Electrical Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 878 (N.L.R.B. 1968)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electrical Manufacturing Co. and International Union,
United Automobile , Aerospace & Agricultural
Implement Workers of America ( UAW), Local No.
627. Case 30-CA-812
November 20, 1968
DECISION AND ORDER
By MEMBERS BROWN , JENKINS, AND ZAGORIA
On August 23, 1968, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled proc-
eeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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 connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in this
case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDONJ.MYATT, Trial Examiner. Upon a charge filed
April 29, 1968' and upon an amended charge filed May 3, by
International Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America (UAW), Local No. 627
(hereinafter called the Union), a complaint and notice of
hearing was issued on June 26, against Electrical Manu-
facturing Co. (hereinafter referred to as the Respondent) The
complaint alleged that the Union was certified as the exclusive
collective-bargaining representative of the employees in an
appropriate unit on April 11, and that the Respondent violated
Section 8(a)(5) of the Act by refusing to furnish the Union
with certain information necessary for negotiating a new
collective-bargaining agreement The Respondent's answer
admitted certain allegations of the complaint, denied others,
and specifically denied the commission of any unfair labor
practices.
This case was tried before me on July 18, in Racine,
Wisconsin All counsel and representatives were afforded full
opportunity to be heard and to introduce relevant and material
evidence. At the conclusion of the case, the General Counsel
renewed a motion for summary judgment2 and made oral
argument in support of the allegations contained in the
complaint. The Respondent, on the other hand, supported his
contentions by way of a written brief. Both the oral argument
and the brief have been fully considered by me in arriving at
my decision in this matter.
Upon the entire record in this case, including my evaluation
of the testimony of the witnesses, based on my observation of
their demeanor and on the relevant evidence, I make the
following-
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Electrical Manufacturing
Co., Racine, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
I The Respondent requests the opportunity again to examine a
witness for the Union which we shall regard as a motion to reopen the
record. The motion is denied as there is no warrant for concluding that
the evidence sought, assuming its relevance, could not have been
adduced during the hearing
The Respondent is a Wisconsin corporation engaged in the
manufacture of electrical motors, and maintains its office and
plant in Racine, Wisconsin During the past calendar year, the
Respondent manufactured, sold and shipped products valued
in excess of $50,000, directly to points located outside the
State of Wisconsin. During this same period the Respondent
purchased and received goods and materials valued in excess of
$50,000 from points located outside the State of Wisconsin.
On the basis of the above, I find that the Respondent is,
and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
i Unless otherwise indicated, all dates herein refer to 1968
2 Because of certain admissions made by the Respondent during the
course of the trial , the General Counsel moved for summary judgment
at the conclusion of his portion of the case The motion was denied
without prejudice to the right to renew. This the General Counsel did at
the conclusion of the entire case , and I reserved my ruling thereon until
issuance of my Decision in this case
173 NLRB No. 132
ELECTRICAL MFG. CO. 879
II THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace &
Agricultural Implement Workers of America (UAW), Local No
627, is a labor organization within the meaning of Section 2(5)
of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is very narrow and sharply defined. On
April 11, the Union was certified as the exclusive collective-
bargaining representative of the Respondent's production and
maintenance employees.3 On April 12, Tony Valeo, inter-
national representative of the Union, sent a letter to the
Respondent requesting the following information
1. Age, sex, marital status and seniority (last hiring date) of
all employees in the bargaining unit
2. The work classification, hourly rate, guaranteed rate,
and average earnings of each incentive employee, computed
for the last quarter. Also, average earnings by work
classification.
3. A copy of the insurance program for the bargaining unit
employees. Please indicate:
(a) Gross and net premium paid for each item of
coverage;
(b) Amount of employee contribution, for single and
family coverage,
(c) Number of bargaining unit employees with single
coverage,
(d) Number of bargaining unit employees with family
coverage,
(e) Which bargaining unit employees are presently
covered by such insurance program and which are not
covered.
4. The vacation program currently in effect.
5. The paid holiday program currently in effect.
6. A copy of the Electrical Mfg Company Pension Plan,
indicating the cash contribution by employee for the latest
five (5) years.
7 Also, include Christmas bonus, if any.
In a letter dated April 17, the Respondent's president,
Kappas, responded to the Union's request. Kappas supplied all
of the information sought except that contained in the first
two items of the request. He took the position that this
information was available from the union members and the
Respondent should not be required to spend time accumulat-
ing the material for the Union.
While the trial was in progress, the Respondent's attorney,
after extensive discussions off the record, agreed to furnish the
Union with the information requested in Item 1. Although the
record does not, and could not, reflect when the information
was transmitted to the Union, the Respondent's brief repre-
sents that the information was furnished to the Union on July
22, in accordance with the agreement. Neither the Union nor
the General Counsel has indicated to the contrary, and I shall
rely upon Respondent's representation that this was in fact
accomplished In view of this, I shall confine my discussion
herein to the matters contained in Item 2 of the Union's
request.4
On May 27, the Respondent submitted a copy of a
proposed agreement to the Union along with a letter indicating
that the Respondent was available to arrange a specific time
for negotiating a contract between the parties This agreement
included in its wage proposal a standard hours incentive system
together with job classifications and wage rates, including
timing rates and days rates On July 16, the Union submitted a
written counterproposal to the Respondent This proposed
agreement contained nothing with respect to wages, pensions,
or insurance, as the Union took the position that it could not
make a proposal on these items until it had received the
information requested from the Respondent.
Valeo testified that the information contained in Item 2
was needed in order for the Union to understand the type of
incentive system currently used by the Respondent and in
order to allow the Union to suggest meaningful modifications
or improvements upon it. Valeo stated that the Union needed
to know the average earnings by work classification because it
dealt with the overall picture of employee earnings, and it
presented a picture of the relationship of the earnings of one
classification to another In addition, the Union wanted to
determine the relationship of the earning capacities of em-
ployees in similar jobs, and to find out if the average earnings
of an employee exceeded the earnings of another employee in
a similar situation
The Respondent resisted furnishing the information for
several reasons First, the Respondent seems to question the
specific relevancy of the information requested by the Union,
but in any event, claims that all the information necessary to
negotiate an agreement is contained in its proposed contract
Second, the Respondent's attorney stated at the trial that the
information relating to the average earnings of each incentive
employee was confidential, and the Respondent had no right
to reveal such information to the bargaining representative.
Lastly, of course, the Respondent takes the position stated in
Kappas' letter to the effect that the information was available
to the Union from the individual employees.
Concluding Findings
The Respondent's attack on the specific relevancy of the
information requested by the Union is without merit. It is well
settled that a collective-bargaining representative's request for
information relating to wage and fringe benefits of employees
is presumptively lawful, and further that such a request need
not detail the precise relevancy of the information sought.
3 The certification is contained in Case 30 -RC-839. The bargaining
unit is described as-
All production and maintenance employees of Electrical Manufac-
turing Co ., excluding executive employees, office clerical employees,
guards and supervisors as defined in the Act.
4 As the General Counsel correctly pointed out during his oral
argument , delay in furnishing requested information has also been held
to be a violation of Section 8(a)(5) of the Act But weighing the equities
of this case-where the parties are involved in a first bargaining situation
after certification, and where there is a willingness , as indicated here, to
sincerely negotiate with the view in mind of arriving at a collective-
bargaining agreement- I am of the opinion that no useful purpose would
be served in citing the Respondent for a violation of Section 8(a)(5) for
the delay in furnishing the information required by Item 1 of the
Union's request . In my judgment , the finding of such a violation in the
circumstances indicated here offers nothing toward the achievement of
the ultimate objective of industrial peace and stability through
collective bargaining Accordingly , I decline to make such a finding
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston Hearld-Traveler Corporation, 110 NLRB 2097, enfd.
223 F.2d 58 (C.A. 1). As the Board stated in the Boston Herald
case, with subsequent court approval
It is enough ... that the information relate to the wages or
fringe benefits of employees. Such information is obviously
related to the bargaining process, and the Union is therefore
entitled to ask and receive it.
Without question, the information requested by the Union in
the instant case is relevant and necessary to enable the Union
to properly fulfill its duties as the bargaining agent of the
employees. As the Court observed in N.L R.B. v. Yawman &
Erbe Manufacturing Co., 5 "[I] ndeed, we find it difficult to
conceive a case in which current or immediately past wage
rates would not be relevant during negotiations for a minimum
wage scale or for increased wages "
In the instant case the Respondent has failed to come
forward with anything to rebut the presumption of relevancy
that attaches to the Union's request. The contention that the
section relating to wages in the Respondent's proposed
agreement contains all of the information necessary for the
Union to formulate its own counterproposals overlooks one
obvious fact; the document submitted is nothing more than a
proposal on the part of the Respondent The Union has no
way of determining whether the job classifications set forth in
the proposal are the only job classifications in the bargaining
unit, nor it is able to determine whether the wage rates
contained therein are greater, lower, or equal to the existing
wage rates paid by the Respondent. Furthermore, it is
impossible for the Union to effectively evaluate the Respon-
dent's wage proposal without knowledge of current earnings of
the employees as individuals and by job classifications. Thus,
the relevancy of the information requested by the Respondent
is clearly established here. But even if this were not so, the fact
that the information requested relates to wages and the entire
-economic package is sufficient to require the Respondent to
provide such information to the bargaining representative.
Boston Herald-Traveler Corporation, supra; Whitin Machine
Works, 108 NLRB 1537, enfd. 217 F.2d 593 (C.A. 4), The
Item Company, 108 NLRB 1634, enfd. 220 F.2d 956 (C.A. 5),
Fafnir Bearing Company v N.L R.B., 362 F.2d 716 (C.A. 2),
N.L.R.B. v. Celotex Corporation, 364 F.2d 552 (C.A. 5).
The claim that earnings of employees are confidential and
should not be divulged has been asserted in the past and
rejected. Weber Veneer & Plywood Co, 161 NLRB 1054,
1056; Boston Herald-Traveler Corporation, supra, Any desire
on the part of some of the employees to prevent disclosure of
their earnings "must yield to the interest of the great majority
of workers represented in the unit." Boston Herald-Traveler,
supra. Confidentiality of earnings cannot serve as a shield to
protect an employer from the consequences of his refusal of
divulge this relevant information to the bargaining represen-
tative Curtiss Wright Corporation, Wright Aeronautical Di-
vison v. N.L R.B., 347 F.2d 61, 71 (C.A. 3).
The last defense relied upon by the Respondent, that the
information is available for individual employees, does not
take into account the fact that the Union represents all of the
employees in the unit and is obligated under the statute to act
for all of them. Assuming that each employee could obtain
5 187 F.2d 947, 949 (C.A. 2), enfg 89 NLRB 881.
6 In view of my findings on the merits, I deem it unnecessary to rule
on the General Counsel's motion for summary judgment
that part of the information relating to his circumstances alone
and supply it to the Union, it would not excuse the
Respondent's failure to furnish the Union with complete
information dealing with all of the employees in the entire
unit Weber Veneer & Plywood Co., supra, Aluminum Ore
Company, 39 NLRB 1286, Kenai Salmon Packing Company,
d/b/a Kenai Packers, 144 NLRB 1122.
Thus, it is apparent that the information relating to the
work classifications, rates of pay, and average earnings by
employee and by classification is reasonably necessary to
enable the Union to intelligently discharge its duties as the
collective-bargaining representative of the Respondent's em-
ployees.N.L.R.B v. Truitt Mfg Co, 351 U.S. 149,N.L.R.B. v.
Perkins Machine Company 326 F 2d 488 (C.A. 1), The Timken
Roller Bearing Company v. N.L.R.B., 325 F.2d 746 (C.A. 6),
cert. denied 376 U.S. 971. Accordingly, I find that the
Respondent in this case violated Section 8(a)(5) and (1) of the
Act by refusing to funish the Union with relevant wage
information and data requested by the Union in connection
with the preparations for negotiation of a collective-bargaining
agreement.6
CONCLUSIONS OF LAW
1. The Respondent, Electrical Manufacturing Co., is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America (UAW), Local No.
627, is a labor organization within the meaning of Section 2(5)
of the Act
3. All production and maintenance employees of the
Respondent, excluding executive employees, office clerical
employees, guards, and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been and is,
now, the exclusive representative of all employees in the above
described unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By failing and refusing at all times since April 17, 1968,
to furnish the Union with information pertaining to work
classification, hourly rate, guaranteed rate, and average earn-
ings of each incentive employee, computed for the last quarter,
and average earnings by work classification, the Respondent
has refused to bargain collectively with the Union and has
thereby engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act. The
aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. As I have found
that the Respondent has refused, and continues to refuse, to
bargain with the Union by failing to furnish it with wage and
related data requested, I shall recommend that the Respondent
supply such information to the Union forthwith.
ELECTRICAL MFG. CO.
Accordingly, upon the foregoing findings of fact and
conclusions of law, and upon the entire record in this case and
pursuant to Section 10(c) of the Act, I hereby issue the
following-
RECOMMENDED ORDER
The Respondent, Electrical Manufacturing Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union, United Automobile, Aerospace & Agricultural Imple-
ment Workers of America (UAW), Local No. 627, as the
exclusive representative of the employees in the appropriate
unit by refusing to furnish the Union with information
showing the work classification, hourly rate, guaranteed rate
and average earnings for each incentive employee, computed
for the latest quarter, and the average earnings by work
classification of the employees in the bargaining unit.
(b) In any like or related manner refusing to furnish, upon
request, like or related information, thereby refusing to
bargain collectively with the Union.
2. Take the following affirmative action which I find will
effectuate the policies of the Act-
(a) Furnish the Union the following information: the
work classification, hourly rate, guaranteed rate and average
earnings of each incentive employee, computed for the latest
quarter, and the average earnings by work classification.
(b) Post at its Racine, Wisconsin, plant, copies of the
attached notice marked "Appendix."7 Copies of said notice,
on forms provided by the Regional Director for Region 30,
after being duly signed by the official representative of the
Respondent, shall be posted immediately upon receipt thereof,
and shall be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.8
7 If this Recommended Order is adopted by the Board , the words "a
Decision and Order " shall be substituted for the words "the Recom-
mended Order of a Trial Examiner " in the notice. If the Board 's Order
is enforced by a decree of the United States Court of Appeals, the
notice shall be further amended by the substitution of the words "a
Decree of the United States Court of Appeals Enforcing and Order" for
the words "a Decision and Order."
881
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 our employees that
WE WILL NOT refuse to bargain collectively with Inter-
national Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America (UAW), Local No.
627, by refusing to furnish the Union with information
regarding wages and related data concerning employees in
the bargaining unit.
WE WILL furnish the above-Union with the following
information concerning our employees in the bargaining
unit the work classification, hourly rate, guaranteed rate
and average earnings of each incentive employee, computed
for the latest quarter, and average earnings by work
classification.
The bargaining unit is:
All production and maintenance employees of the
Company, excluding executive employees, office clerical
employees, guards, and supervisiors, as defined in the
Act.
ELECTRICAL MANUFACTURING
Co.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direc-
tly with the Board's Regional Office, 2nd Floor Commerce
Building, 744 North 4th Street, Milwaukee, Wisconsin 53202,
Telephone 272-3861.
8 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read " Notify the Regional
Director for Region 30, in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."