Taylor Forge and Pipe Works

TAYLOR FORGE AND PIPE WORKS 693; are no office clerical employees nor does the Employer contemplate the employment of this classification of employees in the near future. We- shall make no unit determination with respect to them.4 -e-find the following_ employees of the Employer constitute a unit- appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All employees at Employer's store #27, at Moses Lake, Washington, including the grocery, produce, bakery sales, and snack bar employees, but excluding employees working 8 hours or less per week, the store manager, the assistant store manager, the retail meat cutters and wrappers, bakery production employees, guards, and supervisors as- defined in the Act. [Text of Direction of Election omitted from publication.] s American Smelting ,& Refining Company, 102 NLRB 1489. Taylor Forge and Pipe Works and Forge and Machine Work- ers Industrial Union. Case No. 13-CA-1727. August 16,1955- DECISION AND ORDER On March 15, 1955, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re-_ spo ,dent, had engaged in and was engaging, in unfair labor practices.. within the meaning of Section 8 (1) and (5) of the Act and recom- mending that it cease and desist therefrom and take certain afflrma-- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the In- termediate Report with 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 Respondent's exceptions and brief, and the entire rec- ord in this case, and hereby adopts the findings, conclusions, and rec-- oft xi hdlafiafis ^ of the Trial Examiner, with the following additions: and modifications. In adopting the findings and conclusions of the Trial Examiner. that the Respondent, by refusing the requested information, thereby violated'Section 8 (a) (5) of the Act, we do not mean to establish, as claimed by our dissenting colleagues, that "an employer is required to furnish every fact, occurrence and thought which can even, re- motely be said to relate to wages."' In the present instance, however.. 1 The Respondent also requested oral argument. In our opinion, the record, including- the exceptions and brief, fully presents the issues and the positions of the parties. Ac- cordmgly, the request for oral argument isdenied. 9 The Board has recognized that there are limits to the type of information an employer is obligated to furnish the Union . See McLean-Arkansas Lumber Company Inc., 109< 113 NLRB No. 65. ,694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we believe that the evidence clearly establishes the relevancy and es- sential necessity for the substantiating data requested by the Union. Thus, it is undisputed that the substantiating data is part of the Re- spondent's job evaluation system.3 Further evidence of relevancy is the fact that the Respondent has agreed to supply such information on any particular job if the Union should process a grievance on that job. We can see no essential difference in the need for wage data infor- -lnation requested, as here, on an overall basis and the need for such piecemeal information, the furnishing of which is agreed to by the Respondent. Thus, it is clear that, if the data is relevant and neces- sary in the case of individual grievances, it is equally relevant and necessary where the object of the negotiation is to establish broad pay -formulas which will eliminate the necessity of filing individual griev- ances. Nor will the furnishing of such data be unduly burdensome upon the Respondent, as it is not required to draw up accounts or make extensive surveys, but only to turn over the existing information -which is contained on the reverse side of the Respondent's job descrip- tion sheets. In fact, it would appear that to supply the data support- ing the Respondent's wage determinations does not differ in kind or -performance from the recognized obligation of an employer to grant -the union's request for original time study data developed by the em- ployer's experts and applicable to a grievant's job.4 The Board has held, with judicial approval, that the failure of an employer to furnish upon request of the bargaining representative information reasonably available from the employer's records and es- sential to the intelligent representation of the employees concerned, violates Section 8 (a) (5) of the Act.5 We believe that this principle is applicable to the present proceeding Accordingly, we find, in :agreement with the Trial Examiner, that the Respondent's refusal to furnish the job substantiating data upon request by the Union was a violation of Section 8 (a) (5) of the Act.6 We shall therefore enter an appropriate order, remedying the unfair labor practices as found by the Trial Examiner and affirmed in the manner noted above. NLRB 1022 ; Yawman & Erbe Mannafactitrang Co., 89 NLRB 881, enfd. 187 F. 2d 947 (C. A. 2). 3 It was testified that this system is "the heart of the determination of wage rates" at the Respondent's plant. 4 See Otis Elevator Company, 102 NLRB 770, enfd. as mod . 208 F. 2d 176 (C. A. 2). 6 See Whatin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A. 4), cert. de- nied 349 U. S 905 The Item Company, 108 NLRB 1634. 6 The overall good faith of the Respondent is not a relevant consideration where the Respondent's conduct is in itself a violation of the Act. See Whitin Machine Works, supra. Nor does the fact that the Union and the Respondent have since bargained to an agreement render the obligation moot or constitute a waiver of the right to insist upon the information sought , where the parties' stipulation expressly negated any such construction as to waiver . See The Item Company, supra . See also The Hughes Tool SCompany, 100 NLRB 208. TAYLOR FORGE AND PIPE WORKS 695 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, Taylor Forge and Pipe Works, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Forge and Machine Workers Industrial Union, as the exclusive representative of all its employees, at its Chicago, Illinois, plant, excluding all full-time man- ual welders, cutters, and apprentices in department A-3, salesmen, office employees, guards, executives, and all supervisors as defined in the Act, by refusing and failing to furnish to said organization, upon request, the "degree" or point evaluation assigned by the Respondent to each of the factors evaluated in each of its hourly rated jobs in de- termining the point range for such jobs of employees in the appropri- ate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request furnish to Forge and Machine Workers Indus- trial Union the "degree" or point evaluation assigned by the Respond- ent to each of the factors evaluated in each of its hourly rated jobs in determining the point range for such jobs of employees in the ap- propriate unit. (b) Post at its Chicago, Illinois, plant, copies of the notice attached to the Intermediate Report and marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by the Respondent's rep- resentative, be posted by the Respondent immediately after receipt thereof, and be maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to its 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 Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN FARMER and MEMBER RODGERS, dissenting : We do not agree with the majority's finding of an 8 (a) (5) viola- tion by the Respondent. 7 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order ." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the (United States Court of Appeals , Enforcing an Order." 379288-56-vol. 113-45 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts in this case are simple and not in dispute. The Respond- ent has its own method of arriving at wage rates for employees. It starts off with a listing of every rank-and-file job in its plant. For each listed job, the Respondent then prepares a detailed job descrip- tion. The description includes, among other things, work performed, purpose, machines and tools used, and working conditions. The Re- spondent prepares a job rating for each position; the job rating con- sists of 11 factors taken from the National Metal Trades Association Job Rating Manual: education, experience, initiative and ingenuity, physical demand, mental or visual demand, responsibility for equip- ment or process, responsibility for material or product, responsibility for safety of others, responsibility for work of others, working condi- tions, and unavoidable hazards . The NMTA Manual defines each of the 11 factors,8 establishes 5 possible degrees for each factor,9 and gives a numerical point designation for each of the 5 degrees for each of the 11 factors. The Respondent rates each job description on the basis of the 5 de- grees in each of the 11 factors. This evaluation gives a point score for each factor; the point scores are added to give a point total for each job rating. The Respondent refers to a point conversion table in the NMTA Manual to arrive at the hourly rate in money for each job. The Respondent has about 240 jobs in its plant. As each job is di- vided into 11 factors for each of which there are 5 degrees, simple computation establishes that there are more than 13,000 possible com- ponents comprising the 240-point score totals. During the negotiations for a new contract, the Union requested the Respondent to supply the points scores for every factor, thus demand- ing a breakdown of each job classification to the most minute detail. In response, the Respondent furnished the Union with the master index listing every job, a copy of each description, and the NMTA Manual including the point conversion table. The Respondent agreed to give the Union the point-score total for each job. Thus, at the time of the negotiations, the Union knew the details of every job em- 8 For example , 9. Responsibility for work of others: This factor appraises the responsi- bility which goes with the job for assisting, instructing, or directing the work of others. It is not intended to appraise supervisory responsibility for results. For example, 4. Physwal demand: 1st degree-Light work requiring little physical effort 2d degree-Light physical effort working regularly with light weight material or occasionally with average weight material. Operate machine tools where machine time exceeds the handling time. 3d degree-Sustained physical effort, requiring continuity of effort working with light or average weight material Usually short cycle work re- quiring continuous activity. Or the operation of several machines where the handling time is equivalent to the total machining time. 4th degree-Considerable physical effort, working with average or heavy weight material. Or continuous strain of a difficult work position . 5th degree-Continuous physical exertion working with heavy weight mate- rial. Lard work with constant physical strain or intermittent severe strain. TAYLOR FORGE AND PIPE WORKS 697 ployees performed, the rate of pay, and the complete mechanics by which the rate was computed.'° We believe that the majority's conclusion in this case establishes a broadside principle for every issue even remotely resembling a wage information situation. The Supreme Court has rejected such an ap- proach to cases involving charges of per se 8 (a) (5) violations. It has held that, "The duty to bargain collectively is to be enforced by ap- plication of the good faith bargaining standards of Section 8 (d) to the facts of each case. . . ." 11 The Respondent's overall good faith in its dealings with the Union cannot be gainsaid.12 There has been a history of successful collective bargaining between the Respondent and the Union, and, even after the filing of the charge in this proceed- ing, the Respondent bargained to a new agreement with the Union. It agreed to give the Union the individual point designations for each of the 11 factors on any particular job if the Union processed a griev- ance on that job. In fact, even before the filing of the charge the Re- spondent and the Union mutually agreed upon and established such point designations for the 11 individual factors in 18 jobs. Such facts establish that the Respondent's negotiations conduct has been in com- plete conformity with the principle of collective bargaining pre- scribed by the statute. We do not view the recognized duty of an employer to furnish wage information of the usual variety as an open sesame which requires'an employer to furnish a union with all the minutiae leading to its sub- conclusions, which in turn, are the bases for the ultimate bargainable fact-the rate of pay an employer offers for each particular job. Where the information line is to be drawn cannot be stated as a pre- cise rule; each fact situation must be scrutinized to determine the ex- tent of an employer's obligation. The facts of this case show that the Respondent has fulfilled its duty of disclosure. We believe the majority mistakenly presumes that the Whitin Ma- chine 13 and related cases stand for the proposition that an employer is required to furnish every fact, occurrence, and thought which can even remotely be said to relate to wages. We do not so construe that line of cases. Those decisions are in sharp contrast to the facts in- volved here. The Board has found a refusal to bargain where, for example, an employer refused to correlate named employees with spe- 10 The Respondent had supplied the Union with its point designations on the 11 indi- vidual job factors for about 95 of its total of approximately 240 jobs 11 N L. R B. v. American National Insurance Co , 343 U S 395. 12 We note the undenied testimony that, at the time the Respondent assumed its posi- tion pertaining to the particularized point scores , the Union's counsel stated, "That is just what I wanted to hear you say Now I am going to file an unfair labor practice charge I have waited 8 months for this chance." 13 Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A. 4). I, 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cific wage rates ; 14 an employer refused to furnish the exact wages of employees and the amounts of merit increases they received in the prior year; 15 and an employer refused to furnish current salaries.16 The Whitin Machine case holds that the wages linked with the names of employees have a presumptive relevance, and that it is unnecessary for a union to establish the relevancy to particular negotiations of such information. The courts have approved this principle. How- ever, such information must, at least, inherently possess characteris- tics that are significant in relation to wage negotiations generally. The subordinate detail which the majority now forces the Respondent to furnish the Union is far too remote to fall within the purview of the Whitin Machine decision. Indeed, it is not even clear that the subject of the Union's demand is "wage information." The point designations which the Respondent assigns to the 11 individual job factors represent the Respondent's considered judgment based upon its introspective mental processes. In this instance, the Respondent reduced to writing the finer points of its thinking about the relative difficulty of the jobs in its plant, the comparative skill, experience, training, and other traits the jobs require. Another employer keeps these elements of-his mental proc- esses in the abstract and does not reduce them to writing. If the more methodical employer must expose the details of his inner thoughts at the bargaining table for others critically to appraise, logically, a less systematic one might be compelled to codify his thoughts in writing for the benefit of his employees' bargaining representative. A union's right to such information, if it is such a right and if information it is, can hardly depend upon the form in which an employer keeps it. In any event we see nothing in the statute which imposes upon an employer the obligation to reveal, upon blanket request and with no pretense of any showing of need or relevance, such remote "informa- tion" or "facts" as are involved in this case. We believe, rather, that argument whether certain work involves light, or sustained, or con- siderable, or continuous physical effort, for example, involves the lan- guage of the bargaining conference, and it properly belongs there. The Respondent here gave the Union all the facts about job classi- fications and descriptions, wage rates, individual earnings, and the total point score equivalent to each employee's wage scale. It even offered, if a dispute arose over any particular job, to reveal detailed reasons-shown in the various designations for the 11 factors decided upon by its experts-for the wage rate on the job. Under such cir- cumstances, we find it impossible to decide that the Respondent breached his obligation to bargain collectively which is all that under the statute it was obligated to do. 14 Ibid. 15 The Item Company, 108 NLRB 1634, enfd. 220 F . 2d 956 (C. A. 5). 10 Yawman & Erbe Manufacturing Company, 89 NLRB 881, enfd. 187 F. 2d 947 (C. A. 2). - -TAYLOR FORGE AND PIPE WORKS 699 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges timely filed by Forge and Machine Workers Industrial Union, herein called the Union, the General Counsel by the Regional Director for the Thirteenth Region (Chicago, Illinois ) of the National Labor Relations Board, herein called the Board, issued his complaint, dated October 28, 1954, against Taylor Forge and Pipe Works, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge, together with notice of hearing, were duly served upon the Respondent and the Union. - With respect to the unfair labor practices, the complaint alleges that the Respond- ent has failed and refused to bargain with the Union as the exclusive collective- bargaining representative of employees in an appropriate unit by refusing during the course of collective-bargaining negotiations, on or about April 16, 1954, to furnish the Union with the job evaluation point schedules which disclose the points assigned by the Respondent to each of the 11 factors evaluated in each of its hourly rated jobs in determining the point range for such jobs and thus enabling the correlated rate range at which each such job is compensated to be ascertained. In its answer, duly filed herein, the Respondent admits the allegations concerning its operations and that the Union was at all material times the exclusive collective-bargaining represent- ative of employees in an appropriate unit, admits that the Union requested certain evaluation and wage data information but denies that the information requested was exactly as alleged in the complaint, denies that it refused to supply the requested infor- mation, avers that the Respondent supplied the Union with all information necessary to determine the occupational rate and offered to permit the Union to examine the point evaluation of any specific occupation upon a showing of sufficient and proper reason for such an examination, and denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before me on January 11 and 12, 1954, at Chicago, Illinois. All parties were represented at the hearing, and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce rele- vant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Re- spondent's motions to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, are disposed of in accordance with the findings of fact and conclusions of law made below. Subsequent to the hearing, all parties filed --briefs which I have fully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find, that the Respondent, an Illinois corporation with its principal office at Chicago, Illinois, operates and main- tains manufacturing plants at Chicago, Illinois, Fontana, California, and Pittsburgh, Pennsylvania; that at its manufacturing plant at Chicago, Illinois, which is alone in- volved in this proceeding, it is engaged in the business of manufacturing, forging, and fabricating steel products for distribution and sale; and that in the conduct of its business at said plant it has annually purchased and received supplies and materials, valued in excess of $500,000, from outside the State of Illinois, and has annually shipped its finished products, valued in excess of $500,000, to points located outside the State of Illinois. Upon the above admitted facts, I find, as the Respondent concedes, that the Re- spondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that Forge and Machine Workers Industrial Union is a labor organization within the meaning of Section 2 (5) of the Act. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Introduction The issues raised in this proceeding are (1) whether the Respondent's refusal to furnish to the Union, upon its request during negotiations for a new contract in April 1954, certain job rating substantiating data in the Respondent's possession, constitutes a violation of Section 8 (a) (5) and (1) of the Act, and (2) whether the Regional Director's refusal to issue a complaint in a prior proceeding upon a charge filed approximately 8 months before the charge in the instant case, alleging a similar violation because of the Respondent's refusal at that time to furnish the same data upon the Union's request, is res judicata of the issue in this proceeding. The material facts pertaining to these issues are not in dispute. It is conceded, and I find, that at all times material herein (1) all employees of the Respondent at its Chicago, Illinois, plant, excluding all full-time manual weld- ers, cutters, and apprentices in department A-3, salesmen, office employees, guards, executives of the Respondent, and all supervisors as defined in the Act, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and (2) the Union has been, and is, the exclusive repre- sentative of all the employees in said appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9 (a) of the Act. B. The refusal to bargain 1. Respondent's method of determining hourly wage rates The wage rates for each hourly rated job at the Respondent's plant were initially determined by the Respondent's use of a job evaluation system. The first step was the preparation of a "Job Description" for each job listed in the Respondent's "Mas- ter Occupation Index." A separate description for each job was prepared on a sheet about 12 x 8 inches. At the top of the sheet appears the large heading "Job Description." Above this heading are blank lines following the small legends "Date Described," "Described by," and "Supersedes Description." Immediately be- low the heading of "Job Description" is the small legend "Job`Title," followed by -the title of the job such as "Service Driver-Janitor." Immediately below this is the small legend "Machine No." The balance of the sheet contains a list of nine large topic headings, with a description under each topic applicable to the job described. These standard and constant topic headings are as follows: I. Purpose; II. Descrip- tion; III. Machine, IV. Tools; V. Production; VI. Tolerances; VII. Inherent De- lays; VIII. Supervision; and IX. Working Conditions.' On the reverse side of this sheet, there is a large heading on the top entitled "Job Rating" and, immediately underneath, "Substantiating Data." To the right of this heading is a blank line following the small legend "Effective date"; to the left are two blank lines, one following the small legend "Supersedes," with the word "Date" under the line, and the other blank line following the small legend "Super- sedes," with the words "Job. No." under the line. Underneath these legends and the caption, almost covering the remainder of the sheet, is a chart containing three vertical columns. The first column is headed by the legend "Factors"; the second one is headed by the legend "Deg.," which is the abbreviation for degrees; and the third one is headed by the legend "Basis of Rating." Under the heading of "Fac- tors" are listed the following 11 standard and constant factors, each on a separate line: Education, experience, initiative and ingenuity, physical demand, mental or visual demand, responsibility for equipment or process, responsibility for material or product, responsibility for safety of others, responsibility for work of others, working conditions, and unavoidable hazards. The last topic listed in this column is entitled "Remarks. At the bottom of the sheet are blank lines over the following small legends: "Evaluation," "Authorization," "Job Title," "Machine No.," and "Job No." s After a job description was written, the Respondent's industrial engineering de- partment, together with the "operating people," then reviewed the description and, with the use of the National Metal Trades Association (herein called NMTA) Job I The job description sheet, described in the text, appears in the record as Respondent's Exhibit No 5-C 9 The job rating substantiating data sheet, which is described in the text and is the reverse side of the fob description sheet, appears in the record as Respondent's Exhibit No. 5-B. TAYLOR FORGE AND PIPE WORKS 701 Rating Manual, proceeded to assign point values to each of the standard factors listed in the chart contained on the job rating substantiating data sheet. The NMTA Manual? contains a definition of each of the 11 standard factors listed in the chart on the job rating substantiating data sheet. In this manual, each "factor" is broken down into five "degrees," with a description of the requirements for each "degree." On the inside of the cover is a table setting forth the different number of points to be assigned to each "degree" for each "factor." By examining the job description and comparing it with the requirements pre- scribed in the NMTA Manual for the five degrees of each factor, the engineering department determined the "degree" to be assigned to each "factor" listed on the chart and recorded that "degree" in the appropriate column on the chart, opposite the corresponding "factor," and the number of points assigned to that "degree" on the table appearing on the inside cover of the NMTA Manual. When the rating was completed on the chart, the points were totaled and converted into the money rate for that job by the use of a point conversion table. This table shows what rate is to be assigned to a particular job depending upon the total number of point values computed for that job on the chart of the job rating substantiating data sheet. Paul Plevack, the Respondent's manager of industrial relations, admitted that the following 3 elements entered into the evaluator's determination of which one of the 5 "degrees" should be assigned to each "factor" on the chart contained on the job rating substantiating data sheet: (1) A knowledge of the shop and its conditions, (2) a knowledge of the NMTA job rating system, and (3) the exercise of a certain amount of judgment. At the time when the issue in this proceeding arose, the Respondent had in its possession the job rating substantiating data sheets, containing the information called for therein, for the approximately 238 jobs listed in its "Master Occupa- tion Index." 2. The Union's request and the Respondent's refusal Prior to April 16, 1954, representatives of the Union and the Respondent had engaged in collective-bargaining conferences for the purpose of executing a new agreement to succeed the one which was to expire April 30. Among the contract proposals submitted by the Union was one for a wage increase. Although the subject of wages had been discussed in prior conferences, no decision had been reached by April 16 on the issue of a wage increase. At the bargaining conference held at the Respondent' s plant on April 16, 1954, Mozart G. Ratner, counsel and one of the bargaining representatives for the Union, requested Paul Plevack, at that time Respondent's personnel manager and representa- tive in the bargaining conferences, for an accurate copy of the job rating substantiat- ing data sheet which the Respondent maintained in its files for each job. Ratner told Plevack that the Union wanted this information for purposes of collective bar- gaining concerning inequities and concerning the operation of the Respondent's job evaluation system. Ratner stated that it was impossible for the Union to know whether the Respondent was administering its job evaluation system equitably and fairly, and whether the particular points were assigned by the Respondent to each factor on the merits or whether points were distributed to the factors on an arbitrary basis so that the total would correspond to a figure previously determined-by the Respondent as the proper one for that job. He further pointed out that it was important for the Union to see, for example, whether the points assigned to such a factor as "working conditions" were the same where the job conditions were the same or whether the points varied where the job conditions were the same, thereby creating inequities. Ratner also emphasized that the Union needed the information in order to check the points assigned to each of the 11 factors against the objec- tive conditions that the Union and its stewards observed. Plevack refused to furnish the requested information, stating that "we are not going to give you our job evaluation system for you to pick apart." At the hearing, Plevack testified that by the phrase "to pick apart" he had in mind "going on a fishing expedi- tion to gather this information, not because they had a specific need necessarily,. but to see whether or not they could find something on this fishing expedition to then bring up for some prolonged discussion." Plevack stated to Ratner as his reasons for refusing to furnish the requested data the fact that the Respondent had already supplied the Union with copies of the material which the Respondent used in making its job evaluations, that the Union had already obtained the point values for the jobs concerning which specific individual grievances had been processed, and that the Union now had sufficient information from which it could itself evaluate each job in • a This appears in the record as Respondent's Exhibit No. 5-E. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same manner as the Respondent had done. Plevack also stated that they already had an "adjudication from the Board on this particular point," referring to the Regional Director's refusal to issue a complaint on the earlier charge filed in 1953. Ratner admitted that the Respondent had supplied the Union with a copy of the "Master Occupation Index," 4 a copy of each job description sheet with the reverse side in blank, a copy of the point conversion table, and the NMTA Manual. Ratner further, testified that it was his understanding that the Respondent was willing to fur- nish the Union with the total point score for each job. The parties also stipulated that, as a result of the processing of individual grievances during the past 9 years, the Respondent had supplied or made available to the Union the "degree" ratings on an individual job basis for some 95 jobs out of the total of 238 jobs listed in the master occupational index. In addition, Plevack testified that there had been in- stances where a single formal grievance was enlarged into a discussion covering a number of occupations or perhaps all the occupations of a given department and-that during the course of such discussions the "degree" ratings were made available for all the occupations involved. The job rating substantiating data, which Ratner requested of Plevack, consisted of the "degree" or point value which the Respondent had assigned to each of the 11 standard factors for each job evaluated. This data was already compiled on the reverse side of each job description sheet. The Respondent neither claims nor con- tends that this data has previously been furnished, or made available, to the Union for all the jobs which had been evaluated. The reverse side of the job description sheets submitted to the Union was blank. It was this data, which was omitted from the reverse side of the job description sheets supplied to the Union, which the Re- spondent refused to furnish on April 16, 1954. And the Respondent has steadfastly adhered to this position to this day. On May 21, 1954, after the filing of the charge in the instant case, the Union and the Respondent executed a new collective-bargaining agreement to terminate on April 30, 1955. The parties stipulated that, during the closing, negotiations attendant upon the signing of this agreement , the Respondent and the Union agreed that the execution of this contract was not to be interpreted as constituting a waiver of any right any of the parties might have as a result of the processing of the charge in the instant proceeding. 3. Concluding findings The Board, with court approval, has consistently held that as part of the statutory - duty_to bargain collectively "in respect to rates of pay" and "wages," as prescribed by Sections 8 (a) (5) and 9 (a) of the Act, an employer, upon request, must furnish the collective-bargaining representative with all relevant wage data, and its failure to do so violates Section 8 (a) (5) and (1) of the Act. This principle was recently reaffirmed in Whitin Machine Works, 108 NLRB 1537, enfd. 217 F. 2d 593 (C. A. 4), where the Board said: We are convinced that the authority conferred by Section 9 (a) of the Act upon a union representing a majority of the employees in an appropriate unit entitles the union to all wage information essential to the intelligent representa- tion of the employees and that when such information is reasonably available only from the employer's records, it is the employer's duty, on request, to accom- modate the union. The courts have consistently agreed with this construction of the Statute. [Footnote citing cases.] In the instant case no showing has been made that compliance with the Union's request would have placed an unwarranted and undue burden on the Employer. Refusal by an employer to supply such necessary information makes impos- sible the full development of the collective-bargaining negotiations which the Act is intended to achieve. It therefore constitutes a violation-of Section 8 (a) (5) of the Act. [Footnote citing cases.] . it is sufficient that the information sought by the Union is related to the issues involved in collective bargaining, and that no specific need as to a particular issue must be shown. There can be no question but what the requested information was essential to the Union's intelligent representation of the employees in the appropriate unit. The Union and the Respondent were in the process of negotiating a new collective- bargaining agreement and wages was still an unresolved issue. The wage rate appli- cable to each job was directly dependent upon the total point score computed for that job which, in turn, was dependent upon the "degree" or point evaluation placed by 'This document, which is in the record as Respondent's Exhibit No. 5-A, lists the occupation title, the occupation number, and the rate range for each hourly rated job evaluated by the Respondent. TAYLOR FORGE AND PIPE WORKS 703 the Respondent on each of the 11 standard factors comprising the content of each job. Plevack admitted that the requested information constituted the basic element in the Respondent's determination of the incentive rates and that it went to the heart of the Respondent's computation of wage rates at this plant. Ratner had informed Plevack that the Union wanted this information for the purpose of collective bargain- ing concerning inequities and the operation of the Respondent's job evaluation system. Only full disclosure of the Respondent's wage structure based on the point values assigned to each factor for all jobs would enable the Union to know whether to press or modify a particular wage demand, whether inequities exist which merit discussion or correction, and whether other elements are present in the wage structure which, though impossible to visualize beforehand. appear to merit discussion once the full picture is made available. Boston Herald-Traveler Corporation, 110 NLRB 2097. The requested information was not unlike the time-study data, developed by the Company's experts in their determination of standards applicable to a job, which, the Board and the court held in the Otis Elevator case, the Company was obligated to furnish the Union for the purpose of intelligently processing a grievance concerning a specific job during the term of a contract. Otis Elevator Company, 102 NLRB 770, 777-779, enfd. as mod. 208 F. 2d 176 (C. A. 2).5 If the Respondent is obligated by the Act to furnish such data for the purpose of processing a single grievance dur- ing the term of a contract, then a fortiori is it required to supply such data during the course of negotiations for a new contract for the purpose of general collective bargaining and concerning the operation of the entire evaluation system. While the Respondent had supplied the Union with material from which it could make its own evaluation of the various "degrees" and arrive at a total point score for each job, accurate information concerning the requested data was reasonably available only from the Respondent's own records. Thus, the analysis and interpretation of both the job description and the "degree" criteria in the NMTA Manual depends, as Plevack admitted, on the judgment of the evaluator. This is so because of the numerous intangible and frequently imponderable subjective elements peculiar to the evaluator such as, for example, educational background, tendency to be precise or not, general knowledge of the overall production process, knowledge of the specific location or surroundings of the specific job, etc. Plevack admitted that the job de- scription, on the basis of which the job was evaluated, did not include all the factors which that job in practice comprehends and that the evaluator not only had to ex- ercise his judgement but also had to have a knowledge of the shop and its con- ditions. That different evaluators could arrive at different point ratings for the various "degrees" of each factor was graphically illustrated at the hearing by Plevack him- self. Although Plevack neither supervised nor computed the Respondent's job evalu- ations, he testified that in connection with the consideration of grievances he had fre- quently ascertained the "degree" or point evaluation of each factor in the job under consideration by using the NMTA Manual and had always succeeded in arriving at the accurate rating. However, when he attempted at the hearing to evaluate the "degrees" or point ratings of the 11 "factors" -ascertainable for the job description of "Service Driver-Janitor," an admittedly simple job, his evaluation of the total point score for the job fell from 13-23 points short of the range actually evaluated and as- signed to that job by the Respondent. And Plevack admitted that there are many jobs that are more complicated. Moreover, as the NMTA Manual allocates points in multiples of 5 to the "degree" evaluation of 6 "factors," in multiples of 10 to the "degree" evaluation of 2 "factors," and in multiples of 14 to the "degree" evaluations of still 2 other "factors," there still exists an opportunity for evaluators to make different degree or point evaluations of 2 or more factors while reaching the same total point score for that job. Thus, even if the total point score determined for a specific job by a union evaluator were to happen to coincide with the total determined by the Respondent, the Union would 5 Contrary to the Respondent's contention in its brief that the contract in the Otis Elevator case required the Company to supply the requested information, the Board and the court held that the contract was silent on this point and therefore did not constitute a waiver of the union's statutory right to have this information supplied, upon request. Nor is Crompton-Haghlana Mills, Inc., 70 NLRB 206, cited in the Respondent's brief, of any avail to the Respondent in the instant case. That case turned on its-own peculiar facts and the Board carefully confined its decision to the "circumstances of this particu- lar case" in a context where, among other things, the company contended that the re- quested material was bulky and to supply it would impose an undue hardship on the company. To the extent that the underlying principle in the Crompton-Highland case may be regarded as paralleling that in the instant case, I believe that it is inconsistent with, and has been sub silentio overruled by, a long line of subsequent decisions. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still have no way of knowing whether the various "degree " determinations, which enable the respective computations to be made , were identical. As the rates of pay are geared to the Respondent's evaluation, and not to the Union's, it is necessary for the Union to be apprised of the "degree" or point evaluation of each factor relied on by the Respondent in its determination of the total point score for each job. The only source of accurate information of this kind is the Respondent 's records. Finally, the Respondent 's contention that the Union could make its own com- putations from the material already supplied by the Respondent, is not unlike the contention, made in similar situations and rejected by the Board and -the courts,6 that the Union could obtain the requested wage information from its own members or from employees . Even assuming that the Union actually could , by the use of experts, arrive at the same "degree" or point evaluations as the Respondent in each case, it is clear that to make this computation for the 238 jobs listed in the master occupation index would be so burdensome and time consuming as to delay and im- pede the process of collective bargaining. "In these circumstances , full com- pliance with the duty to bargain required production of the information requested." The B. F. Goodrich Company, 89 NLRB 1151, 1153.7 On the other hand, the record is clear, and the Respondent makes no contrary claim, that compliance with the Union's request would place no unwarranted or undue burden upon the Respondent . The requested information has already been compiled on the job rating substantiating data form, which comprises the reverse side of the job description sheets reposing in the Respondent's files. The Respond- ent could readily furnish copies to the Union or permit the Union to make its own copies from an examination of the data in the Respondent 's files. The Respondent contends that if the Union 's computation of the total point score for a specific job were to differ from the Respondent 's computation of the total point score for the same job, the Union could invoke the contract grievance proce- dure on an individual job basis and the Respondent would then furnish the re- quested data for that job for the purpose of processing the individual grievance. The Respondent further points out that it has been its policy to permit a member of the Union executive board or an individual employee to see a breakdown of the "degree" or point evaluations for a particular job if, in the opinion of the Respond- ent, a "justifiable" reason is furnished . The Respondent conceded that it was the sole judge of what constituted a "justifiable " reason and that , if it did not regard the reason to be "justifiable," or if no reason were furnished , the information would be refused . The Respondent therefore contends that its position and policy in this respect has satisfied any statutory obligation to furnish the requested information. "The Board has held that `the collective bargaining requirement of the Act' is not satisfied by a substitution of `the grievance procedure of the contract for its [Re- spondent's] obligation to furnish the Union with information it needed to perform its statutory functions."' Hekman Furniture Company, 101 NLRB 631, enfd. 207 F. 2d 561 (C. A. 6); The B. F. Goodrich Company, 89 NLRB 1151, 1154. This is so because resort to such a procedure would not only require the postponement of discussion concerning the job evaluation system as a whole, but would also re- sult in the substitution of "a series of narrow, individual controversies of remote interest to the employees not directly involved , for broad collective bargaining with the Union on behalf of and with the interested support of , all the employees in the unit." Aluminum Ore Company, 39 NLRB 1286, 1296, enfd. as mod. 131 F. 2d 485 (C. A. 7). Moreover, it was necessary for the Union to have the breakdown of the "degree" or point values for each factor before it could intelligently advise an employee as to whether or not he had a meritorious grievance . The B. F. Good- rich Company, 89 NLRB 1152, 1162; N. L. R. B. v. Yawman & Erbe Manufactur- ing Company, 187 F. 2d 947, 949 (C. A. 2). I find no merit in the Respondent's contention. The Respondent's further contention that the Union was seeking this information for the purpose of harassing the Respondent has no record support. It is conceded that Ratner told Plevack that the Union wanted the information for collective-bar- gaining purposes concerning the inequities and operation of the Respondent's evalu- ation system . It cannot be disputed that the requested information was directly're- lated to the computation of the wage rates at the Respondent's plant . And wages was still an unresolved issue in the negotiations . Moreover, "in these cases it is suffi- 9 See e. g Hastenys & Sons Publishing Company, 102 NLRB 708, 714; J. H. Allison & Company, 70 NLRB 377, 385, enfd . 165 F. 2d 766 (C. A. 6) ; Aluminum Ore Company v. N. L R. B, 131 F. 2d 485 (C. A. 7) 7 See also Old Lind Life Insurance Company, 96 NLRB 499, 503 ; The Cincinnati Steel Castings Company, 86 NLRB 592, 593; and cases cited in footnote 6, supra. TAYLOR FORGE AND PIPE WORKS 705 cient that the information sought by the Union is related to the issues involved in collective bargaining, and that no specfic need as to a particular issue must be shown." Whitin Machine Works, supra. Nor was the Respondent 's obligation satisfied by the fact that , during the course of a 9-year period, the Respondent had supplied or made available to the Union the requested data as to some jobs in a piecemeal manner during the processing of individual grievances. The Union was entitled to have this information as to all the jobs in order to have a complete understanding of the entire wage structure and the relationship existing between jobs so that it could be intelligently utilized for the purposes of collective bargaining.8 Finally, the Respondent contends that in refusing to furnish the Union with the requested information , the Respondent was motivated by a good-faith belief that the statute imposed no such obligation . In support of this defense the Respondent contended that it relied on the fact that , in an earlier proceeding in 1953 where the facts and the positions of the Respondent and the Union were the same as in the instant case, the Regional Director informed the Respondent of its refusal to issue a complaint upon the Union's charge because of insufficient evidence of violations of the Act. Assuming the facts to be as urged by the Respondent and be- lieving, as I do, that the Respondent acted in good faith , it is no defense that the Respondent was motivated either by the Regional Director's or its own misconcep- tion of the statutory obligation rather than by a rejection of the collective-bargaining principle .9 Whitin Machine Works, supra . The Respondent's duty "is predicated upon the need of the union for such information in order to provide intelligent representation of employees." F. W. Woolworth Co., 109 NLRB 196. It is no de- fense to a refusal to bargain that the Respondent acted upon an erroneous belief as to its statutory obligation, because of a mistaken interpretation of the statute by the Regional Director.1° West Texas Utilities Company, Inc., 85 NLRB 1396, 1398, enfd. 184 F. 2d 233 (C. A., D. C.), cert. denied 341 U. S. 939; Betts Cadillac Olds, Inc, 96 NLRB 268, 272. Upon the basis of the entire record , I find that, by refusing, upon request, to supply the Union with the "degree " or point evaluations assigned by the Respondent to each of the 11 factors evaluated in each of its hourly rated jobs in determining the point range for such jobs for employees in the appropriate unit , the Respondent re- fused and continues to refuse to bargain with the Union in violation of Section 8 (a) (5) and ( 1) of the Act." C. The procedural issue At the hearing the Respondent offered to prove that on October 7, 1953, the Union filed a charge identical with the one in the instant case; that the Union had requested, and the Respondent had refused to furnish, the same data and that the position of the Union and the Respondent were identical with that in the in- stant case; that the Regional Director refused to issue a complaint on that charge because of insufficient evidence of violations ; and that the Union did not appeal the Regional Director's ruling to the General Counsel . The Respondent contends that the Regional Director's refusal to issue a complaint upon the 1953 charge is res judicata of the issue in the present proceeding, requiring the dismissal of the present complaint. Assuming the correctness of the facts as offered to be proved by the Respondent, there is no merit to its contention . "The doctrine of res judicata is clearly not applicable where, as here, the prior charge was dismissed before the conduct of a hearing and without opportunity for adjudication of the merits." Jersey City Weld- ing & Machine Works, Inc., 92 NLRB 510, footnote 2. A motion to dismiss the complaint on identical grounds was denied by the Board in that case. Such ad- ministrative action by the Regional Director neither bars the General Counsel from issuing a complaint on a new timely charge nor the Board from adjudicating the 9 Utica Observer-Dispatch, Inc., 111 NLRB 58, where the company submitted the re- quested wage data for all but four employees 9 Because of its immateriality to the issues in this case , I sustained objections to the introduction of any evidence concerning the 1953 charge. 10 This is not a case , where -the Respondent has been lulled to sleep by the advice or instructions of the Regional Director so that it failed to take the action which it other- wise would have taken . The Respondent still refuses to furnish the requested information and to this day adheres to its position that it is not obligated to do so by the Act 11 The Respondent's violation has not been made moot by the execution of the contract on May 21 , 1954, as the requested information continued to be necessary to the "intelli- gent and equitable administration of the agreement ." F. W. Woolworth Co., supra. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merits, once a complaint has issued . Textile Machine Works, 96 NLRB 1333, 1334, footnote 1; N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51, 54-55 (C. A. 4). "The task of making binding interpretations of the meaning of the Act is a judicial function, vested in the Board members with ultimate power of review in the Courts." West Texas Utilities Company, Inc., 85 NLRB 1396, 1399 ; Betts Cadillac Olds, Inc., 96 NLRB 268, 272; N. L. R. B. v. Baltimore Transit Co., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, 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 thereof. V. THE REMEDY Having found that the Respondent refused to bargain with the Union in viola- tion of Section 8 (a) (5) and (1) of the Act by refusing, on request, to furnish the Union with the "degree" or point evaluation assigned by the Respondent to each of the 11 factors evaluated in each of its hourly rated jobs in determining the point range for such jobs of employees in the appropriate units, I shall recommend that the Respondent be ordered to cease and desist from engaging in such conduct and, upon request, to supply such data to the Union. Because of the limited scope of the Respondent's refusal to bargain, the Respond- ent's good-faith belief that the requested data was neither material nor required to be supplied by the Act, and because of the absence of any indication that danger of the commission of other unfair labor practices is to be anticipated from the Respondent's conduct in the past, I shall recommend that the Respondent not be ordered to cease and desist from the commission, of any other unfair labor practices. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All employees of the Respondent at its Chicago, Illinois, plant, excluding all full-time manual welders, cutters, and apprentices in department A-3, salesmen, office employees, guards, executives of the Respondent, and all supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 2. Forge and Machine Workers Industrial Union has been, at all material times herein, the exclusive representative of all the employees in the appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 3. By refusing to supply the Union with the "degree" or point evaluation assigned by the Respondent to each of the factors evaluated in each of its hourly rated jobs in determining the point range for such jobs of employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and 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. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Forge and Machine Workers Industrial Union, as the exclusive representative of all our employees in the ap- propriate unit described below, by failing and refusing to furnish said Union, upon request, the "degree" or point evaluation assigned by us to each of the factors evaluated in each of our hourly rated jobs in determining the point range for such jobs of employees in said appropriate unit. WE WILL furnish to the above-named Union, upon request , the "degree" or point evaluation assigned by us to each of the factors evaluated in each of TERRY INDUSTRIES, INCORPORATED 707 our hourly rated jobs in determining the point range for such jobs of employees in said appropriate unit. The bargaining unit is: All employees at our Chicago, Illinois, plant, excluding all full-time manual welders, cutters, and apprentices in department A-3, salesmen, office em- ployees, guards, executives , and all supervisors as defined in the Act. TAYLOR FORGE AND PIPE WORKS, 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. Terry Industries, Incorporated and American Federation of Labor. Case No. 39-CA-451. August 16, 1955 DECISION AND ORDER On April 12 , 1955, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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. The Trial Examiner also found that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommended that those allegations of the complaint be dismissed. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting brief and argument. 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 Inter- mediate Report, the exceptions , the brief and argument, and the entire record in this case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Terry Industries, Incorpo- i We note a minor inconsistency in the Intermediate Report, which does not, however, affect the correctness of its conclusions and our concurrence therein . At one place, the Trial Examiner stated that Hem, 1 of the 7 dischargees involved herein, was working on the third shift and that the other 6 dischargees had recently been transferred to the first shift , at another place, obviously referring to about the same time , he stated that IIetzer was the only 1 of the 7 working on the third shift. The record supports the latter find- ing, and the Intermediate Report is corrected accordingly. 113 NLRB No. 82.