Haskell of Pittsburgh, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1976

226 N.L.R.B. 1020 (N.L.R.B. 1976)

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haskell of Pittsburgh , Inc. and International Union of
Electrical , Radio and Machine Workers, AFL-
CIO-CLC. Case 6-CA-8885
November 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On June 30, 1976, Administrative Law Judge Al-
mira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-'
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Haskell of Pittsburgh,
Inc., Verona, Pennsylvania, its officers, agents, suc-
cessors, and assigns shall take the action set forth in
the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A, 1951) We have carefully exam-
ined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard in Pittsburgh , Pennsylvania , May 17,
1976. The original charge was filed and served on the Re-
spondent January 2, 1976, and the amended charge was
filed and served January 19, 1976. The complaint was is-
sued February 27, 1976, and duly answered by the Respon-
dent.
The issue is whether or not the Respondent violated Sec-
tion 8 (a)(5) and ( 1) of the National Labor Relations Act, as
amended, by refusing to provide access to the plant by the
Union's designated representative for the purpose of con-
ducting job evaluations. For the reasons given below, I
conclude that the Respondent violated the Act as alleged.
Upon the entire record, and after due consideration of
the briefs filed by the Respondent, the General Counsel,
and the Charging Party Union, I make the following:
FINDINGS OF FACT
AND
CONCLUSIONS OF LAW
1. JURISDICTION
The complaint alleges, the answer admits, and I find that
the Respondent is a Pennsylvania corporation with its
principal office located in Verona, Pennsylvania, where it
is engaged in the manufacture and nonretail sale of office
furniture; during the last 12 months the Respondent pur-
chased and received from outside Pennsylvania goods and
materials valued in excess of $50,000, and shipped directly
to points outside Pennsylvania goods and materials valued
in excess of $50,000. The Respondent concedes, and I con-
clude, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. UNFAIR LABOR PRACTICES I
A. Evidence
The Charging Party Union and its Local 608 have been
the contract representative of the Respondent's production
and maintenance employees since about 1963.
In August 1972 individual charges of sex discrimination
in their employment were filed by four female employees
of the Respondent with the U.S. Equal Employment Op-
portunity Commission against the Respondent and Local
608. Similar charges were filed with the Pennsylvania Hu-
man Relations Commission; it issued a complaint against
the Respondent which is still pending.
On December 19, 1974, shortly before the collective-bar-
gaining agreement between the Respondent and the Union
expired in January 1975, the Respondent's counsel, Jack J.
Rosenberg, wrote to Ruth Weyand, associate general coun-
sel of the Union, about negotiating a new collective-bar-
gaining agreement, including a job evaluation program.
Rosenberg advised Weyand that the Respondent had no
objection to the Union's designation of Bertram Gottlieb
to conduct the job evaluations, provided, among other
things, that the evaluations were not to be made for the
Pennsylvania Human Relations Commission or any other
Federal, state, or municipal agency but would be made
"exclusively for the purpose of contract negotiations be-
' Except where specifically referred to, the facts are not in dispute
226 NLRB No. 161
HASKELL OF PITTSBURGH 1021
tween the Company and the Union"; and that any material
developed by Gottlieb would not be made available to any-
one other than the Company and the Union without the
express written consent of the Company. In her response
dated December 30, 1974, Weyand declined to agree to
such restricted use of job evaluation information obtained
by Gottlieb because:
. . Gottlieb has already been retained by the
Pennsylvania Human Relations Commission as the
expert whom it intends to call as a witness in the pro-
posed Hearing on charges filed against Haskell by var-
ious of its female employees . . . the Union believes it
has a legal obligation to take all the legal steps neces-
sary to eliminate the discrimination and believes it has
both the right and the duty to present any data rele-
vant to the issue of discrimination, not only to the
Pennsylvania Human Relations Commission, but also
to any agency, administrative or judicial, local, state
or federal, which has jurisdiction over the discrimina-
tion issue.
However, Weyand thereafter, in a letter to Edward Has-
kell, president of the Respondent, dated January 25, 1975,
informed him that the arrangement which Gottlieb had
made with the Pennsylvania Human Relations Commis-
sion to serve as its expert witness had been terminated. In
this letter, the Union agreed to the following "basis upon
which Bertram Gottlieb will be granted access to your
plant for the purpose of making a job evaluation":
Neither the Union nor Mr. Gottlieb will make avail-
able to the Pennsylvania Human Relations Commis-
sion or to any other agency or person any material
supplied to Bertram Gottlieb or developed by him in
connection with such job evaluation, except upon
written consent of the Company or pursuant to com-
pulsory legal process.
This agreement was confirmed by Gottlieb in a January 27,
1975, endorsement of Weyand's letter, and by the president
of Local 608 and the members of its negotiating committee
in a letter to the Respondent dated February 3, 1975.
Thereafter, in June 1975, the Union struck the Respon-
dent in support of its demands during the negotiations for
a new contract. On July 8, 1975, the parties entered into a
strike settlement agreement which provided, in part:
The job evaluation plan, including the progression
schedule, if any, classifications and rates of pay, as
agreed to by the parties shall become effective as of
1/26/76. Increases pursuant to this plan shall be in
addition to the general wage increases.
In accord with this provision, Bertram Gottlieb visited
the plant in September, October, and November.
On October 14, 1975, the same female employee plain-
tiffs referred to above filed with EEOC amended charges
of sex discrimination against women employees of the Re-
spondent as a class by the Respondent and Local 608. Af-
ter obtaining from EEOC the right to sue, the plaintiffs, in
October or November 1975 (the exact date not in this rec-
ord), filed in U.S District Court a class action complaint of
sex discrimination against the Respondent only .2
Beginning with a call made by Union Counsel Weyand
to Respondent Counsel Wagner on December 3, 1975,
there were several telephone discussions by them of the
Respondent's intent to file a motion to dismiss the Title
VII sex discrimination suit for failure to name the Union as
a codefendant. The testimony as to what was said during
these conversations differs in some respects The following
findings as to relevant statements made is based on my
assessment of the comparative accuracy of recollections,
and consistency or inconsistency with past and future
events.
Weyand began by telling Wagner the Union had learned
of the Respondent's intent to file a motion to dismiss the
sex discrimination suit for failure to join the Union as a
defendant, and that the Union was anxious not to be a
party to the suit; that the plaintiffs had invited the Union
to join the suit as coplaintiff but the Union had declined
because its information indicated some jobs held by both
women and men were misclassified and the Union was
more interested in completing the job evaluations and hav-
ing all jobs fairly structured in the future than it was in
backpay for the women employees. Weyand went on to say
that, if forced to intervene in the sex discrimination suit,
the Union would do so as a coplaintiff rather than as a
codefendant. Wagner advised Weyand he would consider
the Union's intervention as a plaintiff to be a repudiation
of its agreement to keep the results of Gottlieb's job evalu-
ation study confidential and if the Union continued to take
such a position, the Respondent would not cooperate fur-
ther with Gottlieb on the job evaluations. Weyand assured
Wagner that the Union would not use any material sup-
plied by Gottlieb unless it was required by compulsory pro-
cess.3
Subsequently, on December 16, 1975, Union Director of
Organization Pugliano addressed a letter to the Respon-
dent President Haskell protesting the cancellation of visits
to the plant by Gottlieb to continue work on the job evalu-
ation program scheduled for December 15-18, and sug-
gesting future dates for such visits. The Respondent never
replied to Pugliano's letter.
On January 8, 1976, the Respondent filed with the U.S.
Distnct Court a motion to dismiss the Title VII complaint
on the ground, inter aka, that the complaint failed to join
the International Union of Electrical Radio and Machine
Workers, AFL-CIO, and Local 608 as defendants "as re-
quired by Rule 19 of the Federal Rules of Civil Proce-
dure."
2 There is no evidence that the plaintiffs in that action are members of the
Union, nor does the complaint therein refer to the collective-bargaining
agreement between the Union and the Respondent, as the Respondent as-
serts in its brief
3 It is unnecessary to a resolution of the issues in this proceeding to decide
whether or not Wagner told Weyand in one of these conversations that the
Respondent was concerned that completion of the job evaluation program
might subject it to a liability of $250,000 If such a resolution were neces-
sary, I would consider it likely, in all the circumstances, that he made such
a statement Also unnecessary is resolution of whether or not Weyand told
Wagner that the Union's testimony against the Respondent in the Title VII
suit would be much stronger if it were brought into that suit as a plaintiff
than if it were forced to testify under compulsory legal process I would not
consider such a statement, if made, a threat to repudiate the Union's confi-
dentiality agreement Here, too, I would consider it likely that this statement
was made, if resolution were required
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that the Union has not intervened or
appeared, and has filed no pleading or taken any position,
in the Title VII case. Weyand and Pugliano both testified
herein that the Union's position remains as stated to Wag-
ner in December, and that the Union stands by its agree-
ment of January 25, 1975, that information obtained by
Gottlieb in connection with his job evaluation studies will
not be revealed except upon written consent of the Re-
spondent or pursuant to compulsory legal process. The Re-
spondent concedes it has not permitted Gottlieb to enter
the plant to continue the job evaluations since December
15, 1975.
B. Conclusions
In defense of its admitted refusal to grant Union Repre-
sentative Gottlieb access to the plant for the purpose of
continuing and concluding the job evaluations, to which
the Union concededly is otherwise entitled," the Respon-
dent contends that the Union, in its December 1975 tele-
phone conversations with Wagner, revealed its intent to
become a coplaintiff in the Title VII action against the
Respondent, with the following effect: (14 the information
obtained from the job evaluations will be used by the
Union as an adversary of the Respondent in the Title VII
action, and therefore the Union has repudiated the condi-
tion of confidentiality agreed to and thereby forfeited all
right to access to the plant for this purpose; (2) the Union
has assumed the dual and inconsistent capacity of bargain-
ing agent for all employees in the unit and litigator behalf
of the female employees thereby relieving the Respondent
of any duty to bargain with the Union; and (3) the evi-
dence reveals that the Union wants the information for use
against the Respondent in the Title VII action and not
solely for the purpose of collective bargaining, which
constitutes such bad faith as to preclude a finding that the
Respondent has violated its duty to bargain.
I find no merit in these contentions.
Without ruling on what effect, if any, a clear breach or
expression of intent to breach its agreement of confiden-
tiality by the Union would have on the Respondent's obli-
gation to permit continued plant access for the job evalua-
tions, I find that neither has happened. There is no
contention that the Union has breached the agreement and
the evidence shows it has not. Moreover, there is no direct
evidence that it intends to do so. On the contrary, the
Union's counsel has credibly assured the Respondent that
information obtained from the job evaluations will not be
revealed except under the conditions spelled out in the
agreement.
In such circumstances, no inference of intent to breach
its confidentiality agreement can reasonably be drawn
from the possibility that the Union might, depending on
the outcome of various contingencies beyond its control,
and contrary to its wishes, eventually become a coplaintiff
4 The Gerstenslager Company, 202 NLRB 218 (1973), The Kendall Compa-
ny, 196 NLRB 588 (1972), enfd 480 F 2d 921 (C A 4, 1973), General Elec-
tric Company, 186 NLRB 14 (1970), General Electric Company, 173 NLRB
164 (1968), enfd 414 F 2d 918 (C A 4, 1969)
in the sex discrimination suit, and, if it does, it might use
the information obtained from the job evaluations against
the Respondent in that suit despite its credible assurances
that it would not do so. The Respondent' s contentions in
this respect are therefore merely expressions of apprehen-
sions based on speculation contrary to fact, and therefore
cannot excuse the Respondent from its obligations under
the Act.5
With regard to the Union's allegedly assuming dual and
inconsistent roles if and when it becomes a coplaintiff in
the sex discrimination suit, no such reason was advanced at
the time the Respondent closed the plant premises to Gott-
lieb. Morever, even if this contention were not based on
pure speculation, as it is, there would be no parallel with
Bausch & Lomb Optical Company, 108 NLRB 1555 (1954),
as the Respondent contends. There, in what the Board de-
scribed as a unique situation, it held that a union cannot
perform its statutory function as bargaining representative
if it simultaneously is an immediate business competitor of
the particular employer whose employees it purports to
represent. The more likely parallel situation would be that
involved in Emporium Capwell Co v. Western Addition
Community Organization, 420 U.S. 50 (1974), in which the
Supreme Court clearly indicated there is no inconsistency
in a bargaining agent's representation of all unit employees
and a minority group within the unit.
Finally, there is no evidence at all in this record that the
Union seeks the information to be obtained from the job
evaluations for use against the Respondent in the Title VII
action. On the contrary, as far as this record shows, the
Union's sole purpose all along has been and is to fulfill its
obligation to represent all the employees in the unit in col-
lective bargaining with the Respondent.
In the above circumstances, and as the Union has not
given, and has credibly assured the Respondent of its in-
tent not to give, information from the job evaluations to
any agency or person except upon written consent of the
Respondent or pursuant to compulsory legal process, as
agreed, I find that the Respondent's refusal to grant the
Union's representative, Bertram Gottlieb, access to the
plant for the purpose of continuing and completing the job
evaluations constitutes a refusal to bargain collectively. I
conclude that such conduct is violative of Section 8(a)(5)
and (1) of the Act.
IV. REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that the Respondent cease and
desist therefrom and from any like or related interference
with the rights of its employees guaranteed in Section 7 of
the Act, and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in the case, and pur-
5 See N L R B v C & C Plywood Corporation and Veneers, Inc, 385 U S
421 (1967), The Timken Roller Bearing Co v N L R B, 325 F 2d 746 (C.A
6, 1963) Cf Wrought Washer Mfg Co, 171 NLRB 532 (1968), and other
cases cited by the Respondent in which a union was found to have waived
its right to information are wholly distinguishable on their facts
HASKELL OF PITTSBURGH
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
ORDER6
The Respondent , Haskell of Pittsburgh , Inc., Pittsburgh,
Pennsylvania , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with International Union of Electrical , Radio and
Machine Workers , AFL-CIO-CLC, as the exclusive col-
lective-bargaining representative of an appropriate unit of
all production and maintenance employees , group leaders,
truckdrivers , warehousemen and janitors , whose main area
of service is in the plant area ; excluding guards, inspectors
and professional employees and janitors whose main area
of service is other than in the plant area, employed at the
Employer 's Verona, Pennsylvania , facility, concerning
rates of pay , wages, hours of work, and other terms and
conditions of employment , by refusing access to the plant
by the Union's designated representative for the purpose of
conducting job evaluations.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act-
(a) Upon request , bargain collectively in good faith with
the above-named labor organization , as the exclusive rep-
resentative of its employees in the above-described appro-
priate unit , by permitting access to the plant for the pur-
pose stated above.
(b) Post at its plant in Verona , Pennsylvania , copies of
the attached notice marked "Appendix." 7 Copies of said
notice , on forms provided by the Regional Director for
Region 6 , after being duly signed by the Respondent's rep-
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes
r In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1023
resentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain collectively in
good faith with International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO-CLC, as the ex-
clusive, collective-bargaining representative of our
employees in the appropriate unit described below,
concerning rates of pay, wages, hours of work, and
other terms and conditions of employment, by refus-
ing access to the plant by the Union's designated rep-
resentative for the purpose of conducting job evalua-
tions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL, upon request, bargain collectively in good
faith with the Union as the exclusive collective-bar-
gaining representative of all our employees in the ap-
propriate unit by permitting access to the plant for the
above purpose. The appropriate unit is:
All production and maintenance employees, group
leaders, truckdrivers, warehousemen and janitors,
whose main area of service is in the plant area; ex-
cluding guards, inspectors and professional employ-
ees and janitors whose main area of service is other
than in the plant area, employed at the Employer's
Verona, Pennsylvania, facility
HASKELL OF PITTSBURGH, INC.