Southern States Equipment Corp.

SOUTHERN STATES EQUIPMENT CORPORATION 833' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 13 and the ILWU , set forth in section III, above, occurring in connection with the operations of CISL, 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. V. THE REMEDY Having found that Local 13 and the ILWU have engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact , and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. CISL, H-10, and PMT are, and have been at all times material to this pro- ceeding, employers within the meaning of the Act. 2. Local 13 and the ILWU are, and have been at all times material to this pro- ceeding, labor organizations within the meaning of the Act. 3. By picketing at berth 193-A in Wilmington, California, as found above, Local 13 and the ILWU have induced or encouraged employees of H-10 and an employee of PMT to engage in a strike or a concerted refusal in the course of their respective employments to transport or otherwise handle or work on any goods, articles, materials or commodities , or to perform any services , with the object of forcing or requiring H-10 and PMT to cease doing business with CISL in the "piggy-back" service, described above, and have thereby engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Sections 2(6) and (7) of the Act. [Recommendations omitted from publication.] encouragement to some concert of action greater than Is evidenced by the pickets' request to a driver of a single truck to discontinue a pending trip." The cited case is distinguish- able in the light of the findings herein to the effect that II-10's employees and Cox, at the time of the picketing , were contemporaneously engaged at the berth in tasks directed to the end of placing the trailer aboard the barge ; that the towboat employees and Cox were common targets of the picketing , and that the ILWU, as well as Local 13, must accept responsibility for such picketing Southern States Equipment Corporation and Local Lodge 1314, International Association of Machinists , AFL-CIO. Case No. 10-C,A-.585. September 2, 1959 DECISION AND ORDER On March 18, 1959, Trial Examiner Lloyd Buchanan issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and sup- porting briefs. 124 NLRB No. 104. 525543-60-vol. 124-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Rodgers, Jenkins, and Fanning]. 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 and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southern States Equipment Corporation, Hampton, Georgia, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local Lodge 1.314, Inter- national Association of Machinists, AFL-CIO, as the exclusive rep- resentative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of em- ployment, by refusing to make available to the Union the Company's merit rating system records with respect to employees in the unit. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, make merit rating system records available to the Union. (b) Post at its plant in Hampton, Georgia, copies of the notice at- tached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately after receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. i The Trial Examiner found, and we agree, that the violation of the Act extends only to the Respondent's refusal to make merit rating system records available, and not to the Respondent's refusal to prepare and furnish "copies." See, e.g., The Item Company, 108 NLRB 1034, enfd. 200 F. 2d 950 (C.A. 5), cert. denied 350 U.S. 830. 2 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." SOUTHERN STATES EQUIPMENT CORPORATION 835 (c) Notify the Regional Director for the Tenth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local Lodge 1314, International Association of Machinists, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein, by refusing to make available to it the Com- pany's merit rating system records with respect to the employees in the unit. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL, upon request, make available to the Union our merit rating system records with respect to employees in the bargaining unit. The bargaining unit is: All regular employees of the Company who are production workers, including maintenance workers, helpers, and labor- ers, but excluding laborers permanently assigned to foundry work, foundry workers, storeroom personnel, guards, work- ing foremen, office and clerical employees, technical em- ployees, and supervisory employees with authority to hire, promote, discharge, discipline or effectively recommend such action. SOUTHERN STATES EQUIPMENT CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein 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 bargain generally and, more specifically, by refusing to bargain concerning the award of merit increases and by refusing to make available to the Union information and records concerning past merit increases . The answer denies the allegations of unfair labor practices , and alleges that the charge was filed in bad faith to coerce the Company. A hearing was held before a duly designated Trial Examiner at Atlanta , Georgia, on January 26 and 27, 1959. Counsel were heard in oral argument at the close 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the hearing, and briefs have been filed by the General Counsel, the Union, and'- the Company. On March 11, I received from the Union a motion to correct record'. in three respects. The paper is hereby marked and received as Trial Examiner's. Exhibit No. 1. The motion is not timely (all briefs were received on February 26), the matters noted are trivial in the light of the record, and no reason appears for- delaying issuance of this report as it would be delayed to give other parties a reason- able time to be heard. It should suffice to note that, with respect to the first proposed! change, the record is clear as noted infra, that the Union has sought change or abolition of the merit rating system. The second proposal is warranted but trifling. As for the third, the question and answer immediately following the cited portion clarify it. The motion is denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Georgia corporation with prin- cipal office and place of business at Hampton, Georgia, is engaged in the manufac- ture and sale of electrical transmission and distribution equipment; and that during= the 12-month period preceding the complaint, it manufactured, sold, and shipped finished products valued at more than $50,000 directly to points outside the State of- Georgia. I find that the Company is engaged in commerce within the meaning of the Act. I find that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED VIOLATION There is no issue concerning the allegation that since on or about August 13, 1945,. the Union has been the collective-bargaining representative of a majority of the employees in the following unit, which I find is an appropriate unit within the. meaning of Section 9(b) of the Act: All regular employees of the Company who are production workers, including: maintenance workers, helpers, and laborers, but excluding laborers permanently assigned to foundry work, foundry workers, storeroom personnel, guards, working foremen, office and clerical employees, technical employees, and supervisory em- ployees with authority to hire, promote, discharge, discipline, or effectively recom- mend such action. On August 16, 1957, the Company and the Union amended and extended for a-. year and thereafter from year to year, as set forth, the collective 'bargaining agree- ment which they had entered into on August 1, 1956. At the hearing, eight collective-bargaining sessions were testified to, reference being to the merit rating- system, these meetings running from June 11 through August 29, 1958, with several others thereafter. We must also consider a telephone conversation between Walters and W. C. Mitchell, chief negotiators for the Union and the Company, respectively, and letters dated August 12 and 19 and October 23 and 31, 1958. The only issues before us resolve around the Company's merit rating system: The Com- pany's alleged insistence on continuing it, and the Company's alleged refusal to- submit information to the Union concerning the system and its past operation. A. Continuance of the merit rating system According to the union negotiators, Mitchell on June 11 agreed to do away with the merit rating system, but changed his mind on the point at the next meeting, on June 20. Mitchell, on the other hand, testified that he had said that the Com- pany would consider that proposal and at the later meeting said that, after thinking it over and finding that various problems would develop or were involved, the. Company did not want to abolish the system at that time. The possibility of an honest mistake and misunderstanding is clear. Here too we should note that accord- ing to Walters, when the union representatives asked on June 11 that the merit. rating system be dispensed with, Mitchell replied that he would dog so if the men, did not like the system; and he asked, according to Walters, that the Union suggest at the next meeting how it should be done. The .tentative aspect is clear and, what- ever conclusion might be drawn in a different setting, such statements, if made,. lacked the finality which might warrant a finding of had faith in later revocation. Aside from any question of credibility, 1. do not equate this situation at the very- beginning of negotiations for a new contract and without proof that the assent was . more than tentative or that the Union relied on it as a quid pro quo or to its detri- - SOUTHERN STATES EQUIPMENT CORPORATION 837 -ment, with cases where agreement is clear and then revoked.' Here we have at most a claim that agreement of sorts on this issue occurred at the first meeting with .admittedly immediate advice concerning the Company's position at the next. We must consider the tentative nature of many accords on contract provisions during .the course of negotiations, all pending and subject to overall agreement. Certainly Mitchell made his position clear on June 20 and thereafter without prejudice to the continuing negotiations, and the Union does not appear to have protested against the alleged change of mind or to have been affected in its negotia- tions beyond the substantive denial of its request that the Company discontinue the merit rating system. The very absence of evidence of protest by the union representatives when Mitchell allegedly changed his mind warrants resolution of the credibility question in his favor, suggesting that he had not agreed on June 11 and that they did not think that he had. Bearing on this question of credibility, it further appears that issues were presented piecemeal at the negotiation meetings so that binding agreement on any one of them was unlikely; there is no evidence of early and binding agreement on any other provision or issue under discussion. (I have not overlooked what appeared to be a later weak denial by Mitchell when he testified that he did not recall that he said that the Company would do away with the merit rating system if the men wanted that: He recalled that he had said that he would consider it.) Under the circumstances here and in the light of the parties' reactions as the negotiations continued, I find that the Company did not violate the Act by an alleged agreement on June 11 to abolish the merit rating system and by an alleged subsequent declaration by Mitchell on June 20 that he had changed his mind in that respect. Nor is violation on June 11 or 20 indicated by other findings, infra. The question remains whether, aside from the alleged change of mind, the Com- pany's position with respect to the merit rating system was violative of the Act. It is clear that both .the Company (despite Walters' denial), and the Union discussed at length the question of abolishing the merit rating system and the Union's various proposals in that connection. If the Union, pressing the issue, had more to say in that .connection, it is quite understandable; although Mitchell testified that he explained at length that the proposals were unsatisfactory to the Company. All called for increases in rates, equalizing them at the top scheduled rate, and would have been -costly to the Company and, in its opinion, unfair to the More skilled employees; also, the last proposal, for a slower pace in reaching the top rate, called for a 3-year agreement, a term which the parties had not even mentioned. According to Mitchell, the Company, at the July 8 meeting, made a counterproposal, the nature ,of which was not explored at the hearing. Firm the Company's position may have been; unlawful it was not. We can ,contrast the instant situation with that in the Kentucky Utilities case 2 cited and ,quoted by the General Counsel (the transcript being corrected) : The duty to bargain collectively presupposes negotiations between the parties carried on in good faith, with a common willingness among the parties to discuss freely and fully their respective claims and demands and, when they are opposed, justify them on reason. . It contemplates a meeting between the contracting parties with open minds and a sincere desire to reach an agreement in a spirit of cooperation. Mitchell's rejection of the proposed upgrading and of the elimination of the merit rating system was not per se violative; concession is not required. In this connection it was pointed out that the Company offered to abolish the system 4 or 5 years ago but the Union was unwilling at that time. In refusing to abolish the merit rating system the Company was not now refusing to bargain concerning it. 'There is no allegation of violation in Mitchell's refusal to sign a contract without .settling the merit rating issue, nor in his reason therefor, that the system is a vital part of the terms of employment. B. The refusal of information Orally and in writing the Union requested "copies or summaries showing the merit rating points assigned to each individual [employee] and the resulting rate ,of pay for each individual as is reflected by the record of the last four merit re- views." The oral testimony in this connection indicates that at various meetings there was discussion concerning the mechanics of copying: whether or not the Gittlin Charlotte Bag Company, 95 NLRB 1159, 1160, 1164. N.L.R.B. v. Kentucky Utilities Company, 182 P. 2d 810, 813 (C.A. 6). 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's copying machine would be used, and how, when , and where the work was to be done. This testimony indicates that the Company declared that it could not permit the personnel records to be removed from its office but that the documents. would be available in its office , where the Union would be given access to them and permitted to make copies ; the Company refused to make copies or furnish forms, although at least one copy of the form and instructions was furnished. Walters and Mitchell also discussed over the telephone the availability of this information. With both in agreement that the latter said that he was then sending a letter to the former, this being the letter of October 31, as Mitchell testified, and in the absence of any suggestion that the letter was not promptly sent as Mitchell testified , it appears that Walters was in error in placing the telephone conversation. at the end of August. (Although each referred to his notes, Walters likewise differed with Copper and presumably the other members of the negotiating committee in. placing one of the meetings on August 12 instead of August 13.) We come now to the Company's answer to the request for merit rating data quoted, supra, and a later request by the Union sand the Company 's reply thereto. In the first of these, on August 19 , the Company expressed its willingness to produce its records so that the Union might copy them. Thereafter, on October 23, Walters repeated his request for copies of various merit rating reviews. (There is no issue concerning any of the other items of information requested .) In this letter he also charged Mitchell with having said to him that the Company had reconsidered and would not make the material available for copying; this last was denied by Mitchell.. Left at this point, the evidence , including the testimony of witnesses for both sides,. indicates as noted, supra, that there was no refusal to make information available for examination and copying by the Union, but rather a refusal to make and furnish copies of material already in the Company 's files. In the language of counsel for the Company in his reference to the meeting of August 29, there appears to have been "no issue as to availability at that time." [Emphasis supplied.] But we cannot leave the evidence at that point. In his letter of October 31, Mitchell pointed out that full and complete information regarding the methods and procedures used had already been furnished, and he expressed his inability to understand the relevance or necessity of "these voluminous old records." He next noted that the merit rating sheets are considered confidential , and expressed the opinion that most of the employees, "and particularly those who do not happen to belong to [the] union" would object to having the rating reviews "passed around for strangers to see." Then came the reminder that the Union had complete in- formation concerning the operation of the system, and access to any rating review whenever the employee involved requested that a union representative be permitted to see it. Such objections and the language employed are in line with those cases. which hold violative the objections that information is confidential and that dis- closure would be objected to by the employees. I find here a refusal in violation of the Act . The repetition of the valid 3 objection to making copies for the Union does not lessen the unlawful refusal as the letter continues that "At most the Com- pany is only required to make available such records as are reasonably relevant to the• process of collective bargaining." The letter of October 31 is markedly different in tone , attitude, and position from that of August 19. Whereas the earlier one several times promised production of records, the later one for two pages argued against such production with what may be claimed to be a suggestion of concession in the single sentence just quoted. But in fact this was no concession or agreement to produce records. Having in the same letter, as we have just seen, questioned the relevance of the records requested, the Company, despite its stated willingness to make records available, was in its October 31 letter refusing to make the merit rating review sheets available: What it did not recognize as relevant was not included in its offer of what was relevant. The letter speaks more loudly than Mitchell's testimony that although the files con- tain much confidential information , he did not refuse for that reason to make them available. Nor does the clear statement at the hearing that, although the records are not relevant, the Company is willing to submit them to the Union exculpate for the refusal on October 31. We cannot ignore this denial of information to which the Union was entitled. Neither can we ignore the objections so clearly stated in the letter, and proceed to decision here as if they had not been declared . These are not, as counsel for the 3 The issue with respect to making copies centered on previously prepared rather than on prospective records so that more would be required of the Company than preparation of an additional carbon copy in each case. It is clear that the violation found is for refusal to make records available, not for refusing to make and provide copies. SOUTHERN STATES EQUIPMENT CORPORATION 839 Company argues, mere "reasons" to persuade the Union to desist from its request; anticipation of alleged objections by a majority of employees, when stated by the Company as here, are properly to be regarded as supporting the Company's own stand that they were here "getting away from sound [not "some," as in the tran- script] collective bargaining." In fact the Company in its brief admits that it must furnish certain information; but it declares, and the issue is clear, that the informa- tion requested is neither relevant nor necessary. This position is contrary to well established law on this point. As found, supra, the Company violated the Act in relying on this and the other reasons cited in its letter of October 31. The violation on October 31 and the attitude thus indicated cast some doubt on the Company's earlier position with respect to making the information available. But suspicion thus aroused does not overcome the evidence of apparent earlier willingness indicated by the evidence. Nor is it necessary to come to any debatable conclusion concerning an earlier refusal: The violation is found to have occurred on October 31. We have seen that Walters' letter of October 23 "again" requested that copies of former reviews be made available. This does not strengthen the General Counsel's case. But despite the form of this request, it is clear that the Union had also re- quested that the information be made generally available, and the Company refused the general request aside from any rights which it had concerning copies. As the General Counsel pointed out, the Company's submission of merit rating forms concerning the 6 members of the Union's negotiation committee, of a total of some 160 in the bargaining unit, who consented to such submission, underscores the Company's objection, in its letter of October 31, to disclosure of such information and its indicated refusal in that letter to make disclosure except with the respective employees' consent. Without emphasizing 4 the issue, the Company several times appeared to question the necessity for merit rating information: The question is certainly before us since the defense would be complete were the Union not entitled to such information. Thus, Mitchell testified that Walters said that he understood enough about the merit rating system to know how it operated. But the collective-bargaining repre- sentative is entitled to more than knowledge of the method in which a merit rating system operates. Such knowledge of method or procedure can still leave it, as the Union was here left, without information to check on the system's specific impacts on employees so that an attempt might be made to urge and obtain improvements in a new collective-bargaining contract. Detailed information is also necessary to adequate policing of the contract. (This element of policing was fully litigated, both sides referring to several instances in which grievances concerning merit increases had been filed and considered.) Even if past merit ratings are not used in making current ratings, the Union is entitled to review and check the Company's processes in order that past action may be evaluated and improvements sought for the future. In fact, the Union clearly requires information concerning the application of the system in the past in order that it may consider alleged errors or inequities even before it decides whether or not to file grievances in particular situations; and it was agreed that merit rating grievances come within the contract between the parties. The rule concerning availability of information has been again and recently enun- ciated as follows in the Pine Industrial Relations Committee case 5 in a decision issued after the hearing in the instant case: Wages and hours are the heart and core of the employer-employee relationship, and information concerning existing and past wage rates and patterns is essential to the union to enable it to bargain intelligently. The long history of collective bargaining between the Company and the Union, and the apparent absence of violations at other times do not bar the findings here made. Nor does the Company's willingness, stated at the hearing, to make data avail- able defeat the General Counsel's claim. The Company did not indicate willingness to put into effect a remedy to which the General Counsel is entitled, as herein recom- mended. The Act having been violated, the General Counsel is entitled to a formal order and decree. Finally, that the Union has not "tried to see" the company merit rating records may reflect on its assiduousness or only be the result of the Company's refusal here noted. In any event, it does not lessen the violation. Nor are we to suspect that 4 Mentioned in its letter of October 31 , this point appears to have been noted there to support the Company's objection to disclosure of confidential information. 5 International Woodworkers of America, Local Unions 6-7 and 6-122, AFL-CIO v. N.L.R.B.. 263 F. 2d 483 (C.A.. D.C.). '840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union has been motivated solely by a desire to compel discontinuance of the merit rating system; the right to the information is clear, and the Union's alleged purpose does not lessen that right, whatever might be said of its tactical approach. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company, set forth in section II, above, occurring in connec- tion 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 make available to the Union the Company's -merit rating system -records with respect to employees in the collective-bargaining unit, the Company refused to bargain collectively with .the Union thereby interfering with, restraining, and coercing its employees. I shall therefore recommend that the Company cease and desist therefrom and from any like or related conduct, and also, upon request, bargain collectively with the Union with respect to wages, hours, and • other terms and conditions of employment, and embody in a signed contract any understanding reached. 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. Local Lodge 1314, International Association of Machinists, AFL-CIO, is a "labor organization within the meaning of Section 2(5) of the Act. 2. All of the Company's regular employees who are production workers, including -maintenance workers, helpers, and laborers, but excluding laborers permanently as- -signed to foundry work, foundry workers, storeroom personnel, guards, working foremen, office and clerical employees, technical employees, and supervisory em- ployees with authority to hire, promote, discharge, discipline or effectively recom- mend such action constitute a unit appropriate for the purpose of collective bargain- ing within the meaning of Section 9(b) of the Act. 3. The Union was on August 13, 1945, and at all times since has been the exclu- sive representative within the meaning of Section 9(a) of the Act, of all employees -in the aforesaid unit for the purpose of collective bargaining. 4. By refusing on October 31, 1958, to make available to the Union the Com- pany's merit rating system records with respect to employees in the aforesaid unit, -thereby refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. 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 Company has engaged in and is engaging in unfair labor practices within the meaning •of Section 8(a) (1) of the Act. 6. 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.] Northwest Protective Service, Inc. and International Union United Plant Workers of America, Amalgamated Local 5, Petitioner. Case No. 19-RC-2376. September 3, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor :Relations Act, a hearing was held before Donald D. McFeely, hearing 124 NLRB No. 108.