J. I. Case Co.

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. All letterpress employees employed by the Employer at its plant in Apopka, Florida, excluding all other employees and all super- visors r, as defined in the Act. 5. As the Amalgamated made no showing of interest among ther letterpress employees at Apopka, we shall not place the Amalgamated on the ballot for this unit. [Text of Direction of Elections omitted from publication.] 5 The Printing Pressmen contend that one John Hill, classified as a foreman , should be included in the unit. The record reflects that this individual spends approximately 90 percent of his time in assigning work to other employees and laying out jobs. While he has no authority to hire or fire employees , he does have the authority to effectively recommend such action . Under the circumstances , we conclude that John Hill has super- visory authority, and he therefore is excluded from the unit. J. I. Case Company (Rock Island, Illinois) and International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America , AFL-CIO J. I. Case Company (Bettendorf Works) and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and Its Local 858. Cases Nos. 13-CA-2200 and 13-CA-2197. July 8,1957 DECISION AND ORDER On November 26, 1956, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled consolidated proceedings, finding that the Respondent had engaged in and was engaging in un- fair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take certain action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent, the General Counsel, and the Union' filed exceptions to the Intermediate Report with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Jenkins]. On January 4, 1957, Respondent moved the Board to dismiss the complaint, contending that certain members of the International Union's board of trustees are "officers" within the purview of Section 9 (h) of the Act but have not filed non-Communist affidavits in com- pliance with that section. The Board has held that the trustees of i The term "Union" refers to the International Union as the certified representative at the Bettendorf Works, and also to its Local 806 as the certified representative at the Rock Island plant. 118 NLRB No. 56. J. I. CASE COMPANY 521 the International Union, UAW-AFL-CIO, are not officers required to file non-Communist affidavits under Section 9 (h) of the Act. Kohler Co., 117 NLRB 321. Moreover, the question as to who are constitutional officers under a union constitution for compliance pur- poses can be raised only in an administrative proceeding directed solely to inquiring into the compliance status of a union. Such ques- tions are not litigable in representation and complaint proceedings. Kohler Co., supra; Shoe Corporation of America, 117 NLRB 1208. Accordingly, Respondent's motion is denied. 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 Intermediate Report, the exceptions and briefs filed by the parties, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, to the extent consistent with the following Decision and Order. 1. We agree with the Trial Examiner that Respondent violated Section 8 (a) (5) of the Act by refusing the Union's requests of March 15 and 26, 1956, for wage information. At a meeting held on March 15 to discuss grievances, the Union requested Respondent to furnish time studies covering tractor line jobs at the Rock Island plant. Respondent without explanation de- clined to make these time studies available to the Union. On March 26, the Union requested the time studies and job evaluation data appli- cable to a job classified as "turret-lathe vertical" at the Bettendorf plant, which job had been changed from a single to a two-machine operation. At a meeting with the Union on April 12, Respondent's representative read off data from time studies on the turret-lathe vertical operation. The Union's representatives were dissatisfied with the information so given and requested that the time-study informa- tion be supplied them on the forms used by Respondent so that they could submit the executed forms to the Union's time-study experts for evaluation. Respondent's representative refused to give the informa- tion on the time-study forms used by Respondent and also refused to supply the job evaluation data requested by the Union. An employer's obligation to grant a bargaining agent's request for original time studies and job evaluation data applicable to particular 2 Respondent contends in its brief that the charges upon which the complaint was based were not properly executed in that the declarations to these charges were signed in the firm name of the attorneys representing the Charging Unions and not by a "person" as specified by Section 102.11 of the Board's Rules and Regulations. The declaration in Case No. 13-CA-2200 was signed "Katz & Friedman," and the declaration in Case No. 13-CA-2297 was signed "Katz & Friedman by Irving M. Friedman." Section 102.1 of the Board's Rules and Regulations, Series 6, provides that the term "person" shall have the meaning set forth in Section 2 of the Act. "Person" as defined in the Act includes partnerships and legal representatives. It is clear that the declarations satisfy the re- quirements of Section 102.11. See, moreover, 68 C. J. S. § 147 as to execution of docu- ments in partnership name. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs is well established 3 Contrary to Respondent's contention, the Union's right to such relevant wage information is not dependent upon processing a particular grievance through the grievance procedure adopted by the parties.' Nor is it dependent upon the Employer's use of such information to substantiate its bargaining position as to wages. As stated by the Board in the Woolworth 5 case : The Board, with court approval, has consistently held that an employer is under a duty to accommodate a union's request during contract negotiations for relevant wage information.2 Like the Trial Examiner, the Board finds that such duty continues after a collective-bargaining agreement has been executed.' The em- ployer's duty, in either instance, is predicated upon the need of the union for such information in order to provide intelligent representation of the employees. 'When administering a collec- tive-bargaining agreement, the union's need for current and authoritative information is no less real than it was before the contract was executed. Accordingly, in agreement with the Trial Examiner's rejection of the Respondent's other contentions with respect of its duty to furnish wage data, the Board concludes that the Respondent violated Section 8 (a) (5) and 8 (a) (1) of the Act by refusing to furnish the wage data the Union requested.' 2 See N. L. R. B. V. Otis Elevator Co., 208 F. 2d 176 ( C. A. 2) ; California Port- land Cement Co., 101 NLRB 1436, 1438. 9N. L. R. B. V. New Britain Machine Co., 33 LRRM 2461 at 2462 (C. A. 2) ; N. L. R. B. v. Ilekman Furniture Co., 207 F. 2d 561 at 562 (C. A. 6) ; N. L. R. B. v. Leland-Gifford Co., 200 F. 2d 620 at 624 (C. A. 1) ; N. L. R. B. v.Yawman & Erbe Mfg. Co., 187 F. 2d 947 at 948-949 (C. A. 2). 4 Whitin Machine Works , 108 NLRB 1537. 2. Contrary to the Trial Examiner, we find that Respondent further violated Section 8 (a) (5) of the Act by refusing the Union's request of March 28, 1956, for wage information covering all jobs in the bargaining unit at the Bettendorf plant. By letter dated March 28, 1956, alleging that it needed the informa- tion "for purposes of collective bargaining and contract administra- tion," the Union asked Respondent for time studies, job evaluations, and other materials used to set incentive rates and to classify and evaluate jobs in the bargaining unit. At a meeting in April, Robert Burke, industrial relations supervisor for the Bettendorf plant, 3 Otis Elevator Company, 102 NLRB 770, enfd. as mod., 208 F. 2d 176 (C. A. 2) ; Taylor Forge and Pipe Works , 113 NLRB 693 , enfd . 234 F. 2d 227 ( C. A. 7), cert. denied 352 U. S. 942. However, we do not agree with the Trial Examiner's statement that Respondent was obliged to maintain its job evaluation sheets in duplicate . Respondent could discharge its obligation to furnish the Union with this wage information in any reasonable manner, including permitting the Union to copy or duplicate the job evalua- tion records. 4 Ilekman Furniture Company, 101 NLRB 631; Leland-Gifford Company, 95 NLRB 1306. 5F . W. Woolworth Co., 109 NLRB 196, enfd. 352 U. S. 938, reversing 235 F. 2d 319 (C. A. 9). J. I. CASE COMPANY 523 advised the Union's representatives that Respondent did not consider itself "obligated" to furnish the requested information. The requested information was unquestionably necessary to the Union's intelligent representation of the employees in the appropriate unit. Without this information, the Union could not compare jobs and so determine whether a particular grievance had merit and should be processed. Nor could the Union review Respondent's wage system for purposes of future wage negotiations or for purposes of contract administration. Woolworth case, supra. It does not appear from the record in this case that it would be un- duly burdensome for Respondent to comply with the Union's request for all relevant wage data. Respondent never advised the Union that it would be unduly burdensome for it to furnish the Union with the requested wage data, nor did Respondent ever discuss with the Union methods of making this data available to the Union. Respondent, in fact, did not offer its defense of burdensomeness until the hearing before the Trial Examiner. It is clear, therefore, that the defense of burdensomeness was merely an afterthought on the part of Respond- ent .6 Further, while the time-study data may be voluminous, it is collected in centralized files and may readily be made available to the Union for examination or duplication. All that is necessary, therefore, is for Respondent to enter into reasonable arrangements with the Union for obtaining the requested wage information 7 3. We concur in the Trial Examiner's finding that Respondent has not sustained its defense that the Union's requests for wage informa- tion were made for the purpose of harassing the Respondent. It can- not be disputed that the requested time studies and job evaluations were directly related to the setting of wage rates at Respondent's plants. The Union, accordingly, was under no obligation to show a specific immediate or prospective need for this information .8 Hence no inference of harassment can be drawn from any failure on the Union's part to demonstrate its need for the requested data.' Nor, in the circumstances of this case, can a purpose of harassment be inferred from the Union's filing of several unfair labor practice charges at the Rock Island and Bettendorf plants merely because the General Counsel did not issue complaints upon these charges.10 ° Cf. N. L. R. B. v. Truitt Mfg. Co., 351 U. S. 149, 151-152. 7 Taylor Forge and Pipe Works, supra. See also Boston Herald-Traveler Corp. v. N. L. R. B., 223 F. 2d 58, 62-63 (C. A. 1), enfg. 110 NLRB 2097. In view of our finding that it would not have been unduly burdensome for Respondent to have complied with the Union's request for all relevant wage data at the Bettendorf Works, we will not include in our order the limitation upon Respondent's obligation to furnish wage data recommended by the Trial Examiner in section IV of his Intermediate Report entitled "The Remedy." 8 Boston Herald-Traveler Corp., supra. 8 Taylor Forge and Pipe Works, supra. 10 We do not agree with the Trial Examiner that an unfair labor practice charge might be considered sham and frivolous, although permitted to be withdrawn without prejudice, because no explanation was offered for the withdrawal. 524 DECISIONS OF NATIONAL LABOR.'RELATIONS BOARD 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 : 1. The Respondent, J. I. Case Company (Rock Island, Illinois), Rock Island, Illinois, its officers, agents, successors, and assigns, shall : a. Cease and desist from : (1) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, its agents or representatives, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, by refusing to furnish to the Union or its agents or representatives information and data concerning time studies. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Upon request, furnish to International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, its agents and representatives, time studies and other wage data and information used by the Company in classifying or evaluating jobs or fixing rates of employees in the bargaining unit. (2) Post at its plant in Rock Island, Illinois, copies of the notice attached hereto marked "Appendix A." " Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to its employees 11 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 " J. I. CASE COMPANY 525 are customarily posted. Reasonable steps shall be taken by the Com- pany to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. 2. The Respondent, J. I. Case Company (Bettendorf Works), Bettendorf, Iowa, its officers, agents, successors, and assigns, shall: a. Cease and desist from : (1) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, its agents or representatives, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, by refusing to furnish to the Union or its agents or representatives information and data concerning job evaluations and time studies. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Upon request, furnish to International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, its agents and representatives, job evaluations and time studies and other wage data and information used by the Company in classifying or evaluating jobs or fixing rates of employees in the bargaining unit. (2) Post at its plant in Bettendorf, Iowa, copies of notice attached hereto marked "Appendix B." 12 Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily 12 See footnote 11, supra. 526 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, furnish to International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, its agents and representatives, time studies and other wage data and information used by us in classifying or evaluating jobs or fixing rates of employees in the bargaining unit. The bargaining unit is: All production and maintenance employees, including leadmen and employees of the experimental and engineering departments, with the exception of engineers, draftsmen, clerical and service employees of the departments, and ex- cluding office and clerical employees, patternmakers and pat- ternmakers apprentices, watchmen, and supervisory em- ployees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. J. I. CASE COMPANY (ROCK ISLAND, ILLINOIS), 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. J. I. CASE COMPANY 527 APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, furnish to International Union, United Automobile; Aircraft and Agricultural Implement Workers of America, AFL-CIO, its agents and representatives, job evalua- tions and time studies and other wage data and information used by us in classifying or evaluating jobs or fixing rates of em- ployees in the bargaining unit. The bargaining unit is: All hourly paid production and maintenance employees, excluding all employees in the machine repair department #784: all maintenance electricians and apprentices; the following employees of department #783: all tool-and-die heat treaters, tool-and-die makers apprentices; toolroom crib attendants and their leadmen, die sinkers, die finishers, in- spectors on dies, tools, and jigs, tool welders; the following employees in department #786: all patternmakers and pat- ternmakers apprentices; all technical, clerical, and profes- sional employees; all trainees preparing for jobs not included in the production and maintenance unit, all plant protection employees, and all supervisors as defined in the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, re- strain , or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. J. I. CASE COMPANY (BETTENDORF 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. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein, as amended at the hearing, alleges that the Company has violated Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, by refusing to furnish the Unions with information needed for collec- tive bargaining, thus refusing to bargain collectively with the designated and recog- nized collective-bargaining representatives of employees in the respective appropriate units. Admitting refusals to supply requested data, the answer alleges with respect to some or all of the requests that: The information was not needed for collective bar- gaining; no request to bargain was pending when the data was requested; the pro- cedure employed in establishing rates was not open to negotiation since the manner of setting rates was fixed by an agreement then in effect; rates were questioned with- out compliance with established grievance procedure; the Company was willing to supply oral information in response to specific inquiries concerning rates which were being questioned; the information requested was used for internal management pur- poses only, and not to substantiate the Company's position in collective bargaining; and the requests were part of a scheme to harass and embarrass the Company. Other defenses raised were jurisdictional and involved the charges filed; they were em- braced in motions to dismiss, which were denied, reasons being stated on the record. A hearing was held before me at Rock Island, Illinois, on October 9 and 10, 1956. Pursuant to leave granted to all parties, briefs were thereafter filed by the General Counsel, the Company, and the Charging Parties, the time to do so having been extended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED It was admitted and I find that the Company, a Wisconsin corporation with prin- cipal office at Racine, Wisconsin, and manufacturing plants in Wisconsin, Iowa, and Illinois, is engaged in the manufacture of farm implement products for manufacture and sale; at each of its plants at Rock Island, Illinois, and Bettendorf, Iowa, it has annually purchased materials, supplies, and equipment valued at more than $500,000 and received at said plants from points outside the respective States; at each of said plants it has manufactured, sold, and shipped finished products in excess of $50,000 annually to points outside the respective States; and the Company is engaged in commerce within the meaning of the Act. It was admitted and I find that the International and its Locals 858 and 806 are labor organizations within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES It is agreed that Local 806 has been certified and recognized I for purposes of collective bargaining as the exclusive representative of all employees in the following appropriate unit at the Rock Island plant: All production and maintenance employees, including leadmen and em- ployees of the experimental and engineering departments, with the exception of engineers, draftsmen, clerical and service employees of the departments, and excluding office and clerical employees, patternmakers and patternmakers apprentices, watchmen, and supervisory employees. It is further agreed that the International has been similarly certified and recog- nized as the exclusive representative of all employees in the following appropriate unit at the Bettendorf plant: All hourly paid production and maintenance employees, excluding all em- ployees in the machine repair department #784: all maintenance electricians and apprentices; the following employees of department #783: all tool-and-die makers, toolroom machine operators, tool-and-die heat treaters, tool-and-die makers apprentices; toolroom crib attendants and their leadmen, die sinkers, die finishers, inspectors on dies, tools, and jigs, tool welders; the following em- ployees in department #786: all patternmakers and patternmakers apprentices; all technical, clerical, and professional employees; all trainees preparing for jobs not included in the production and maintenance unit, all plant protection employees, and all supervisors as defined in the National Labor Relations Act. I See also Butler Chemical Company, 116 NLRB 1041, footnote 14. J. I. CASE COMPANY 529 With respect to the request and, refusal of information on March 15, the minutes of the meeting between the company and union representatives on that day show that Valsoano, on behalf of the Union (this term is applied to each and all of the labor organizations where it is unnecessary to distinguish among them), asked whether the Company was prepared to make time studies available to the men. He testi- fied that he had first asked that the information be made available to the Union. The agenda submitted by the Union prior to that meeting recites that the Union "insists" that the original time study on a certain tractor line subassembly job "be made available at this meeting." The employee on that job was not among those at the meeting, and it appears that the request was that the information be made available to the union representatives. While that request was limited to 1 job, and on the subassembly line as distinguished from the tractor line, Valsoano testified that at the meeting the Union also requested time-study data for the tractor line jobs, of which there were 14. Were we to balance the oral testimony, the agenda, and the minutes, we would have to consider also Valsoano's statement that meetings frequently deviate from the agenda submitted. We cannot rely on Valsoano's testimony to determine what occurred at the March 15 meeting. Not only did he not support the agenda, but he testified variously that the Union asked for the time study on the single subassembly job and that it asked for time studies on the entire tractor assembly line. While both may have been requested, he did not so indicate; it developed rather into the question whether the request allegedly covering the entire assembly line included the subassembly job, and that Valsoano did not know. On such testimony I would not base a finding that the Union first asked that the time studies be made available to it, as alleged, rather than to the employees. Nor does it appear that requests to correct the minutes covered omission of any reference to a request that the time studies be submitted to the Union; Valsoano did not himself recall whether he later asked for correction in the latter respect, and Carlson, the Rock Island industrial relations supervisor, testified that the Union requested that the minutes of the meeting be corrected but did not protest that the reference to submission of the time studies to the men only was inaccurate. (On the issue of relevance or need, reference is made infra to a request on April 5. Although the variance in dates was pointed out, no attempt was made to amend, and I base no finding on any request made on April 5.) This analysis of documents and of oral testimony received can serve only to show that they have not been "overlooked." The answer admits that, during the course of a grievance session on or about March 15, 806 requested the Company to supply "the said union" with the time-study sheets for all jobs on the tractor line. That admission, neither withdrawn nor explained to any contrary effect (in fact, company counsel declared at the close of the General Counsel's case that he was "going to let [his] answer stand"), stands even if not supported by Valsoano or any other witness. Conceivably the General Counsel may have been able to prove the request of March 15; any attempt, or additional attempt, was as unnecessary, in view of the admission, as were the efforts made at the hearing. That the tractor line time study covers 164 pages does not indicate that the request for information concerning these 14 jobs was neither oppressive nor burdensome, qualities which are further considered infra. With respect to the requests of March 26 and 28 for information at the Bettendorf plant, the testimony by Arnold, the Union's international representative, was in greater measure directed to the question of the need for the information and the other defenses raised. These requests were also made in writing, and were on the stationery of Local 858 although signed "Geo. Arnold [or Geo. W. Arnold, Int'l. Rep." Bearing in mind that 806 is the certified representative at the Rock Island plant but that the International, not 858, has been certified for the Bettendorf plant, the use of 858 stationery can be looked at in several ways. Even were these con- sidered to be requests by 858, they were accepted as proper in form, the Company's stated objection being to the merits of the requests only, as we shall see. Further, as it was early agreed at the hearing that the International might be considered the agent of the certified 806, so 858 might be considered the agent of the certified International. Again, the request might be considered to have been jointly made by 858 and the International without objection by the Company. But in fact, and I so find, the request was made by Arnold as international representative, and the heading on the stationery did not affect that request. Arnold testified without contradiction that the Company had previously received and "recognized" letters on 858 stationery, as it did here. (Complication and some of the preliminary motions could have been avoided had the charges and the pleadings correctly listed the re- spective unions which are the principals in interest as shown by the certifications.) 450553-58-vol. 118-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But it is not sufficient to show that requests were made; surely such requests may not be capricious or malicious, and we must consider their extent and the amount of material requested as we note "the circumstances of the particular case." 2 Passing for the moment the question of malice or scheme to harass, which is one of the defenses raised, we must consider the relevance of the information sought. While the time might arrive when the Union would in fact require and properly seek all of the time studies and job evaluations, such arrival would not be signaled merely by the Union's blanket request regardless of circumstances. This is another way of stating that the Employer's obligation presupposes a requirement of general relevance and "also presupposes that the bargaining agent, in this area as in all others, will seek the wage rate information as a good faith act in the discharge of its duty as the representative of the employees." 3 The request of March 28 was for 1. all data and time study information and material used in setting the incentive rates which are currently in effect for all jobs in the UAW Bargaining Unit at the Bettendorf works. 2. all data, studies, and other information which is used to determine the value of each job, currently listed in Schedules "A" and "B" and, such data, studies, and other material used in determining the respective labor grade for each job as is identified in Schedules "A" and "B" within the UAW Bargaining Unit. Bredt, supervisor of the methods and rates department of the Bettendorf plant, testified that the first item alone would have required production of some 50-odd thousand rate sheets. Neither the General Counsel nor the Union made any attempt to show that the circumstances warranted assumption of such a burden. Whatever attempt may yet be made, there is no connection in the record between this mass of requested data and any problems or needs which the Union faced. Certainly, as we consider the number of jobs listed in the schedules mentioned and the number of sheets whose production was here requested, it is evident that the Union did not limit that request to material which was in immediate or early prospect for use by the Union as collective-bargaining agent. This shotgun request, exceeding any need, existing or prospective, was not covered by the language in the Whitin case.4 I find no violation by the Company in its refusal to supply the material requested by the Union on March 28. Even were this refusal but another example of a general uncooperative and unlawful attitude and itself not based on any aspect of burdensomeness, I would not as a matter of policy include in the remedy, infra, a recommendation that the mass of material thus requested be submitted. The failure to bargain is otherwise found and the remedy is otherwise provided. No such unreasonable aspect attaches to the Union's request of March 26. The information there sought related to a single classification, and the need arose from the change in assignment of an employee from a single-machine operation to a two- machine operation. Arnold explained that the information was needed in connec- tion with a complaint that the rate of pay did not reflect the change in operation, and that the Union needed to know the various factors considered in fixing the rates.. This related to proper policing of the collective-bargaining agreement in effect. Arnold cited an earlier instance in which the Union, with inadequate information, processed a grievance with the Company with the result that a substantial reduction was made in pay. He explained further the necessity of comparing several time studies on a given machine to see whether the same allowances were made on each. A lengthy job summary by the Company admittedly did not include all of the data needed to determine whether an employee who complained to the Union was being properly paid. (In this limited connection, we need not consider the reason cited for the broader request for information: that it was needed for negotiations for reopening of the contract in January 1957. While at first blush reference to negotiation of a new contract or new rates appeared to be most premature, Burke, the Bettendorf plant industrial relations supervisor, later testified to the commence- ment of negotiations in or about May 1955 for the current contract, which was entered into in January 1956.) In contrast to Arnold's clear testimony concerning the need for the information requested, Valsoano stated generally that no grievance had been filed because there N. L. R. B. v. Truitt Mfg . Co., 351 U. S. 149, 153. a Whitin. Machine Works, 108 NLRB 1537 , 1541, quoted in N. L . R. B. v. Boston. Herald- Traveler Corp., 223 P. 2d 58, 63 ( C. A. 1). The Board has continued to recognize the element of relevancy . ( Taylor Forge and Pipe Works, 113 NLRB 693 , 694 ; Glen Raven. Knitting Mills, Inc., 115 NLRB 422.) 4 Cf. Boston. Herald-Traveler Corporation, 110 NLRB 2097 , 21.07. J. I. CASE COMPANY 531 were so many grievances. But the grievances which he described related to an earlier failure or delay in setting piecework rates. He did not indicate the relevance of the information to the administration of the contract . But here again a letter to the Company, 1 of the 2 dated April 5 , indicates the need for the information in order to police the collective-bargaining agreement. I find that the requests for information on March 15 and 26 were reasonable and relevant to proper policing of the collective-bargaining agreements. In one of its defenses to the allegations of refusal of requests at the Bettendorf plant, the Company alleges its willingness to supply oral information in response to inquiries by the International regarding the details of any job or jobs that were in question . That the two -machine operation was "in question" is clear. We must now consider the form and sufficiency of the information supplied. The facts are not in dispute. Arnold was told that there would be no written reply to the request of March 26 . At a meeting on April 12, Bredt read and explained some facts concerning the turret lathe-vertical operation , the union representatives writing the information down as he read. As Bredt read the time study for the 2-machine operation and the time study for a given 1-machine operation , without details of the time-study procedure itself, the union representatives declared that they were not satisfied with the information . In response to the request for information, Bredt also drew diagrams on the blackboard , and there was opportunity for questions. The union representatives were not given the information on the time -study form used by the Company, and they were unable to submit the form with its information to the Union's time-study experts for evaluation. From the testimony of witnesses for both sides, the Company's industrial relations supervisors disclaiming understanding of such studies , it is doubtful that, except for Bredt, anyone present could even ask intelligent questions concerning the method of setting up piecework rates. The material submitted had to be weighed by experts on the subject , .and the Union wanted the information so that it could be so con- sidered. Finally, it stands uncontradicted that Bredt did not supply all of the in- formation requested on March 26 concerning the turret lathe-vertical classification as it applied to the specific problem raised concerning assignment of an employee to a two-machine operation ; and that Burke said that the Company was not required to supply such information and therefore would not. To the effect that other factors or elements in addition to time studies and job evaluations are considered on some jobs, denial of requested information is not thereby justified . Submission of such information might lead to other proper requests for further information. Limiting its willingness in supplying information to oral submission of material which is admittedly technical and difficult to comprehend , and when the Union did not even have the time -study form which the Company used , the Company did not meet its "statutory obligation to bargain in good faith ." 5 It further violated the Act by the additional condition that the information requested be connected with an item which was being questioned . That condition went even beyond the requirement of relevance which the court in the Boston Herald-Traveler case declared need not be found . As we shall soon see, it is lawful and may be quite desirable for the collective -bargaining agent to request information prior to raising an objection or filing a grievance : submission of information may prevent controversy. This brings us to the defense that the Union did not comply with the grievance procedure established in the collective -bargaining agreements to question established rates. The Hekman Furniture case 6 may be sufficient authority in this connection. The Board there held that the defense of availability of arbitration procedure under a collective-bargaining agreement was insufficient to support a refusal to supply wage information: . "the collective bargaining requirement of the Act" is not satisfied by a substitution of "the grievance procedure of the contract for its [the Company's] obligation to furnish the Union with information it needed to perform its statutory functions." In the instant case the Union admittedly was not questioning established rates. It had not gotten that far. It sought information which it needed to determine whether grievances should be filed. Arnold testified that the Union wants to "know ahead of time what [it is] doing"; that it had once taken up a complaint with the result that a number of employees suffered a substantial pay cut; and that employees had complained that the Company expected work which they ' were N. L. R. B. v. Truitt Mfg. Co., supra. 6 101 NLRB 631. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not required to do at their rate. We have already noted Arnold's testimony concerning the need for time-study data before the Union availed itself of the grievance procedure. Beyond such need, he testified that it is the Union's duty to investigate before filing a grievance, and that the information requested concerning the turret lathe operation was necessary to any investigation. The presence and proper functioning of a union should itself be a check on the number of grievances filed. But this can be so only if the union has the information necessary for proper functioning. It would not further industrial peace to compel filing of a grievance to obtain information sufficient to indicate whether there is basis for a grievance. In fact, the Bettendorf agreement provides for handling of grievances after "any difference or dispute arise(s) . . . as to (its) interpretation and application." The Rock Island agreement also, and naturally, assumes the existence of a grievance in its provisions for handling grievances. Nor is the refusal of information merely a basis for the filing of a grievance so that the Board might refuse to act while the parties were left to a remedy under their collective-bargaining agreements. Whatever the remedy for a breach of contract, the right to information is fixed not by the agreements between the parties but by the Act; and the cases cited supra and a host of others make it clear that a refusal to supply information, as here, constitutes a violation of the Act. Another issue raised by the answer is whether, because the agreements set forth the manner in which rates were to be set, the procedure employed in estab- lishing such rates was not negotiable. But, aside from any right to negotiate a new contract and the question of information needed for such negotiations, the Union was not here attempting to negotiate concerning or even to question the procedure employed in establishing the rates; it sought to learn what that procedure was and how the rates were established. This defense is addressed to the right to question the procedure followed in establishment of rates, while the complaint refers to refusal of information concerning that procedure. In policing the contracts, even if there be no right to renegotiate rates, the Union is entitled to information from which it can determine at least whether the established rates are being properly applied, and on the basis of which information it can submit to the Company its proposals or requests for adequate application of the established rates. Further, where a change is made in a job, as in the turret lathe operation, or in the rate therefor, the Union is entitled to information from which it can determine whether the factors considered are valid and whether they have been properly applied. Still another defense offered is that the information sought is used "for internal management purposes only, and . not . to substantiate respondent's position in collective bargaining." It is clear that the job rates are in part determined by a job evaluation program which the Company has adopted. (Other factors are also considered.) It is also. undisputed that the Company has never, in union negotia- tions or discussions, referred to such program or plan to support its position on rates of pay. Citation of job evaluations to the Union would of course indicate their relevance to negotiation and policing of the agreements, as the defense impliedly recognizes. But such citation or reference is no sine qua non. The material is as relevant if relied on by the Company even if not cited to the Union, if there is to be intelligent discussion of the methods followed and the accuracy of their application, not to mention the conclusions reached. The omission of citation by the Company makes necessary other proof of relevance; that proof was supplied by the testimony of Burke and Bredt that job evaluation factors are among those used by the Company in setting rates. The record indicates that the information is not used for internal management purposes only; rather, it is relied on to determine rates of pay. This defense is not supported by the evidence. Nor does the fact that the Company has only one copy of the job evaluation manual determine the rights of the parties or the procedure to be followed. As time permits, additional evaluations are made and reduced to writing from time to time. No reason appears to justify company failure to prepare these new evaluation sheets in duplicate. Neither does it appear that it would be unduly onerous to prepare duplicates for the few jobs concerning which issue has been specifically raised (again distinguishing these from the coverage of the blanket request considered supra). The last defense cited by the Company is addressed to Board policy, alleging that the International (Local 858 is spared in this connection; while it is represented by the same attorneys, neither 858 nor the attorneys have been cited in the de- fense) has abused Board processes in a scheme and design to harass and embarrass the Company in its relations with its employees at these two and other plants. In support of this defense, the Company has cited 10 letters (I is in memorandum form) written by union representatives to the Company between 1953 and 1956; 10 charges filed during the same period against the Company by the International, J. I. CASE COMPANY 533 the Locals herein, or a representative, and another local union which is not before us, together with correspondence concerning those charges; a recent union circular, and instances listed by the Company as "Additional Requests for Information." Not only was the Company told at various meetings that the information requested in the letters was needed by the Union in connection with its functioning as col- lective-bargaining representative, but in all but one of the letters, the Union set forth its reasons for the various requests for information. While this does not preclude a finding of a scheme to abuse process, there is in form at least the appearance of good faith. Further, compliance by the Company with various of these requests has a bearing on the question of the Union's apparent good faith and the Com- pany's opinion thereof. There was compliance 'r with the first 4 of those requests (the fourth referred to the first 3) and to the seventh. The most that could be claimed concerning the fourth is that it was importunate; but it was not excessively that since it followed its predecessors by 1 month and at a time when negotiations were pending between the parties. The fifth letter, which was broad in its coverage and which is the one mentioned above as not citing a reason for the request, elicited the oral reply that the Company would supply the information as it might pertain to any pending grievance. The sixth, a month later, narrowed the earlier request in one respect but broadened it in another by reference to 2 instead of 1 schedule. No conclusion can be drawn from either change: whether the one represents a good-faith narrowing or an earlier unnecessary request, or whether the other represents an original good-faith curtailment or a later bad-faith extension. The Company's response, orally made, to this latter request was that it was not at that time prepared to answer; it asked for more time to answer, and the matter was not further pressed. The eighth letter in point of time referred to seniority, and the information requested was declared by the Union to be necessary to administra- tion of that provision in the agreement. The Company, in writing, promised to furnish such information. With respect to the next request, the Company testified that various job descriptions mentioned were supplied; it has not been argued that the request was unnecessarily broad or, on the other hand, that the Company failed to meet it. To the final letter in this series, in April 1956, the Company replied orally that the seniority lists are available to the Union for copying or inspection at any time; the Union has since examined those lists. The significance of this correspondence will be considered with the other evidence cited in this connection by the Company since the totality rather than any given portion is relied on as a defense. Of the 10 charges referred to (these are in addition to the 2 in the instant case), 4 related to the Rock Island plant. The first was filed by 806 and withdrawn without prejudice early in 1953. No reason being given for the withdrawal, it might be argued that the charge was itself sham and frivolous. But standing alone in point of time, it does not suggest any scheme to harass or embarrass. A second charge covering the Rock Island plant was filed in May 1955 by the International and 806, and a supplemental charge in the same proceeding in September of that year. The Regional Director refused to issue a complaint, and the General Counsel for the Board sustained that refusal. Another Rock Island charge was filed by Valsoano, presumably on behalf of Local 806, in November 1955. A refusal to issue a com- plaint was similarly sustained in that proceeding. In November 1955 a charge was filed by the International and 858. After a request by the Regional Office for information, a reply by counsel for the Company, and a second request by the Regional Office, citing a recent Board decision, the Regional Director refused to issue a complaint. Thereafter the General Counsel for the Board approved the Union's withdrawal of its appeal from that refusal. Also offered in evidence by the Company were 5 charges which were filed in 3 proceedings and which related to the Company's Racine, Wisconsin, plant. All but the last of these charges were filed by Local 180 chartered by the International; the last by the International and Local 180. Whatever weight might be given to the charges previously considered, the offer of these last in evidence was rejected. Evidence being accepted under the claim that there existed a scheme or common plan, there is no sufficient connection between the Racine plant and those with which we are here concerned, nor between Local 180 and the various unions here. The mere organizational relationship between the International and Local 180, nothing more being shown, and the relations between the various locals to the extent 7 Such compliance is not cited by the Company to show its own good faith. As the Board declared in Taylor Forge and Pipe Works, 113 NLRB 693, 694, "The overall good faith of the Respondent is not a consideration where the Respondent's conduct is in itself a violation of the Act." 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicated cannot warrant the finding of a common scheme. Nor does the single charge jointly filed by the International and Local 180 itself tend to show a scheme by the former. Such remoteness warrants rejection of these exhibits as a matter of law, the Company's position on the point to the contrary notwithstanding ; conversely, and despite the General Counsel's argument , the other charges offered are relevant to the defense , which is itself prima facie valid. It may be noted at this point that, to the extent that the defense relies on the number of charges filed and the fact that only 2 have formed the basis for a complaint, the history here is quite in line with the Board 's more general experience as set forth in its most recent annual report, that for the fiscal year 1955, from which it appears that the ratio of complaints issued and unfair labor practice proceed- ings closed without formal action is slightly more than i to 11 . Further consider- ation can be given to the number of charges administratively dismissed and to the number withdrawn . But whichever figures are employed, and whether in the instant case we compare the 2 charges herein on which a complaint has been issued with 5 "closed without formal action " or with 10 such (including here the Racine charges ), the figures alone are not so unusual as to suggest abuse of Board process. (With greater facilities and curiosity , figures for other years might be considered. My present impression , which may be erroneous , is that the 1955 figures reflect no great departure from previous experience .) Nor do the requests for information and the charges filed during the 3 -year period indicate by their number (their con- tent and effect having been considered supra ) an intent to harass or an abuse of process. Another item to be mentioned before making a finding on the overall defense of scheme and design is a circular distributed by 806 on March 27, 1956, at the Rock Island plant gates. In this, the Union referred to the filing of charges because of the Company's refusal of time-study information concerning tractor line jobs. After a statement that the law is as the Union here claims , i. e., that it is an unfair labor practice to refuse to supply information which is necessary to prosecute a grievance effectively, it is further declared that the Union will file a new charge "each and every time" the Company refuses information which it is legally required to provide. We do not here pass on the wisdom of statements or the possibility of improving or exacerbating working relationships . But the statements here considered are lawful and do not indicate any scheme which is not recognized by the Act, the Board, and the courts . The further statement that the political climate in Washington now permits exploitation of labor (no seasonal variation was indicated ) is not confined to the exhibit before us ; in the "political climate" which existed throughout the country at the time of the hearing, the Union was voicing the same complaint in a larger forum . From my observation of the witnesses and their representatives, I recognized an element of embarrassment as this latter statement was pointed out at the hearing. The Union may feel further embarrassment because its statement is considered here and, whether received or as a rejected exhibit , will be noted by the Board . But, although I doubt that the Board will be embarrassed , the statement is directed against the Board . It can certainly not be any embarrassment to the Company, and it does not support the defense. Finally, the "Additional Requests for Information" include instances of union requests for information and meetings of union and company representatives during an approximately 3-year period between 1953 and 1956. To what extent these items are similar to the requests for information in the various letters received and considered supra, is difficult to determine . Certainly, standing alone, requests for information which was thereafter supplied by the Company and discussions of such matters do not indicate harassment. Considering now all of the evidence on the defense that there was a scheme to harass, we should note the position of the Company 's counsel "that the evidence concerning the situation directly before us [which he maintains shows no violation by the Company], did not itself show harassment . [It was b]y reference to a history of proceedings in this connection [that he undertook to] show a scheme to harass the company and to abuse the Board's processes ." The conclusion that the evidence concerning the matter alleged in the complaint does not show harassment is correct. I find further that the history of proceedings as reflected in the various documents, formal and informal , taken together with all of the other evidence before us, does not sustain the defense of a scheme to harass and embarrass the Company, and that abuse of Board processes has not been shown. The shotgun request of March 28 does not indicate any scheme to harass as we distinguish between the defense that there was such a scheme and the finding of burdensomeness in that single request. Certainly the two other recent requests , limited and explained , indicate no more. In his effort to establish this defense, counsel promised "there is going to be consider- J. I. CASE COMPANY 535 able of [such testimony]." His effort, over the objections of the General Counsel, were indeed considerable ; but as the pleading's promise was not performed in the evidence received , the greater the effort the greater the failure. Having considered here the various defenses except those which were disposed of at the hearing, we may summarize the findings to this point . The Company un- lawfully refused to supply the information requested on March 15 and 26, 1956. No finding of violation is.made in connection with refusal of the request of March 28, 1956, since such request was unduly burdensome and included material which was apparently unnecessary. While it was testified that in "one instance" the Union suggested that it be permitted to borrow the time studies to copy them and return them the following day, that instance was not further identified . The witness was at that time being questioned about the request of March 26. Certainly the 50-odd thousand sheets covered by the March 28 request could not have been copied and returned within 1 day, and we need not consider this suggestion in connection with the burden imposed by the latter request. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connection with the operations 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 of commerce. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce , I shall recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that , by refusing to furnish information and data concerning job evaluations and time studies, the Company refused to bargain collectively with the International and Local 806 by their agents and representatives and thereby interfered with, restrained , and coerced its employees . I shall therefore recommend that the Company cease and desist therefrom and, upon request , furnish to the International and Local 806 job evaluations and time studies and other data and information used by it in classifying or evaluating job or fixing rates, to the extent that, considering the quantity of such information , there is a reasonable possibility that such evaluations, studies, other data, and information can be examined , keeping in mind these labor organizations ' facilities for such examination and the avoidance of disruption of the Company 's business. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, and Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 858, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All of the Company's production and maintenance employees at its Rock Island plant, including leadmen and employees of the experimental and engineering depart- ments, with the exception of engineers , draftsmen, clerical and service employees of the departments , and excluding office and clerical employees, patternmakers and patternmakers apprentices, watchmen, and supervisory employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union , United Automobile , Aircraft and Agricultural Implement Workers of America, AFL-CIO, Local 806, was on March 15, 1956, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. All of the Company's hourly paid production and maintenance employees at its Bettendorf plant, excluding all employees in the machine repair department #784: all maintenance electricians and apprentices ; the following employees of department #783: all tool-and-die makers, toolroom machine operators, tool-and-die heat treaters , tool-and-die makers apprentices ; toolroom crib attendants and their leadmen, die sinkers, die finishers , inspectors on dies, tools, and jigs , tool welders; the following employees in department #786: all patternmakers and patternmakers 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apprentices ; all technical, clerical, and professional employees ; all trainees preparing for jobs not included in the production and maintenance unit, all plant protection employees, and all supervisors as defined in the National Labor Relations Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (.b) of the Act. 5. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, was on March 26, 1956, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act,. of all employees in the aforesaid unit for the purposes of collective bargaining. 6. By refusing on March 15 and 26, 1956, to furnish information and data con- cerning job evaluations and time studies to the respective Unions and their agents, thereby refusing to bargain collectively with said Unions as the exclusive . bargaining representatives of the employees in the respective appropriate units, J. I. Case Company (Rock Island, Illinois ) and J . I. Case Company (Bettendorf Works) have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By such refusal to bargain , thereby interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act. 8. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Ripon Foods, Inc. and Joseph Pfeiffer. Case No. 13-CA-2267. July 8,1957 DECISION AND ORDER On January 7, 1957, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. Accordingly, he recommended that the complaint be dismissed in its entirety. Thereafter, the Respondent filed exceptions to the Trial Examiner's finding that it was engaged in 'commerce within the meaning of Section 2 (6) and (7) of the Act. The Board 1 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 and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 2 [The Board dismissed the complaint.] 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Leedom and Members Murdock and Jenkins]. a A5 no exceptions have been filed to the Trial Examiner's dismissal of the unfair labor practices on the merits , we adopt his findings pro forma. With respect to the Respond- ent's exceptions to the assertion of jurisdiction herein , we find, contrary to the Respond- ent's contention , that it would effectuate the policies of the Act to assert jurisdiction herein on the basis of the totality of the Respondent's operations . The T. H. Rogers Lumber Company, 117 NLRB 1732. 118 NLRB No. 62.