Emery Industries

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 824 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emery Industries, Inc. and International Chemical
Workers Union, Local No. 11, AFL-CIO. Case
21-CA-20779
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 September 1982 Administrative Law
Judge James M. Kennedy issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions 2 only to the extent consistent with this
Decision and Order.
The judge found, and we agree, that the Union
had waived its right to bargain over changes in the
Respondent's absenteeism policy and, accordingly,
that the Respondent did not violate Section 8(a)(5)
and (1) of the Act by unilaterally altering that
policy. The judge also found that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to provide the Union with some of the informa-
tion it had requested for the specific purpose of un-
derstanding the need for the new policy and bar-
gaining intelligently on it. The Respondent has ex-
cepted to this conclusion, and we find merit in this
exception.
As the judge found, the Respondent's industrial
relations manager, D. L. Thoreson, wrote a letter
to the Union on 21 August 1981. The letter stated
that the absentee rate was unacceptable and that
the Respondent would shortly implement a new
absentee control policy to correct the problem.
Thoreson included a copy of the new policy, and
suggested a meeting the following week. The
Union's representative, D. E. Stutts, responded by
letter dated 25 August 1981, demanding the right
to bargain over the establishment of the policy, in-
cluding the question of a need for and the effects
of such a policy. Stutts also stated that, in order to
bargain intelligently over the matter, the Union de-
manded the following information:
i The judge inadvertently erred in sec. Ill,B, of his decision in stating
that Industrial Relations Manager Nick Poggas drafted the first written
absentee control program in December 1978. The record reveals that the
first policy was drafted by Plant Manager Kenneth Mohns; it was revised
by Poggas in January 1979.
a We find it unnecessary to rely on fn. 10 of the judge's decision.
268 NLRB No. 121
A. 1. Date on absenteeism for each current
employee.
2. Categories and explanations for absences.
3. An explanation of how the company dis-
tinguishes an occupational absence from a non-
occupational absence.
4. A full history of any disciplinary actions
due to attendance problems. Include name of
disciplined workers, department he or she
works in, health and safety hazards present in
the department.
5. Identification of each worker by age, sex,
race and head of household.
6. Identification of major medical payments
for employees.
7. Copies of any reports prepared on attend-
ance.
B. 1. Who participated in the establishment
of the policy, when were meetings held, who
was present.
2. Copies of any data considered in drafting
the policy.
3. Copies of any earlier drafts.
4. Who informed the Union or made the de-
cision not to inform the union.
On 16 September Thoreson replied that the Re-
spondent would continue to promulgate reasonable
rules and regulations, but remained ready to discuss
the absentee control policy and to clarify any sec-
tions of the policy or their application. Subsequent
communications between the parties extending into
the end of October confirmed these original posi-
tions.
As was noted above, we agree with the judge
that the Respondent had retained the right,
through the contract's dismissal and management-
rights clauses, to discipline employees for "neglect
of duty," a term customarily and consistently inter-
preted to include absenteeism and tardiness; that
the Respondent revised its policies numerous times
in the past without complaint from the Union
about the unilateral nature of those revisions; and
that, consequently, the Union had waived the right
to engage in midterm bargaining over the changes
in the policy. However, we do not agree that the
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to provide the Union with certain
of the information listed above.3
The Union had waived the right to engage in
midterm bargaining over this issue, and according-
ly had no right to the information to engage in
s The judge determined that items A -1 -2 -3 and -7, and B -2 were
presumptively relevant; items A 4 -5 and -6 were not proved to be rele-
vant; and items B-I, -3, and -4 were not relevant to potential contract
negotiations. He found that the Respondent illegally refused to furnish
the Union with those items which were presumptively relevant.
824
EMERY INDUSTRIES
such bargaining. Thus, the question becomes
whether the Union adequately informed the Re-
spondent of another legitimate basis for requesting
the information, or of the Respondent's obligation
to honor such request. Adams Insulation Co., 219
NLRB 211, 214 (1975). We find that the Union did
not so inform the Respondent.
Clearly, the Union stated, as its sole purpose in
requesting the information, its desire to engage in
midterm bargaining over the absentee policies. Ac-
cordingly, the Respondent did not have actual
notice of any legitimate purpose for the Union's re-
quest. Nor did the Respondent obtain constructive
notice of a legitimate basis for the information re-
quest. As the Board stated in Brazos Electric Power,
241 NLRB 1016, 1018 (1979): "[W]here the cir-
cumstances surrounding the request are reasonably
calculated to put the employer on notice of a rele-
vant purpose which the union has not specifically
spelled out, the employer is obligated to divulge
the requested information." We find nothing in the
record to indicate that the Respondent was on con-
structive notice that the Union desired this infor-
mation for any reason other than bargaining over
the new absentee policy.4 Accordingly, in these
circumstances, we find that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by refus-
ing to comply with the Union's demand for the in-
formation described above.5
ORDER
The complaint is dismissed.
I We do not here decide that the information cannot be obtained by
the Union under any circumstance. Subject to the requirements of rel-
evance, the Union may obtain the information it seeks if it states some
legitimate basis for seeking the information, such as preparing for upcom-
ing contract negotiations, assessing the validity of a grievance, policing
compliance with a current contract, or the like.
See also Berkline Corp., 123 NLRB 685 (1959).
DECISION
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at Los Angeles, California, on
June 23, 1982, pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board
for Region 21 on December 18, 1981, and which is based
on a charge filed by International Chemical Workers
Union, Local No. 11, AFL-CIO (herein called the
Union) on October 28, 1981. The complaint alleges that
Emery Industries, Inc. (Respondent) has engaged in cer-
tain violations of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended (the Act).
Issues
Whether or not Respondent violated its duty to bar-
gain with the Union by refusing to supply it with infor-
mation regarding the need to modify Respondent's ab-
senteeism policy and whether or not it violated that duty
by modifying the policy without giving the Union the
opportunity to bargain about it. Respondent defends on
the ground that the Union has waived its right to bargain
on this topic both by an express contract provision and
by its conduct.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of both the General Counsel and Respondent.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits it is an Ohio corporation engaged
in the manufacture of fatty acids, methyl esters, and
glycerin and to having a factory located in Los Angeles,
California. It further admits that during the past year, in
the course and conduct of its business, it has sold and
sent goods and materials valued in excess of $50,000 to
customers outside California. Accordingly it admits, and
I find, that it is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
n1l. THE ALLEGED UNFAIR LABOR PRACTICES
For the most part the facts are not in significant dis-
pute. The one area of possible dispute is whether the
Union "negotiated" regarding the absentee control
policy in 1978 and 1979 or whether it was merely in-
formed of the policy changes and upon discussing the
policy succeeded in persuading management to modify it
slightly.
A. Background
Respondent and the Union have had a collective-bar-
gaining relationship since sometime in 1940. For many
years each collective-bargaining contract has contained a
management-rights clause' and a dismissal clause.2 The
The management-rights clause:
Article 15-Management Rights: It is understood and agreed that all
of the rights, powers, and authority customarily exercised by Man-
agement, and the direction of the working forces except insofar as
specifically surrendered by express provisions of this Agreement, is
vested in and reserved exclusively to the Company.
2 The dismissal clause:
Article 9-Dismissals: It is understood and agreed that including, but
not exclusive of, cases of incompetency, insubordination, or neglect of
duty on the part of any employee, the Company shall have the right
to suspend, demote or dismiss said employee and shall send within
three (3) days written notice to the Union of the reason for such
action. [Emphasis supplied.]
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language of these two clauses has not been modified
since at least 1951 and appear in the collective-bargaining
agreement covering the period August 27, 1979, to
August 26, 1982, which was in effect at the time of the
hearing. 3
Until 1978 both Respondent and the Union were gen-
erally satisfied with the manner in which Respondent
dealt with attendance problems. These were handled on
an ad hoc basis; if the discipline meted out was offensive
to the employee, he or she filed a grievance and the dis-
pute was handled through the grievance-arbitration pro-
cedure. 4 Respondent's authority for proceeding in that
fashion is found in the management-rights and dismissal
clauses. The first left full operational authority with man-
agement except to the extent that the collective-bargain-
ing agreement surrendered it. In that regard, the lan-
guage of the dismissal clause was consistently interpreted
to include attendance matters, as failing to come to work
was deemed "neglect of duty." Instances of discipline
over the years were not numerous. Respondent's Exhibit
11 shows that from 1969 through the end of 1978 only
two individuals were disciplined for absenteeism, both in
1971. They were terminated. Other instances of neglect
of duty, involving some 10 employees, occurred during
that period and for the most part those individuals were
disciplined by termination although I was only suspend-
ed.
As Respondent's production line operates on a round-
the-clock, 7 day-a-week basis, it utilizes a rotating four-
shift system to operate the plant. Thus on any given day
three full shifts are scheduled to work while the fourth is
off. In this circumstance, absences without notice neces-
sarily cause difficulties. Such an absence might require a
job to be unfilled for all or part of a shift or might re-
quire an employee to be held over from a departing shift,
resulting in disruption of that employee's plans and, usu-
ally, overtime pay for that employee. Often this was
viewed as deleterious, not only by the responsible em-
ployee who was asked to cover for an irresponsible one
but by management which had to pay more for the labor
than it expected.
In late 1978 an employee, Joe Fuller, who was also a
union steward, spoke to Plant Manager Kenneth R.
Mohns as a grievance meeting was being concluded.
Fuller told Mohns that he had received a number of
complaints from employees that they were being re-
quired to work overtime due to the chronic absenteeism
and tardiness of others. Fuller asked if Mohns could do
something about the problem.
Mohns testified that he mentioned Fuller's concern to
other management officials including the production
manager and the then Industrial Relations Manager Nick
Poggas.
3 In addition to the clauses quoted in fns. I and 2, supra, art. 2-senior-
ity, sec. 18, contained language which was occasionally used to discipline
employees who failed to return to work at the end of authorized leaves.
In general such an employee was subject to the loss of seniority. The
clause has little, if any, application to the circumstances of this case.
4 See art. 13 and 14 of the current contract.
B. The Absentee Control Programs
Fuller's complaint resulted in Poggas drafting the first
absentee control program. That program was put into
effect on December 13, 1978. Respondent agrees that
prior to the implementation of the policy it did not
notify any union official about it nor give the Union an
opportunity to bargain over it. Union President Roger
Herrera, also the chief shop steward, first became aware
of the policy when he saw it on the board.
Shortly thereafter, in January 1979, the program was
modified. (See R. Exh. 5.) Herrera testified that it was
modified as a result of a conversation he had had with
Production Manager Jones. Plant Manager Mohns, how-
ever, stated the program was modified after an employee
made some valid criticisms. Whatever the case, it was
modified again on June 1, 1979. Herrera testified that this
modification occurred after he and Fuller met with
Poggas and Jones and attempted to negotiate some
changes. Mohns testified that the revision occurred after
Jones and Poggas spoke to him about it. He said he
never showed it to the Union until after it had been put
into effect on June 1. A recordkeeping modification was
made on January 1, 1980.
The last program continued in effect until November
1981. By letter dated August 21, 1981, D. L. Thoreson,
the new industrial relations manager, wrote a letter to
the Union in which he asserted that the absentee rate
was unacceptable and to correct the situation Respond-
ent would shortly implement a new absentee control
policy. He suggested a meeting with union officials the
following week. A copy of the new policy was attached
to his letter.5 The Union's International representative,
D. E. "Bill" Stutts, replied by letter dated August 25 de-
manding "the right to bargain over the establishment of
an absentee policy" including the question of a need for
a new policy, and "the right to bargain over the effects"
of any new policy. He further asserted that in order to
bargain intelligently over the matter the Union needed
certain information and demanded that the Company
supply the following:
A. I. Data on absenteeism for each current em-
ployee.
2. Categories and explanations for absences.
3. An explanation of how the company distin-
guishes an occupational absence from a nonoccupa-
tional absence.
4. A full history of any disciplinary actions due
to attendance problems. Include name of disciplined
workers, department he or she works in, health and
safety hazards present in the department.
5. Identification of each worker by age, sex, race
and head of household.
6. Identification of major medical payments for
employees.
7. Copies of any reports prepared on attendance.
5 I do not deem the differences in the new policy to be of particular
concern. In some respects it is a "tougher" policy than its predecessor;
yet in others it is more lenient. Without making any detailed analysis of
the two it is fair to conclude that the new policy, overall, is slightly less
permissive than the old. It is not a radical change.
826
EMERY INDUSTRIES
B. 1. Who participated in the establishment of the
policy, when were meetings held, who was present.
2. Copies of any data considered in drafting the
policy.
3. Copies of any earlier drafts.
4. Who informed the Union or made the decision
not to inform the union.
Stutts concluded his letter by stating that failure to
provide the information would be interpreted as an un-
lawful refusal to bargain; likewise, so would the Compa-
ny's failure to commit itself to bargain over the new
policy and its effects.
By letter dated September 16 Thoreson sent Stutts a
copy of the January 1, 1980, absentee control policy. He
asserted that while Respondent desired cooperation from
the union regarding the control of absenteeism it was
nonetheless Respondent's position that "reasonable rules
and regulations will continue to be promulgated from
time to time as business needs dictate," thereby pointing
to Respondent's past practice on the topic as well as the
Union's alleged acquiescence to it. Thoreson reminded
Stutts that the grievance procedure was available if the
Union believed Respondent's "current actions to better
control absenteeism" were in some way a contract viola-
tion. He concluded by saying that Respondent "remains
ready to discuss with the Union the absentee control
policy and to clarify any section of the policy or their
application." He suggested that if there were any ques-
tions regarding the new policy union officials meet with
company officials promptly as Respondent intended
shortly to implement it.
Stutts replied by letter dated September 21 reasserting
his desire to bargain over changes in the absentee pro-
gram saying that the Union could not do so until it had
received the information requested in his letter of August
25. He reiterated his position that a failure to supply the
information would constitute a refusal to bargain and
that without the sought-for information he could not in-
telligently bargain over the matter.
Thoreson replied on October 5 repeating his offer to
discuss or clarify the revised absentee control program
and offered to meet with the Union on October 8, 9, 12,
or 13.0 The Union did not accept the offer to meet the
discussion or clarification,7 instead choosing to await the
information. Thoreson did not supply it and on October
27 wrote Stutts a letter saying Respondent would place
the absentee control program into effect on November 9.
Once again he offered to meet with Stutts or other union
officials to clarify any question or concerns.
On October 30 Stutts wrote another letter to Thoreson
asserting that implementation of the program would re-
quire the Union to file the instant charge.s As an-
6 Thoreson also commented that an assertion made by Stutts to the
effect that the information had been promised was incorrect.
I The parties distinguish "discussion and clarification" from "negotia-
tion" or "bargaining."
I In addition to the letters recounted above, Stutts and other union of-
ficials had frequent telephone and face-to-face conversations with Thore-
son and other company officials regarding the plan. As these conversa-
tions are to the same effect as the letters, there is no reason to describe
them.
nounced, Respondent implemented the revised absentee
control program on November 9.
IV. ANALYSIS AND CONCLUSIONS
Counsel for the General Counsel contends that Re-
spondent violated Section 8(aX5) and (1) of the Act in
two ways. First, it failed to provide to the union the un-
derlying data on which it relied to reach the decision
that the absentee control policy needed revision in late
1981. Second, he asserts that Respondent unilaterally im-
plemented the new program without giving the Union
the opportunity to bargain over it. Respondent views the
matter somewhat differently. It agrees that it did not
give the Union the opportunity to "negotiate" over the
terms of the policy asserting that both by contract and
conduct the Union had waived its right to do so.
Second, it asserts that because there was no duty to bar-
gain over the subject matter, it follows that it had no ob-
ligation to provide the information.
The legal source of the Union's demand for informa-
tion and for negotiation over the absentee program is
Section 8(d) of the Act.9 Timken Roller Bearing Co. v.
NLRB, 325 F.2d 746 (6th Cir. 1963), cert. denied 376
U.S. 971 (1964). In view of the fact that these are statu-
tory rights, rather than rights derived solely from a col-
lective-bargaining agreement, the issue is whether or not
the Union has relinquished either the right to bargain or
the right to information by language or conduct consti-
tuting a "clear and unmistakable" waiver. Timken Roller
Bearing Co. v. NLRB, supra.' 0 There appears to be little
doubt that Respondent, acting on its interpretation of the
management-rights and dismissal clauses of the collec-
tive-bargaining contract has first, on an ad hoc basis, dis-
ciplined employees for attendance transgressions and
second, beginning in 1978 promulgated specific discipli-
nary rules regarding attendance matters. Indeed these
rules preceded the current collective-bargaining agree-
ment and the Union does not appear to. have opposed
either their initial establishment or their continued appli-
cation during the transition from the contract which ex-
pired in 1979 to the term of the 1979-1982 agreement.
There is some testimony, principally from Union Presi-
dent Herrera, that bargaining or negotiations of a sort
occurred during the modifications of the earlier plans.
Company Official Mohns has a different recollection. I
am not prepared to credit or discredit either version as it
appears that the subject was not one of great import,
probably due to the paucity of incidents, and received
only passing attention from both sides. In that sense the
recollections of each witness tend to reflect their current
9 In pertinent part Sec. 8(d) reads:
(d) For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet . . . and confer in good faith
with respect to wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement or any question arising
thereunder ....
'O The test for waiver of a contract right does not appear to be as
rigid and may take into account other relevant factors. See, for example,
Radioear Corp., 199 NLRB 1161 (1972) (Members Fanning and Jenkins
dissenting), and Valley Ford Sales, 211 NLRB 834 (1974) (Members Fan-
ning and Jenkins dissenting), affd. sub nom. Machinists Lodge 87 v.
NLRB, 530 F.2d 849 (9th Cir 1976).
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beliefs as to what happened; yet neither version can be
fully credited or discredited on the basis of any objective
criteria. Recognizing the passage of time since the first
program was implemented it is likely that the recollec-
tions of each are somewhat hazy and colored by more
current interests. I reach this conclusion despite the fact
that both Herrera and Mohns had specific dates in mind
as they testified. It may be that each had recently re-
ferred to notes he had taken but that has not been
shown. It is quite improbable that either individual could
recall conversations with certainty, much less specific
dates, happening 3 to 4 years prior to their testimony.
What is clear is that Respondent had disciplined em-
ployees without the authority of any plan prior to 1978
and in that year, at the prompting of a union official, im-
plemented a comprehensive absentee control policy.
When inadequacies in that policy became apparent,
modifications were made with the knowledge and the ac-
quiescence of the Union and with some consideration
being given to union or employee concerns about the
nature of the policy. "
Indeed the 1981 approach was the same. Respondent
perceived defects in the existing program, drafted a new
one, supplied the Union with a copy, and gave it an op-
portunity to comment and question it. The Union, how-
ever, instead of acting as it had previously, demanded to
know what the underlying incidents were which necessi-
tated a change and demanded to bargain over it.
The management-rights clause, together with the dis-
missal clause, as tempered by the grievance-arbitration
procedure, certainly gives some credence to Respond-
ent's claim of waiver. The question however is whether
or not the clauses, coupled with the Union's conduct
during the 1978-1979 modifications, constituted a "clear
and unmistakable waiver" of the statutory right to bar-
gain over this mandatory term and condition of employ-
ment.12 The dismissal clause plainly gives Respondent
the right to discipline employees for "neglect of duty"
and it is not unreasonable to interpret excessive absentee-
ism as a transgression of that article. Furthermore, man-
agement, as contemplated by the management-rights
clause, has not surrendered its authority to establish and
maintain hours of work in any other provision of the col-
lective-bargaining agreement.
Finally, the Union's conduct appears to be an acquies-
cence in that interpretation of the agreement, although
that is not absolutely clear. The first absentee control
program was implemented as a result of a union official's
complaint. Yet the Union neither sought nor obtained
any input regarding the drafting of the initial comprehen-
sive plan, nor did it complain about it. Later the plan
was modified at either the behest of a union official or an
employee but still without any union demands for specif-
ic input. Two other modifications occurred without
either complaint or input from the Union. The sum of
this concern, or lack of it, is a strong suggestion that the
I" One employee who lived a long distance from the plant was afraid
he might be penalized for tardiness beyond his control, i.e., freeway tie-
ups. He was assured that individual circumstances would be taken into
account.
Is Absentee control is an "hours" topic within the meaning of Sec.
8(d).
Union, until 1981, was not overly disturbed by the exist-
ence of an absentee control policy. Yet, that conduct,
when coupled with the language of the dismissal' 3 and
management-rights clauses, appears to me to rise to the
level of a conscious relinquishment of the right to engage
in midterm bargaining over the terms of the plan, and I
so find. Laredo Packing Co., 254 NLRB I at 8-9 (1981).
Cf. Bancroft-Whitney Co., 214 NLRB 57 (1974) (Member
Jenkins dissenting). 14
The same cannot be said for the demand for informa-
tion. Although Stutts demanded the information in
August 1981, for the specific purpose of understanding
the need for the fourth absentee control plan, I observe
that the collective-bargaining agreement had only a year
to run. Thus, even if Stutts, once having obtained the in-
formation, was unable to persuade Respondent to modify
the plan in midterm, the Union may still have wished to
inject it into the collective-bargaining process during the
1982 negotiations.
I have, therefore, considered Respondent's argument
that if it had no obligation to bargain over the program
itself it had no obligation to provide information regard-
ing it. I am not persuaded. By the terms of Section 8(d),
collective bargaining is an ongoing matter and while it
may be subject to fits and starts it may not be conducted
in the dark. Fafnir Bearing Co. v. NLRB, 362 F.2d 716,
717 (2d Cir. 1968). Information relevant to collective
bargaining must be available to both parties and the Act
so requires. Thus, even though one might determine, as I
have, that the Union has waived its right to actually bar-
gain about a specific topic midterm in a collective-bar-
gaining agreement it does not follow that the underlying
data should not be made available to the Union during a
contract's period; it may be of use in future collective
bargaining. NLRB v. Otis Elevator Co., 208 F.2d 176 at
179 (2d Cir. 1953); Univis, Inc., 169 NLRB 37 at 39-40
(1968). An absentee control policy is a mandatory sub-
ject of bargaining and even if a collective-bargaining
agreement does not specifically touch upon that topic or
the topic has been waived, an informed union may well
persuade an employer to bargain midterm or may choose
to wait to bargain about it upon the contract's expiration.
Considering both possibilities, relevant information re-
garding mandatory topics must be turned over no matter
when the demand is made.
The general rule is that an employer is obligated to
provide the employees' statutory bargaining representa-
tive with information in its possession relevant to collec-
tive bargaining. Detroit Edison Co. v. NLRB, 440 U.S.
301 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956);
Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir.
1965); Fafnir Bearing Co., 146 NLRB 1582 (1964), enfd.
362 F.2d 716 (2d Cir. 1968). No doubt some of the mate-
's The dismissal clause here, as well as its interpretation, distinguishes
this case from Murphy Diesel Co., 184 NLRB 757 (1970), enfd. 454 F.2d
303 (7th Cir. 1971), as that contract contained only a generalized manage-
ment-rights clause.
14 Bancroft-Whitney appears to follow the less stringent waiver analysis
of Radioear, supra; yet the Union's conduct there was strong enough to
support a waiver even under the more stringent standard. Also, cf. Valley
Ford Sales, supra (arbitrator found acquiescence).
828
EMERY INDUSTRIES
rial sought in Stutts' August 25 letter is relevant. Yet nei-
ther the General Counsel nor the Union has demonstrat-
ed the relevancy of other sought-for material; indeed, the
language of the letter is vague in some respects.
The issue then is whether the material sought by Stutts
is relevant to the solution of the problem of absenteeism.
If the data Stutts seeks is relevant to that issue, it is pro-
ducible. If not relevant, it is not. Some matters are pre-
sumptively relevant and proof is therefore unneces-
sary. l 5
If the information is not presumptively relevant, rel-
evance must be shown. That burden rests with the party
demanding production. Newspaper Guild v. NLRB
(Union-Tribune Publishing Co.), 548 F.2d 863 (9th Cir.
1977), affg. 220 NLRB 1226 (1975). With these principles
in mind, and continuing to note the lack of relevancy
proof generally, I shall determine the relevance of each
item Stutts seeks, using the language and format of his
August 25 letter.
Items Presumptively Relevant-
A.
1. Data on absenteeism for each current em-
ployee.
2. Categories and explanations for absences.
3. An explanation of how the company distin-
guishes an occupational absence from a non-occupa-
tional absence.
7. Copies of any reports prepared on attendance.
B.
2. Copies of any data considered in drafting
the policy.
Little needs to be said about the relevance of the
above-listed items. For the most part it is self-evident.
Obviously raw data, together with definitions of absence
types and reports thereon, would be of assistance either
to establish an absenteeism policy or to determine the ra-
tionality of one.
The following items, however, do not enjoy such clar-
ity of purpose:
No Proof of Relevancy-
A. 4. A full history of any disciplinary actions
due to attendance problems. Include names of disci-
plined workers, department he or she works in,
health and safety hazards present in the department.
5. Identification of each worker by age, sex, race
and head of household.
6. Identification of major medical payments for
employees.
With respect to these matters, one can, by straining,
envision circumstances whereby relevance could become
1t E.g., wage data is presumptively relevant to collective bargaining in
general. NLRB v. Curtiss-Wright Corp., supra.
apparent. Yet no party has offered proof of relevancy. I
shall not strain to do so. Moreover, with respect to item
A.4., discipline history, that material is no doubt already
in the Union's hands, assuming that the notification to
the Union required by the dismissal clause is being hon-
ored. There is no reason, on this record, to think it is
not. With regard to the need for racial identification, I
am not able, even by straining, to envision how that
might be relevant to absenteeism.
In the absence of proof that the above matters are rel-
evant, I shall not order their production. Newspaper
Guild v. NLRB, supra.
Not Relevant
B. 1. Who participated in the establishment of the
policy, where meetings were held, who was
present.
3. Copies of any earlier drafts [of the 1981 plan].
4. Who informed the Union or made the decision
not to inform the Union.
None of these items would be helpful to determine
either the need for an absentee program or to determine
the rationality of an existing program. These seek the
identities of persons involved in corporate decision-
making or the nature of programs which have never
been implemented. Neither the identities of decision-
makers nor rejected plans can assist the Union in its
avowed purpose here.
I hold that the Union is entitled only to the material
deemed to be presumptively relevant as set forth above.
In conclusion, I find that Respondent violated Section
8(aX5) of the Act by failing to turn over to the union
data in its possession relevant to the perceived need for
an absentee control program. However, I have found at
the same time that the Union, both by specific contract
language and by its conduct, acquiesced in the imple-
mentation on a midterm basis, of the 1981 absenteeism
control plan and Respondent therefore did not violate
Section 8(a)(5) and (1) in that regard by unilaterally im-
plementing it in November.
Based on the foregoing findings of fact and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent Emery Industries, Inc. is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the
Act when in August 1981 and thereafter it refused to
supply the Union with information relevant to collective
bargaining.
4. Respondent did not engage in any other violation of
the Act.
[Recommended Order omitted from publication.]
829