California Portland Cement Co.

National Labor Relations Board - Board Decisions

Dec 29, 1952

101 N.L.R.B. 1436 (N.L.R.B. 1952)

1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE
To ALL MEMBERS OF NATIONAL UNION OF MARINE COOKS AND STEWARDS AND TO
THOSE WHO SHIP THROUGH THE SAN FRANCISCO HIRING HALL
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL NOT cause or attempt to cause AMERICAN PRESIDENT LINES, LTD.,
its officers , agents, successors , and assigns , to discharge , refuse to hire, or
otherwise discriminate against employees or applicants for employment for
their failure to obtain clearance from this organization , except in accord-
ance with Section 8 ( a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause AMERICAN
PRESIDENT LINES, LTD., or its agents, successors , or assigns, to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of AMERICAN PRESIDENT LINES,
LTD., its successors or assigns , in the exercise of rights guaranteed in
Section 7 of the Act.
WE WILL make John Chung and James Randall whole for any loss of pay
each may have suffered because of the discrimination against them.
WE HEREWITH WITHDRAW any objection to the employment of James Ran-
dall as waiter aboard the President Cleveland and of John Chung as yeoman
aboard the President Wilson.
NATIONAL UNION OF MARINE COOKS AND STEWARDS,
Labor Organization.
Dated-------------------- By----------------------------------------------
(Representative ), (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
CALIFORNIA PORTLAND CEMENT COMPANY and UNITED CEMENT, LIME
& GYPSUM WORKERS INTERNATIONAL UNION , LOCAL NO. 89 . Case
No. P31-CA-1479. December 29, 1952.
Decision and Order
On May 15, 1952, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
101 NLRB No. 232.
CALIFORNIA PORTLAND CEMENT COMPANY 1437
exceptions to the Intermediate Report and a supporting brief. The
General Counsel and the Union filed no exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except to the extent that
they are inconsistent herewith 2
1. We do not agree with the Trial Examiner's finding that the
Respondent, by granting unilateral wage increases during the term
of the contract without prior consultation and negotiation with the
Union, refused to bargain with the Union in violation of Section 8
(a) (5) and (1) of the Act.
The Respondent granted unilateral increases to three salaried em-
ployees in July 1951, and to one in September 1951. However, the
contract between the Respondent and the Union which was in effect
at the time these increases were granted contained the following pro-
vision (article 7 (c)) : "The wages specified in this schedule are min-
imum wages and are not to be considered as preventing the employer
from giving, or the employee from receiving any additional compen-
sation :" This provision had originally appeared in the 1944 contract
between the parties and had been retained in all their subsequent con-
tracts. It is clear from the tenor of the 1944 negotiations between the
parties concerning this clause that the parties construed it to apply
to the increases in salaries as well as wages.
Moreover, on March 22, 1951, during the contract term, the Union,
in presenting a petition to the Respondent requesting an increase in
compensation for the salaried and hourly employees, acknowledged
therein that article 7 (c) provides for adjustments being made other-
wise than through negotiations. This petition was signed by a
majority of the Respondent's employees, including 25 out of approxi-
mately 34 salaried employees, and by the officers of the Union.
The record shows that since 1944 it has been the Respondent's prac-
tice to grant unilateral increases to salaried employees, and that this
practice had been acquiesced in by the Union.
'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 ( Chairman Herzog and Mem-
bers Styles and Peterson]
' we note and correct the following minor inaccuracies in the Trial Examiner's findings,
none of which affects the validity of his ultimate conclusions or our concurrence therein :
(1) The grievance meeting stated in the Intermediate Report to have been held on Septem-
ber 18, 1951 , was held on September 13, 1951 ; ( 2) the Union filed the amended charge
with the Board on November 30, 1951, and not on December 3, 1951, as stated in the Inter-
mediate Report ; ( 3) the unit which the Union assumed the right to bargain for in 1940
was all salaried and hourly paid production and maintenance employees, with specified
exclusions.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of all the foregoing circumstances, we find the parties con-
strued article 7 (c) of the contract as authorizing the Respondent to
grant unilateral increases to salaried ( as well as hourly employees)
without prior consultation with the Union.
We therefore find that the Respondent did not violate the Act by
unilaterally granting increases during the contract term, and this
portion of the complaint will be dismissed.3
2. We agree with the Trial Examiner that the Respondent vio-
lated Section 8 (a) (5) and (1) of the Act by refusing to divulge
the classifications and compensation of its salaried employees to the
Union.
On November 6, 1951, when the Union made its initial request for
such information, and again on November 15, 1951, the Respondent
declined to furnish the Union with a list of classifications and salaries
of all monthly salaried employees 4 Finally, on November 28, 1951,
the Respondent refused to furnish this information because an unfair
labor practice charge had been filed against it by the Union.
The Trial Examiner found, and we agree, that the Union needed
this information so that it could properly administer the contract.
The Respondent contends that such information was not relevant to
the administration of the contract because the contract did not pre-
scribe the rates of compensation of the salaried, but only of the hourly,
employees. Accordingly, the Respondent argues that no question
could arise of any disparity between the contract salary rate and the
rate actually paid. However, the Respondent's contention overlooks
the fact that the contract contains various provisions for adjustments
in compensation of employees which could not be administered by
the Union without a knowledge of the classifications and rates of pay
of the salaried employees .-5
The Respondent further contends that because the 1950 contract,
as amended on July 13, 1951, contained provisions requiring the dis-
closure by the Respondent of certain information (not including that
in issue here), the Union expressly waived any right it may have had
to this information by articles 21 of the contract, the pertinent portions
of which reads as follows :
This Labor Agreement and the Pension Agreement together
contain all the obligations of, and restrictions imposed upon, each
of the parties during their respective terms.
J General Controls Co., 88 NLRB 1341.
4 We do not adopt the Trial Examiner 's finding of fact that on September 13, 1951, the
Union requested the Respondent to advise it, in writing , of the compensation paid to the
salaried employees . The record reveals that the Union on that date requested only that
Respondent incorporate these salaries in the contract.
° See, e. g., article 9 (a) of the contract which provides that in the case of a temporary
transfer an employee shall receive either the rate of pay for his old job or for his new job,
whichever is higher.
CALIFORNIA PORTLAND CEMENT COMPANY 1439
It is the intent of the parties by these two agreements to have
settled all issues between them and all collective bargaining
obligations for the term of the Labor Agreement (and for the
term of the Pension Agreement relative to pensions), and that no
change shall be made in either agreement prior to the expiration
thereof except by mutual written consent and except as provided
in Section 2 of Article X of the Pension Agreement.
However, we are dealing here with a right that derives from statute
and not from contract. Assuming, without deciding, that this statu-
tory right may be waived by a union, the Board will not, in any event,
give effect to any purported waiver of such right unless it is expressed
in clear and unequivocal language. We find no such unequivocal
waiver here.6
We find, therefore, that the Respondent's refusal to furnish the
Union a list of its salaried employees in the unit, with their job classi-
fications and monthly salaries, constitutes a violation of Section
8 (a) (5) and (1) of the Act.7
3. The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Act by refusing to negotiate with the Union
concerning work assignments and transfers of certain salaried em-
ployees who were displaced by the removal of a portion of the
Respondent's payroll work from its Colton, California, plant to its
Los Angeles office.
On November 15, 1951, the Respondent informed the Union that
it would have to lay off four or five men in the payroll department
due to the fact that part of the payroll work was being transferred
to the Los Angeles office. At a meeting with the Respondent on
December 5, 1951, the Union stated that one of the employees affected
by the removal of the payroll work had been told that if he transferred
to the laboratory as a sample grabber he would have to start at the
lowest starting rate. The Respondent refused to discuss this matter
because of the pendency of the charge in the instant case. However,
on December 18,1951, the grievance of another employee, McWilliams,
concerning his work assignment and transfer resulting from the re-
moval of the payroll work was read and discussed. The grievance
of employee Raymond M. Matern was also read at this time. The
record does not show that any questions were ever raised concerning
See Hekman Furniture Company, 101 NLRB 631 ; Leland- Gifford Company, 95 NLRB
1306, 1322.
' The Trial Examiner further found that the Respondent violated Section 8 ( a) (5) and
(1) of the Act by refusing to furnish in writing to the Union the vacation rights, holiday
rights, and sick leave rights of its salaried employees We do not adopt these findings of
the Trial Examiner because the record does not reveal that the Union requested the Re-
spondent to furnish such information in writing , but rather that it requested that the
Respondent ' s existing policy with respect to these matters be incorporated in the contract.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the transfers of Coburn and Callahan, the other two employees affected
by the transfer of the payroll work.
Under these circumstances, we find that there was no adamant
refusal by the Respondent to discuss the effect of the transfer of the
payroll work upon the job status of the affected employees. Accord-
ingly, we shall dismiss this portion of the complaint.
4. Like the Trial Examiner, we find that the Respondent violated
Section 8 (a) (5) and (1) of the Act by refusing to negotiate with the
Union on the question of the removal of a part of the payroll work
to the Los Angeles office.8
At a meeting on November 28, 1951, the Union informed the Re-
spondent that it considered the proposed removal of the payroll work
to Los Angeles to be a violation of the contract. The Respondent
disputed this and requested the Union to present a written grievance
if it wished to pursue the question further. Such a written grievance
was presented by the Union on November 30, 1951. On the same day,
the Union filed an amended charge with the Board, charging that the
Respondent refused to discuss the merits of this transfer of work.
On December 4, 1951, Respondent's attorneys informed the Union
that they had advised the Respondent that until final disposition of the
pending charges it should not discuss with the Union the transfer of
the payroll work to Los Angeles, and at a meeting on the following
day, the Respondent, on advice of its counsel, declined to discuss that
subject. At later meetings the Respondent adhered, in substance, to
this position s
The Respondent contends that its refusal to bargain on this issue
should be deemed to be excused by the Union's failure to exhaust its
remedies under the contract grievance procedure before filing the
amended charge. However, the Union did invoke the grievance pro-
cedure, in compliance with the Respondent's request, and it was the
Respondent, not the Union, that refused to process the grievance
further. The fact that the Union filed a charge at the same time that
it submitted the grievance did not relieve the Respondent of its statu-
tory duty to discuss the grievance b0
5. The Trial Examiner found that the Respondent refused to bar-
gain in violation of Section 8 (a) (5) and (1) of the Act by refusing
8 The refusal to bargain on this issue was not specifically alleged in the complaint
However , the issue was fully litigated at the hearing , and Respondent makes no contention
to the contrary.
9 On December 18, 1951 the Respondent indicated that it would discuss the removal of
payroll work if the Union withdrew its charges. However, this offer was withdrawn on
January 11, 1952, in view of the Union's failure to act thereon
] 8 Mason & Hughes , Inc, 86 NLRB 848; Union Manufacturing Company , 95 NLRB 792.
Consolidated Aircraft Corporation , 47 NLRB 694, and Crown Zellerbach Corporation, 95
NLRB 753, cited by the Respondent, are clearly distinguishable from the instant case on
the ground that there, unlike the instant case , the union failed to invoke the available
contract grievance procedure
CALIFORNIA PORTLAND CEMENT COMPANY 1441
to disclose to the Union the overtime allotted to, and worked by, the
employees in the bargaining unit.
At a meeting on November 28,1951, the Union asked the Respondent
to disclose to it the overtime paid to its members from January 1, 1951,
to November 1, 1951, and that each month a list of overtime worked
by each employee be posted in each department. The Respondent
reserved decision on this request. At a meeting with the Union on
December 5, 1951, the Respondent offered to divulge to any interested
employee the distribution of overtime in his department: This offer
was renewed on January 11, 1952.
On January 19, 1952, prior to the hearing in this case, Endicott, a
member of the Union's grievance committee, visited the Respondent's
quarry department to discuss a grievance involving overtime and
asked the assistant plant superintendent, Vaughan, about the distri-
bution of overtime in that department. Vaughan referred Endicott to
a posted list of overtime worked by each employee in the quarry depart-
ment. Vaughan stated further that lists showing the distribution of
overtime in other departments of the plant were available to the Union
either on departmental bulletin boards or in records maintained by the
foremen. Endicott then stated, "If we knew that, we wouldn't have
any grievance over overtime."
In view of the foregoing, we find merit in the Respondent's excep-
tion to the Trial Examiner's finding that the Respondent violated the
Act by refusing to disclose information as to overtime, and we will
dismiss this portion of the complaint.
6. The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Act by refusing to divulge to the Union
the compensation for certain job vacancies when the jobs were posted
for bid.
The first occasion within the 6-month limitation period in Section
10 (b) of the Act 11 on which the Union requested posting the salaries
in job notices was on August 3, 1951, when the Union filed a grievance
concerning this matter. This grievance was discussed by the Re-
spondent on August 9, without agreement being reached. On Sep-
tember 13 the matter was again discussed without result. However,
on September 28, 1951, before the charge in this case was filed, the Re-
spondent finally agreed to include the salaries in notices of job
vacancies, and did thereafter carry out this agreement.
Under these circumstances, we find merit in the Respondent's excep-
tions to the Trial Examiner's finding that it violated the Act by re-
fusing to disclose to the Union the compensation for certain posted
jobs, and we will dismiss that portion of the complaint.
"As the original charge in this case was filed and served on November 16, 1951, the
limitation period commenced on May 16, 1951.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
Having found that the Respondent has refused to bargain with
the Union by refusing (1) to disclose to the Union the classifications
and compensation paid to the salaried employees; and (2) to negotiate
concerning the grievance with respect to the removal of a part of
the payroll work from the Colton, California, plant to the Respond-
ent's Los Angeles office, we will order that the Respondent (a) furnish
the Union, upon request, the classifications and compensation paid to
its salaried employees; and (b) negotiate with the Union, upon re-
quest, concerning any grievances presented by the Union as the col-
lective-bargaining representative of the employees in the appropriate
unit.
Conclusions of Law
In lieu of paragraph 4 of the Trial Examiner's Conclusions of Law,
we adopt the following :
By refusing (1) to furnish the Union with a written list of the
classifications and compensation paid to its salaried employees; and
(2) to negotiate with the Union with respect to the removal of a
portion of the payroll work from the Colton, California, plant to the
Respondent's Los Angeles office, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, California Port-
land Cement Company, Los Angeles, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Cement, Lime &
Gypsum Workers International Union, Local No. 89, affiliated with
American Federation of Labor, as the exclusive representative of
Respondent's employees in the following appropriate unit :
All employees performing work at the Respondent's Colton, Cali-
fornia, plant in the manufacture of cement or lime, and all work
incidental thereto, but excluding employees engaged in the trans-
portation of such products upon the public highways or agricultural
work, superintendent, assistant superintendent, chief chemist, assistant
chief chemist, research chemists, general plant foreman, master me-
chanic, all department heads, technical engineers and draftsmen, safety
supervisor, assistant safety supervisor, personnel man, guards, three
CALIFORNIA PORTLAND CEMENT COMPANY 1443
clerks, arfd supervisory or professional employees as defined in the
Act.
(b) Interfering in any manner with the efforts of United Cement,
Lime & Gypsum Workers International Union, Local No. 89, affiliated
with American Federation of Labor, to bargain collectively with
Respondent on behalf of all employees in the aforesaid appropriate
unit.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Furnish, upon request, to United Cement, Lime & Gypsum
Workers International Union, Local No. 89, affiliated with American
Federation of Labor, the classifications and compensation paid to its
salaried employees, and negotiate, upon request, with said labor organ-
ization concerning any grievances presented by it.
(b) Post at its plant at Colton, California, copies of the notice
attached hereto and marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent or its representative,
be posted by Respondent immediately upon receipt and be maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in all other respects.
Appendix A
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 UNITED
CEMENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION,
LOCAL No. 89, affiliated with AMERICAN FEDERATION OF LABOR, as
the exclusive representative of all our employees in the bargaining
unit described below.
"In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
242305-53-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with the efforts of the
above-named union to bargain collectively with us on behalf of all
our employees in said bargaining unit.
WE WILL furnish to the union, upon request, the classifications
and compensation paid to the salaried employees in said bargain-
ing unit.
WE WILL, upon request, discuss and negotiate with the union
as the exclusive representative of the employees in said bargaining
unit all grievances presented by the union. The bargaining
unit is:
All employees performing work at our Colton, California,
plant in the manufacture of cement or lime, and all work in-
cidental thereto, but excluding employees engaged in the
transportation of such products upon the public highways or
agricultural work, superintendent, assistant superintendent,
chief chemist, assistant chief chemist, research chemists, gen-
eral plant foreman, master mechanic, all department heads,
technical engineers and draftsmen, safety supervisor , assist-
ant safety supervisor, personnel man, guards, three clerks,
and supervisory or professional employees as defined in
the Act.
CALIFORNIA PORTLAND CEMENT COMPANY,
Employer.
By ----------------------------------------
(Representative ) (Title
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on November 16 and 30, 1951,
respectively , by and on behalf of United Cement, Lime & Gypsum Workers Inter-
national Union, Local No. 89, affiliated with American Federation of Labor,
herein called the Union, the General Counsel of the National Labor Relations
Board, herein respectively called the General Counsel and the Board, by the
then Acting Regional Director for the Twenty -first Region ( Los Angeles, Cali-
fornia ), issued his complaint , dated February 1, 1952, alleging that California
Portland Cement Company , Los Angeles , California , herein called Respondent,
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 ( a) (1) and ( 5) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended , 61 Stat. 136 , herein called the Act.
Copies of the complaint and the charges , together with notice of hearing
thereon, were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint , as amended at the
hearing, alleged in substance that Respondent ( 1) refused to disclose to the
CALIFORNIA PORTLAND CEMENT COMPANY 1445
Union, the collective-bargaining representative, when requested to do so, (a)
the compensation paid by Respondent to certain employees within the unit, (b)
refused to incorporate in the collective-bargaining agreement the compensation,
vacation rights, holiday rights, and sick leave rights of certain employees within
the bargaining unit, (c) refused to discuss with the Union the work assignments
and the transfers of certain employees, (d) refused to inform the Union the
amount of overtime worked by certain employees within the bargaining unit,
(e) refused to divulge to the Union the compensation for certain job vacancies
when the said jobs were posted for bid, and (f) refused to negotiate with the
Union certain grievances presented by the Union; and (2) on or about May 17,
1951, unilaterally, and without prior consultation with the Union, changed the
compensation of employees within the bargaining unit.
Respondent duly filed an answer denying the commission of the alleged unfair
labor practices.
Pursuant to notice, a hearing was held at Los Angeles, California, from March
17 through March 21, 1952, before the undersigned, the duly designated Trial
Examiner. The General Counsel, Respondent, and the Union were represented
by counsel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the conclusion of the General Counsel's
case-in-chief, Respondent's counsel moved to dismiss certain portions of the
complaint for lack of proof. The motions were denied. At the conclusion of the
taking of the evidence, the undersigned granted the unopposed motion of the
General Counsel to conform the pleadings to the proof with respect to minor
inaccuracies. Counsel for Respondent then moved to dismiss the complaint, or,
in the alternative, certain stated portions thereof, for lack of proof. Decision
thereon was reserved. The motion is hereby denied. Oral argument was then
had in which counsel for Respondent and the General Counsel participated. The
parties were then advised that they might file briefs with the undersigned on or
before April 10, 1952.' A brief has been received from Respondent's counsel and
it has been carefully considered.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
California Portland Cement Company has its principal offices and place of
business in Los Angeles, California. Respondent is engaged at its Colton, Cali-
fornia, plant, the employees of which are the only ones herein involved, in quarry-
ing limestone and in the manufacture, sale, and distribution of Portland cement.
Respondent's annual out-of-State purchases for use at its Colton plant exceed
$100,000 and its annual out-of-State shipments from said plant exceed $500,000.
Respondent's products are presently being used for national defense.
Under the above undisputed facts, the undersigned finds that Respondent is,
and during all times material herein was, engaged in commerce within the mean-
ing of the Act.
II. THE ORGANIZATION INVOLVED
United Cement , Lime & Gypsum Workers International Union, Local No. 89,
affiliated with American Federation of Labor, is a labor organization admitting
to membership employees of Respondent.
' At the request of Respondent's counsel the time was extended to April 18, 1952.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Refusal to Bargain Collectively with the Union
1. The pertinent facts'
Beginning about 1937 , Respondent had collective -bargaining relations with an
AFL Cement Workers Union, which was recognized as the collective-bargaining
representative for all employees at Respondent's Colton, California, plant, except
a few top managerial personnel. In 1940, the Union here involved came into
existence and assumed the right to bargain on behalf of all the production and
maintenance salaried employees, but excluding drivers and supervisory personnel.
The first contract between Respondent and the Union was executed on March
1, 1940. The second basic contract was executed on July 30, 1941.
On March 30, 1944, the Union served notice upon Respondent of its desire to
reopen the contract and at the same time submitted its written proposals. The
Union also notified Respondent that the negotiations would be carried on sepa-
rately, and not jointly with other employers engaged in the same industry as in
the past. Shortly before the service of the aforesaid letter of the Union, Re-
spondent's salaried employees handed Respondent a petition, dated February
7, 1944, requesting that their respective salaries be not made known to the Union.
The negotiations were concluded with an agreement, dated September 18, 1944,
amending the 1940 contract. The 1940 contract was further amended on June
5, 1946, and again on April 30, 1947.
On June 23, 1948, Respondent and the Union entered into a new contract for
the persons covered by the 1940 contract and its several amendments. On May
1, 1949, a contract was executed by the parties and is presently in effect.
Under date of February 27, 1950, Respondent wrote the Union of its desire to
reopen the then existing contract for the purpose of modification and stated the
changes desired.' The next day, the Union served upon Respondent its notice
to reopen the contract. After protracted negotiations a tentative agreement was
reached on June 30, 1950. The union membership, however, rejected the agree-
ment. On July 28, 1950 , the parties reached a settlement and signed a
memorandum agreement.
On March 24, 1950, the parties commenced and continued thereafter to negotiate
on what was designated as "local autonomy issues." One of those issues was
Respondent's request that the salaries of the monthly paid employees be converted
to hourly rates. On August 25, 1950, the parties signed an agreement with
respect to the issues which they had agreed upon, among them being the extension
of the 1949 agreement until April 30, 1953. The parties, however, were unable
to agree upon Respondent's conversion request and that issue was reserved for
further negotiations.
2 Some of the incidents described in this section antedate May 16, 1951 ( 6 months prior
to the filing of the original charge herein ), and hence no finding of unfair labor practice
may properly be made with respect to them. However, it was understood at the hearing
herein that evidence concerning them would be admitted only as showing background
circumstances relevant to the alleged unfair labor practices . Accordingly , the undersigned
does not find that the incidents which occurred prior to May 16, 1951, were unfair prac-
tices as such, but does find that they are indicative of Respondent's attitude prior to, and
cast light upon its motive in connection with, the activities alleged in the complaint herein.
3 Respondent requested that "Armistice Day" be not considered a legal holiday under the
contract ; that "the wage rate of all employees covered by this Agreement shall be an hourly
rate of pay" be added to the article of the contract referring to wages ; that a change be
made in the vacation clause of the contract ; and delete from the contract, "the policy now
in force as applying to monthly salaried employees covering vacation periods shall be
continued in effect."
CALIFORNIA PORTLAND CEMENT COMPANY 1447
On February 1, 1951, the Union, at a grievance meeting, informed Respondent
that the Union had been instructed to request that in the future Respondent
post the pay rates, hours, and job requirements of all jobs posted by Respondent.
After a caucus of Respondent's representatives, the Union's representatives were
told that Respondent was not required to post the rates of posted salaried jobs,
but, nevertheless, Respondent would take the Union's request under advisement.
At the next grievance meeting, held on February 15, Respondent stated that
a good deal of thought was given to the Union's request that the salaries of posted
jobs be given at the time of the posting, but it was unable to reach any decision
with respect thereto. Respondent then stated that since the salaried employees
in 1944 requested Respondent to withhold this information, the Union should
submit the request in writing. The Union agreed to do so. Respondent then
stated, according to the minutes of that meeting, "this request ties in with their
proposal to convert the monthly salaries to an hourly rate and that before the
Company considers posting the rates of these jobs as openings occur, they believe
that the rates should be in the contract."
Under date of February 20, the Union wrote Respondent suggesting that all
future posted job notices state "rates of pay, regular hours of labor and job
requirements."
At a meeting held on March 22, the Union presented Respondent with an
employees' petition requesting a wage increase. This request was negotiated
and at a meeting held on August 1, where representatives of two other cement
companies were present and participated, an agreement was reached providing
for a general wage increase for the employees of the three companies involved,
subject, however, to the approval of Wage Stabilization Board.
At a meeting later in the day, August 1, but absent the representatives of the
other two companies, the Union again requested Respondent to state the salary
on the notices of posted jobs. Respondent replied that in the past it never
posted the salaries and again pointed to the fact that it once had been requested
by the salaried employees not to reveal this information to the Union.
After many months of study and negotiations the parties, on July 13, signed
"Pension Retirement Agreement." On the same day, at the Union's request, the
parties entered into an agreement, the pertinent portions of which read as follows :
The parties hereto do mutually agree as follows :
(1) Article (21) of the Agreement of May 1, 1950 between the Union and
the Employer is amended to read as follows :
This Agreement (hereinafter called Labor Agreement) dated July 13, 1951
(hereinafter called the Pension Agreement) constitute the only and entire
agreements between the parties hereto and supersede all prior agreements,
oral or written, between the parties.
This Labor Agreement and the Pension Agreement together contain all
the obligations of, and restrictions imposed upon, each of the parties during
their respective terms.
It is the intent of the parties, by these two agreements, to have settled
all issues between them and all collective bargaining obligations for the
term of the Labor Agreement (and for the term of the Pension Agreement
relative to pensions), and that no change shall be made in either agreement
prior to the expiration thereof except by mutual written consent and except
as provided in Section 2 of Article 4 of the Pension Agreement.
(2) This Supplementary Agreement shall be effective as of May 1, 1951.
Under date of August 3, the Union notified Respondent that it desired to dis-
cuss with Respondent 10 stated grievances, one of which was "discussion of the
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posting of salaries on job notices." Pursuant to the said notice, Respondent
and the Union's grievance committee conferred on August 9. There, Respondent
stated that 2 items' which the Union had presented should be discussed together
because Respondent believed these items tied in with the whole monthly pay
problem. Discussion was thereupon had on the said 2 items and on the monthly
pay matter but no agreement was reached.
At a grievance meeting held on September 18, the Union again requested
Respondent to state on all posted job notices the salary to be paid. Respondent
stated that it "thought this ties in with their request to convert the monthly
salaries to an hourly rate." The Union replied, "the posting of a salary on a job
bid is no part of the Company's request to convert these salaries to an hourly
rate." The Union then requested that Respondent advise it, in writing, the
wages paid the salaried employees, adding that if it did not get this information
then the Union's grievance committee would take the matter up directly with
L. E. Bancroft, Respondent's vice president.
At the next meeting, held on September 28, the following according to the
minutes thereof, ensued :
The Company and Union Committee each gave their positions on the
salary conversion. The Company has proposed 3 days sick leave pay (an
average used in 2 years), 7 days holiday pay and the monthly salary con-
verted to an hourly rate. The Union's proposal was that the monthly
employees stay as they are with their 10 days sick leave and 7 paid holidays
down in writing and their salaries to be shown in the contract.
It was also mentioned that the Union has requested that the Company
post salaries on job notices. The Company stated that on this request to
post salaries the Company's position is that a custom has been established
over a period of 12 years and the Company interprets Article 13, Paragraph f
as follows : ". . . such notice shall state rates of pay (except in the case of
monthly salaried employees), regular hours of labor . ..". The Company
considers this because of custom and practice over a period of 12 years.
The Company mentioned that the Union has stated in the past that sick leave
is considered a part of the contract on the basis of the custom and practice
of the past 12 years and also on the basis that it is an unwritten part of
Article 12, Paragraph b. The Union Committee stated that they do not say
that sick leave is a policy because when the monthly men were hired, they
were told that sick leave was part of their compensation. The Company
stated that this was not the case. The Union Committee further stated
that they believe that the Company recognizes the fact that these things
should be negotiated one way or another by the request in their opening
letter to the Union. The Company stated that since it has been the prac-
tice and custom for 12 years, without protest, to post monthly jobs without
posting the salary, it is an unwritten part of the contract. The Union stated
that the question of posting a salary or wage rate has been brought up as a
grievance by the Union, not as part of negotiations.
The Union Committee asked the Company on what basis does the Com-
pany feel that they shouldn't post monthly salaries on job notices. The
Company replied that their position is now that there is an agreement not
to post salaries. The Union Committee stated that they believe the Com-
pany's position is that if the Union had agreed to convert the salary rates
to an hourly rate that they would then post the rates on job notices. The
Company stated that this position is probably right, but that the Company
A Namely, the salary rate and description of the quarry clerk's job.
CALIFORNIA PORTLAND CEMENT COMPANY 1449
feels that we have an agreement not to post salaries . The Union Committee
replied that they do not know of such an agreement.
The Union Committee asked if the Company had a proposal to make on
their request to convert the salary jobs to an hourly rate . The Company
held a caucus and then stated that the Union Committee has repeatedly in
the Company 's opinion stated that their firm position is that they do not
want any change in their present benefits and the Company has made a
proposal of 3 days sick leave, 7 paid holidays converted to an hourly rate
and the Company is at a loss as to what they could propose.
The Company asked if the Union Committee had any proposal . The Union
Committee stated that they feel the Company ' s position is not equitable
as the Company 's proposal is a cut in pay and the Union feels that the con-
ditions at this time do not warrant such a cut. The Company stated that
they do not believe their proposal is a cut in pay.
The Union Committee stated that they cannot see any reason why the
Company cannot agree to continue paying the 7 paid holidays and the 10
days sick leave to the monthly employees the way they have in the past.
The Company stated that they have a proposal and would appreciate it
very much if the Union Committee would give it as much consideration as
possible . The Company would like to offer that the present monthly
salaried employees presently employed would continue on the same basis
heretofore including 10 days sick leave, no loss of pay in the event of a
holiday and the present policy to continue in effect on vacations. The
Company further proposes that job rates be established on an hourly basis
covering the clerical and laboratory positions under the jurisdiction of the
Union and that these hourly rates of pay shall apply to all future employees
to come under the Agreement hired for these positions.
The Union Committee held a caucus and then stated that they feel very
definitely that this proposal by the Company does not reflect a true picture
of what the Company proposed in their opening letter, as on a true con-
version job rates are already established . The Union Committee feels that
the present salaries are the established rates for these jobs . The Company
stated that the purpose of their proposal was an attempt to compromise their
desires with the position of the Union . The Company mentioned that in
some cases employees have been on these jobs many years and the Company
feels that these are man rates and not job rates. The Union Committee
stated that the Union has never agreed to any man rates . The Company
stated that when these jobs were first written up that any employee pres-
ently employed who was receiving a rate higher than the rate in the contract
would continue receiving those rates.
The Company asked if the Union Committee has turned down the Com-
pany's proposal . The Union Committee stated that the Company 's proposal
is not satisfactory because of the Union 's understanding of the Company's
original request and because of its discrimination towards new employees
and also because the Company ' s proposal asks for classification of the
monthly jobs , and the Union feels that these jobs are already classified.
The Company held a caucus and then stated that the Company feels that
the Union has not had time to consider the Company's last proposal and the
Company asks that the Union Committee give this proposal consideration
and that we meet again on the problem.
The Company held another caucus and then stated that the Company
would like to withdraw their proposal and in an effort to settle part of our
difficulties the Company will agree to include the rate for the job when
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posting monthly jobs for bid. However, the Company's request for con-
version of the monthly salaries is still open.
At the October 24 grievance meeting, the question of Respondent's proposal to
convert the salaried employees' wages to hourly wage rates was again discussed.
No agreement thereon was reached but the parties did agree that Bancroft for
Respondent and Hassett for the Union would meet in the near future in order
to settle the matter.
The Union's grievance committee and Hassett met with Bancroft and other
Respondent officials on November 6. There, after the Union had signed the
necessary papers, which Respondent had prepared for submission to the wage
Stabilization Board in order to grant the employees the 5 percent wage increase,
discussion turned to Respondent's proposal "that the salaried employees remain
as they are now, which does not include the posting of monthly salaries on bid
notices." After a caucus by the Union's representatives, they proposed to Re-
spondent, "Present benefits of the salaried employees including the 10 days sick
leave and 7 paid holidays shall continue in effect. However a list of the classifi-
cations of salaried employees and the salaries of such classifications shall be
furnished the Union." Respondent countered by stating that if the Union took
that position then Respondent "will have to withdraw their proposal and ne-
gotiate further their request to convert the salaries to an hourly rate." The
following, according to the minutes of that meeting, transpired :
The Union Committee asked the Company for a list of the monthly sal-
aried classifications and salaries for use by the Union in negotiations with
the Company. The Company stated that it will take a week or two for
the Company to find out their position on this request. The Union Com-
mittee stated that they do not understand why the Company does not want
to furnish this information to the Union. The Company replied that they
never have in the past and it was understood that the Company wouldn't
give out this information.
The Union Committee stated that the Union is now requesting that the
Company furnish the Union with a list of classifications and salaries of all
monthly salaried employees.
The Company stated that they have asked for a continuance of their
request to convert these monthly salaries to an hourly rate.
Respondent opened the November 15 meeting with the announcement that it
was about to lay off four or five men in the payroll department because it was
transferring part of that department from Colton to Los Angeles where the
work would be done by machines. The Union questioned Respondent's "right"
to transfer the work from the plant to the Los Angeles office and inquired if
Respondent intended to hire new employees to take the place of the four or five
to be laid off. Respondent replied that they had already hired two new female
employees to replace the four or five men.
Respondent then announced the withdrawal of the salary conversion pro-
posal. The Union then inquired when Respondent would furnish the requested
pay and classifications of the salaried employees information. Respondent re-
plied that since the contract was not open it was of the opinion that it was
not obliged to comply with the Union's request, adding, however, that the matter
should be submitted to Harry Malcolm of the Federal Mediation and Concilia-
tion service.' The Union replied that it would consider the suggestion even
6 In the past the parties submitted various questions they could not settle to Malcolm
for his advice and suggestion.
CALIFORNIA PORTLAND CEMENT COMPANY 1451
though it was of the opinion that the matter was not one for conciliation, but
was a question of law.
At the November 28 meeting, after the Union had protested the removal of
some of the payroll work to Los Angeles and some discussion with regard thereto
was had, and after discussion was had with respect to the possibility of some
of the men about to be laid off "bumping" other plant salaried employees because
of their plant seniority, the Union brought up its former request for the in-
formation regarding the salaried employees. Respondent replied, it "would
not like to discuss this because they have been charged by the Union with an
unfair labor practice and in discussing it the Company might prejudice" its case.'
During the course of this meeting, the Union requested a list showing the
overtime paid to its members from January 1 to November 1, 1951, and asked
that in the future a list be posted monthly showing the overtime paid its mem-
bers during the previous month. When asked the reason for the request, the
Union replied that the contract states that Respondent should allocate the over-
time work equally among the qualified employees in the department in which
the overtime occurs and that the members wanted to know if this provision was
being carried out fairly. Respondent stated it would duly consider the matter.
The Union then submitted the following written grievance, which was signed
by 24 of the 32 salaried employees then in Respondent's employ :
We, the undersigned, all members of local union #89 wish to submit our
grievance in accordance with article 15 of our labor agreement.
As you know, the monthly salaried employees have paid holidays, but due
to the actions of the company many of these men have been denied their
holidays in part by the company having them work 40 hrs. in a holiday week
while they only require others to work 32 hrs. in the same week. We all
have paid holidays and feel that the company is in violation of their agree-
ment when they don't grant ALL of the monthly salaried employees their
full number of holidays.
After some discussion was had with respect to the above grievance, and after
the Union had stated that it "would like to negotiate the salaries and benefits
of the monthly salaried employees," the following then ensued, according to
the minutes of that meeting :
The Company stated that the Union has filed an unfair labor practice
[charge] against the Company on their refusal to negotiate and they would
like to get that cleared up first. The Union Committee stated that this re-
quest is apart from the unfair labor practice charge. The Company stated
that they feel that this all ties in with the unfair labor practice charge,
and that the Company is not going to discuss further anything on this sub-
ject until they have this settled. The Company stated that we have been
negotiating these wages for almost a year and a half, and further states that
they believe the minutes will show that the Company considers the holiday
policy and sick leave policy as an unwritten part of the Agreement. The
Union Committee stated that these benefits are not a matter of policy, but
are an agreement.
Under date of November 28, the Union wrote Respondent formally protesting
the transfer of the payroll department work to Los Angeles and the contem-
plated layoff of some employees because of said transfer.
On December 3, the Union filed an amended charge with the Board. The
following day, Respondent's counsel wrote the Union acknowledging the re-
' The original charge herein was filed on November 16, 1951.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceipt of the written grievance of November 28, and advised the Union that Re-
spondent would not discuss with the Union any of the matters raised in the
charge or the aforesaid written grievance until final disposition of the said
charge.
The next meeting was held at Respondent's request on December 5. Re-
spondent opened the meeting by stating that it was surprised at the contents of
the amended charge filed with the Board by the Union! Respondent then stated
it would not discuss the written grievance filed by the Union with respect to the
payroll department removal or further discuss "anything regarding the monthly
salaried employees" because its counsel had advised it not to discuss any matter
alleged in the charges. In answer to the Union's inquiry why it had demanded
that the removal grievance be submitted in writing, Respondent stated that it
considered the "grievance a very fundamental part of the contract" and therefore
desired it in writing.
The Union then stated that one of the employees affected by the contemplated
removal had been told that if he accepted a transfer to the laboratory as a
sample grabber he would have to start at the lowest starting wage and inquired
if the above was in accordance with Respondent's policy. Respondent replied
that it would not discuss it because it related to a matter pending before the
Board. Respondent took the same position relative to the Union's inquiries as
to the rate of pay for the recently posted quarry clerk job and as to the duties of
the clerk-typist.
When James M. McWilliams, the Union's recording secretary, stated that he
was one of the persons affected by the payroll department transfer and would
like to be considered as an applicant to fill the then vacant storeroom clerk posi-
tion, Respondent replied that it had decided to abolish that job because it was
unnecessary. It refused, however, to discuss the necessity for the job's abolition,
although requested to do so.
The following discussion then concluded the meeting, to quote from the meet-
ing's minutes :
The Company stated that on the Union's request for a list of overtime,
the Company feels there is nothing in the Agreement requiring them to
give such a list and if any man feels that he wants to know about his over-
time he can come into the office and the Company will show him how the
overtime is being distributed in his department. The Union Committee
stated that the Company's position on supplying overtime information to
the Union is not satisfactory to them, but that they will take the Company's
position back to the Union.
The Company stated that on the petition from the monthly salaried
employees regarding holidays,' the Company is going to continue its policy
in the past. The Company contemplates no change at this time in the policy
in force regarding sick leave and holidays regarding the monthly salaried
employees. The Union Committee stated that they do not like the word
policy, but consider the sick leave and paid holidays as an Agreement. The
Union Committee stated that the Company's position has not always been
that when a holiday falls on a man's day off he would not get paid for it be-
cause the Shipping Department and other departments with monthly salaried
employees used to be allowed another day off with no loss of pay when a
R In addition to the allegations of the original charge , the amended charge alleged Re-
spondent 's refusal to discuss or negotiate the removal of a certain portion of the payroll
department to Respondent 's Los Angeles office.
6 Submitted at the November 28 meeting.
CALIFORNIA PORTLAND CEMENT COMPANY 1453
holiday fell on their regular day off. The Company stated that if this was
allowed it was not authorized by the Company.
The Union Committee stated that on their request to negotiate the monthly
salaried classifications under Article 7, Section ( b) of our Agreement, the
Company has refused to negotiate. The Company stated that this unfair
labor practice charge must be cleared up first.
The Union asked at the next meeting, held on December 18, whether Respond-
ent would discuss with the Union "these things." Respondent responded, to quote
from the minutes of the meeting , "they absolutely would be willing to discuss
these things then." The union committee , after a caucus , stated , "the Company's
position has enlightened them and that they want to get some advice concerning
their unfair labor practice [ charges ] before they discuss it further."
When the Union asked whether Respondent would supply it with the salaries
and classification data of the salaried employees if the Union withdrew the
pending charges, Respondent replied in the affirmative , adding, however, that
the grievance regarding the payroll department's removal would have to be
processed through the contract's grievance procedure.
At the Union's request, the parties met on January 11, 1952, and the following,
among other things , transpired thereat, according to the minutes prepared by the
Union :
The Company stated that they withdraw a statement made at a previous
meeting. The statement was regarding the Company 's willingness to nego-
tiate on the salaried situation and furnish necessary information, if the
Union withdrew the Unfair Labor charge against the Company. The reason
for withdrawal of above statement is that it was made about three
weeks ago and the Union failed to act. The Union stated that they wanted
to settle all issues at the negotiating table and do not intend to use the
NLRB as a club to enforce the contract . The Company asked what the
Union wants. The Union stated that they want, in writing , our existing
agreement with the Company on the salaries, rates, nomenclature , etc., to-
gether with seven paid holidays and ten days sick leave, of the Union em-
ployees in what is known as the Salary Group. The Company stated that
they will study the question.
* * * * * * *
The Union asked the Company to post a list, by departments, of overtime
worked and by whom so that they could properly administer the contract.
The Company said that they did not feel they had to furnish such a list
but if an individual felt he was getting a bad deal he could come to them
for information as to amount of overtime in his department s
George Hassett, an international vice president of the Union, testified, and
the undersigned finds, that at the aforesaid meeting of January 11, Respondent
asked him what action the Union had taken with respect to withdrawing the
charges previously filed with the Board; that he replied that it was his under-
standing that the Union would not make any move in that respect unless and
6 Respondent refused to sign these minutes , as was the past custom of the parties to do
with respect to the minutes , on the ground that the Union 's minutes did not correctly reflect
what transpired at the meeting The undersigned has compared the minutes offered in
evidence by the respective parties and has carefully considered them in the light of the
entire record including the demeanor of the witnesses who testified with respect to that
meeting, the general plausibility of their testimony , and its consistency with other facts
in the case which are undisputed or otherwise clear, and is of the opinion that the Union's
minutes substantially reflect what transpired there.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until Respondent supplied the Union with requested data ; that Respondent's
spokesman replied that it was his understanding that the charges would be
withdrawn prior to the giving of the data; and that discussion on that point
concluded when he stated he would not withdraw the charges until he had the
information requested.
The undersigned further finds that on January 30, 1952, Hassett asked Gen-
eral Manager McCall why Respondent refused to submit the information re-
garding the salaried employees and McCall replied that Respondent would give
the Union the information "provided the union will accept these salaries as man
rates and not as classification rates."
In addition to Respondent's refusal to disclose the information sought by
the Union respecting the salaried employees, the record discloses that Respond-
ent, without prior consultation or negotiation with the Union, unilaterally raised
the wages of four salaried employees in September 1950, three in December
1950, three in July 1951, and one in September 1951.
2. Concluding Findings
It is well settled, as Respondent concedes, that an employer, who, upon re-
quest, refrains from supplying the collective-bargaining representative of his
employees with which the employer has a contract with information so as to
enable the representative to properly administer the contract, refuses to bargain
within the meaning of Section 8 (a) (5) of the Act. Here, however, Respond-
ent seeks to excuse its refusal to supply the requested information mainly on
the grounds that (1) the Union, under article 21 of the contract, as amended
by the parties on July 13, 1951, waived, for the contract term, its right to nego-
tiate with respect to the hours, wages, and other conditions of employment of
the salaried employees, and (2) the information sought was not for any legiti-
mate need or for any necessary purpose.
In support of its position, Respondent contended at the hearing and in its
brief that all the legal obligations between the parties, during the term of the
contract, had been provided for in the contract and therefore neither had a
further obligation relative to collective bargaining. The contract, as amended,
contained a provision that "all of the obligations of, and restrictions imposed
upon each of the parties" were contained therein and it is argued that the
parties thereby expressly waived any duty to bargain further except by mutual
consent.
During the 1950 contract negotiations, as found above, Respondent unsuccess-
fully sought to have the wages of all persons in the bargaining unit converted to
an hourly basis. When Respondent was unable to secure the Union's consent
to this proposal, it abandoned its efforts in that direction and signed the agree-
ment now in existence.
The mere fact that the contract makes no mention of the wages and certain
other conditions of employment of the salaried employees cannot be taken as
being a waiver of an agreement by the Union of its right to bargain about
changes in the wages and other conditions of employment of those persons. As
the court observed with respect to a similar situation in N. L. R. B. v. f. H.
Allison cE Co., 165 F. 2d 766, 768 (C. A. 6) :
Nor do we see logical justification in the view that in entering into a
collective bargaining agreement for a new year, even though the contract
was silent upon a controverted matter, the union should be held to have
waived any rights secured under the Act. including its right to have a say-so
as to so-called merit increases. Such interpretation would seem to be dis-
CALIFORNIA PORTLAND CEMENT COMPANY 1455
ruptive rather than fostering in its effect upon collective bargaining, the
national desideratum disclosed in the broad terms of the first section of the
... Act 10
The terms of article 21, on their face, are not remotely related to the proposi-
tion of a waiver by the Union. In any event, since the parties, before executing
the contract in August 1950, agreed among themselves that article 21 shall not
be injected for the purpose of preventing further bargaining on behalf of the
salaried employees, it follows that Respondent's contention that the Union, by
agreeing to the inclusion of article 21 in the 1950 contract, waived its statutory
right to further bargain, during the term of the contract, for the salaried em-
ployees, is without merit.
Respondent's contention that the requested information was not legitimately
needed nor desired for a necessary purpose is likewise without substance. In
the first place, this contention seems to be an afterthought for at no time during
the numerous meetings between the parties did Respondent rest its refusal to
supply the information on those grounds, but refused solely on the grounds
that (1) Respondent had never supplied such information before and, there-
fore, it did not intend to do so in the future, and (2) the salaried employees in
1944 had requested Respondent not to allow the Union access to their salary
data. In the second place, the record is manifestly clear that the information
the Union requested was vitally needed by the Union in order to properly ad-
minister the contract. For, admittedly, Respondent had granted wage in-
creases during the period the contract was in existence to certain salaried em-
ployees without prior consultation and negotiation with the Union; the salaried
employees believed that the overtime work was not being equitably distributed ;
and the salaried employees resented being obliged to bid for posted jobs without
knowing what the job entailed or what salary the former holder of the job
received.
Since the basic dispute between the parties revolved around the wages and
working conditions of the salaried employees, Respondent was under a duty to
supply the requested economic data for it contained facts which could have
resolved the dispute."
Clearly, the defense that Respondent was justified in withholding the re-
quested material because it had been requested to do so by some of the persons
in the bargaining unit, is of no avail to Respondent for it is now firmly estab-
lished that an employer may not ignore his employees' duly chosen collective-
bargaining representative, even at the request of his employees, unless and until
such representative status has been revoked."
Respondent's defense that it is relieved by Section 8 (d) of the Act from any
duty to bargain with respect to the salaried employees, is likewise without
merit.i3 Respondent also argued that since the contract was signed on August
10 See also Jacobs Manufacturing Company, 94 NLRB 1214; Tide Water Associated Oil
Co., 85 NLRB 1096; and Allied Mills, Inc., 82 NLRB 854. In the Tide Water case the
Board held, at page 1099, that Section 8 (d) of the Act, in providing that parties to a
contract are not required "to discuss or agree to any modification of the terms and condi-
tions contained in a contract for a fixed" period "refers to terms and conditions which
have been integrated and embodied into a writing "
11 Westinghouse Electric Supply Company, 96 NLRB 407; NLRB v. Yawman & Erbe
Mfg Co . 187 F. 2d 947 (C. A. 2) ; N. L. R. B. v. The Sherwin-Williams Co., 130 F 2d
255 (C A 3) ; Aluminum Ore Co. v. N. L R. B., 131 F. 2d 485 (C. A 7) ; N. L. R B v.
J. H. Allison & Co., 165 F. 2d 766 (C. A. 6) ; Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131.
v Medo Photo Corp. v. N. L. R. B, 321 U. S. 67S; N. L. R. B. v. Jones d Laughlin Coop,
301 U. S 1.
33 See Jacobs Manufacturing Company, supra ; Tide Water Associated Oil Company,
supra , Allied M ills, Inc., supra.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25, 1950, more than 14 months prior to the filing of the original charge herein, and
"Respondent continually failed between [the date of the execution of the contract
and 6 months prior to the filing of the original charge] to incorporate into the
contract its policies with respect to monthly salaried employees which had
existed for years," the violation of the Act, if any, occurred during a period barred
by the statute. The undersigned finds this contention to be without merit.14
Upon the entire record in the case, the undersigned is convinced, and finds,
that on September 28, 1951,15 and at all times thereafter, Respondent, by refusing
to bargain collectively with respect to the salaried employees, by granting uni-
lateral wage increases during the term of the contract without prior consultation
and negotiation with the chosen collective-bargaining representative of its em-
ployees, by refusing to supply the Union with certain requested information and
data necessary to the proper administration of the contract, by refusing to bargain
with respect to the removal of a portion of the payroll department to the Los
Angeles offices of the Respondent, and by refusing to bargain or discuss any
matter pertaining to collective bargaining unless or until the Union withdrew
the charge it had filed with the Board, 1° has refused to bargain collectively with
the Union, and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (5) and (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent as described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has refused to bargain with the Union by
refusing (1) to disclose to the Union, in writing, the compensation paid to, and
the vacation rights, holiday rights, and sick leave rights of, the salaried em-
ployees ; (2) to discuss and negotiate with the Union the work assignments and
transfers of certain salaried employees; (3) to discuss with, or disclose to, the
Union the overtime allotted to, and worked by, the employees within the bar-
gaining unit; (4) to divulge to the Union the compensation for certain posted
jobs; and (5) to discuss or negotiate grievances or proposed wage increases
for persons in the bargaining unit, the undersigned will recommend that Re-
spondent, upon request, (a) furnish the Union, in writing, the compensation
paid to, and the vacation rights, holiday rights, and sick leave rights of, its
salaried employees; (b) furnish the Union, in writing, the overtime allotted to,
and worked by, the salaried employees during the 12-month period ending April
30, 1952; (c) in the future divulge, in writing, the compensation of the posted
jobs at time of posting; and (d) discuss and negotiate all proposed wage increases
for persons in the bargaining unit and all grievances presented by the Union as the
collective-bargaining representative of the employees in the appropriate unit.
Because of the limited scope of Respondent's refusal to bargain, and because
of the amicable relations of the parties for the past 12 years, and because of
the absence of any indication that other unfair labor practices are to be antici-
14 See Superior Engraving Company v . N. L. R. B., 183 F 2d 783.
is The date when Respondent first declined to bargain with respect to the posting of
salary rates on job notices.
11 Elhs-Klatscher d Co , Inc ., 40 NLRB 1037 , enforced 142 F. 2d 356 ( C. A 9) ; Lebanon
Steel Foundry, 33 NLRB 233 , enforced 130 F. 2d 404 (C. A D. C )
F. W. WOOLWORTH CO. 1457
pated from Respondent's past conduct, the undersigned will not recommend
that Respondent cease and desist from the commission of any and all other
unfair labor prattices."
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Cement, Lime & Gypsum Workers International Union, Local No. 89,
affiliated with American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All employees performing work at Respondent's Colton, California, plant
in the manufacture of cement or lime, and all work incidental thereto, but ex-
cluding employees engaged in the transportation of such products upon the public
highways or agriculture work, superintendent, assistant superintendent, chief
chemist, assistant chief chemist, research chemists, general plant foreman,
master mechanic, all department heads, technical engineers and draftsmen, safety
supervisor, assistant safety supervisor, personnel man, guards, three clerks, and
supervisory or professional employees as defined in the Act, constitute, and during
all times material herein constituted, a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. United Cement, Lime & Gypsum Workers International Union, Local No. 89,
affiliated with American Federation of Labor, at all times material herein has
been, and still is, the exclusive representative of all the employees in the above-
described appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing (1) to furnish the Union with a written list of the compensation
paid to, and the vacation rights, holiday rights, and sick leave rights of, its
salaried employees; (2) to furnish the Union, in writing, the overtime allocated
to, and worked by, the salaried employees; (3) to divulge the compensation of
the posted jobs; and (4) discuss or negotiate with the Union proposed wage
increases given persons in the bargaining unit and grievances presented by the
Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
" See The B. F. Goodrich Go, 89 NLRB 1151.
F. W. WOOLWORTH Co. and RETAIL CLERKS UNION, LOCAL 324 OF RE-
TAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Cases
Nos. 01-RC-1835 and 01-CA-1167. December 29, 1952
Decision and Orders
On April 15, 1952, Trial Examiner David F. Doyle issued his Inter-
mediate Report in this consolidated proceeding, finding that the Re-
101 NLRB No. 213.