Avco Manufacturing Corp.

AVCO MANUFACTURING CORPORATION 729 Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not discriminated in regard to the hire and tenure of em- ployment of Fred G. Estill. 6. Respondent has not, as alleged in the complaint , refused to bargain with the Union. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, or any other labor organization by discrim- inatorily discharging or refusing to reinstate employees or by discriminating in any other manner in regard to hire, tenure of employment, or any term or condition of employment. WE WILL offer to Erwin S. Albrecht immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights or privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named Union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any em- ployee because of his membership in or activity on behalf of any such labor organization. ARMSTRONG TIRE AND RUBBER COMPANY, TIRE TEST FLEET BRANCH, Employer. Dated---------------- By------------------------------------ -------- (Representative ) ( T tie) This notice must remain posted for 60 days from the date hereof, and ust not be altered, defaced , or covered by any other material. AVCO MANUFACTURING CORPORATION (LYco1rING DIVISION) and LOCAL 1010, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No. 2-CA-3262. February 18,1955 Decision and Order On June 23, 1954, Trial Examiner Thomas S. Wilson issued his In- termediate Report in the above-entitled proceeding, finding that the 111 NLRB No. 118. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case and finds merit in the Respondent's exceptions. Accordingly, the Board adopts the Trial Examiner's findings only to the extent herein- after indicated. The principal issue in this case concerns the Respondent's refusal to furnish the Union with certain merit wage increase data in connection with the processing of grievances under the Respondent's merit in- crease system. The pertinent facts are as follows: For several years, the Respondent applied a merit rating system to its office and plant clericals, under which each employee was rated by his immediate supervisor at the end of 3 months after hire and at intervals of 6 months thereafter. The merit rating received by an employee was one element in determining whether a merit increase would be granted.' In rating an employee, the supervisor completed a form requiring that the employee be rated on work accuracy, quality and output, his need for supervision and followup, and his coopera- tiveness. The supervisor made his current rating of "satisfactory," "above average" or "outstanding," only on the employee's work since the prior rating, without regard to the latter and without regard to the work or ratings of other employees. Although the prior rating of the individual employee was available to the supervisor if he wanted it, supervisors were discouraged from considering past reviews of the particular employee and were specifically instructed not to consider the reviews of other employees. In December 1952, Local 1010 was certified as bargaining represent- ative for the Respondent's production and maintenance employees, including the plant clericals, and the International was separately certified for the office clericals. Thereafter, the Unions began negoti- ating with the Respondent for a contract. Local 1010's only demand on behalf of plant clericals was that automatic wage increases be sub- stituted for the merit increase system, but no agreement was reached thereon. During negotiations on January 22, 1953, Sviridoff, the 1 The Respondent also requested oral argument. This request is denied because, in our opinion , the record , including the exceptions and brief, adequately presents the issues and positions of the parties a Merit increases also depended upon other factors, such as (a) the budgetary situation in the department involved ; ( b) the median rate range for the class of work in the depart- ment ; and (c) the general financial ability of the division. AVCO MANUFACTURING CORPORATION 731 union negotiator, requested information relating to both office-tech- nical and plant-clerical employees, including a statement of the present merit rating policy and a list of all employees by occupations, date of hire, job classification, and pay rates. This demand was later renewed, with the addition of a request for present and past performance rating reviews for all plant clericals. However, these demands were refused by the Respondent. In May 1953, Local 1010 voted to strike unless agreement was reached by May 28. In order to reach agreement before the deadline, both Local 1010 and Respondent made certain concessions. Among those made by Local 1010 were the withdrawal of its request for auto- matic wage increases and the acceptance of the Respondent's merit increase system. , The agreement, dated May 28, 1953, provides, among other things, for: (a) The continuation of salaried employees' eco- nomic benefits for the duration of the agreement; (b) a 5-step griev- ance procedure, defining a "grievance" as "a difference of opinion between the Company and the Union or an employee involving the interpretation or application of the terms of this agreement," and re- quiring that a grievance be filed within 10 days after the employee knew, or reasonably could have known, of facts giving rise to a griev- ance; and (c) the agreement to constitute a settlement generally of all demands and issues subject to collective bargaining, and the waiver of the obligation to bargain concerning any matter subject to collective bargaining whether or not referred to in the contract. Under the contract, Respondent specifically agreed to provide the Union with : (1) Records of warnings or other disciplinary action; (2) current seniority lists at intervals of approximately 6 months; (3) monthly lists of transfers, terminations, layoffs, leaves of absence, hires, and recalls; and (4) job description sheets covering all jobs in the bargain- ing unit. On June 18 and June 22, 1953, approximately 1 month after tho contract was signed, Local 1010 filed grievances for four plant cleri- cal employees requesting that they individually be granted merit in- creases. Respondent rejected these grievances because they were not filed within the contractual 10-day period.' On June 23, Shop Stew- ard Neupert filed a grievance on his own behalf requesting a perform- ance review and merit raise. Although unknown to Neupert at the time, his merit review had begun on June 16, but was not completed until June 29. At a weekly grievance meeting with Respondent on July 10, Neupert learned he had received a merit review. Respond- ent admits this grievance was timely filed, but the grievance was re- jected during the first four steps because, in management's opinion S These four employees had been given merit rating reviews sometime before the contract was executed , but the employees were not informed of the reviews. At the hearing and in its brief, Respondent contends that the grievances were also barred by the contract pro- vision settling outstanding demands. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and at its discretion, Neupert's work performance did not warrant an increase. On July 23, the Union filed a grievance for employee Kava- naugh requesting, in this connection, all information regarding her past merit review and reasons for denial of increase. Respondent rejected this grievance because no current review had been made due to her recent promotion. At the July 10 meeting, referred to above, Local 1010's representa- tive repeated a request, which he had made during the bargaining negotiations, for merit increase data, including present and past merit rating reviews and pay rates of the grievants and all other employees in their job classifications, claiming such data was necessary to proc- ess the grievances intelligently. The Respondent agreed to furnish the grievant's own current rating review, but refused to supply the additional data requested because it was not relevant to the merit rat- ings primarily the subject of the grievances. The Trial Examiner found that, by this refusal to furnish data in addition to the grievant's current review, the Respondent violated Section 8 (a) (5) of the Act. We find merit in the Respondent's ex- ceptions to this conclusion. We are not confronted in the present case with a question involving the broad obligation of a company to furnish wage data during col- lective-bargaining negotiations with a union.' Rather, as recognized by the Trial Examiner, the issue is confined to whether Respondent violated its duty to supply information sufficient to enable intelligent processing of grievances under a contractually agreed merit system. As previously described, the Union, at the bargaining table, aban- doned its request for automatic wage increases and agreed, instead, to accept the existing merit increase plan. Under this plan, wage in- creases were at management's discretion and were based, preliminar- ily, on the immediate supervisor's merit rating review of the indi- vidual employee. This review was founded on the employee's per- formance since the last rating, and both the immediate and check- ing supervisors were discouraged from considering factors other than this performance in rating the employee concerned. Significantly, with particular reference to the grievances involved in the case before us, there is no evidence that the immediate supervisors considered the grievants' or other employees' past merit rating reviews or any other wage data, and so far as the record shows, the checking officials ex- amined only the grievants' current merit rating reviews. The Union was entitled, in processing these grievances, to the cur- rent reviews actually used by the Company in determining the griev- ants' ratings, and Respondent duly offered to supply this material. The additional data which the Union demanded had no significance whatsoever in rating an employee under the agreed system. Indeed, 4 See e. g., Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593, (C. A. 5). 4 AVCO MANUFACTURING CORPORATION 733 to require the Respondent to furnish such additional material in con- nection with these grievances would, in effect, return the entire merit system to the bargaining table despite the Union's contractual ac- ceptance of the present system. We find that Respondent offered to supply all data pertinent to the processing of grievances under the existing contract and therefore fulfilled'its obligation to bargain under Section 8 (a) (5) of the Act.' Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint. 5In support of his ultimate finding that Respondent' s refusal to furnish information was unlawful, the Trial Examiner relied in part on Respondent's position that four grievances were barred by the contract's 10-day provision. However, Respondent's posi- tion had at least colorable basis under the contract and, as observed by the Trial Examiner, was not itself violative of the Act. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed on August 12, 1953, by Local 1010, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel' and the Board, respectively, by the Re- gional Director for the Second Region (New York, New York), issued its com- plaint dated December 17, 1953, against Avco Manufacturing Corporation (Ly- coming Division),2 herein called the Respondent, alleging in substance that the Re- spondent: (1) On and after July 16, 1953, refused to bargain with the Union as the exclusive representative of all its employees in an appropriate unit thereby en- gaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and the notice of hearing were duly served upon the Respondent and the Union. The Respondent duly filed its answer when it admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on February 8, 9, 10, and 11, 1954, at New York City, New York, before the duly designated Trial Examiner. The Gen- eral Counsel and the Respondent were represented at the hearing by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. Briefs were filed by the General Counsel and the Respondent on March 15, 1954. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Avco Manufacturing Corporation (Lycoming Division) is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Delaware. At all times herein mentioned, the Respondent has maintained an office and place of business at 550 South Main Street in the city of Stratford, county of Fairfield, State of Connecticut, herein called the Strat- ford plant, and is now and has been continuously engaged at said plant in the manu- facture, sale, and distribution of airplane engines and parts and related products. During the year ending July 31, 1953, Respondent, in the course and conduct of its business operations, caused to be purchased, transferred, and delivered to its Stratford plant materials valued at in excess of $1,000,000, of which approximately 'This term specifically includes the counsel appearing for the General Counsel at the hearing. 2 By consent the title was amended at the hearing to read as above 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 75 percent was transported to said plant in interstate commerce from States of the United States other than the State of Connecticut. During the year ending July 31, 1953, Respondent, in the course and conduct of its business operations , caused to be manufactured at its Stratford plant products valued at in excess of $1,000,000 , of which approximately 90 percent was trans- ported from said plant in interstate commerce to States of the United States other than the State of Connecticut. The Respondent admits, and the Trial Examiner finds, that the Respondent is en- gaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1010, International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, CIO, is a labor organization admitting to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A..The facts The parties to the instant proceeding are in almost complete agreement on the facts of this case. In December 1952, Local 1010 was certified by the Board as the exclusive bar- gaining representative for an appropriate unit consisting of the production and maintenance employees at the Respondent's Lycoming Division together with the approximately 150 plant clerical employees whose duty stations were in the plant proper.3 At the same time the International Union was certified as the bargaining representative for a much larger group of office clerical employees whose work dif- fered from that performed by the plant clericals in large part only in the fact that their duties were performed in the office rather than in the plant. Almost from the opening of its Lycoming Division several years previously, Re- spondent had applied a so-called merit rating system to the clerical employees, both office and plant, whereby each such employee was rated by his or her supervisor 3 months after hiring and thereafter at intervals of 6 months . According to the evi- dence of the Respondent's officials these performance ratings had two primary func- tions: (1) To inventory the abilities of its clerical staff, and (2) as one integral part in the procedure for granting or withholding merit increases to the clerical employees. According to this same evidence whether a clerical employee received a wage in- crease depended upon a number of factors other than his own performance rating review such as the budgetary situation in the department involved, the practice of the Respondent that the wages being paid in a department should not exceed the median of the rate range being paid for that class of work in that department, as well as the general financial ability of the Lycoming Division . The testimony also showed that the raise would also depend upon whether the individual employee was doing "satisfactory," "above average" or "outstanding" work, it being Respondent's practice to hire an individual into a department at a rate below the range , to pay a "satisfactory" clerical employee the bottom of the rate range, the "above average" employee. up to the middle of the rate range, and the "outstanding" employee from the middle to the top of that range. Following the above-mentioned certifications the parties commenced negotiations with the Respondent, the International on behalf of the office clericals and Local 1010 on behalf of the plant clericals and the production and maintenance employ- ees. The only negotiations with which we are here interested are those in which Local 1010 engaged. During these negotiations practically the only union demand on behalf of the plant clericals was that the increases should be automatic rather than based on the so-called merit system . This demand was discussed occasionally during the sessions which ran from January to May 28 without agreement . As early as January 22, 1953, Michael Sviridoff, negotiator for Local 1010, wrote the Respondent request- ing nine items of information relating to both the office-technical and plant-clerical groups of which the last two were: "8. A statement of the Company's present merit rating policy. 9. A list of all employees by occupations , their date of hire, their job classifications and rate of pay." , This demand , although subsequently renewed and increased by a request for the present and past performance rating reviews for all plant clerical employees, has consistently been refused by the Respondent. 3 Respondent admits the appropriateness of the unit , the Union's majority therein, and the certification of the Union as the bargaining agent AVCO MANUFACTURING CORPORATION 735 Finally about May 28, 1953, the Union voted to strike unless an agreement was reached on or before May 28. During the final negotiations prior to this deadline Local 1010 and the Respondent both began making concessions in an effort to reach an agreement without a strike. Among the concessions made by the Union was a withdrawal of its request for automatic wage increases for plant clericals and the ac- ceptance of the Respondent 's merit increase system. At the time this concession was made, Sviridoff made a statement at the negotiation table that the Union would handle problems arising about the merit rating system under the grievance procedure in the contract . While this remark was made by Sviridoff at the negotiation table, it apparently was made to one of the union committeemen there but no objection was voiced by the Respondent to the suggestion. As a result of these various concessions a contract and a supplemental agreement were agreed to and executed some few days subsequent to the date of May 28, 1953, which appears on both documents. This agreement contained the following clauses: Article XVII Section 1. Plant Clerical Employees a. The non-economic divisions of this labor agreement shall be extended to cover the salaried plant clerical employees in the bargaining unit. b. The company salaried employee economic benefits in existence on the effective date of this agreement shall be continued for the salaried plant clerical employees for the duration of this agreement. Article XVIII Duration Section 1. This agreement constitutes the entire contract between the Company and the Union and settles all demands and issues with respect to all matters subject to collective bargaining except as modified in Section 3 of this Article. Therefore, the Company and the Union for the duration of this agreement, waive the right, and each agrees that the other shall not be obligated to bar- gain collectively with respect to any subject or matter which is subject to collective bargaining, whether or not such subject or matter is specifically referred to herein. The executed agreement provided a five-step grievance procedure wherein a grievance is defined as follows: "A grievance is a difference of opinion between the Company and the Union or an employee involving the interpretation or application of the terms of this agreement." The final step in this grievance procedure was arbitration. Section 4 of the grievance procedure provided as follows: a. Employees shall file grievances promptly. No grievance shall be valid unless submitted within ten ( 10) working days after the employee knew, or by reasonable diligence could have known, of the facts giving rise to the grievance. On or about June 18, 1953, a grievance was filed by the Union on behalf of plant clerical employees Hannabass and Savino requesting that they individually be granted a merit increase . The Respondent rejected these grievances during the first four steps of the grievance procedure on the ground that said grievances were invalid as not filed within the 10 -day period prescribed by the grievance procedure. On or about June 22 a similar grievance was filed by the Union on behalf of employees Batza and Spiett. During the four steps of the grievance procedure the Respondent rejected these grievances on the same ground as stated above. At the hearing the evidence indicated that the four employees herein involved had all been given merit rating reviews sometime prior to the execution of the contract . The evidence was also clear that the time these reviews were made the employee being reviewed was not informed of the review. On or about June 23, Shop Steward Neupert filed a similar grievance on behalf of himself requesting a performance review and a merit raise . Although it was not known by the Union at the time of the filing of this grievance , the facts now show that the merit rating review of Neupert had begun on June 16 but was not com- pleted until June 29. The first information that Neupert or the Union had that he had received such a merit rating review was at the weekly grievance meeting 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Respondent on July 10. The Respondent acknowledges that this grievance was duly and properly filed and that there were no technical objections to its filing. During the first four steps of the grievance procedure this grievance was rejected by the Respondent on the following ground: The standard rate for a salaried employee is determined at the time of hire. If the ability of that employee is questioned at that time, he may be hired below that standard rate. His work is reviewed from time to time as a type of inven- tory to determine his overall performance and progress, but this does not mean an employee will receive an increase at that time. Increases are considered for performance beyond what is normally expected and at the discretion of management. On or about July 23 a fifth grievance stating, "union requests all information regarding employees' past merit review and reason or reasons for denial of increase" as related to employee Kavanaugh was filed by the Union. The Respondent rejected this grievance on the ground that her "work performance review has not taken place due to promotion involving change of duties" and that therefore no merit rating review was due under the Respondent's policy until employee Kavanaugh had served 3 months in her then position' The grievances relating to the performance reviews and merit increases were dis- cussed by the parties at various weekly grievance meetings and especially at the meeting of July 10, 1953, at which Sviridoff appeared representing Local 1010 and repeated the Union's previously made request that it be furnished, so as to be able to intelligently process the grievances, the following information: (1) The grievant's own present and past merit rating reviews. (2) The merit rating reviews of all others in the grievant's job classification. (3) The pay rate of each employee in that same job classification. At the meeting of July 10, and both prior and subsequent thereto, the Respondent refused to supply the requested data although offering to, and actually producing, the grievant's own current rating review. At these times the Respondent's super- visor of industrial relations, William Newman, offered to produce "anything" that the Respondent considered "relevant" to the merit rating review but stated frankly that the only matter that the Respondent considered relevant was the current per- formance rating review sheet itself. Newman's argument made to the Union in this regard was the claim that each affected employee was rated individually by his own immediate superior without regard to other employees in the same job classification or, indeed, to the employees' own past rating reviews. At this same grievance meeting of July 10, 1953, Respondent's spokesman claimed that it was the Respondent's practice to make these merit rating reviews 6 months after the employees' original hiring date and annually thereafter. This was in contradiction to a description of said merit rating review policy contained in the Respondent's employee manual. At another grievance meeting held on August 27, 1953, the Respondent admitted that its claim of July 10 was in error and that the Respondent had returned to its original schedule of such reviews 3 months after hiring and 6 months thereafter. In its brief the Respondent explains this admittedly erroneous claim by admitting that it had intended to change to the longer review periods at a date subsequent to the execution of the agreement dated May 28 but, after considering article XVII (b) of the agreement, quoted hereto- fore, came to the conclusion that under the terms of that article it was precluded from making such a change and, therefore, reverted to the original and shorter periods of reviews. Since that date and to the date of the hearing the Respondent has consistently and constantly refused to give the Union the information requested by it on January 22, 1953, repeated at the grievance meeting of July 10, 1953, and reiterated there- after to the very date of the hearing. The Respondent's testimony given at the hearing and its argument in its brief makes it clear that the Respondent continues its refusal to supply the requested information on the ground that such refusal does not constitute a refusal to bargain as alleged in the complaint. 4 At the hearing the Respondent objected to any evidence regarding the Batza, Spiett, or Kavanaugh grievances under the complaint on the ground that the actions of the field examiner in investigating the charges had led the Respondent to believe that the only grievances involved in the complaint were those of Savino, Hannabass, and Neupert and thus the Respondent was taken by surprise. The Trial Examiner overruled the objection at the hearing In its brief the Respondent specifically withdrew the aforementioned .objection. AVCO MANUFACTURING CORPORATION 737 This brings us to the pivotal issue, if not the only issue , in this case : To wit, the question of whether the refusal of such information constitutes a refusal to bargain on the matter of merit increases. B. Conclusions The General Counsel in his brief states the issues involved here as follows: The unfair labor practice shown by the evidence was limited to a refusal to bargain in good faith on merit increases and merit ratings of plant clerical employees, manifesting itself in the following: (1) An outright refusal to discuss the merit ratings of Savino, Hannabass, Batza, and Spiett, on the ground that the ratings had been given prior to the date of the first contract affecting them; (2) Misrepresentation by the Respondent of its policy as to the fre- quency of merit reviews; ( 3) Bad faith handling of the grievances of Neupert and Kavanaugh; (4) Refusal to discuss employees' actual wage rate and merit ratings on the basis of comparing one employee with another in the same job classifica- tion; and (5) Refusal to furnish the Union with certain information, i. e. (a) Prior merit ratings of employees with pending grievances (Respond- ent was willing to give these employees' most recent ratings), and (b) Actual wage rates and current and prior merit ratings of all other employees in the same classifications as employees with pending grievances. To these the Respondent's brief adds the following: In view of the foregoing facts, which are not disputed in any material respect, we submit that the issues in this case resolve themselves into the following questions of law: (a) Whether or not the Union has waived the right to demand the produc- tion by Avco of the information and data which it is seeking to obtain through the instrumentality of this case; (b) Whether such information and data are relevant and necessary to the processing of merit increase and merit rating grievances and are therefore relevant and necessary in order to enable the Union to "police" the agree- ment effectively; and (c) Whether or not Avco has not in fact fully discharged its duty to bargain collectively in good faith with the Union concerning the grievances which on the basis for the unfair labor practice charge asserted against Avco in this case. The premises upon which this discussion must start is that it is now well -settled both in theory and in the decided cases ` that the subject of merit wage increases, being an integral part of wages, is a bargainable issue. Admittedly the Trial Examiner is confused as to the exact extent to which the Re- spondent claims that its defense of "waiver " extends. After stating in its brief: Avco does not contend that the Union has waived at any time the claim which was first asserted by its representatives at the company-grievance com- mittee meeting held on July 2, [101 1953, of the right to require the produc- tion of the information and data now in dispute in connection with the proces- sing of the merit increase grievances which are in evidence. Instead, it is Avco's contention that since the Union has explicitly waived the right to demand the production of the controverted records for use in collective bargaining both by its conduct at the negotiations and by the express language of the collective bargaining agreements , Avco is obligated to produce, in connection with the processing of each merit increase grievance , only such information and data as are relevant and necessary in order to enable the Union to handle the grievance intelligently and to police the agreement properly, and further that the grievant's current merit performance review is the only record that is relevant and necessary for such purposes. 5 N. L. R. B. v. J. H. Allison & Co., 165 F. 2d 766, enfg. 70 NLRB 337, cert. denied 335 U. S. 814, reh . denied 335 U. S 905. E. W. Scrspps, 94 NLRB 227. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent then goes on on the following page of its brief as follows: The facts which are outlined above clearly establish that with full knowledge and understanding of their rights, the Union's representatives freely accepted the existing merit rating policy and gave up the right to require Avco to bargain collectively for changes in, or the abolition of, the merit rating policy until such time as the parties might be obligated to bargain for a new agreement by reason of the service of a notice to terminate or to amend under Section 2 (a) and 2 (b) of Article XVIII of the existing agreement... . Such right as the Union may have to require Avco to produce the records which are the subject matter of the present controversy is based either (a) upon the theory that the records sought are necessary for use in collective bar- gaining negotiations or (b) upon the theory that they are necessary in order to enable the Union to police the agreement intelligently. Insofar as the demand of the Union in this case is based upon the theory that the requested information and data is necessary for use in collective bargaining negotiations, the waiver by the Union of its right to bargain for changes in the merit rating policy extends to, and embraces, the demand for information and data relating thereto because the right to require the production of such informa- tion and data is ancillary to the broader right of the Union to require Avco to bargain collectively with it regarding changes in the merit rating policy. As the Trial Examiner understands the Respondent's contention, it is that, by ac- cepting the Respondent's then existing merit rating increase system in the contract of May 28, the Union waived its right to bargain for the abolition of, or any change in, the existing system until such time as it was necessary to bargain for a succeeding agreement. The Trial Examiner accepts this as correct without the necessity of hav- ing to so decide. The Respondent's theory then apparently continues that, as the Union requested and Avco by contract agreed to provide the record of warnings or of other disciplinary action with respect to any employee, the current seniority list at intervals of approximately 6 months, the monthly list of all transfers, terminations, layoffs, leaves of absence, hires and recalls, and job description sheets for all jobs in the bargaining unit, the Union thereby waived the right to seek any other information from the Respondent. Thus the waiver the Respondent appears to talk about seems to be a waiver of the right to information based (a) on the Union's failure to provide in the May 28 contract for the furnishing to it of the information now sought under the grievance procedure constituted a waiver of its right to seek such information at all, and (b) that the waiver of the right to change the existing merit increase system included as an ancillary thereto the waiver of the right to request any information in regard to that merit increase system. The Trial Examiner is unable to see where or how Respondent's waiver theory has any application in the instant case. It is clear, and admitted, that by article XVII, section 1 (a) and (b), the Union by contract accepted the Respondent's then estab- lished merit increase system for the duration of that contract. Thus, by ordinary con- tract law, it is established that the Union could not during the term of the contract itself demand any change in or abolition of the Respondent's merit increase system. "Waiver" is not involved here. On the other hand, the Respondent concedes that the Union was entitled to file grievances regarding any arbitrary or capricious "interpretation or application" of any provision of the contract, including the merit increase system. The necessity for such a concession is obvious under the terms of the grievance procedure contained in the May 28 contract and indeed, under the invitation expressed in the Respond- ent's employee manual for the employees to process their complaints or grievances to and through the supervisory hierarchy up to and including the Respondent's work manager. But, argues the Respondent, the information requested by the Union from January 22, 1953, to the very date of the hearing is not relevant to the processing of the griev- ances filed relating to the merit increase policy as the only information material to the proper policing of the merit increase system is the employees' current merit review alone. Thus the whole argument appears to be reduced to a question of whether the information requested by the Union is material or relevant to the proper process- ing of a grievance by an employee who has been refused a merit increase or a merit performance review. Once it is admitted that an aggrieved employee or his represent- ative has the right to grieve, as it has been and, indeed, as under the facts here it must be, then the question of the materiality of the information sought is the sole issue herein involved. AVCO MANUFACTURING CORPORATION 739 Whether the information sought is germane and material to the proper and intel- ligent processing of a grievance relating to the merit increase policy requires a short discussion of the policy itself. The Respondent explained to the Union, and again developed the matter at the hearing, that 3 months after a new plant clerical had been employed, that employee was given a merit rating by his immediate superior upon a form provided by the wage and salary administration office of the Lycoming Division of the Respondent, which form required the supervisor to rate an employee on the following elements: "the ac- curacy, quality and output of work; the need for supervision and follow-up and the cooperativeness of the employee." Theoretically, according to this evidence, the supervisor was supposed to rate the employee solely on the work of that individual employee subsequent to the time of his previous merit rating without regard to any previous merit rating (although the previous rating would be available to the super- visor if he wanted it, which he apparently did not in the usual case) and, indeed, with- out regard to the work or rating of any other employee. Thus theoretically the supervisor was supposed to rate the employee without regard to any norm or stand- ard other than "an intelligent objective norm" as noted by Respondent's counsel in his opening statement at the hearing. For supervisors to grade an employee to some individual theoretical "intelligent objective norm," or without regard to any norm or standard, appears to be a pure contradiction in terms. A rating, any rating or grade, presupposes a norm or a standard upon which that rating or grade is based. Otherwise the so-called rating is completely unintelligent and unintelligible. Hence the Trial Examiner has been forced to conclude that in practice, at least, the super- visors were forced to, and did, use some norm or standard, even if individually im- posed, in making these required ratings of the plant clericals under their supervision. Respondent's officials themselves admit this phenomenon by recognizing that some of the supervisors were known from experience to be low or hard raters and others as high or easy raters. In view of the recognition of this fact by the Respondent it appears self-evident that, in order to prevent arbitrary and capricious ratings due to the individual norm or the absence of standards employed by the individual rat- ing supervisor, the past and present merit ratings of not only the grievant but also of the other employees in the same wage classification become material in order to show the norm or standard being used by the supervisors. Possible personal bias of the rater could only be checked by the same means. If such information be refused, a grievant would be powerless to protect himself from the use of arbitrary and indi- vidual norms established by each individual supervisor or from any personal bias and prejudice which might exist on the part of the rating supervisor-or, in fact, from being excluded entirely from any merit rating review. For these reasons it be- comes clear that not only the current but also the past merit rating reviews of both the grievant and the other employees in the grievant's same job classification are nec- essary and material to any intelligent processing of such a grievance relating to the merit increase system. According to this same evidence by the Respondent, the merit rating reviews cov- ered above are but the first and preliminary step in the procedure for granting or re- jecting a merit increase to a plant clerical employee. Each such plant clerical employee is listed in a job classification having a specific wage range. This testimony shows that an employee of "ordinary" ability is usually hired at a rate below the bottom of the rate range for that job classification. It is the Respondent's practice to pay the bottom of the range to employees who are rated as of "satisfactory" ability, those of "above average" ability between the bottom and the mean of the range, while those of "outstanding" ability are paid from the median to the top of the range. An employee's rating as of "ordinary," "above average," or "outstanding" ability is determined by the merit performance rating review men- tioned above. However this same testimony showed further that the fact that an em- ployee had been rated as "above average" or "outstanding" was only a condition precedent to the receipt of a wage increase but not of and by itself sufficient to secure such a merit increase to such an employee. For an employee of "above average" or "outstanding" ability to receive a merit increase after receiving such a merit per- formance rating required that the division be making at least a profit and that there be money for such an increase in the department in which the employee was working. The Respondent had another practice which becomes material here for it was the Respondent's practice that the average wage being paid to the employees in any given wage classification should not exceed the median of the rate range for that job classi- fication. Thus an employee being paid at the bottom of the range could be denied a merit increase even though rated "outstanding" in the event that the average rate being paid to all others in the same job classification equaled or exceeded the median of the rate range for that job classification. Thus it becomes clear that in order to 344056-55-vol. 111-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intelligently process a grievance .relating to the merit increase policy the Union had to know the individual rates of all the employees in the same job classification as the grievant in order to know whether or not the median of the rate range for that job classification had been exceeded or not. The information thus requested by the Union is critical in any determination as to whether the grieving employee is entitled to a merit increase. However the Respondent contended at the hearing and in its brief that the grievant's present merit rating review was the only document material to the processing of any such grievance. The Respondent makes this argument on the grounds that the rating supervisor did not make use of any previous rating reviews in making his own re- view but based his judgment exclusively on the work done by the individual employee during the period subsequent to the last rating review. However, the facts showed that the past rating reviews were available to the rating supervisor if desired and, more important, were available to and no doubt used by those who checked the rat- ing supervisor's review. As noted above, without the availability of the past reviews of the grievant as well as the present and past reviews of all others in the same job classification, neither the Respondent's officials checking the review nor the Union handling a grievance could possibly determine either the individual norm or standard used by the rating supervisor nor whether personal bias or fairness of the rating supervisor existed toward the individual rated, both of which would be material and necessary to determine the fairness of the rating review. If the Respondent had contended that its merit increase policy provided that such merit increases were to be granted at the exclusive, arbitrary discretion of the Re- spondent without regard to any standard or norm, then it is obvious that no grievance would lie to the granting or withholding of any such increase so that information relating to the fairness or bias of such determination would be immaterial. But the Respondent pointedly made no such contention either at the hearing or in its brief although this point is at least suggested in the Respondent's to the Neupert grievance where Respondent stated that such merit increases were "at the discretion of Man- agement." Thus the Trial Examiner must conclude that once it is established that the Union had a right to process a grievance relating to the granting or withholding of merit increases, as the Respondent concedes in the case of the Neupert grievance, then the information requested by the Union becomes material, if not of critical importance, to the intelligent processing of that grievance in order to show either the fairness and honesty or, on the contrary, the arbitrary and capricious nature of both the per- formance rating review and the ultimate decision (based in part on the individual performance rating review and in part on various economic factors) of whether such a merit increase should or should not be granted. It therefore becomes clear that the Respondent has withheld relevant and impor- tant information preventing the intelligent processing of grievances relating to the merit increase policy of the Respondent established in the contract dated May 28 by withholding the information requested. Once it is established that a grievance will lie in regard to that policy, then the corollary right to information necessary for the intelligent processing of that grievance immediately arises as a matter of course. Thus it becomes completely immaterial that the contract of May 28, while providing for the furnishing of certain other information by the Respondent to the Union, did not specifically provide for the furnishing of the information requested here in con- nection with the processing of these grievances. This omission in the contract amounts to no waiver. By thus withholding necessary information the Trial Ex- aminer finds that the Respondent has refused to bargain in good faith with the Union as required by Section 8 (a) (5) of the Act. As to the Hannabass, Savino, Spiett, and Batza grievances, the answer made by the Respondent was that these grievances were outlawed by the fact that the 10-day limitation for the presentation of such grievances had expired prior to their present- ment. Section 4 (a) of the grievance procedure found in the aforementioned con- tract provided as follows: "No grievance shall be valid unless submitted within ten (10) working days after the employee knew, or by reasonable diligence could have known, of the facts giving rise to the grievance." As found heretofore the evidence is clear that until sometime after the execution of this contract at least, the rating supervisor did not inform or discuss with the employees that a performance review was being made of the employee. In fact, although Neupert's rating review was in process at the time of the filing of his grievance and not completed until thereafter on June 26, the Respondent gave no notice of that fact to Neupert or to the Union until the grievance meeting of July 10. Obviously, therefore, the four grievances here under discussion were not barred under the 10-day rule due to the fact that the grievants could not have discovered "by reasonable diligence" the facts upon which AVCO MANUFACTURING CORPORATION 741 the grievances were based because the Respondent was keeping the making of those reviews a confidential matter. Thus these four grievances were not barred by the terms of the grievance procedure set forth in the contract of May 28 as contended by Respondent. At the hearing and in its brief the Respondent deviated from the answers given to the grievances themselves by contending that article XVIII , quoted, supra, barred them from being considered as valid grievances This point is not well-taken due to the fact that the Union's demand for the information sought here was not requested for the purpose of negotiating any change in or the abolition of the merit increase system established under the contract but, on the contrary, was requested for the purpose of enforcing that merit increase policy as provided under the agreement dated May 28. By granting the Union the right to process grievances relating to the merit increase policy the Respondent also necessarily granted the Union the ancillary right to information material and necessary for the intelligent processing of such grievances as obviously admitted by the Respondent in the quotation from its brief noted, supra. However the Trial Examiner is unwilling to find that the Respondent 's claim that these four grievances were barred by the 10 -day limitation in the filing of grievances in and of and by itself constituted a refusal to bargain because such a contention could easily have been made under a color of right. Such claim , however, is an ele- ment to be considered on the question of good faith and when coupled with the Re- spondent's blanket refusal of necessary and relevant material proves a violation of the good-faith requirement of Section 8 (a) (5) of the Act. The Respondent by refusing the Union information material and necessary for the processing of legitimate grievances thereby refused to bargain in good faith with the Union as the certified bargaining agent for the employees in the appropriate unit in violation of Section 8 (a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner has found that the Respondent refused to bargain in good faith with the Union as the certified bargaining agent for the employees of the Re- spondent in an appropriate unit by refusing to furnish the Union with the following material which has been found to be material and relevant to the processing of such grievances: (a) The salary rates of all of the plant clerical employees in the same job classifica- tion as the grievants; and (b) The current and past merit performance reviews of the grieving employees; (c) The current and past merit performance reviews of all other employees in the same job classification as the grievants. It will, therefore, be recommended that the Respondent furnish the Union with said information as requested. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are not such as to indicate an attitude of opposition to the purposes of the Act in general and, therefore, the Trial Examiner will recommend that the order in this case be limited to the rather technical violations heretofore found. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 1010, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All maintenance , production, and plant clerical employees of Respondent em- ployed at its Stratford plant, exclusive of executive , managerial, confidential, profes- sional, technical and office-clerical employees , department confidential clerks, time- study men, guards, watchmen, and all 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 December 28, 1952, the Union has been , and is now, the ex- clusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing on July 10, 1953 , and at all times since, to furnish relevant and material information as requested by the Union as described heretofore the Re- spondent has refused to bargain collectively with Local 1010 , International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, and has thereby engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] COMPLIANCE STATUS OF PLASTER TENDERS, CONSTRUCTION, GENERAL AND SHIPYARD LABORERS' LOCAL UNION #802, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL. February 18,1955 Administrative Determination of Compliance Status and Order As part of the administrative investigation of the compliance status of Plaster Tenders, Construction, General and Shipyard Laborers' Local Union #802, International Hod Carriers, Building and Com- mon Laborers' Union of America, AFL, herein called Local 802, and in connection with a notice to show cause, a hearing was held in which Local 802 appeared and participated. Thereafter, the hearing officer issued a report ruling on motions made at the hearing by Local 802 and finding on the record there made that Local 802 had not complied with Section 9 (f) and (g) of the Act. George A. Yager, Acting Regional Director for the Twenty-first Region, National Labor Rela- tions Board, reviewed the report of the hearing officer and on the basis thereof issued on October 14, 1954, a report and order, a copy of which is attached hereto, determining that Local 802 has not been in com- pliance with Section 9 (f) and (g) of the Act for the years 1948 through and including 1953, and ordering in effect withdrawal of the letters of compliance issued during that period. Exceptions to the report and order were filed with the Board within the time provided therefor. The Board has considered the exceptions and the entire adminis- trative record in this matter, and hereby makes the following determination : 111 NLRB No. 104.