Sylvania Electric Products, Inc.

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sylvania Electric Products, Inc. and United Steelworkers of America, AFL-CIO. Case No. 3-CA-1198. May 31, 1960 DECISION AND ORDER On September 29, 1959, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. There- after, the General Counsel filed exceptions to the Intermediate Report and supporting briefs, and the Respondent, and Towers, Perrin, Forster & Crosby, Inc., as amicus curiae, filed briefs in support of the Intermediate Report. 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 briefs, and the entire record in this case,' and finds merit in the exceptions to the Intermediate Re- port to the extent noted below. Accordingly, the Board adopts only those findings, conclusions, and recommendations of the Trial Ex- aminer which are consistent with this Decision and Order. 1. The Trial Examiner found that the Respondent did not engage in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act as alleged in the complaint. We do not agree. For the reasons stated below, we find that the Respondent unlawfully re- fused to bargain with the Union by refusing to provide the Union with certain relevant wage data requested by the Union on August 21, 1958. As more fully detailed in the Intermediate Report, the Union has represented the production and maintenance employees of the Re- spondent for many years. Since at least 1955 Respondent has main- tained a noncontributory group insurance plan for these employees. In August 1958 the Union and the Respondent opened negotiations for a new collective-bargaining contract. By letter dated August 21, 1958, the Union requested certain data in connection with the group insurance program, including the insurance plan's current premium rates and the premiums paid by Respondent for the prior 2 years. In its request the Union stated that it needed this information so that it could make a "proper re-evaluation" of the insurance program before contract negotiations. During the bargaining negotiations which followed, the Union renewed its request for the insurance data, claim- ing that it could not intelligently frame its economic demands without i The Respondent's request for oral argument is hereby denied, as the record, including the briefs and exceptions, adequately reflect the issues and positions of the parties. 127 NLRB No. 117. SYLVANIA ELECTRIC PRODUCTS, INC. 925 it. It informed Respondent that many of the benefits offered by Re- spondent were of no immediate gain to those in the unit (citing, as an example, improved insurance benefits for retired employees) because the unit was composed of a relatively young group and that, if it knew the cost of the new insurance benefits for retired employees, it might prefer increases in other benefits or wages which would better suit the employees. Respondent itself told the Union that it must take into account the insurance benefits in shaping wage demands; Respondent has always taken into account the cost of such benefits in arriving at the "level of benefits to be offered to the employees." How- ever, Respondent at all times refused to make available to the Union the requested premium data. As already indicated, the Trial Examiner has concluded that the Respondent's refusal to furnish the Union with the requested in- formation was not unlawful. In so concluding, lie recognizes that an employer is obligated under the Act to make available to a union such wage data as is relevant for collective-bargaining purposes.' But, drawing a distinction between premium costs under a contributory insurance program which are shared by employees and employer and those costs paid by an employer alone under noncontributory program such as Respondent's, he found that "premium costs here were not wages, and . . . no direct relationship exists between them and wages." In the Trial Examiner's view, costs assessed against an em- ployee under a contributory group insurance program are deductible from the employee's wages and hence are "directly related to wages" whereas the expense of an insurance program maintained by the em- ployer has "no more direct relation to wages than do other operating costs to which employees do not contribute." In our opinion, no valid legal basis exists for the distinction drawn by the Trial Examiner. The term "wages," concerning which bar- gaining is required by the Act, has been held to comprehend the emoluments of value which may accrue to employees out of the em- ployment relationship.' It seems indisputable to us that, where the employer shoulders the entire cost of a group insurance program so that the employees themselves are not required to allocate any part of their weekly wages for the purpose, there inures to the employees a benefit which constitutes an emolument of value, and that this benefit flows from the employment relationship. This benefit to the em- ployees which represents part of the remuneration received by them for their labor therefore constitutes "wages" and, as such, the cost thereof to the Respondent stands on a different footing for purposes of the Act from the operating costs with which it is equated by the 2 See, for example , Tree Fruits Labor Relations Committee , Inc, 121 NLRB 516. 3 Richfield Oil Corporation, 110 NLRB 356 , enfd 231 F. 2d 717 (CA., D C.). 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner. Our position here finds amplification and support in the following extract from the Inland Steel Company 4 decision : Regardless of the particular economic considerations that may motivate the establishment of a pension system, the fact remains that the employer's financial contribution thereto, in whole or in part, on behalf of the employees provides a desirable form of insurance annunity which employees could otherwise obtain only by creating a reserve out of their current money wages or by purchasing similar protection on the open market. In substance, therefore, the respondent's monetary contribution to the pension plan constitutes an economic enhancement of the employee's money wages. Their actual total current compensation is re- flected by both types of items.' As the premiums paid by the Respondent constitute wages, it logi- cally follows that the premium cost data requested by the Union re- lates directly to the matter of wages, and it appearing plain that this data was relevant to the Union's task as bargaining agent of Respond- ent's employees within the meaning of the cases, we conclude that the Respondent's refusal to furnish the requested data to the Union was violative of Section 8 (a) (5) and (1) of the Act, as alleged in the complaint. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, which have been found to constitute unfair labor practices occurring in connection with the operations of the Respondent, described in the Intermediate Re- port, 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. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom, and from like and related conduct, and to take certain affirmative action designed to effectuate the policies of the Act. 4 77 NLRB 1, enfd. 170 F. 2d 247 ( CA. 7 ) , cert. denied 336 U S 960 Refusals to furnish unions with the costs of a group insurance plan and a health and welfare plan were held unlawful in Stowe-Woodward, Inc., 123 NLRB 287, and John S Swift Company, Inc, 124 NLRB 394, respectively , without any expression of concern by the Board over whether either plan was a contributory or noncontributory one 5 Also see the following quotation in footnote 11 of the same decision "The payment of insurance of his workers assumed by an employer must be considered as an additional compensation for services rendered differing only in form of payment from the ordinary weekly wage." SYLVANIA ELECTRIC PRODUCTS, INC. ORDER 927 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Sylvania Electric Products, Inc., Seneca Falls, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of its employees in the appropriate unit, by failing and refusing to furnish to said labor organization information and data concerning the premium costs of the group insurance program covering the employees in the appropriate unit. The appropriate bargaining unit is: All production and maintenance employees at the Respondent's Seneca Falls, New York, plant, including cafeteria employees, but excluding all watchmen, guards, engineers, technicians, draftsmen, designers, desk girls, office and clerical employees, head cooks, execu- tives, monitors, and all supervisors as defined by the Act. (b) In any like or related manner interfering with the efforts of the employees' exclusive representative to bargain collectively on their behalf. 2. Take the following affirmative action which the Board finds will ' effectuate the policies of the Act: (a) Upon request, furnish to the Union the premium costs of the group insurance program covering the employees in the appropriate unit. (b) Post at its place of business in Seneca Falls, New York, copies of the notice attached hereto marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the aforementioned Regional Director for the Third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply therewith. 0In 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." 9?8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with United Steel- workers of America, AFL-CIO, as the exclusive representative of our employees in the bargaining unit described below, by refusing or failing to furnish said Union the premium costs of the group insurance program covering the employees in the appropriate unit. WE WILL NOT in any like or related manner refuse to bargain collectively with said labor organization as the exclusive repre- sentative of our employees in the bargaining unit described below. WE WILL, upon request, furnish the above-named Union the premium costs of the group insurance program covering the employees in the bargaining unit described below. The appropriate bargaining unit is: All production and maintenance employees at the Respond- ent's Seneca Falls, New York, plant, including cafeteria employees, but excluding all watchmen, guards, engineers, technicians, draftsmen, designers, desk girls, office and cleri- cal employees, head cooks, executives, monitors, and all super- visors as defined in the Act. SYLVANIA ELECTRIC PRODUCTS, INC., 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 STATEMENT OF THE CASE Upon a charge filed on September 30, 1958, by United Steelworkers of America, AFL-CIO, herein referred to as the Union , General Counsel of the National Labor Relations Board issued a complaint dated April 30, 1959, against Sylvania Electric Products , Inc., herein referred to as the Respondent, alleging violations of Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. In its duly filed answer Respondent , while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held before the duly designated Trial Examiner at Seneca Falls, New York , on June 26 , 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument , and to file briefs . Both parties presented oral agument at the hearing and briefs were filed thereafter. Upon the entire record, and from my observation of the witnesses , I make the following: SYLVANIA ELECTRIC PRODUCTS, INC. 929 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, with plants located in several States of the United States, including a plant located at Seneca Falls, New York, is engaged in the manufacture of electrical products It annually sells and ships from its Seneca Falls plant to places located outside of the State of New York products valued in excess of $50,000. The Respondent concedes it is engaged in interstate commerce within the meaning of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUE Whether, in an employee group insurance program whose level of benefits have been mutually agreed upon, premium costs which are paid only by the employer is a mandatory subject of bargaining requiring that information concerning such premium costs be furnished, upon request, to the employees' bargaining representative. IV. THE ALLEGED UNFAIR LABOR PRACTICE A. The facts i Negotiations for the renewal of a collective-bargaining agreement covering the production and maintenance employees at the Respondent's Seneca Falls plant began on August 26, 1958. Previously, by letter of August 21, the Union requested the Respondent to furnish it with pertinent group insurance data. The letter read as follows: Mr. HENRY S. PRISBY, Personnel Manager, Sylvania Electric Products, Incorporated, Seneca Falls, N.Y. DEAR MR. PRISBY: You will recall that on several occasions I asked for certain pertinent information regarding the Insurance Program that covers our bargaining unit. So that there can be no mistake about what information is necessary the following describes the necessary information to make the proper re-evaluation. (1) List of borth dates (2) Percent of female employees (3) Number with dependents (4) Present premium rates by: (a) Life per $1,000 (b) Weekly D.B.L.2 (c) Hospital-Surgical-Medical (5) Premiums paid and claims -incurred for last 2 years by: (a) Life (b) Weekly D.B.L. (c) Hospital-Surgical-Medical (6) Up-to-date booklet describing benefit schedule. (7) Average weekly wage. It would be helpful if we could get this information without any further delay because we are on the eve of our negotiations. Thank you for your past cooperation. Very truly yours (S) John Kowalski, JOHN KOWALSKI, Staff Representative. In answer to the request the Respondent, by letter of September 2, refused to furnish items (4) and (5) of the request, and with respect to the remaining items, 1 Unless otherwise indicated the facts found herein are based upon stipulations of the parties. 2 Defined in the record as "Nonoccupational disability insurance." 560940-61-vol. 127-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to furnish them if the chairman of the Union's sick committee could not supply the information. Respondent's refusal of September 2, read as follows: Mr. JOHN KOWALSKI, United Steelworkers of America, 104 Magnolia Street, Syracuse 4, N.Y. DEAR MR. KOWALSKI: I regret that I am unable to supply you with the information requested in your letter of August 21. Our Employee Benefits Program is based on benefits provided to our em- ployees which the Company feels are both fair and reasonable. Our policy has been to try to provide approximately 80% coverage for hospital-surgical- medical expenses to employees. We base our program, therefore, not so much on cost as on benefits provided. In addition, the task of digging up the information would place a severe burden on the Personnel Department. 'I am sure you could obtain the same information from the Chairman of your Sick Committee. Very truly yours, SYLVANIA ELECTRIC PRODUCTS, INC. (S) H. S. Prisby, H. S. PRISBY, Personnel Manager, Picture Tube Operations. When the Union notified Respondent that the chairman of the sick committee could not supply the data the Respondent complied by doing so, refusing only as to item 4, present premium rates, and so much of item 5 as referred to premiums paid during the last 2 years. In summary, Respondent refused to furnish the following requested information. (1) Present premium rates by: (a) Life per $1000 (b) Weekly D.B.L. (c) Hospital-Surgical-Medical (2) Premiums paid for last years by: (a) Life (b) Weekly D.B.L. (c) Hospital-Surgical-Medical All other requested information, including the claims incurred during the previous 2 years, was furnished as requested, or are in the process of being furnished. The Respondent's group insurance program, which provides many types of benefits to the employees, is and has been for many years a noncontributory plan, the Respondent assuming the entire cost. Included in the current collective-bargaining contract between the Respondent and the Union, as well as in the one which expired in 1958, are the various benefits that would be provided by the Respondent during the contract's term, regardless of any increase in costs to the Respondent which might occur during its term. The Respondent has but one single policy for the "nonoccupational disability insurance" (weekly D.B.L) covering all of its locations in the State of New York. The Respondent has also but one single policy for the "hospital-surgical-medical" benefits which covers all its plants except those in California. These policies are part of a single insurance contract, though there is a separate cost figure for each policy covered in the contract. Also, the Respondent has one corporate group life policy, which is applicable to all Sylvania installations throughout the country. The negotiations which commenced on August 26, 1958, continued until November 2, at which time the parties reached an agreement on a new contract. This was brought about without strike action and shortly following the termination of the prior agreement on October 31, 1958. In the course of such negotiations, the Respondent and the Union agreed upon, among other things, improvements in the group insurance benefits. During these negotiations, and in negotiations for past contracts between the parties, the Respondent told the Union on various occasions that the Union must take into account group insurance benefits and other benefits in the Union's economic demands for wages. On various occasions during negotia- tions, the Union renewed orally the request for the data described in its letter of August 21. Each time the Respondent rejected the demand, citing in substance the same grounds as stated in the Respondent's letter of September 2. In addition, on many occasions , the Respondent stated that the Union was not legally entitled to this information. On many of these occasions the Union informed the Respondent that the Union could not intelligently frame its economic demands unless the SYLVANIA ELECTRIC PRODUCTS, INC. 931 Union knew the cost of the group insurance benefits, because the group insurance benefits were part of the overall economic benefits negotiated. The Union also stated on many occasions that it needed the information in order to determine whether the employees were getting sufficient coverage for their money 3 and to determine whether it was possible to get better coverage from another carver, with a possible reduction in cost and commensurate increase in actual wages.4 In the course of negotiations for the present contract, the Union pointed out to the Respond- ent that many of the benefits offered by the Respondent were of no immediate gain to those in the unit, citing as an example, improved insurance benefits for retired employees, because the unit was composed of a relatively young group. Also during these negotiations, the Union stated that if it knew the cost of the new insurance benefits for retired employees, it might wish to get increases in other benefits or wages which would better suit the employees in the unit it represented. During the 1958 negotiations, an equivalent in cents-per-hour was not set by the Respondent in its discussion or negotiations with the Union on the whole or any element of the preexisting benefits program, or on the whole or any element of the benefits to be negotiated. The negotiations for the present group insurance benefits had been conducted on the level of benefits to be granted to the employees in the unit. The Union states that this was so because the Respondent refused to discuss group insurance on a cost basis. In negotiations for the contract that preceded the one now in force negotiations were also conducted on the level of benefits to be granted to the employees in the unit. The Respondent has always taken into consideration the cost of these benefits in arriving at the level of benefits to be offered to the employees. Such costs, how- ever, are not available at the time the premium is paid. Thus, the Respondent pays the carrier an advance premium on its overall policy in which the employees at the Seneca plant, and other plants, are included. Thereafter, at the close of the policy year, computations are made to so adjust the amount of the initial premium to reflect the claims and other cost items that arose during the preceding year. In this respect it appears from the record that during the course of a strike in 1955 the Respondent advised its striking employees that they might avail themselves of the opportunity of retaining their insurance in force by the monthly payment of a specified sum. Respondent's officials, Prisby and Armstrong, who testified credibly with respect to the Company's handling of advanced premiums, explained that the sums required to maintain in force the strikers' insurance was not actual cost but a prorated amount derived by dividing the total advance premium by a head count of all the corporation's employees. I find, therefore, that the results of Respond- ent's computations so utilized did not constitute, nor were they represented to be, the actual insurance premium or cost of benefit. At the time of the acceptance of the present contract, the Union told the Respond- ent that the Union was forced to accept the contract, including the benefits, or strike; and it did not wish to strike. The Union informed the Respondent also that it was accepting the contract, including the benefits, although it still maintained that the refusal of the Respondent to supply the cost of these benefits was an unfair labor practice. At no time during the negotiations for the most recent contract did the Respondent claim that it was an economic burden to pay the cost of group insurance benefits, nor does it appear to me that there is any evidence of other independent unfair labor practices except insofar as the Respondent's refusal to furnish the data on group insurance cost may be found to constitute an unfair labor practice. B. The applicable decisions The cases which involve the disclosure of information pertinent to bargaining cannot be generalized. Rather, they must be classified on the basis of the relation- ship which the information being sought bears to the particular bargaining subject under consideration. This proposition can best be demonstrated by analyzing the cases that have come before the Board and the courts. But before undertaking such a review it would seem appropriate to consider separately the nature of the matters that may properly be a subject of collective bargaining. 8 Although this is a stated reason stipulated by the parties it is not disputed that the employer assumes all the costs for coverage received. 4In his testimony at the hearing John Kowalski, staff representative of the Union, confirmed these stated reasons for his previous requests for the disputed data, made by him in behalf of the Union's bargaining committee. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Generically, bargaining matters are of two types: (1) mandatory subjects of bargaining-"wages, hours, and other terms and conditions of employment"-with respect to which parties have a duty to bargain, and (2) other matters, as to which "each party is free to bargain or not bargain, and to agree or not to agree." 5 By corollary to this, of course, it follows that "it is lawful to insist upon matters within the scope of mandatory bargaining and unlawful to insist upon matters without." 6 From the scope of the foregoing distinction it is evident that further definition of mandatory bargaining subjects is in order, and particularly so since the concept "wages, hours, and other terms and conditions of employment" has been expanded, with court approval, by the inclusion of subjects which had not previously been considered to have been within the general area.? Of particular significance to the instant case is the expansion of the "wage" concept in the W. W. Cross case,8 where the court defined "wages" as including "direct and immediate economic benefits flowing from the employment relationship." 9 "So construed," the court continued, "the word covers a group insurance program for the reason that such a program provides a financial cushion in the event of illness or injury... ... Thus it may be stated as established law that the benefits flowing from an employee insurance program are an integral part of the wage structure for collective-bargaining purposes. Thereafter, m The Standard Oil Company, 92 NLRB 227, 228, 236, the Board, relying upon W. W. Cross, held that an employer's unilateral change of its group insurance program constituted a refusal to bargain. Similarly, in Clinton Foods, Inc., 112 NLRB 239, it held, without further comment, that refusing to bargain on employee group insurance constituted a Section 8(a) (5) violation. 1. Requests for information pertaining to "Wages, Hours and Terms and Conditions of Employment" Wholly apart from the definitive considerations noted above which establish insurance benefits as a mandatory subject of bargaining we are necessarily concerned with the materials by which parties can intelligently bargain with respect to "wages, hours, and other terms and conditions of employment." The request for and refusal of information sought for this purpose has repeatedly been presented to the Board and the courts for determination and a consistent pattern of applicable law has emerged. Thus in Aluminum Ore Co. v. N.L.R.B., 131 F. 2d 485, 487, the Court of Appeals for the Seventh Circuit enunciated a now well-recognized principle that because wage information was so intimately related to the objectives of collective bargaining with respect to wages, an employer's refusal to furnish the information constituted a unilateral attempt by him to remove a bargainable subject from nego- tiations and amply justified a finding of refusal to bargain. This proposition has been consistently adhered to.ia But in the course of time it has encountered several refinements that account for a continuing dispute as to what information is and what is not furnishable under the decided cases. It was in Yawman and Erbe, 89 NLRB 881, that the Board spelled out the precise character of information that must be furnished under pain of Section 8(a)(5), holding that because wage information, specifically a list of employees in the bar- gaining unit together with their current salaries, was clearly relevant to current wage negotiations, and "was necessary to enable the Union to bargain intelligently," it must be furnished. Upon review, the court of appeals 11 sustained the Board's requirement that upon a finding of relevancy wage information must be furnished. The court did not comment upon the Board's corollary holding that the necessity of such wage information to wage negotiation was self-evident. e N L R B. v Wooster Division of Borg-Warner Corporation, 356 U S 342, 349 8 Idem 7 N L R B. v J. H Allison & Company, 165 F 2d 766 (C A. 6), cert. denied 335 U S 814 (merit wage increases) ; Inland Steel Co. v. N.L.R B , 170 F 2d 247 (C A 7), cert. denied 336 U.S. 960 (pensions) ; Richfield 04 Corporation V. N L.R.B., 231 F. 2d 717 (C A , D C ), cert denied 351 U S. 909 (stock purchase plan) 8 W. IV. Cross and Company Inc v N L.R B., 174 F. 2d 875 (C A. 1), enfg 77 NLRB 1162 8 1'74 F. 2d 875, at 878. 10 N L R B. v J H. Allison & Company, supra; Vanette Hosiery Mills, 80 NLRB 1116, enfd 179 F. 2d 504 (CA 5) ; Dixie Manufacturing Company, 79 NLRB 645, enfd. 180 F 2d 173 (C A. 6) , National Grinding Wheel Company, Inc., 75 NLRB 905; Cincinnati Steel Castings Company, 86 NLRB 592 11 N L R B v, Yawman and Erbe, 187 F 2d 947 (C.A. 2). See also Leland-Gifford Co , 95 NLRB 1306, 1309-1311, enfd 200 F 2d 620 (C.A. 1). SYLVANIA ELECTRIC PRODUCTS , INC. 933 While the wage information cases assume a pattern of consistency , 12 with rel- evancy a standard requirement and with necessity implied, a new consideration is injected by the Supreme Court's decision in the Truitt case.13 Strictly speaking, Truitt was not an information case and only has become such by "usage." The union in that case sought information respecting the employer 's economic position, not for the customary purpose of implementing intelligent bargaining, but rather as an element of justification for the employer 's repeated claim that it could not afford to pay a higher wage. Thus it was not wage data that was sought but iather proof of the employer's economic inability to pay a given wage that the employer refused to furnish, and the Supreme Court so recognized , stating its agreement "with the Board that a refusal to attempt to substantiate a claim of inability to pay increased wages may support a finding of a failure to bargain in good faith ." 14 By its terms, therefore, this becomes a case involving the refusal to furnish information only in the limited sense that "inability to pay" establishes the requirement. Facts and findings to the contrary notwithstanding the Supreme Court does not seem to share this view, for in N.L .R.B. v. F. W. Woolworth Co.15 the Court held in a per curiam opinion that "failure to furnish the wage information constituted an unfair labor practice," and in so doing cited the narrow Truitt decision for the general proposi- tion stated. Cases relating to requests for information have sought to distinguish between re- quests for wage information and requests for financial information. Truitt, for example, involved financial data, a justification of the employer 's stated inability to pay. While F. W. Woolworth related to the more usual request for wage infor- mation, following the precedent of Whitin Machine Works and Skyland Hosiery 16 that the information sought must be relevant , but that its necessity, as an implement to wage negotiations , might be presumed . Similarly, in Taylor Forge and Pipe Works, 113 NLRB 693, the Board held that a request for the "point-scores" assigned to job factors and used by the employer in determining individual rates of pay was related to wages and necessary to a proper understanding of the Company's job evaluation system. Accordingly , the Board held, such information must be furnished. Shortly thereafter in Oregon Coast Operators Association , et al., 113 NLRB 1338, 1345 , the Board reiterated the general proposition that "an employer is under a statutory duty to furnish data to the employees' bargaining representative, upon request, provided that the data is relevant and needed by the representative for purpose of collective bargaining." And with respect to data which pertained to "wages, hour, and terms and conditions of employment" the Board collated all out- standing precedent relating to the various forms which wages may take . Thereafter, in Glen Raven Knitting Mills, Inc.,17 the employer refused the Union 's request for descriptions of hosiery style constructions used in the employer's plant. The Board, holding that pay on a piece-rate basis depended upon the style of hose being knitted, repeated the distinction between wage data and other information and concluded that when the information sought was "wages and related data" relevance alone was all that need be shown. And, relying upon its earlier decision in Whitin Machine Works, (supra, footnote 12) the Board indicated that in such circumstances necessity may be inferred, or as specifically stated in Whitin-where wages are con- cerned "no specific need as to a particular issue need be shown." 18 12 117hitin Machine Works, 108 NLRB 1537 , 1539 , enfd. 217 F. 2d 593 ( CA. 4), cert. denied 349 U S. 905; Skyland Hosiery Mills, Inc, 108 NLRB 1600, F. W Woolworth Co., 109 NLRB 196 , enfd. 352 U. S 938 , Boston Herald-Traveler Corp v. N L R.B , 233 F. 2d 58 (C A 1 ) ; N L P. R v New Britain Machine Co, 210 F 2d 61 (C.A 2 ) ; N L R.B. v. The Item Company, 220 F. 2d 956 ( C A. 5), cert. denied 350 U S. 1836, 905, 352 U.S. 917; N L R B v. Hekman Furniture Company, 207 F 2d 561 (C A. 6) 11 N.L R B v. Truitt Mfg. Co , 351 U . S 149 , enfg 110 NLRB 856 14 351 U S 149 , at 153. It should be noted that in the instant case the Respondent never claimed that it was an economic burden to pay the costs of the group insurance benefits (supra). 15 352 U S. 938 . See supra , footnote 12, where this case is cited as an application of the Board's consistent policy respecting wage information cases. " Supra, footnote 12 17 115 NLRB 422 , enforcement denied on other grounds 235 F 2d 413 ( C A. 4). 15108 NLRB 1537 , at 1539. To meet certain issues as to relevancy and necessity raised by the dissent in Glen Raven the Board majority sought to explain and distinguish its decision in Oreqon Coast Operators Association, supra, by noting that there the information sought was not merely 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The cases which follow maintain the distinction thus established . In Morganton Full Fashioned Hosiery Company, et al., 115 NLRB 1267 , 1271, the Union requested wage rates as well as vacation pay allowances , bonuses, and insurance coverage. Granting this request the Board's order required that the employer furnish "wage and related data relevant to wages," relying upon Glen Raven. Shoreline Enter- prises bf America, Inc., also required the employer to furnish information related to wages, including health and welfare insurance coverage . 19 And in J. I. Case Co.,20 the Board held, with court approval, that time-study and job evaluation information which the union needed to adequately present a grievance with respect to piece rates was the sort of relevant wage information contemplated by the Board , and by the Supreme Court, in F. W. Woolworth (supra). Thereafter, in Pine Industrial Relations Committee, Inc., et al.,21 the Board had before it refusals of union requests for information of a comprehensive nature. Some of it pertained to wages, hours, and terms and conditions of employment. But much of it was information pertaining to production and sales figures as well as data of a general financial nature; material which the Union stated it would use to determine the size of its wage demands in the light of what it determined to be the employers' ability to pay. No claim of inability to pay, however, had ever been advanced by any of the employers involved in the bargaining negotiations. With respect to the first category of information , wage data, the Board found that the employers' failure to furnish it constituted a refusal to bargain. With respect to the latter category the Board found ( 118 NLRB 1055 , at 1061 ), relying upon Truitt, that, in the absence of any claim of inability to pay, necessity for the furnishing of such information had not been established . The Court of Appeals for the District of Columbia Circuit sustained the Board's holding,22 and in so doing has provided a most enlightening synthesis of applicable legal principles . Thus in underlining the distinction that it finds to exist between wage information and other data the court stated (263 F. 2d 483, at 485): The unions argue that any distinction between wage information on the one hand and production and sales information on the other is arbitrary and mean- ingless. According to the unions the data overlap . This is not necessarily so. 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 . This is not necessarily so with respect to what the employer's records show about how much, or at what cost, or in what time he produces his goods, and how or at what cost or in what volume he sells those products. We do not say that information on production or sales would never in any circumstances be required , but only that it need not always be disclosed on request and that on the whole record we find rational basis for the Board's conclusion that the refusal to supply production and sales information did not violate the duty to bargain in good faith . We think this distinction has been recognized by the Supreme Court. Since Pine Industrial the Board has had further opportunity to express its position on the refusal to furnish information . Tree Fruits Labor Relations Committee, Inc., 121 NLRB 516, is particularly significant in that it supplies a concise summary of the Board's current position of the subject at hand. Thus in footnote 5, it states that "in cases in which the information sought consists merely of wage data the necessity for such information need not be shown , so long as it is relevant to bar- gaining," citing the Board's Pine Industrial decision (supra) which had not yet reached the courts. Subsequently the Board ordered the furnishing of relevant wage data in Gateway Luggage Mfg . Co., 122 NLRB 1584. wage data but rather "appeared to involve information and issues other than wage" 115 NLRB 422, at 425 It is Suggested that such differences as arise in the application of the criteria are but differences as to interpretation of fact, and that neither Glen Raven nor Oregon Coast Operators deviate from the established legal pattern 19 117 NLRB 1619 , 1626-1627, enforcement denied on other grounds 262 F 2d 933 (C A 5) Significantly , the Board adopted without comment the Trial Examiner's re- statement of the test to he applied in wage information cases, to the effect that it was relevancy, and not necessity 117 NLRB 1619 , at 1627. Thus the theory of the implied necessity has again been reaffirmed 20 118 NLRB 520, enfd . 253 F 2d 149 (C A 7) 21 118 NLRB 1055 22 263 F 2d 483 SYLVANIA ELECTRIC PRODUCTS, INC. 935 2. Insurance as a mandatory subject of bargaining and requests for information pertaining to it Because of their significance to the issue presented by the instant case I have, insofar as possible, segregated for separate consideration the cases pertaining to group insurance. In total, the Board appears to have considered only nine of such cases. Previously I indicated that it was in W. W. Cross & Co., Inc., that the Board first equated insurance benefits with wages and held that a group insurance program was a mandatory subject of bargaining. This position was subsequently reaffirmed in Standard Oil Company, 92 NLRB 227, supra, and Clinton Foods, Inc., 112 NLRB 239, without substantial alteration or comment. As an outgrowth of this develop- ment the question inevitably arose as to the propriety of a request for insurance information In Phelps Dodge Copper Products Corporation, 101 NLRB 360, the union sought to bargain for changes in an existing insurance program to provide for full payment of premiums by the employer rather than continue the existing arrangement of employee contribution. The union requested data as to the existing program, including the cost to the-employee, so that it could prove the excessive cost to them and the inadequacy of the benefits. With respect to the employer's refusal to bargain as to the change and its refusal to supply the requested employee cost and benefit data the Board held (at p. 366) the employer's "refusals to furnish any information was intimately bound up with its insistence that it would not deal on insurance, and tends itself to reveal the nature of the Respondent's over-all attitude." This, the Board held, constituted a refusal to bargain in violation of the Act. Subsequently, in Skyland Hosiery Mills, Inc., 108 NLRB 1600, 1604, supra, the employer was required to produce information as to "types of insurance coverage and what portion of premium is paid by the employer and employee." And in both Morganton Full Fashioned Hosiery Company, et al., 115 NLRB 1267, and Shoreline Enterprises of America, Inc., 117 NLRB 1619, as we have already noted, the relevance to wages of information concerning health and welfare insurance coverage was affirmatively stated. Finally, among the information cases most recently decided are two insurance information cases which bear directly upon the issue presented in the instant case. In Stowe-Woodward, Inc., 123 NLRB 287, the Board, relying on W. W. Cross, supra, held that "group insurance is encompassed within the concept `wages,' " and therefore the union's request for "a copy of the group insurance booklet, information concern- ing the cost of such insurance to the Company" was relevant to wages and must be furnished. Nothing in the Board's decision nor in the Trial Examiner's Intermediate Report gives any indication whether the insurance program required employee contribution, or was, as was the program in the instant case, of the noncontributory variety. Thus there is no way to determine, upon the facts presented, whether the "cost of such insurance to the Company" relates to an undisclosed cost to the em- ployee for his proportionate share of the premium, if indeed he does share the cost. Finally in John S. Swift Company, Inc, 124 NLRB 394, the Board, relying upon Stowe-Woodward, held to be unlawful the employer's failure to furnish the union with "a breakdown as to the cost of its existing health and welfare plan in the certified unit." C. Analysis and concluding findings Only if insurance premiums of the type sought here bear a direct relationship to wages is an employer obliged to furnish information concerning the premiums upon the Union's request. For unless this direct relationship exists it does not matter how helpful or useful the information might be, bearing in mind the language of the Board: In deciding this case we have not been unaware of the consideration that posses- sion at the outset of bargaining of the facts about the employer's economic posi- tion may be helpful to the union in tailoring its wage demands to what the employer can reasonably pay and therefore make bargaining, perhaps, more realistic and successful. But our duty under the Act is here to determine whether the obligation of good faith bargaining has been met rather than to establish ideal bargaining conditions 23 Pine Industrial Labor Relations Committee, Inc , et at., 118 NLRB 1055, 1061, enfd. 263 F 2d 483 (CA, DC.) 0 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I reject, therefore, as contrary to established law, the General Counsel's contention that the employer was obligated to furnish the requested information because it was needed in order that the Union might formulate its economic demands and intelli- gently negotiate and administer, its contract 24 As we have indicated from the decided cases that only wage information must, as a general proposition, be furnished upon request it is appropriate at this juncture to scrutinize insurance from the "wage" aspect. Certainly group insurance is wages. Respondent concedes this, the cases so hold, and bargaining concerning it is manda- tory. 5 But simply to state this general principle does not dispose of the subsidiary issues. For the insurance contemplated in the Board's bargaining orders was the insurance program, and a fortiori the benefits flowing to the employees from it.26 Thus in W. W. Cross the Board required bargaining for such a program "providing for employee protection against the financial hazards of illness and accidental injury"; 27 in Standard Oil Co. the offense was the unilateral change by the employer of "benefit payments"; 28 and in Clinton Foods, Inc., it was a refusal to discuss an insurance plan proposed by the Union.29 By way of distinction and repeated defini- tion, therefore, it must clearly be understood that insurance benefits are most cer- tainly "wages" in the generally accepted description of the term, and any information relevant to these benefits must necessarily be considered just as relevant to bargaining as is any other wage data. As we shall see later, however, it becomes another and entirely different matter when the bargaining is directed, not to the amount, or to the extent, of tangible benefits to employees, but to such considerations as the admin- istration of the benefit program, and the costs and expense of instituting and main- taining the benefits. All that is before me for determination, therefore, are the basic propositions (1) whether the premium costs of a noncontributory insurance plan are wages, and therefore (2) whether information as to these costs must be furnished a union be- cause they bear a direct relationship to "wages, hours, and terms and conditions of employment." For the reasons which follow I would find that premium costs here are not wages, and that no direct relationship exists between them and wages. At the outset it should be noted that insurance premiums do not appear to be included among the statutory accretions to the definition of "wages." On the con- trary, insofar as employee contributions for social security are concerned, insurance premiums are specifically exempt from the statutory definition. 30 If then I am to equate premium with wages I must do so without statutory assistance, relying solely upon the authority of the previously discussed cases. 21 One of the several reasons advanced in the General Counsel's brief to me, and stated by John Kowalski, union staff representative, in his testimony as to the need for the requested information. 25 W. IV. Cross and Company, 77 NLRB 1162. 2U For example : Disability payments, death benefits, and indemnification for illness and hospitalization expense. 27 77 NLRB at 1164 2192 NLRB 227, at 234 20112 NLRB 239, 248-261. 30 Internal Revenue Code of 1954: Chapter 21-Federal Insurance Contributions Act Section 3121-Definitions- (a) Wages-For purposes of this chapter, the term "wages" means all re- muneration for employment, including the cash value of all remuneration paid in any medium other than cash ; except that such term shall not include- (2) the amount of any payment (including any amount paid by an em- ployer for insurance or annuities, or into a fund, to provide for any such payment) made to, or on behalf of, an employee or any of his dependents under a plan or system established by an employer which makes provision for his employees generally (or for his employees generally and their de- pendents) or for a class or classes of his employees and their dependents, on account of- (B) sickness or accident disability, or (C) medical or hospitalization expenses in connection with sickness or accident disability, or (D) death ; 0 SYLVANIA ELECTRIC PRODUCTS, INC. 937 There does emerge.from a review of these cases the distinct implication that under certain circumstances insurance premiums are wages, and thus are bargainable. Thus, in Phelps Dodge Copper Products Corporation 31 and in Sky land Hosiery Mills, Inc.,32 the Board has specifically held that failure to furnish insurance costs and premiums constitutes a refusal to bargain. In each of these cases, however, the premium requests were couched in terms of how much cost was assessed to the employees. In Phelps Dodge, for example, the union was seeking a change in the insurance program from an employee contributory program to a noncontributory program, such as is in force in the instant case. The Union sought the information on premiums in order to determine the cost of the insurance to the employees; and in Skyland Hosiery the union specifically requested data as to "what portion of premium is paid by the employer and employee." Thus, in each of these cases, unlike the instant one, we have an insurance program where not only is it the benefits that are of bargainable significance to the employees, but so are the premiums-for as an expense to the employees they are deductible, presumably, from their wages. Thereby they are directly related to those wages. In a word, no one is, or could, argue that the portion of an employee's paycheck allocated to pay his insurance premium is an item of information to which neither he, nor his bargaining repre- sentative, would be entitled. I conclude, therefore, upon my understanding of the wage information cases decided by the Board and the courts, and upon the explicit holdings, in Phelps Dodge and Skyland Hosiery, that information with respect to premiums, to the extent they are paid in part by employees in a contributory type insurance program, relates directly to wages and must be furnished upon request. Cost to employees, then, is that ingredient in a group insurance program that classified it as a mandatory subject of bargaining. For, as deductions from wages, like benefits added to wages, they are, to make an obvious conclusion, directly related to wages. But if deductions are not made from an employee's wages and the costs of the benefits he receives are not assessed against him it is difficult to understand why the costs which are assumed by the employer, which are not prorated to the employees, and which in no way are held forth as a proportionate employee share, would be directly related to wages. For to say that such employer costs-noncon- tributory premiums-bears a direct relation to wages is tantamount to holding that any cost, or any expense incurred by an employer, relates directly to wages. For inherent in such an argument is the unspoken premise that any cost saving is a pre- sumptive wage increase. Modern business economy has not adopted this theory, nor do I for the purposes of this case. Such being my estimate of the cost features of noncontributory premiums I must of necessity conclude that because the cost to the employer bears no direct rela- tionship to wages the Union is not entitled to information concerning it. I am fully aware of the Board's two most recent holdings on the furnishing of insurance premium data, Stowe-Woodward, Inc.,33 and John S. Swift Co, Inc34 In case the Board has found the employer's refusal to produce the requested insurance premium data to be a refusal to bargain. A thorough reading of the Trial Examiner's Intermediate Report and the Board's Decision and Order in each case fails to disclose any evidence that the group insurance plan involved was other than the usual contributory plan of the type in force in Phelps Dodge and Skyland Hosiery. As I have already stated in some detail, the feature of assessing employees with a portion of insurance premiums clearly places the costs of the program in direct rela- tionship with wages. This I deem, from a reading of the cases, to be the governing rule of law respecting contributory insurance premiums. I cannot, however, read into the general language of Stowe-Woodward and John S. Swift a specific exception to the rule of law, by holding, for no plausible reason, that here, unlike the cases previously considered (Phelps-Dodge and Skyland), these insurance plans must have been of the employee contribution variety simply because the contrary has not been shown. Accordingly, in speculating upon the nature of the insurance programs in Stowe-Woodward and Swift, respectively, I cannot, without the additional facts which neither case supplies, distinguish the cases from Phelps-Dodge and Skyland. Because, therefore, the Board has not distinguished them, and indeed has relied upon Phelps-Dodge for its authority (124 NLRB 394, footnote 1). I have no alternative but to assume that all four relevant cases have one feature in common- 31101 NLRB 360 89 108 NLRB 1600. x3123 NLRB 287. 34 124 NLRB 394. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employee contributory insurance plan.35 In the absence, therefore, of convincing indication that the Board was consciously extending it information cases to include noncontributory premium information, I find that a failure to produce such premium data, as requested by the Union in this case, does not constitute a refusal to bargain in violation of the Act. The foregoing considerations are based upon what I view to be the controlling law on the subject of insurance premium information. There is also present here for independent consideration the validity of the Union's claim that the information requested was necessary for intelligent bargaining on the subject of wages. The Union's position in this respect may be reduced to two basic premises. Thus, if the insurance costs were available to the union negotiators they could, upon a study of the information at hand, be in a position to urge, as an element of their bargaining case, (1) better coverage for employees in the bargaining unit at the same cost, by using another carrier, and/or (2) a reduction in insurance costs at the present level of benefits with the savings diverted to an increase in wages. Actually the question of achieving better coverage at the same cost is academic to this case. For the employer, in bargaining with respect to insurance benefits, never claimed his inability to pay the cost of any benefit proposal presented (supra). As the element of cost was, therefore, never injected into the bargaining demands, the Respondent's ability to pay them, or to pay greater costs for larger benefits, is not in issue and information with respect to his costs and his ability to pay them is not a necessity to bargaining.36 As its alternative reason for needing the insurance cost information the Union stated that if it knew the current costs it could compare them with the offerings of other carriers. In this comparison it could urge that savings be effected in the insurance costs (without altering the benefits) and such savings could be diverted to an increase in wages. This claim to insurance cost information rests upon the thesis that employer costs affect wages. No one can deny this economic fact. Indeed scores of studies have treated of the factors which do affect wages. Thus it may be conceded that the cost of a noncontributory group insurance program is as much a factor in determining the wages paid employees as is the cost of raw materials which go into the employer's product, or the interest costs required to maintain his bonded indebtedness. But unless this inurance cost can be distinguished from other expenses incurred in the operation of a business or industrial enterprise, I know of no rule of law that makes such insurance costs any more a mandatory subject of bargaining than is any other operational cost or expense. To hold the contrary would, it would seem, bestow upon the bargaining representatives of employer and employees responsibilities which are properly within the domain of management alone.37 I conclude, therefore, that because premium rates and premiums, the cost elements of the instant noncontrihu- tory group insurance program, have no more direct relation to wages than do other operating costs to which employees do not contribute, they are not a mandatory subject of bargaining and information concerning them need not, for this reason, be furnished. [Recommendations omitted from publication.] se In this respect I do not consider the request in Stowe-Woodward for "information concerning the cost of such insurance to the Company" to establish by negative inference what is not otherwise stated, to wit, that there was no cost to the employees ,Nor do I subscribe to the theory of the Stowe-Woodward case advanced by Respondent in its able brief, wherein it states that "it is clear, that the parties had stipulated affirmatively that the requested insurance cost data was information to which the union was entitled." Unless I have misread the Board's Decision and the Trial Examiner's Report the only statement I find that would fit Respondent's interpretation is a con- clusion by the Trial Examiner which states : Apparently, it is not disputed that the Union is entitled to the insurance data in- volved herein [footnote omitted] provided a clear and unambiguous request was made for such information . I do not view this statement, in the context in which it was made, to constitute a stipu- lation as to the law or the waiver of any pertinent legal rights 'ON L R B. v. Truitt Mfg. Co , 351 U S 149 31 Cf N L R B. v American National Insurance Co., 343 U S 395.