meeting between the parties at either of
the four locations, pursuant to the memorandums of
agreement, took place at Sycamore on December 18,
1968. Present for the Company were Mr. Maher and
Mr. Oppedal (plant industrial 'engineer); for the Union
were Mr. Zalusky, International Representative Schae-
fer, and several representatives of the local union. At
the commencement of the meeting, Maher delivered
a single copy of a two-page document entitled "Sycamore
Plan-Incentives" to the Union, immediately following
which the union representatives asked for a caucus
to study the document. In the meeting following the
caucus, Zalusky, who was primary spokesman for the
Union, expressed' his great disappointment to the compa-
ny representative as respects the failure'of the document
to come up to the quantity and quality of information
expected by the Union. This related primarily to the
failure of the document to reflect specific amounts or
percentages of'the bonus opportunity, the various allow-
ances which were incorporated into the rate structure;
and the like. Thus Zalusky went over the document
paragraph by paragraph pointing out its deficiencies,
according to the viewpoint of the Union. He asked
questions of Maher to which the latter responded mostly
in general terms."
", Because the "Marion plan" was repeatedly referred to throughout
the testimony as being a standard or guide by which other incentives
plans were measured, I have caused it to be attached as "Appendix
A" to this Decision
" For example, Zalusky asked "exactly how much bonus opportunity
they were building into the machine controlled elements Mr Maher
said it would vary between the machines [Zalusky] then asked
ANACONDA WIRE AND CABLE CO.
Maher's version of the meeting is not substantially
at variance with that of Zalusky He stated that Zalusky
asked extensive questions concerning the meaning of
certain statements in the document particularly with
respect to the lack of definite numbers or percentages
of bonus, allowances, etc. Maher stated the range of
allowances such as: "bonus opportunity-you could
figure it as 15 to 30 percent, Fatigue allowances would
go up to, I guess, 30 percent. Personal time is around
5 percent." Maher stated that the specific figures were
not included in the document because they weren't
included in the Marion plan except for the bonus opportu-
nity which was a negotiated number.
Zalusky testified that the meeting was closed by his
telling Maher that the document submitted by the Compa-
ny was wholly unsatisfactory and constituted a violation
of the agreement between the parties. However, a tenta-
tive date to meet in Marion, Indiana, was arranged
prior to the breaking off of the meeting."
The parties met again at Marion on January 10 and
the same format was pursued. That is to say, Maher
presented Zalusky with a three-page document entitled
"General Outline For the Administration Procedure,Of
The Bonus Payment Plan" (G.C. Exh. 20), following
which the union representatives caucused for the purpose
of studying the document. It appeared that the plan
was substantially similar to that which existed under
the prior agreement between the parties at Marion,
with a few changes." Again, as at Sycamore, Zalusky
went through the document pointing out items which
he considered deficient and inadequate. -For example,
under the first section entitled "Production Standards
and Earnings Opportunity" there is a sentence which
reads: "Where machine limitations exist, the bonus
opportunity will not be as great as where such limitations
do not exist." Zalusky inquired how much less bonus
opportunity would it be if these limitations existed and
how much bonus opportunity was built into the machine
controlled portions of the operation. In both cases,
Maher explained that it would vary with the type of
operations. Zalusky requested that specific rules be
included as to how these machine limitations would
vary with regard to bonus opportunity.
Zalusky further requested that specific statements be
made with respect to establishing timestudies-whether
they be continuous or snapback-as well as specific
statements for the various allowances (personal, time,
fatigue, delay, and machine interferences). Maher replied
that he would take this under consideration and that
the Union could expect to hear from him within 2
just exactly how much do they vary, and he again said they would
vary with the operation "
'" With respect to one aspect of the plan submitted at the.Sycamore
meeting, it seems significant to the Trial Examiner that, according
to Zalusky's testimony, he made the statement that "this whole paragraph
is worse than anything we had at Marion "
'" Zalusky testified that the changes were represented "mostly by
the red marks" on the document
279
weeks. On January 27, Maher dispatched a memorandum
to Zalusky incorporating some changes made in the
Marion memorandum with two additional headings.21
4. The Watkinsville meeting'
The parties met again in Watkinsville, Georgia, on
February 5, where the same format was repeated. Maher
submitted a two-page document entitled "Methods For
Establishing Labor Standards" (G.C. Exh. 22), following
which the Union representatives caucused for the pur-
pose of studying the same. According to Zalusky's testi-
mony, he explained to Maher that the information sub-
mitted was nothing more than essentially the same thing
which had been submitted in Sycamore and was deficient
in the same respects. Maher more or less conceded
that, as was the case previously, the percentages for
earnings opportunity and allowances were not listed
in the document (which were Zalusky's criticisms) but
that the Company answered the Union to the extent
of telling them what such allowances were.21
5. The meeting at Muskegon
The parties met again on March 4 at Muskegon,
Michigan, where, again, the same format was utilized.
Maher handed Zalusky a one-page document entitled
"Muskegon Plant Methods For Establishing Labor
Standards" (G.C. Exh. 23) after which the Union cau-
cused. Zalusky then proceeded to ask the same type
of questions that he had asked of Maher in the previous
meetings, that is with respect to the method of timestud-
ies, the amounts of allowances, etc. Zalusky conceded
that Maher gave him certain specifics such as "the
fatigue allowances . . . range from 2 percent to 30`
percent." However, Maher refused to put the "spec-
ifics" into the written plan because they were not in
the Marion outline which he was using as a guide and
which was consistent with the instructions which he
had.22
21 G C Exh 21 The matter added consisted of three sentences,
as follows
Stop Watch Techniques
Standards may be arrived at by using continuous watch readings,
snap back watch readings or standard data
The particular technique employed is dependent upon the type
of operation
Allowances
Where applicable standard times include allowances for personal,
fatigue , unavoidable delay and interference
This presumably means, as was submitted at Sycamore, the percent-
age range of such allowances and bonus opportunity
22 Maher also testified that if, for example, a fatigue factor were
placed in the written document, a rather complicated explanation and
qualification would have to accompany it as to when and under what
circumstances it would be applied, and that this is, in essence, a
"judgment factor of the industrial engineer " However, Maher conceded
that there was "nothing really wrong with putting it [a figure representing
an allowance percentage] in I have seen contracts with them in, I
have seen a lot of them without them in "
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Events following the meetings
On February 5, Union Representative Lucas dis-
patched a letter to Personnel Administrator White charg-
ing that the Company had failed to live up to the
agreement respecting incentives reached on July 1, 1968,
with regard to the Sycamore- location. Lucas pointed
out particularly that the documents submitted, by the
Company at Sycamore did not contain "any statement
of 'earnings opportunity' expressed as a percentage of
the hourly wage rate." Lucas charged that there was
no question but that during the period prior to the
strike the earnings opportunity under the incentive plan
in' effect at that time was standardized in a narrow
percentage range, as reflected by incentive earnings dur-
ing that period. He requested immediate information
so that further discussion meetings could be scheduled.
On February 28, White responded to the letter stating
that, in' his opinion, the Company had satisfied its obliga-
tion in that "the Company did reduce to writing the
incentive plan in effect at the time of the strike and
did meet with the appropriate Union Representative
to discuss the written memorandum."
On April 25, Lucas responded to White by letter
charging that the Company had not lived up to its
obligations under the July 1, 1968, agreements at any
of the plants since the type of 'information provided
by the Company did not represent "a complete and
meaningful incentive plan." Lucas charged that the Com-
pany had failed to furnish some of the specifics which
had been requested by the union representatives; such
las allowances for personal time, fatigue, and delays,
specific incentive expectancies, the method by which
the Company handles'rejects or poor work, etc. Lucas
claimed that the "brief statements submitted for each
location do not contain the specific details which would
necessarily comprise the actual incentive plan existing
at each plant. "23
On May 21,, White responded to Lucas' April 25
letter, noting that such letter was 'written on behalf
of a "Joint Anaconda Wire & Cable Negotiating Commit-
tee." White asserted that since such a committee is
not a bargaining agent with whom the Company was
obligated to deal, "the Company disbelieves that it
has any obligation to answer your letter of April 25,
1969, or any other letter written on behalf of the `Joint
Anaconda Wire & Cable Negotiating Committee."'
On May 26, Lucas, responding to White's May 21
letter , indicated that he (Lucas) spoke on behalf of
the four local unions, and that White was well aware
of that fact just as Lucas was aware of on whose
behalf White spoke . This was the last communication
exchanged between the parties.
2' Lucas signed that letter , as he had the previous one dated February
5, as "Chairman, Joint Anaconda Wire & Cable Negotiating Committee "
Analysis and Concluding Findings
In their brief, counsel for the General Counsel posed
the following as issues to be resolved in this consolidated
proceeding:
A. Whether Respondent had a'statutory obligation
to incorporate the incentive plans in the written
contracts.
B. Whether Respondent has refused to incorporate
the incentive plans in the contracts.
C. Whether the Unions requested that Respondent
furnish the incentive information.
D. Whether Respondent refused to furnish the
requested incentive information.
E. Whether the Trial Examiner should defer to
arbitration .14
As respects the first two issues posed by counsel,
it would seem elementary that incentives, being a form
of wage payment, are necessarily mandatory subjects
for bargaining" and I do not understand that counsel
for the General Counsel claim that the Respondent has
refused to negotiate concerning such items nor generally
to refuse to incorporate incentive'plans into their written
contracts. Indeed, they had done 'so at the Marion
location, and by the memorandums of agreement execut-
ed' July 1, 1968, have clearly agreed to "include this
[the incentive plan] as an addendum to the labor agree-
ment." I
As respects the third issue posed by counsel, there
can be no question that the Union requested that
Respondent furnish incentive' information. Thus it is
undisputed that, prior to the strike settlement negotia-
tions in Washington at the end of June 1968, the unions
had placed on the bargaining table proposals for improve-
ment in the incentive plans extant at the respective
plants, and the Respondent had uniformly and consistent-
ly rejected such proposals. However, as part of the
strike settlement, and since the union negotiators "had
to have something on incentives" in order to placate
some of 'the complaints of the Union's membership,
the parties agreed to put in writing the incentive plans
which existed at the plants prior to the strike. According-
ly, the following language (which bears repeating) was
drafted by the Company, agreed to b'y the Union, and
incorporated in the memorandums of agreement:
As soon as practicable after the employees return
to work, the Company will prepare a memorandum
in which it will reduce to writing the incentive
plan in effect at the time of the strike and will
meet with the Union Representative to discuss such
memo include this as an addendum to the labor
agreement.21,
By entering into the foregoing paragraph, which result-
ed through collective bargaining, the parties agreed to
the kind of incentive wage information to be furnished
24 The Trial Examiner resolved this issue in the negative, ante
2i See Whiten Machine Works, 108 NLRB 1537, affd per curiam
217 F 2d 593 (C A 4)
4" As previously noted, the following was added at Sycamore "Such
language will include arbitration "
ANACONDA WIRE AND CABLE CO. I
the Union and have, by their contract, regulated the
kind of data to be made available to the Union.21 It
becomes critical then to determine what the parties
meant by the language to which they agreed In this
connection, I find, contrary to the contentions of the
Respondent in its brief, that the language of the aforesaid
paragraph is not so clear and unambiguous that we
need not look beyond the "plain meaning" of the words
themselves in order to determine the intentions of the
parties. Thus, for example, it is apparent from a cursory
reading of the record herein that what constitutes an
"incentive plan" means different things to experts in
industrial engineering, not to mention the laymen in
labor-management relations who 'are called upon to
administer such plans. Accordingly, I have considered
all of the evidence in the record as a whole in reaching
a determination as to the intent of the parties in entering
into the aforesaid agreement. Having so considered such
evidence, I have reached the conclusion, and therefore
find, that the General Counsel has failed to sustain
his burden of proving that the Respondent, by entering
into such agreement,' obligated itself to supply to the
Union specific figures or percentages relating to such
matters as bonus opportunities, various types of allow-
ances, and the like, and therefore Respondent did not
violate its obligations under Section 8(a)(5) by its refusal
to so supply such specific data. My reasons for reaching
this conclusion are as follows:
1. The posture of negotiations It is to be recalled
that prior to the Washington negotiations in which these
memorandums of agreement were executed, the parties
had been in negotiations looking toward the execution
of new contracts for, in several instances, many months.
At those negotiations the unions had, in most instances,
set forth as part of their demands comprehensive propos-
als for improvements in the incentive plans which were
in existence at their, respective plants. (See, e,.g , -Resp.
Exhs. 2 and 5.) These proposals, which included, inter
alia, definite standards relating to timestudy procedures
and percentages of allowances, had been rejected by
the Company both before and during the Washington
meeting. It was at this juncture during the Washington
,meetings, when apparent agreement had been arrived
at between the parties relating to economic issues and
contract term, that Union Representative Lucas raised
the issue that something had to be done about incentives.
Lucas indicated to the company representatives that,
aside from the unions' dissatisfaction with some of
the substantive elements of the incentive plans, the
membership was dissatisfied because the plans were
not "written out, and because our people didn't feel
like they were being administered properly, and our
people felt the company would change those plans arbi-
trarily, or could, and what we wanted was the incentive
plan reduced to writing and included as part of the
agreement." After some discussion relating to the format
of the writing and the time and circumstances under
R7 See Anaconda American Brass Cotnpans, 148 NLRB 474, 479,
Aico Manufacturing Corporation (Lscotning Dnriston), III NLRB 729
Under these circumstances. I find the General Counsel's "waiver''
theory inapplicable
281
which it was to be produced (discussed more fully
infra), the agreement was reached.
This dropping or abandonment of their previous pro-
posals by the Union in consideration for a mere "memo-
randum [containing] the incentive plan in effect at the
time of the 'strike ' ." clearly is quite significant in
reaching a determination as to whether the agreement
contemplated the inclusion of specifics which had been
previously requested by the Union and then abandoned.
2. The parties who made the ,agreement '-" In determin-
ing the true meaning of the language of the agreement
it is, of course, particularly important to assess the
qualifications, experience, and background of the persons
making it. In this case, it is undisputed that all persons
involved were not industrial engineers; rather, they were
essentially administrators in labor-management relation's.
Thus in exploring what Lucas meant when he suggested
a writing that could be incorporated as a part of the
labor contract, Leader said (according to Lucas' testimo-
ny), "What do you mean when you say you want
the description of an incentive plan"" to which Lucas
'responded, "Well, I would expect that,incentive plan
to be the normal language that would appear in a contract
describing an incentive plan Such as the Hastings
agreement . . . or like Marion, except that the Marion
one is not complete
It was thus Lucas himself who first planted the idea
of what was contemplated to be incorporated in the
contract respecting an incentive plan, i.e., a description
of a plan such as the one at Marion. This is natural
in the circumstances since, as the evidence shows, the
contract at the Marion mill was the only one of the
four whichlincluded a description of.an incentive plan.
Thus I am convinced, contrary to the contentions of
the General Counsel and the Charging Parties at the
hearing and in their, briefs,, that the parties contemplated
the use of the Marion description as a basis for the
writing requested by the Union, the evidence showing
that such was first originated by the union representative
and, indeed, was referred to from time to time thereafter
by representatives of both parties in their subsequent
discussions. Thus it is readily apparent from the testimo-
ny of White and Maher, including White's memo of
July 25 to the director of the Company's industrial
engineering department, that the company representa-
tives interpreted the writing to be patterned after. the
Marion language. Moreover, Zalusky himself indicated
at the November 1968 melting with Maher that use
of the Marion agreement, as a guide was satisfactory
in most respects,29, f
2N I am aware in the discussion of this point that the General Counsel
and Charging Parties contend that the agreement was entered into
by Lucas and Leader alone, on the other hand, the Respondent claims
that White was present with Leader at the time of agreement I, do
not deem it necessary to resolve this particular controversy in reaching
a conclusion on the ultimate issue
2H Zulusky's testimony is as follows
Then Mr Maher commented that he was not going to give
the union a guarantee minimum statement, and I said that presented
no problems with the union, with the exception of the variations
in the amount, of expectancy the language associated with the
Marion agreement would be satisfactory ,
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the Sycamore meeting in December 1968, Zalusky
complained that one paragraph presented by Maher relat-
ing to the Sycamore plant was "worst than anything
we had at Marion "
In short, I find that although there was no specific
language in the quoted paragraph agreeing to the use
of the language in the Marion contract as a guide,
such was the contemplation of the parties.311
3. Voluminous nature of incentive data: The record
herein reflects the pervasive and complicated nature
of the data relating to the incentive systems extant
at the respective plants (See e.g., Resp. Exhs. I and
4.) This data, consisting of written explanations, charts,
mathematical calculations, etc., would literally fill vol-
umes of books if compiled for all of the machines
at the plants of Respondent under consideration here
Even if such information could be appropriately con-
densed, it would obviously fill too many pages to be
attached as "an addendum to the labor agreement "
Under these circumstances I find tl}at it was clearly
not within the contemplation of the parties that the
Company would supply such specifics in that particular
form and manner.
4. Respondent had previously supplied incentive data:
Aside from the fact, as found above, that the parties
did not by their agreement contemplate the furnishing
of specific information but rather a description of the
plan existing at the respective plants along the line
of the description contained in the Marion agreement,
there is credible record evidence that the Respondent
had supplied a wide range of such information in the
past (as hereinabove noted, see Resp. Exhs I and
4). Thus there is uncontradicted evidence that at each
work station in the plants the Respondent posts "rate
sheets" which contain extensive incentive data which
purportedly explains to the operator how his incentive
earnings are calculated. Moreover, the method of calcu-
lating the operator's rate is gone over with him by
supervisory personnel and/or the plant's industrial engi-
neer. A union representative may be present at such
explanation, and the written data is available to the
Union upon request. Thus it appears that much of
the information requested by the Union has either already
been supplied to it, or is available upon request, 'albeit
perhaps in different form. Furthermore, as hereinabove
found, Maher supplied the answers to many of Zalusky's
requests for specific information orally at the several
meetings between them at the various plant locations.
Under these circumstances I cannot agree that Respond-
ent's refusal to incorporate the "specifics" requested
by the Union into the memorandums can be fairly regard-
"' This conclusion is buttressed by the conduct of White who, upon
drafting the language for the memorandums of agreement, omitted
the quoted paragraph from the Marion memorandum because he thought
there would be no need for same in view of the fact that the existing
Marion language contained a description of the incentive plan It was
only after the union representatives insisted that the agreement contem-
plated a discussion with the union engineer that the paragraph was
included in the Marion memorandum as in the other three
ed as indicating a lack of good-faith bargaining on the
Respondent ' s part, as is required by the Act.31
In their brief , counsel for the General Counsel rely
heavily upon the Board ' s decision in Henry I. Siegel,
Co., 147 NLRB 594, in support of their argument.
However , that case is clearly distinguishable upon its
facts since it was there found that the Company had
made an oral agreement to include a 12'h percent incen-
tive factor in the contract , and the violation was predicat-
ed upon the refusal to put such agreement into writing
There can certainly be no quarrel with the general propo-
sition that a Respondent is obligated under Section 8(a)
(5) to put into writing an oral agreement made in negotia-
tions with a union . However, the question here is what
the agreement consisted of, and I have previously found
that it did not contemplate the supplying of the specific
information which the Union now requests
But counsel for the General Counsel apparently do
not rely solely upon the "breach of oral agreement"
theory expressed in Siegel . Indeed, later in their brief,
they adopt the seemingly inconsistent theory that "the
gravamen of the principle [sic] violation alleged herein
is not that Respondent breached its agreement , incorpo-
rated in the memoranda of agreement , to reduce the
incentive plans to writing and add them to the contracts.
Rather, the gravamen of the violation is that Respondent
refused to incorporate in the contracts the incentive
plans agreed upon during bargaining The memoran-
dum agreements are mere recitations of Respondent's
statutory obligation which had'already arisen as a result
of the parties' oral agreement that the incentive plans
would remain in effect ."32 In other words , as I under-
stand the position of the General Counsel , it is that
the statutory obligation to furnish information is some-
what broader than that described in the memorandums
of agreement and the Union ' s right should not be-
as phrased by the General Counsel-"jeopardized by
having joined in a written agreement which recites their
statutory rights." However , I have heretofore rejected
this theory based upon Board law which I consider
to be more consonant with the policies of the Act.
That is, the Act encourages parties to engage in collective
bargaining looking toward the resolution of their differ-
ences and incorporating their agreements in a written
document This they have done in this case by the
execution of the memorandums of agreement which'
consume, in my view, any statutory obligation . Neverthe-
less, this brings us finally to a consideration of the
question of whether, by submitting the various docu-
ments (G.C Exhs. 19, 21, 22, and 23 ) the Respondent
fulfilled its obligation under the memorandums of agree-
ment.
The memorandums of agreement , in my view, require
the Respondent to do essentially two things: (1) to
reduce to writing (along the lines of Marion ) a description
of the incentive plan in effect at each of the respective
" See N L R B v Tex-Tan , Inc , 318 F 2d 472, 476-478 (C A 5,
1963), denying enforcement of 134 NLRB 253, Westinghouse Electric
Corporation . 129 NLRB 850
12 G C br , p 34-35
ANACONDA WIRE AND CABLE CO. 283
plants; and (2) to thereafter meet with the union repre-
sentative to discuss such writing. 33 It is undisputed that
the company representatives thereafter did prepare mem-
orandums which purported to reflect a description of
the incentive plan in effect at the time of the strike
at the respective plants, and that they did meet with
the Union's industrial engineer to discuss such memoran-
dums. However, the General Counsel and the Charging
Parties argue that the documents, while containing lan-
guage relevant to an incentive system, do not constitute
a description of an "incentive plan." In support of
such contention, the Charging Parties called an expert
witness to testify at some length respecting the incom-
pleteness and inadequacies of the documents submitted
by Respondent. Of such documents the witness consid-
ered that the Marion memorandum represented, in gener-
al, a "rather complete description of the wage incentive
system " The other writings were considerably less ade-
quate in the opinion of this witness, using the standard
of what he considered a good description of an incentive
plan, to wit- "The plan should be understandable to
the operator to the degree that he can calculate his
earnings "
Although the expert witness found the documents
submitted by the Company to be generally incomplete
and inadequate as compared with his standard of what
he considered to be a satisfactory plan. he did not
testify that such documents did not constitute a descrip-
tion of an incentive plan. He simply testified as to
his evaluation of the documents without knowledge as
to other information which the Company had made
available to the Union and the operators respecting
the workings of the plan. The memorandums of agree-
ment did not obligate the Company to submit to the
Union an ideal incentive plan or, indeed, even one
which would be fully satisfactory to an outsider such
as the Charging Parties' expert witness. The sense of
the agreements as written was to produce a writing
descriptive of an incentive plan and thereafter to discuss
it with the union representative for the purpose of
explaining and filling, in any missing data. This was
done, and there is certainly nothing in the language
of the agreements themselves, or substantial evidence
dehors the agreements, upon which a reasonable infer-
ence may be drawn that the parties contemplated that
the descriptions would be subject to the approval of
the Union's representative.
While a comparison of the other documents submitted
by the Company respecting the plans at the other plants,
indicate that they could have been made somewhat
more descriptive-"along the lines of Marion"-it is
to be recalled that there is uncontradicted testimony
in the record to the effect that the plans in each plant
differed. Accordingly , it is possible, as Respondent con-
tends, that some of the provisions set forth in the
Marion plan were not applicable at the other plants,
'" Although there was a considerable lapse of time after the employees
returned to work before the Company prepared the memorandum,
I do not understand the General Counsel to contend that such delay
was caused by the Company so as to raise an inference of bad faith
or that the technology did not relluire as elaborate
a presentation.
In sum, I cannot conclude, based on the evidence
in the record considered as a whole (and particularly
in view of the lack of evidence indicative of Respondent's
bad faith, or conduct seeking to dissipate or undermine
the Union), that the Respondent's actions in preparing
the write-ups of the incentive plans and thereafter dis-
cussing such write-ups with the Union, constituted such
a variance with its agreement as to compel a finding
of lack of good-faith bargaining in violation of Section
8(a)(5) of the Act.34
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent , Anaconda Wire and Cable Com-
pany, is an employer engaged in commerce within the
meaning of the Act.
2. Local Union Nos. 1543, 1000 , 2224, and 983, Inter-
national Brotherhood of Electrical Workers, AFL-CIO,
are labor organizations within the meaning of the Act.
3. Each of the aforesaid local unions is, and has
been at all times material , the exclusive bargaining repre-
sentative in an appropriate unit, described in the com-
plaints herein , at the following plants of the Respondent,
respectively : Sycamore , Illinois; Marion , Indiana, Wat-
kinsville, Georgia; and Muskegon , Michigan,
' 4. The Respondent has not committed any unfair
labor practices alleged in the complaints herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case,
it is ordered that the complaints in this consolidated
matter be and they are hereby dismissed in their entirety
94 Counsel for the General Counsel argue that whatever may have
been the contemplation of the written agreement of July I, Zalusky,
by his requests for information in the several meetings beginning Novem-
ber 1968 with Maher, made independent requests for information which
was never supplied by the Company I have found that the evidence
showed that some such information was in fact thereafter supplied
However, in the context of the situation, I do not believe that a
violation can be predicated upon a refusal to supply information to
those requests in any event That is to say, the meetings were held
pursuant to an agreement reached in collective bargaining, and were
not meetings to negotiate an agreement Any refusal by Maher to
supply any specific information was in accordance with the Respondent's
interpretation of the agreement, which I have found to be a reasonable
one Aico Manufacturing Corporation (Lsconung Dniston) I I I NLRB
729,732-733
APPENDIX A
GENERAL OUTLINE FOR THE ADMINISTRATION
PROCEDURE OF THE BONUS PAYMENT PLAN
A. Production Standards and Earnings Opportunity.
The Company will as soon as practicable alter date
of agreement develop production standards, utilizing
284 DECISIONS OF NOTIONAL LABOR REL4TIONS BOARD
stop-watch time stddy techniques and procedures and
will establish a program of payment of bonus wages
based on such standards. The standards will be so
designed that they can be 'met without difficulty by
the application of average skill and effort to the job.
The standards will be so established that the average
experienced'and qualified operator working under usual
standard working conditions at incentive pace with good
skill and effort can earn 6% above the base rate Due
to the individual characteristics of jobs and the difference
in skill and effort of the individual worker there can
be no guarantee of the amount of bonus earned Where
machine limitations exist, the bonus opportunity will
not be as great as where such limitations do not exist
It is understood that the average qualified operator
will not earn bonus payment unless production exceeds
base production. Where standards are exceeded, bonuses
will be paid on a one-for-one basis; that is, one percent
increase in pay for each one percent increase in produc-
tion. In cases where it is impractical to use a one-for-one
basis, a different basis giving the same result will be
used. The Company will continue to make changes
in rates, speed and labor assignments in accordance
with the provisions of the labor agreement currently
in effect, whether such change affects a bonus payment
or non-bonus payment operation.
B. Individual and Group Standards Employees will
be placed on individual bonus payment basis insofar
as possible. Employees working on a common production
will be combined into natural groups for bonus payment.
Determination of the size of each group and the particular
bonus payment opportunity for the average qualified
workman as established for the job or production group
involved, is the responsibility of management. Employ-
ees combined in a group for bonus payment purposes
will earn the same percentage of bonus over their individ-
ual base rates for a given period of time Production
will be measured against the total number of man hours
in the group for calculation of performance and bonus
C. Daily Guarantee of Base Rates Where production
can be measured for an 8-hour shift, the hourly base
rate of the job will be guaranteed for each 8-hour
shift; and bonus earned in one day will not be used
to make up failure to achieve standard on another day.
All bonus payments shall be computed on the basis
of the base hourly rate as listed in Schedules A and
B as of 9/8/63. Qualified operators will receive the
hourly rate of the job classification to which they are
assigned as a guaranteed rate for all hours worked
on that job. When unmeasured work scheduled by the
Company is performed in the classification, the operator
will receive the hourly rate of the job classification
plus the adder shown in Schedule A. When unmeasured
work not scheduled by the Company is performed in
the classification, or when delays beyond the control
of the employee are encountered, the operator will re-
ceive the hourly rate of the job classification
D. Treatment of Delays. Bonus payments will be pro-
tected to the extent that when unmeasured work is
performed or when delays beyond the control of the
employee are encountered, the rate for the job classifica-
tion will be paid for such time in accordance with
C above, provided the employee notifies his supervisor
of such delay When production is resumed, the bonus-
earning opportunity will be restored.
E. Application of Standards. The standard for a par-
ticular operation or revision will be installed for a 35
working day_ test application, during which time no griev-
ance may be filed. At the,end of the test period, either
the Company or the Union during the thirty calendar
days succeeding the test period, may ask for reconsidera-
tion of the plan as to that particular job standard or
bonus payment rate applicable thereto. The grievance
procedure will be used for handling such questions,
and the grievance machinery would be available to either
party. Notwithstanding the provisions of the last sent-
ence of Step 5 in Article XII of the Labor Agreement,
in event agreement is not reached through steps 1-4
grievance procedure, such a dispute may then be
arbitrated under the terms of Article XII of the labor
agreement between parties dated 3/29/64. It is mutually
agreed that the scope of the arbitrator shall be limited
to the question of whether or not the standard task
for bonus payment jobs has been set by time study
in such a manner as to permit an average experienced
operator working under usual standard working condi-
tions at incentive pace with good skill and effort to
earn 6% above the base rate An arbitrator's award,
or a grievance settlement, on such question in which
the standard has been found to be erroneous through
the fault of the Company may be made retroactive
to the date of the installation of such standard The
bonus payment plan, or any matters in dispute relating
thereto, except as to the question of inequity in earnings,
shall not be the subject of arbitration. The Company
will not challenge a rate solely because of the earnings
of the operator on a particular operation.
F. Administration of the System. The Company will
review standards periodically; standards will be revised
when changes in methods, processes, tools, materials,
crews or production conditions occur Only those ele-
ments affected by the change will be revised and only
to the extent of such change. Copies of Standards will
be available at the respective work centers. Bonus pay-
ment formulas will be as simple as the basic concept
and actual operating conditions will permit. The
Company agrees to familiarize the employees who are
to work under a particular bonus payment standard
with the Company's method of computing bonus pay-
ments The Company agrees to instruct an employee
who has been selected by the Union and who is accepta-
ble to the Company in time study techniques and the
bonus payment plan. Such employee will function ac-
cording to the following procedure in cases where, after
the 35 working day test period, there is a substantial
question as to whether or not the standard task for
the bonus payment job has been set by time study
in such a manner as to permit an average experienced
operator working under usual standard working condi-
tions at incentive pace with good skill and effort to
earn 6% above the base rate:
The employee working under a standard shall pre-
ANACONDA WIRE AND CABLE CO 285
sent his question to the department foreman, who
may consult with the Plant Industrial engineer
If the question is not resolved, the trained employee
may consult with the Plant Industrial Engineer,
who shall make available for such employee's re-
view, the time study sheet or sheets and other
data pertinent to the standard in dispute If the
trained employee and the Plant Industrial Engineer
cannot resolve the question , it may be referred
to the grievance procedure The trained employee
shall report his findings to the department steward
The trained employee may be called in for consulta
tion in Steps 3 and 4 of such procedure Such
employee shall have the right to make a time study
in conjunction with the Industrial Engineering De
partment on the job involved in the question after
Step 2 of the grievance procedure The applicable
overtime rates as contained in Article III of the
Labor Agreement shall be paid on all bonus payment
earnings