F. W. Woolworth Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By order dated September 30, 1953, the Board remanded the case to the Regional Director ,for the purpose of conducting a hearing to re- solve the issues raised by the challenges. Pursuant to said order, a hearing was held on October 27, 28, 29, and 30, 1953, before W. G. Stuart Sherman, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On March 9, 1954, the hearing officer issued his report, in which he recommended that the challenge to the ballot of Charles Smith be overruled, and that the other challenges be sustained. Because the ballot of Smith could not affect the results of the election, he further recommended that the Petitioner be certified. The Employer filed exceptions to the hearing officer's report and a supporting brief. The Board has considered the Regional Director's report, the hear- ing officer's report, the Employer's exceptions and brief, and the en- tire record in the case. As no exceptions were filed to the Regional Director's recommendations with respect to the challenges to the bal- lots of Charles Smith and A. L. Johnson, and as the hearing officer has concurred in these recommendations, the Board hereby overrules the challenge to the ballot of Smith 1 and sustains the challenge to the ballot of Johnson. The other challenged voters all appear to have been casual employees, who worked only intermittently for the Employer and were not working for it on the eligibility date. For the reasons set forth in the hearing officer's report, the Board sustains the challenges to their ballots. As the majority of the valid votes has been cast for the Petitioner, we shall certify it as the bargaining representative of the employees in the unit found appropriate. [The Board certified United Transport Service Employees, CIO, as the designated collective-bargaining representative of all production and maintenance employees of Dixie Chemical Corporation at its plant at New Bern, North Carolina, excluding office clerical employees, sales- men, guards, watchmen, professional employees, and supervisors as defined in the Act.] 1 Although no exception was filed to the Regional Director's recommendation with respect to the ballot of Smith , a question was raised at the hearing as to whether he was a super- visor On the record as a whole, we find, as did the hearing officer, that Smith is not a supervisor F. W. WOOLWORTH Co. and RETAIL CLERKS UNION, LOCAL 1167, AFL. Case No. 21-CA-1718. July 20,1954 Decision and Order On January 12, 1954, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that 109 NLRB No. 32. F. W. WOOLWORTH CO. 197 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 In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent that they are consistent herewith. 1. As the Trial Examiner found, the Respondent and the Union were parties to a collective-bargaining agreement. Pursuant to the terms of the agreement, the parties undertook to negotiate a general wage adjustment. In the course of the negotiations, the Union re- quested information as to the name, classification, hours worked, and wage rates of each employee within the unit covered by the agreement. The Union sought the information not only in connection with the pending general wage adjustment, but also to aid in the "intelligent and equitable administration of the agreement." Although the Re- spondent refused to furnish the requested information, the parties suc- cessfully negotiated a wage adjustment. Whether the Union's request for payroll information be considered as related to the pending negotiations of a general wage adjustment or as related to the administration of the parties' collective-bargaining agreement, we find, in agreement with the Trial Examiner, that the Respondent violated the Act by refusing to comply with the Union's request. The Board, with court approval, has consistently held that an employer is under a duty to accommodate a union's request during contract negotiations for relevant wage information: Like the Trial Examiner, the Board finds that such duty continues after a collective- bargaining agreement has been executed.3 The employer's duty, in either instance, is predicated upon the need of the union for such in- formation in order to provide intelligent representation of the em- ployees. When administering a collective-bargaining agreement, the union's need for current and authoritative information is no less real than it was before the contract was executed. Accordingly, in agree- ment with the Trial Examiner's rejection of the Respondent's other contentions with respect of its duty to furnish wage data, the Board 'The request of the Respondent for oral argument is denied because the record and the brief clearly set forth the positions of the parties 2 See N. L R B . Y. Otis Elevator Co., 208 F. 2d 176 (C. A. 2) ; California Portland Ce- inent Co ., 101 NLRB 1436, 1438 3 N L. R. B. v New Britain Machine Co, 33 LRRM 2461 at 2462 ( C. A. 2) ; N. L R. B. v. Hekman Furniture Co., 207 F 2d 561 at 562 ( C A 6) , N. L R. B. v. Leland-Clcfford Co., 200 F 2d 620 at 624 (C. A. 1) ; N. L R. B v Yawman & Erbe Mfg Co., 187 F. 2d 947 at 948-949 (C. A. 2). 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concludes that the Respondent violated Section 8 (a) (5) and 8 (a) (1) of the Act by refusing to furnish the wage data the Union re- quested.' 2. We disagree with the Trial Examiner's finding that the Respond- ent violated Section 8 (a) (5) and 8 (a) (1) of the Act by questioning employees as to whether they wished the Respondent to comply with the Union's request to furnish their wage rates to the Union. The Trial Examiner's finding is predicated upon his conclusion that the Respondent questioned the employees in this manner in order to under- mine the Union's prestige and status, and that, in any event, the ques- tioning in fact achieved that result. We do not believe, however, that it has been shown that the Respondent's action either was intended to undermine the Union, or that such end was in fact achieved. Aside from its refusal to comply with the Union's request for wage information, the Respondent, as indicated below, has neither engaged in other unfair labor practices nor is it shown to have entertained any antiunion prejudice. Al- though by refusing to comply with the Union's request the Respondent acted in contravention of a legal obligation we can only speculate as to its motive. We cannot say with any assurance that the Respondent did not take its stand against disclosure in order to pro- tect the privacy of its business operations. Similarly, we cannot assert that the questioning of the employees was any more consonant with a desire to undermine the Union than it was to respect the interests of the employees themselves in having individual wages kept as a confidential matter between employer and employee; for the dis- semination of wage information of the sort requested by the Union affects many other relationships than those between employee and Union and employer. In contradiction to the typical case,5 the Respondent made no offer to the employees with respect to their rates of pay, wages, hours of employment, or other conditions of employment. The Respondent questioned, but neither gave nor promised the employees anything. Its questioning was limited to but 2 employees in a unit of 70 em- ployees; and it was not coupled with any indication of its own preference in the matter. Nor did the Respondent bind itself in any way whatever to abide by the preference of the questioned em- ployees, if that preference were contrary to the Union's demand. The record, moreover, shows no action taken by employees as a con- sequence of the Respondent's acts which in any way indicates employee dissatisfaction with, or rejection of, the Union. Asa matter of fact, the negotiations between the Union and the Respondent were 4 Whttin Machine Works, 108 NLRB 1537 5 Cf for example, N L R B v Mortis Harris, et al , 200 F 2d 656 at 658 , 659 (C A 5) ; N L R B V . Stewart Oil Co , 207 F 2d 8 at 10 , 12, 13 ( C. A. 5). F. W. WOOLWORTH CO. 199 successfully concluded with the attainment of an agreement. Under, these circumstances, we cannot now say, as did the Trial Examiner,. that the Respondent undermined the Union's prestige and status. We shall therefore dismiss that portion of the complaint. 3. We are also unable to agree with the Trial Examiner in his finding that the Respondent sponsored and promoted among employees in the appropriate unit a petition for withdrawal of union-shop authority in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. The only witnesses to testify on the subject of the petition was the General Counsel's witness, Chambers, a rank-and-file office employee. Chambers testified that she prepared and circulated the petition on her own initiative. In the course of her testimony, Chambers changed her testimony as to the date on which the petition was prepared and typed. Because of this change in testimony, the Trial Examiner discredited Chambers' disavowels of company knowledge and assist- ance with respect to the preparation and circulation of the petition. We cannot agree that there is present in this case sufficient evidence to support the inferences drawn by the Trial Examiner that the Respondent not only knew of the petition but sponsored and pro- moted it. These inferences rest, we think, on nothing more than bare conjecture. Thus, although the letter requesting deauthorization of the union shop was prepared and signed by the employees on company time and premises, there is no positive evidence of actual knowledge or of any affirmative action by the Respondent in connection with its prepara- tion or mailing. While a copy of the deauthorization letter was posted on the store bulletin board, and all signing took place in store Manager Peck's office, this actually occurred while Peck was away on vacation. Nor is there any evidence whatever that Peck had knowledge of the petition or that Gaddi, a supervisor, who worked in the office with Chambers, knew of the petition. Accordingly, we conclude that the General Counsel has not sustained the burden of proving that the Respondent violated the Act as a result of the petition that was circulated among its employees. 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, F. W. Woolworth Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with the Retail Clerks Union, Local 1167, AFL, as the exclusive representative of the employees in the appropriate unit by refusing and failing to furnish to said labor organization upon request the name, classifica- 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, hours worked, and wage rate of each employee within the appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request furnish to Retail Clerks Union, Local 1167, AFL, the name, classification, hours worked, and wage rate of each employee in the appropriate unit. (b) Post at its store in San Bernardino, California, copies of the notice attached hereto as "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region (Los Angeles, California), shall, after being duly signed by the Respond- ent's representative, be posted by the Respondent immediately upon receipt thereof and 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 the 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 the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent has violated Section 8 (a) (5) and 8 (a) (1) of the Act by conduct other than that found to be violative herein, be, and it hereby is dismissed. MEMBERS MuRDocK and PETERSON, concurring in part and dissent- ing in part : We agree with our colleagues that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to furnish requested wage data to the Union. We disagree with their conclusion that the. Re- spondent did not also violate those sections by questioning its em- ployees as to whether they wished it to comply with the Union's request and by sponsoring a petition for withdrawal of union-shop authority. We would find, as the Trial Examiner did, that these acts of the Re- spondent are additional evidence of the Respondent's failure to ful- fill its bargaining obligation under the Act and of its interference with the rights of its employees under Section 7. By a certification proceeding under Section 9 (b) of the Act the Respondent's employees had selected the Union as their bargaining agent. The Respondent was therefore obligated to recognize and deal with the Union as the exclusive representative of its employees. Dur- ing bargaining negotiations the Union asked the Respondent to supply G In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted foi the wools "Purse. nt to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " F. W. WOOLWORTH Co. 201 certain wage data. As the majority finds, the Respondent had a duty under the Act to furnish the Union the data requested. And the Re- spondent's duty was the same whether or not individual employees desired it to comply with the Union's request. Yet the Respondent re- fused to furnish the information as it was legally required to do, and questioned certain of its employees as to whether they wanted the Re- spondent to comply with the Union's request to supply their wage rates. The employees' answers to such questions could not affect the Respond- ent's bargaining obligation, and the inquiry clearly tended to discredit the Union in the eyes of the employees it represented. By asking the employees whether they wanted the Respondent to do what their duly authorized agent had requested, the Respondent raised a question as to the Union's authority to speak for the employees and a doubt as to whether the Union was making proper requests in bargaining. The reasonable effect of such conduct was to implant a feeling of distrust in employees as to the quality of representation they were receiving and to reduce the strength of the bargaining representative. Whether or not the Respondent was so motivated is immaterial, despite the sug- gestion of the majority to the contrary. It is well-established doctrine that if conduct in fact interferes with rights guaranteed in Section 7, it violates the Act regardless of the motivation.7 The deauthorization petition, which we conclude the Respondent sponsored, suggested to employees further cause for dissatisfaction with their bargaining relationship and likewise tended to destroy their confidence in the representative they had chosen and to impair its bargaining position. Unlike the majority, we infer, as did the Trial Examiner, that the Respondent knew of the deauthorization petition and acquiesced in its preparation and promotion. We base this inference upon the following factors : The Trial Examiner dis- credited Chambers' denials that the Respondent sponsored the peti- tion; Store Manager Peck published on the Respondent's bulletin board a suggestion to employees that "If you don't want compulsory union membership, you can get rid of it by petitioning the Board at Los Angeles"; a copy of the deauthorization letter was posted on the bulletin board with a note to employees to see Chambers if they were interested; the Respondent's office force consisted of only 3 employees and a supervisor; the petition was prepared in the office on company time and with company materials; Chambers occupied Store Manager Peck's office when getting signatures to the petition, and about 30 employees came to the manager's office to sign the petition. Inasmuch as the Respondent's conduct in questioning its employees as to furnishing wage data requested by the Union and in sponsoring a deauthorization petition tended to undermine the status and pres- 7 See N L R B v. Illunois Tool TVoiks, 153 F 2d 811, 814 (C A. 7) ; Republic Aviation Corp. v. N. L R B. 324 U S 793; Radio Officers' Union, AFL v. N. L R B., 347 U. S. 17_ -202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tige of the certified bargaining agent of its employees, we conclude that this conduct constitutes further basis for finding that the Re- spondent did not satisfy its duty to bargain under Section 8 (a) (5) of the Act and violated the prohibitions of Section 8 (a) (1) of the Act. Appendix 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 upon request furnish to Retail Clerks Union, Local 1167, AFL, the name, classification, hours worked, and wage rate of each employee in the bargaining unit. The bargaining unit is : All employees of Respondent at its San Bernardino, Calif or- nia, store, including order or merchandise girls, lunch or foun- tain department employees, trainees, and employees working at least 8 hours a week as regular part-time employees, but excluding the manager, assistant manager, assistant manager in charge of lunch or fountain department, personnel super- visor, office supervisor, stockroom supervisor, floor supervi- sors, all other supervisors as defined by the Act, and seasonal employees. F. W. WOOLWORTH Co., Employer. 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE On the General Counsel's complaint alleging that F. W. Woolworth Co., herein called the Respondent, has engaged in and is engaging in unfair labor practices violative of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, a hearing upon due notice to all parties was held before the undersigned Trial Examiner at Riverside, Cali- fornia, on December 1, 1953. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and/or proposed findings. The General Counsel made an oral statement of position. Briefs have been filed by the Respondent and Retail Clerks Union, Local 1167, AFL, herein called the Union. With respect to unfair labor practices, the complaint alleged in substance, and Respondent's duly filed answer denied, that the Respondent violated Section 8 (a) (1) and (5) of the Act by its refusal to submit pertinent data on wages and kindred matters to the Union, the duly constituted bargaining representative of its employees in an appropriate unit; by dealing directly with individual employees with respect to the disclosure of such data to the Union, in derogation of the latter's exclusive F. W. WOOLWORTH CO. 203 bargaining status; and by sponsoring and promoting among its employees the filing of a petition for withdrawal of union-shop authority under Section 9 (e) of the Act. Upon consideration of the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT F. W. Woolworth Co., the Respondent herein, is a New York corporation owning and operating some 1,800 retail variety stores located in all of the States of the United States and doing a business in excess of $1 million annually. In connection with its business, Respondent operates a store at San Bernardino, California, the sole operation involved in this proceeding , where it is engaged in the business of retailing merchandise. The Board's jurisdiction is conceded. 11. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 1167, is affiliated with the American Federation of Labor and admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Preliminary Note On March 22, 1952, the Board, pursuant to Section 9 (a) of the Act, certified the Union as exclusive representative of employees in an appropriate unit composed as follows: All employees of Respondent at its San Bernardino, California, store, including order or merchandise girls, lunch or fountain department employees, trainees, and employees working at least 8 hours a week as regular part-time employees, but excluding the manager, assistant manager, assistant manager in charge of lunch or fountain department, personnel supervisor, office supervisor, stockroom super- visor, floor supervisors, all other supervisors as defined by the Act, and seasonal employees. No question is raised concerning the Union's continuing representative status. At the hearing herein, upon the close of the General Counsel's case-in-chief, all parties rested. There is therefore very little dispute as to the facts and the issues, accordingly, turn largely on opposing theories of applicable law. A. The Respondent's refusal to furnish requested data On or about March 11, 1952, the Respondent and the Union executed a bargain- ing agreement to be effective from that date until March 5 , 1954, and providing in its section 21 (b) for a cost-of-living adjustment to be made March 7, 1953, "per- centagewise to at least the percent of change in the National BLS Index during the period of February 1, 1952 and February 1, 1953." There was this further proviso: "A larger adjustment in the hourly rates may be made by mutual agreement between the parties." On January 31, 1953, the Union through its secretary, Ted Phillips, requested, in writing, a meeting with the Respondent concerning the cost-of-living increase "as per the existing agreement." By letter dated February 10, the Respondent pro- posed a schedule of wage increases to meet its obligations under the contract and informed Phillips that any "larger percentage of increase" would have to be left to Store Manager E. F. Peck with whom Phillips might meet at their mutual convenience. By letters dated March 3 and 13, respectively, Peck and Phillips exchanged let- ters setting forth their respective positions on wage increases , and during this period there were also meetings of the parties. In all of these communications and meetings the Union was endeavoring to persuade the Respondent to increase wages above what was required by the contract, and while the schedules proposed by the Respondent were higher than the cost-of-living adjustment required by the contract, they were nevertheless lower than those proposed by the Union. However, by letter dated May 1, 1953, Phillips advised the Respondent that the Union's executive board had accepted the Respondent's wage proposal. Throughout the period of these discussions, as well as prior and subsequent thereto, the Union sought, without success, to obtain certain wage, hour, and classification data from the Respondent. By letter dated March 17, 1952, Phillips acknowledged receipt of a list of Respond- ent's employees in the bargaining unit, furnished in response to the Union's request, -204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and further requested hour and wage data on each employee . This further information was not furnished.' On or about March 2, 1953, Phillips requested Peck to furnish the Union with names of employees , their classifications, their working hours , and their current wages. He renewed his request orally during meetings with Peck on or about April 13 and 24, and in writing by letter dated April 27. The April 27 letter stated, inter alia, "`It is imperative that we have this information for the intelligent and equitable administration of the Agreement." The final communication in the matter was the Union's letter of May 5 requesting further information on Respondent 's position with respect to furnishing the requested data. The Respondent did not reply to this letter. As I understand Respondent's position , it concedes that it refused the Union's requests and, in any event, its refusal to furnish the requested data is clearly established. Before turning to Respondent's defenses , it is noted that the Respondent and the Union having reached an agreement on wage adjustments , we need not determine here whether the bargaining agreement , at the times requests for data were made, was open for wage negotiations , although this was a matter which appeared to give the parties a good deal of concern at the hearing. It is assumed , arguendo, that it was open for negotiations for an increase exceeding such adjustments as were required by the contract, but the parties having reached agreement on the wage issue the furnishing of the requested data is no longer relevant to those negotiations. Douglas Silk Products Co., 107 NLRB 450. The issue is thus narrowed to a con- sideration of Respondent's duty under the Act, if any, to furnish the requested data in order to enable the Union to properly observe and participate in the administration of the contract . The Union's letter of April 27 was explicit on that point. If ,relevant and material for such purposes , it seems elementary that the Respondent was under a duty, as a part of its bargaining obligations, to furnish such data. While a contract is one of the foremost objectives of a bargaining relationship, the bargaining obligation does not cease with its execution It would be of ques- tionable value to a representative of employees to achieve a contract if from the date of its execution it was deprived of reasonable means for ascertaining whether its provisions were being fairly and effectively administered. This is particularly true where a schedule of wages is included in the contract, wages which vary accord- ing to job classifications , seniority, and other conditions of employment. How, it may be asked, is the bargaining representative to fulfil its appropriate functions in safeguarding and promoting the interests of the employees it represents, unless there are available to it in reasonably accurate , current, and authoritative form the names of individuals covered by the agreement, together with their classifications, wage rates, and hours worked? That the bargaining representative, upon appropriate request, is entitled to such data from the employer wherever relevant and material to the negotiation of a contract, is not open to question under prevailing law. Aluminum Ore Co. v. N. L. R. B., 131 F. 2d 485 (C. A. 7); Leland Gifford Co., 95 NLRB 1306, 200 F. 2d 620 (C. A. 1); 1 H. Allison Co, 165 F. 2d 766 (C. A. 6); Yawman ct Erbe Manufacturing Co., 187 F. 2d 947 (C. A. 2); Hekman Furniture Co., 101 NLRB 631; California Portland Cement Co., 101 NLRB 1436. This being the rule with respect to the negotiation of a contract, the same reasoning that makes it the rule makes the rule applicable also to the administration of the contract. I am unable, therefore , to agree with the Respondent's argument that requests for relevant data need be honored only in matters pertaining to the negotiation of agreements. Leland Gifford Co., supra; California Portland Cement Co., supra; Hekman Furniture Co., supra; New Britain Machine Company, 105 NLRB 646. The Respondent's further position , as I understand it from its brief filed with me, is: (1) The requested data was reasonably available to the Union without further action by the Respondent; (2) the requested data was irrelevant to matters involved in the administration of the contract, and (3) the Union had, in effect, " bargained itself out of position to inquire into the wage rates during the contract period." These defenses will be discussed in the order stated. With respect to (1): 1 find no merit in it. The Respondent at the time the contract was negotiated furnished, on request , the names of all employees in the bargaining unit, and thereafter, as an employee was hired, furnished the Union with the name and date of hiring. In no instance, however, was there furnished the additional data requested by the Union. The furnishing of the names, therefore, was useful to the Union primarily if not solely with respect to the administration of the union- security clause of the contract : it would have little or no use in determining whether 'This incident is haired , as an issue , by the 6-month linutation , and is alluded to only in order to preserve the chronology of the Union's efforts to obtain wage data F. W. WOOLWORTH CO. 205 the wage provisions of the contract were being properly administered. Nor is the bargaining representative required to gather such information on wage and classifi- cation data as it may from the individual employees it represents, some of whom are not affiliated with it and some of whom, as will be seen, were hostile to it,2 but all of whom it is required to serve in its representative capacity. Both the Board and the courts have clearly laid down the rule that in matters of negotiations the bargaining representative is entitled, upon appropriate request, to have such data, where relevant and material, from the only authoritative source from which it can be obtained: the employer's records. See citations, supra If this is the rule with respect to negotiations on a contract, it must apply with equal persuasiveness to the administration of a contract. With respect to (2): It appears obvious that the requested data was relevant and material to the administration of the wage provisions of the contract unless there is something in the contract itself which renders it irrelevant. The Respondent com- plains that there is no "showing" of relevancy, but the relevancy arises out of the bargaining relationship and the adjustment of wages under the contract, and there is no need to explicate the obvious. It is sufficient to state that certain wage rates were agreed upon and incorporated in the contract and they varied according to classifications based on hours of "comparable experience," with a separate classifi- cation, at lesser rates of pay, for "enrolled students." Here, as in California Portland Cement Company, supra, the contract contains provision "for adjustments in com- pensation of employees which could not be administered by the Union without a knowledge of the classifications and rates of pay" and, it may be added, the names of the individual employees with their respective classifications and rates of pay.' With respect to (3): It should be noted, as the Board noted in California Portland Cement Company, supra, that we are here dealing "with a right that derives from statute and not from contract," and assuming, without finding, that such a statutory right may be waived by the Union, the Board would not, in any event, "give effect to any purported waiver of such right unless it is expressed in clear and unequivocal language." In this article of its defense the Respondent relies on the grievance and arbitration provisions of the contract, and the further provision that one of the exclusive re- sponsibilities of the Respondent was to "adopt or remove incentive or bonus systems, to adjust wage rates above those contained in this agreement." With respect to the grievance and arbitration machinery provided by the con- tract, it applies to all provisions of the contract and therefore to grievances arising out of wage adjustments. The bargaining representative is not required, however, to wait until some employee files a grievance before it can properly manifest an inter- 3 The union-security clause of the contract did not require those in i:espondent's employ at the time the contract was executed, to affiliate with the Union. 8I do not understand the Respondent's position to be that the burden tested on the Union to demonstrate the relevancy of the iequested data as a condition precedent to Respondent's duty to furnish it, but such an issue was adjudicated in the Yewman cC hrbe Menufacturinq Co., supra, where the court said • Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so is not justified by the Union's failure initially to show the relevance of the requested information The rule goveimug disclosure of data of this kind is not unlike that prevailing in discoveiy piocedutes under modein codes Theie the information must be disclosed unless it plainly appears ii relevant From the contract Section 19 Disputes. When a dispute arises as to the correct interpretation or application of any provision of this agieenient, it shall be ieferred to a representative of the Union and the store manages These two, after investigation, shall attempt to settle such disputes In the event these two cannot agree, they shall jointly request the Federal Mediation and Conciliation Service to submit a panel of five (5) arbiteis, one of which shall be selected by the process of elimination Then the dispute shall be reduced to writing and submitted to the arbiter who shall decide the matter. The decision of the arbiter, within the scope of the submission, shall be final and binding on the parties hereto The expense of any proceeding provided for herein shall be borne equally by the Employer and the Union. Section 17 Management Functions The management of the store and the direction of the store personnel, including but not limited to, the right to . . . adopt or remove incentive or bonus systems, to adjust wage rates above those con- tained in this agreement, and other management functions not specifically mentioned herein, are exclusive responsibilities of the Employer. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD est in the effectuation of the wage agreement . It has a duty independent of, and in addition to, the prosecution of individual grievances which it deems to be meritorious: it has a duty to ascertain whether grounds for grievances exist, and to keep the employees it represents advised accordingly. Therefore, it does not have to approach the threshold of the grievance itself before cognizance of wages, hours, and job classifications, becomes essential to the proper exercise of its representational func- tions. Furthermore, before launching a grievance on behalf of an employee or a group of employees it is entitled to have before it such information as is reasonably available to determine whether the grievance has sufficient merit to justify its prose- cution under the terms of the contract. It seems obvious, therefore, that we do not have in the grievance and arbitration clause of the contract a waiver either express or implied of data essential to an intelligent and effective administration of the wage provisions of the contract. The collective bargaining requirement of the Act is not satisfied by a substitu- tion of the grievance procedure . for [the] obligation to furnish the Union with information it needed to perform its statutory function. Hekman Furni- ture Co., supra; Leland Gifford Co., supra; New Britain Machine Company, supra. Finally, while the contract gives to management the exclusive function of adopt- ing or removing incentive or bonus systems, and of adjusting wage rates above those contained in the agreement, we are not here concerned with these matters. We are concerned with the wage schedules which have been written into the contract by agreement of the parties and the administration of the contract with respect to them. Obviously management is not authorized by such reservations of its authority as are contained in the contract to exclude the union from the proper exercise of its representational functions as an active participant in the administration of the con- tractual provisions. It is found that by its refusal, on and after March 2, 1953, to furnish the data requested by the Union, the Respondent has refused to bargain within the meaning of Section 8 (a) (5) of the Act, and has thereby engaged in conduct violative of Section 8 (a) (1) of the Act. B. The questioning of employees Additional evidence of Respondent's lack of good faith in the performance of its bargaining obligations under the Act, was its questioning of individual employees whether they were willing for the Respondent to furnish to the Union the wage data requested by it. That such questioning occurred is established by the undisputed and credible testimony of employees Ruth Bradt and Gertrude Isola. Whatever obligation the Respondent had in such matters arose out of the statute and the bargaining relationship, and the employees having chosen the Union to represent them in matters of collective bargaining yielded their right to bargain individually with their Employer, and at the same time the Respondent's right to bargain indi- vidually with them was cut off. While there is no evidence that the employees thus approached indicated opposition to having their wage rates made known to their bargaining representative, had it been otherwise Respondent's obligation to furnish the data would have remained unaffected. Furthermore, although all the evidence before us indicates the willingness of the employees to have their wage rates made known to the Union, the Respondent persisted in its refusal to furnish the data. In the light of all these circumstances, the only reasonable conclusion that can be reached is that the Respondent engaged in this course of conduct for the purpose of, or, in any event, that its conduct had the reasonable effect of, undermining the prestige and status of the bargaining representative. It accordingly is found that by questioning its employees concerning matters which could properly be channeled only through their bargaining representative, the Respondent violated Section 8 (a) (5) of the Act and thereby engaged in conduct violative of Section 8 (a) (1) of the Act. C. The petition for withdrawal of union-shop authority The final issue before us is whether the Respondent, in further violation of its bargaining obligations, sponsored and promoted among its employees a petition for withdrawal of union-shop authority with which the Union had been vested pursuant to a referendum among the employees of the bargaining unit. The sole witness to testify on this topic was the General Counsel's witness, Clynelle W. Chambers, assistant bookkeeper and cashier. At the election in which the Union was chosen bargaining representative, and at the later election on authorization of the union shop, Chambers served as Respondent's observer at the polls, but she also voted in F. W. WOOLWORTH CO. 207 these elections, was included in the bargaining unit, and the fact that she acted as the employer 's observer at the polls obviously does not affect her status as a rank-and-file employee. Chambers testified in effect that she prepared and circulated the petition for revoca- tion of the union-shop authority without consultation with representatives of manage- ment and solely on her own initiative as one who was dissatisfied with the Union as bargaining representative. Being in the Respondent's employ at the time the contract was executed she was not required under its union -security clause to affiliate with the Union and did not do so. She referred to the Union 's action in requesting the discharge of employees because of their failure to comply with the union-shop provisions of the contract , as a source of her dissatisfaction which, in turn, led to her sponsorship of the petition. The petition in question, signed by some 30 employees, bore the following text: We, the employes of the San Bernardino Woolworth store , who signed this letter want to withdraw the authority granted Retail Clerk's Union, Local 1167 and the company to make or continue the Union Shop . We want to be free to join or not join a Union as allowed by law. It was dated July 24, 1 S 53, and mailed to the Regional Office of the Board on or about July 31, in an envelope which bore , as the return addressee , F. W. Wool- worth Co. Admittedly, this was a company envelope. While denying that she received any aid from management in the wording of the petition, Chambers admitted that it was prepared in the office where she worked, during working hours, and was typed by one of the clericals in that office at Chambers' suggestion ; that it was prepared and signatures to it obtained while Store Manager Peck was on vacation ; and that she used Peck's office-which adjoined the office where Chambers worked and was separated from it by a glass partition- during the time that signatures were being obtained . She denied that the petition was circulated through the plant, but, admittedly , she posted it on the Company's bulletin board in the plant. In the office where Chambers was employed there were four employees: the office supervisor, the cashier, the assistant cashier, and Chambers . According to Chambers, the assistant cashier typed the document in question . She could not recall whether the office supervisor was present when the document was prepared and typed . Though the document bore the date July 24 and Chambers first testified that it was prepared and signatures affixed to it while Peck was on vacation, it was developed on further questioning that the person she identified as having typed the document left the Respondent's employ on June 27 and prior to the date on which Peck took his vacation . After the disclosure of this fact , Chambers changed her testimony, now testifying that she had held the document for almost a month after it had been typed before obtaining any signatures to it, whereas she had previously testified that the names were obtained on the same day that it was typed , and that she had not meant to testify that the document was prepared during Peck's absence but only that the signatures were affixed while he was on his vacation. This witness' demeanor as well as the shifting character of her testimony showed clearly that she was engaging in fabrication tailored to cloak her Employer against any appearance of complicity in the preparation and circulation of the petition. She denied that she discussed the petition with Store Manager Peck prior to the time she submitted it to the Regional Office , or that in sponsoring it she was motivated by a statement addressed to employees , signed by Peck, and posted on the Company's bulletin board, which included in its text the following: IF YOU DON'T WANT COMPULSORY UNION MEMBERSHIP, YOU CAN GET RID OF IT BY PETITIONING THE BOARD AT LOS ANGELES. I do not credit Chambers' disavowals of company knowledge and assistance with respect to her preparation and circulation of the petition , but discrediting Chambers would not, without more, justify a finding that the Respondent did in fact instigate and sponsor it. If I understand the character and scope of the burden of proof required of the General Counsel it requires something more than the discrediting of its own witness to establish a prima facie case. The facts revealed by Chambers' testimony, however, as well as Peck's published statement to employees, have sub- stance. The Peck statement, "If you don't want compulsory union membership, you can get rid of it by petitioning the Board at Los Angeles," appeared in a context of accusa- tions that the Union was attempting to block the Respondent from raising wages above the schedules contained in the bargaining agreement and a justification of Respond- ent's refusal to furnish the union with requested wage data. This was a patent at- 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tempt to destroy employee confidence in their bargaining representative and the concluding words concerning compulsory union membership, quoted above, appear- ing in this context, constituted an incitation to just such action as eventuated in the Chambers' petition. I am unable to accept Chambers' testimony that this publica- tion was not a motivating factor in the action she took with respect to the petition. The objective facts and inferences ieasonably flowing from them speak with more authority than the testimony of a witness, not credible in other respects, concerning the subjective factors involved in her action. Her inability to explain satisfactorily the circumstances under which she gained knowledge of the Board's processes under Section 9 (e) of the Act, strengthen me in these conclusions. The circumstances attending the actual preparation and circulation of the petition are, however, of more compelling significance. As to whether the petition was prepared and signatures to it obtained prior to Peck's vacation and therefore while he was on duty as store manager, we have Chambers' testimony leveled in two directions. If, as she first testified, signatures were obtained on the same day that it was typed, this was while Peck was on active duty at the store and since admittedly the signatures were affixed in his office, absent an explanation from him concerning his whereabouts on that date, we can only conclude that his office was used for this purpose with his knowledge and consent. If we rely on her later testimony, suspect though it is in view of her failure to give any explanation whatever of why she would have the petition typed and then hold it for almost a month before obtaining any signatures to it, we would still perforce conclude, in the absence of enlightenment which was not forthcoming inasmuch as the Respondent presented no witnesses, that she could not have occupied the store manager's office while some 30 employees entered that office for the purpose of affixing their signatures to the petition, without the knowledge and acquiescence of management, unless we are to conclude also that when Peck departed on his vaca- tion he left behind him a managerial vacuum. The fact is that there being only three employees in the office where Chambers worked, in addition to the supervisor, and the petition having been prepared in that office during working hours, and Chambers necessarily having had to absent herself from that office and her job while she obtained signatures to the petition in Peck's office, it is not credible that no conversations concerning her actions occurred between her and her immediate supervisor or that her supervisor had no knowledge of what she was about. Chambers did not testify that she handled the matter of the petition in a clandestine manner and, indeed, the action of some 30 employees in affixing theig signatures to it in Peck's office during working hours could hardly have occurred in secret." But regardless of whether or not the Respondent actively directed and participated in the preparation and circulation of the document, Chambers' use of the store manager's office for the purpose of obtaining signatures to it, carried with it the imprimatur of management sponsorship, and since management must be held to have at least acquiesced in such use of its time and property, it may not now escape liability for the appearances of sponsorship for which it was responsible. It is found that by sponsoring and promoting among its employees in the ap- propriate unit a petition for withdrawal of union-shop authority under Section 9 (e) of the Act, the Respondent gave further evidence of its refusal to discharge fully obligations to deal solely and in good faith with the Union as the exclusive repre- sentative of its employees in an appropriate unit, and thereby engaged in conduct violative of Section 8 (a) (1) and (5) of the Act. In conclusion it is noted that while the foregoing discussion has for purposes of organization and remedial specificity, followed the divisions that appear in the allegations of the complaint, its subject matter actually represents but three facets of a single issue, namely, Respondent's good faith or lack of it in discharging its bargain- ing obligations under the Act. My ultimate conclusion that the Respondent has failed in this duty imposed on it by the Act, and has thereby violated Section 8 (a) (1) and (5) of the Act, may properly be said to rest, therefore, upon a consideration of the entire subject matter of this proceeding rather than any single isolated phase of it, for it is upon the totality of Respondent's conduct vis a vis the bargaining repre- sentative of its employees, as revealed by this record, that the issue turns. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion with the operations of the Respondent set forth in section I, above, have a close, 5 Chambers gave as her explanation for the use of Peck's office that the employees feared the Union would retaliate upon knowledge that they had signed the petition, but this would not involve secrecy where management was concerned. GROVE SHEPHERD WILSON & KRUGE, INC.. 209, 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 the Respondent has refused to bargain with, the Union by sponsoring and promoting among its employees in an appropriate unit, a petition for the withdrawal of union-shop authority; by dealing with them directly and individually in matters that constituted the subject matter of collective bargaining; and by refusing the Union's request for certain wage data, it will be recommended that the Respond- ent forthwith furnish to the Union the name, classification, hours worked, and wage rate of each employee in the appropriate unit, and cease and, desist from other practices found to constitute a refusal to bargain. Upon the basis of the above findings of fact, and upon the entire record'in the case, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks Union, Local 1167, AFL, is a labor organization. within the mean- ing of Section 2 (5) of the Act. 2. All employees of F. W. Woolworth Co., at its San Bernardino, California, store, including order or merchandise girls, lunch or fountain department employees, trainees, and employees working at least 8 hours a week as regular part-time em- ployees, but excluding the manager, assistant manager, assistant manager in charge of lunch or fountain department, personnel supervisor, office supervisor, stockroom supervisor, floor supervisors, and all other supervisors as defined in, Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since March 22, 1951, the Union has been the, exclusive repre- sentative for purposes of collective bargaining of all the employees in the aforesaid appropriate unit, within the meaning of Section 9 (a) of the Act. 4. By refusing to provide the Union with information as to (1) the name, classification, hours worked, and wage rate of each employee in the appropriate unit; (2) by dealing directly and individually with employees in the appropriate unit concerning matters that constituted the subject matter of collective bargaining; and (3) by sponsoring and promoting among employees in the appropriate unit a petition for withdrawal of union-shop authority under Section 9 (e) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) and 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor- practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] GROVE SHEPHERD WILSON & KRUGE, INC., AND HENDRICKSON BROS., INC., SEVERALLY AND AS A JOINT VENTURE KNOWN AS GROVE-HEN- - .DRICKSON; AND THE NASSAU & SUFFOLK CONTRACTORS ASSOCIATION, INC. and ALFRED WILLIAM MAYER and SUFFOLK. COUNTY DISTRICT COUNCIL, UNITED BROTHERIOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, PARTY TO THE CONTRACT LOCAL 1483 AND SUFFOLK COUNTY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL and ALFRED WILLIAM MAYER and THE NASSAU & SUFFOLK CONTRACTORS - ASSOCIATION, INC., AND ITS MEMBERS LISTED ON APPENDIX F, AT- TACHED HERETO, PARTIES TO THE CONTRACT. Cases Nos. 2-CA-2984 and 2-CB-867. July 00, 1954 Decision and Order On December 10, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the- 109 NLRB No. 21.