Westinghouse Electric Corp.

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act.' 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within Section 9 (b) of the Act 3 All bartenders at the Employer's New Bedford, Massachusetts, hotel, including all regular part-time bartenders, but excluding all casual bartenders, office clerical employees, guards, watchmen, all other employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 2 In 1956, the Employer recognized the Petitioner as the representative of its bartenders, and signed a contract with it providing for automatic annual renewal absent timely written notice. In 1958, the Petitioner notified the Employer that it wished to add a provision to the contract . The Petitioner, which now seeks Board certification , maintains that this notice terminated the contract. The Employer contends that the contract is in effect, and it has continued to comply with its provisions . The parties request Board determination of the validity of this termination notice. However, as there is no contract bar contention , adjudication of this issue is unnecessary. 9 The Petitioner seeks a unit of bartenders . The parties are in agreement as to the appropriateness of such a unit , but the Petitioner would include, while the Employer would exclude as casual employees , all part-time bartenders. There is no evidence as to the bargaining status of any of the Employer 's employees except the bartenders. The Employer operates its bar 16 hours a day with two regular bartenders who work 8-hour shifts. When special occasions require extra help, the hotel manager informs a regular bartender , who requests the Petitioner to supply part-time help . The manager testified that there are no regularly scheduled functions requiring part -time bartenders, but that, during peak operating months and vacation periods of the regular bartenders, extra help usually Is required . He stated that the Employer has no control over the men selected by the Petitioner , and that 25 men have done this part -time work in the past several years. However, employment records for the, first 9 months of this year list only four part-time bartenders , three of whom, Karakas , Pollitt, and Crabtree, have been paid respectively for work during this period averaging 24, 16 , and 11 hours a week . During this 9-month period , there have been only 2 weeks when the Employer has not called in extra bartenders . All the bartenders are governed by the same contractual payrate provi- sions and work under the same employment conditions , but the part-time employees do not receive the fringe benefits of regular bartenders. As it appears that these part-time bar- tenders can reasonably expect continuous part-time employment and have a community of employment interests with the regular bartenders , we find that they are regular part-time employees and therefore include them . There is evidence , however, that on very rare occasions , additional bartenders are called in. We find that they are casual employees, and therefore exclude them. Westinghouse Electric Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 6-CA-1502. December 1, 1960 DECISION AND ORDER On May 19,1960, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceedings, finding that the 129 NLRB No. 98. WESTINGHOUSE ELECTRIC CORPORATION 851 Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs, and the Respondent filed certain exceptions to, and a brief in support of, the Intermediate Report. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] '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]. 2 Member Rodgers agrees with the finding of the Trial Examiner that the production of the average earnings data demanded by the Union would have been unduly burdensome, and for this reason the Respondent's refusal to produce that data was not violative of Section '8(a) (5). In view of this disposition of the case, Member Rodgers finds it un- necessary to pass upon and does not adopt the Trial Examiner's further finding that the information requested was "wage data" and that the Respondent's refusal would have been violative of 8(a) (5) absent the showing of undue burden. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in the present case was issued on April 28, 1959, upon charges and amended charges filed by International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the IUE. As amended at the hearing,' it alleges in substance that the Respondent. Westinghouse Electric Corporation, committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of of the National Labor Relations Act, as amended (61 Stat. 136), by failing and refusing to bargain collectively in good faith with the IUE and 26 of its locals on the subject of the "employment security" of Respondent's employees in each of 40 appropriate bargaining units for which either the IUE or 1 of these locals was, and is, the duly certified and contractually recognized exclusive bargaining representative within the meaning of Section 9(a) of the Act.2 Specifically, the complaint asserts that the Respondent's unfair labor practices consisted of (a) its failure and refusals on and since August 13, 1958, to provide the IUE and its locals with requested information concerning "the average straight-time hourly earnings of the employees" in 23 of the bargaining units rep- resented by 1 or another of 17 of the locals; 3 (b) the Respondent's failure and re- ' The only amendment of the complaint was permitted on the unopposed motion of the General Counsel during the hearing, and extended the general allegations of the complaint concerning a refusal to bargain by the Respondent to cover a 40th bargaining unit not referred to in the original complaint. During the course of the hearing, counsel for the IUE moved for a further amendment of the complaint to set forth additional specifica- tions of conduct on the part of the Respondent which the IUE contended amounted to a refusal to bargain in violation of Section 8(a) (1) and (5) of the Act. Upon the General Counsel's objection to this amendment, I denied the motion. 2 Description of each of the bargaining units of the Respondent's employees represented by either the IUE or one of its locals is set forth in Appendix A to the complaint, as amended. 3 Paragraph 9 of the complaint asserts that the IUE sought this information concern- ing bargaining units represented by 17 locals, including a Local 449, "as set forth in 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fusals on and since September 9, 1958, to provide "information and data which would clarify, explain and substantiate Respondent's position, allegation and claim that fringe benefits to employees within the bargining units [affected by the negotia- tions] involve a cost or benefit average at 44¢ per hour per employee"; and (c) the Respondent's failure and refusal, on and after December 5, 1958, to meet with the IUE and its locals for the purpose of continuing negotiations on the subject of employment security. In its answer to the complaint, the Respondent denies the conunission of any unfair labor practices although it admits various other allegations of the complaint, including those setting forth the descriptions and the appropriateness of the various bargaining units of its employees and the exclusive representative status under the Act of the IUE and its various locals. The Respondent's answer also admits that the IUE requested, but the Respondent did not furnish, average straight-time hourly earnings by months and by bargaining units from 1956. The Respondent asserts, however, (1) "that these figures were not available but would have required ex- tensive and costly analysis, study, computation and related work by Respondent and its agents"; (2) that the Respondent was not obliged to undertake such a task; and (3) that in any event "the data requested was not relevant, material or even useful for bargaining on employment security." With respect to the allegation of the complaint concerning any request by the +IUE for a substantiation of the 44 cents per hour cost of fringe benefits, the Respondent's answer "denies that any bona fide request for this data was ever made, denies that it would have been relevant, neces- sary or useful in bargaining on employment security, and denies that it took any position that would oblige it to furnish such data." Finally, the Respondent in its answer admits that on and after December 5, 1958, it refused to meet further with the IUE on the subject of employment security. But it asserts, in substance, that an impasse had already been reached in meetings which had begun on August 13, 1958. Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania, on June 8, 9, 10, 11, and 16, 1959, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the IUE appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of the hearing, I heard oral argument by the General Counsel. The other parties waived oral argument. Since the hearing, I have received briefs from the General Counsel, the Respondent, and the IUE. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Westinghouse Electric Corporation, is a Pennsylvania corpora- tion engaged in the manufacture, sale, and distribution of electrical appliances and products in various States of the United States, and has its principal office in Pitts- burgh, Pennsylvania. During the calendar year 1958, the Respondent manufactured, sold, and shipped, directly from its various plants located in different States through- out the United States, to points outside the States of manufacture, goods valued at more than $10,000,000. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. Appendix A" of the complaint. Although this appendix makes no mention of Local 449, the Respondent concedes in its answer, and the evidence shows, that the IUE did in fact request information concerning the average straight-time hourly earnings in a bargaining unit represented by Local 449. Furthermore, in setting forth the numerical composition of the IUE bargaining units at its various plants, the Respondent has referred in one of its exhibits to Local 449 as the representative of the hourly employees at the Respondent's Trenton, New Jersey, plant, although both Appendix A to the complaint and the master contract between the IUE and the Respondent refer to the International as the bargaining representative for this unit. It appears to me that the fair import of the complaint, as understood by the parties, has been and is to charge the Respondent with a refusal to bargain because, among other things, it has failed and refused to furnish the IUE with information concerning the average straight-time hourly earnings In an appropriate bar- gaining unit represented by Local 449 and consisting of hourly employees at the Respond- ent's Trenton, New Jersey, plant. WESTINGHOUSE ELECTRIC CORPORATION 853 H. THE LABOR ORGANIZATIONS INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Locals Nos. 111, 130, 202, 239, 302, 315, 401, 410, 412, 426, 456, 486, 491, 601, 617, 627, 670, 711, 714, 724, 746, 760, 777, 906, 1502, and 1581, are labor organizations within the meaning of the Act. The International or one of these locals has been at all material times, and is, the exclusive bargaining representative of the Respondent's employees in each of the 40 appropriate bargaining units de- scribed in Appendix A to the complaint, as amended. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The negotiations between the parties Since October 1, 1950, the general terms and conditions of employment common to all the IUE bargaining units have been covered by a "National Agreement" or master contract between the Respondent and the IUE. Terms and conditions such as basic wage and salary rates which have varied from unit to unit, have been set- tled in each unit by a separate "local supplement" between the Respondent and either the IUE or the local certified as the exclusive bargaining representative for the par- ticular unit. The National Agreement, which by its terms will expire at the earliest on Octo- ber 15, 1960, has itself been modified or "supplemented" by the parties on eight different occasions. In 1956, in the seventh of these general "supplements," provi- sions were made (1) for a series of wage and salary increments to become effective in all IUE bargaining units in March 1956 and again in the middle of October of each year from 1956 to 1959, inclusive; (2) for an additional quarterly "cost of living" adjustment of all wage and salary rates, based upon U.S. Bureau of Labor statistics; and (3) for a reopening of the National Agreement by the IUE, not more than 60 days nor less than 30 days before October 1, 1958, for the purpose of considering proposals for contracting with regard to matters relating to employment security. . . " In making this last provision for reopening the National Agreement on the question of employment security, the parties expressly excluded consideration at that time of any proposal of general wage or salary adjustment, and also recog- nized the right of the IUE to strike if no agreement were reached by October 15, 1958? According to the General Counsel, the Respondent refused to bargain in good faith with the IUE under this reopening provision of the National Agreement, by refusing to supply information requested by the IUE, by thus causing a stalemate in negotiations, and then by refusing to meet further with the IUE. The general, material course of events may be summarized rather briefly before turning to the disputed elements in the case. By letter dated February 26, 1958, the IUE asked the Respondent to furnish cer- tain information with respect to the bargaining units represented by 17 of the IUE Locals,5 "in order to enable both the Union and the Company to bargain intelli- gently" on the question of employment security when the matter should come up for negotiation under the reopening provision of the National Agreement. By this letter, the IUE specifically requested the following data with respect to each of the 23 bargaining units represented by the 17 named locals: 4 The pertinent language of the reopener provision was the following : [61 B. The Union may also reopen this Agreement not more than sixty (60) days nor less than thirty (30) days prior to October 1, 1958 for the purpose of con- sidering proposals for contracting with regard to matters relating to employment security which may be submitted by either the Union or the Company. If such notice is given, collective bargaining negotiations shall commence within fifteen (15) days from the date of receipt of notice In the event the parties fail to agree con- cerning such proposals by October 15, 1958, the Union shall thereafter have the right to strike in support of its proposals without violating Section VI or any other provi- sion of this Agreement, but this Agreement and all local supplements hereto shall continue in effect. 7. Except as hereinbefore provided . . ., the Company and the Union agree that neither of them, nor any Locals, will request consideration of any proposed changes in or additions to this Agreement, including any general wage or salary adjustments (either locally or Company-wide) before August 15, 1960. . . . i Locals 130, 202, 401, 410, 412, 426, 449, 456, 486, 601, 617, 627, 711, 724, 746, 777, and 1581. Concerning the inclusion of Local 449, see footnote 3, above. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. For years 1953-1955-monthly employment (number drawing pay) dur- ing payroll period nearest 15th of each month. 2. For each month of years 1956 to date, and continuing thereafter until negotiations are completed: (a) Average number at work (drawing pay); (b) number laid off during month having (i) seniority one year or more, (ii) seniority less than one year; (c) number returned from layoff; (d) net of laid off minus returned from layoff; (e) number of new hires; (f) number terminated (by discharge, resignation, death, retirement, failed to report for work, etc.); (g) average hours worked either for month or payroll period nearest 15th of month; (h) average straight-time hourly earnings. On April 10, 1958, having received no reply to this request, President James B. Carey of the IUE wrote Clark C. Frame, the Respondent's director of labor rela- tions, that the IUE was "forced to construe your conduct as a refusal to supply the Union any of the information requested." In reply, Frame wrote Carey on April 16, that "other problems, many of them involving your Union, [had] interfered" with his considering the IUE's request and answering Carey; that since the 1958 negotia- tions were "still many months away," Frame "did not believe there was any urgency in [the IUE's] request"; and that: Much of the information you requested is already in the hands of your local Unions and very little of it is here at Gateway [the Respondent's home office in Pittsburgh]. We are studying your request and will endeavor to communi- cate with you as soon as we can. I would not want you to consider that the absence of an answer means that we have taken any position concerning the information you 'have requested. But the IUE was unsuccessful in its attempt to secure the data it desired before the National Agreement was reopened and negotiations on employment security were begun. The IUE's formal reopening notice was mailed to the Respondent on August 1, negotiations started on August 13, and, in all, there were 23 meetings of the representatives of the parties to and including December 5, 1958. Clark Frame, appearing with four or five of his assistants at all the meetings, acted as the Respond- ent's spokesman. President Carey of the IUE appeared at the first meeting to pre- sent the IUE's bargaining proposals, with the support of Benjamin C. Sigal (the IUE's general counsel), Robert Nellis and Ellis Hockenberry (who were, respec- tively, the president and secretary of the locals' bargaining committee), and David Lasser (an economist and the IUE's director of research). At the rest of the meet- ings, Sigal was the TUE's principal spokesman and was accompanied by Nellis, Hockenberry, and a varying group of the presidents of three or four IUE locals. At the first meeting on August 13, President Carey read a summary of the IUE's bargaining objectives and its arguments supporting these objectives. At subsequent bargaining meetings between the parties from September 10 to 17, inclusive, the IUE's representatives proposed specific contractual provisions for the immediate or eventual attainment of these objectives. In brief, the IUE proposed an 8-point plan for (1) a guaranteed annual wage; (2) severance pay; (3) protection of seniority in plant movement; (4) the full use of the Respondent's available working personnel and facilities to avoid subcontracting; (5) minimizing the impact of automation upon employment; (6) the improvement of the scheduling of work; (7) abolition of area and sex wage differentials; and (8) the reduction of hours of work. Of particular importance in connection with the issues in the present case, were the TUE's proposals of a guaranteed annual wage and severance pay. With respect to the guaranteed annual wage, the IUE proposed, both in its initial general state- ment on August 13, and in the exact contractual provision requested by it on September 16, that the Respondent pay an amount equal to no more than 3 percent of employee earnings into a jointly administered trust fund from which, for a maxi- mum period of 52 weeks, every laid-off employee would receive weekly payments sufficient to increase the amounts received by him from other employment or from unemployment compensation, either to 80 percent of his take-home pay or to 65 per- cent of his gross pay plus $2 for each dependent. Under the IUE's proposal, the Respondent's contribution was not merely to be limited to 3 percent of payroll, but was to be payable only when, and to the extent, necessary to create and maintain WESTINGHOUSE ELECTRIC CORPORATION 855 the trust fund at a maximum figure thereafter to be agreed upon by the parties as being sufficient for the purposes of the plan. In its proposal for severance pay, the IUE requested the payment of 1 week's pay for each year of service over 3 years, to every employee permanently dis- charged because of the Respondent's discontinuance of the manufacture of any of its products. In addition, the IUE requested, in this proposal, that, upon the transfer of the manufacture of a product from one plant to another, the employees be given 1 week's notice or 1 week's pay, that they also be offered immediate permanent employment or, if not available, preferential hire in the future at the plant to which the transfer of work was being made; and that if an employee should refuse this offer, he should receive the severance pay of 1 week's pay for each year of service over 3 years. At the first meeting on August 13, the IUE's representatives repeated its request for the information asked for by it in its letter of February 26, 1958. Frame thereupon submitted figures setting forth "the average earned rate" for all of the Respondent's hourly employees in each quarter in 1956, 1957, and the first half of 1958. In addition, Frame gave the IUE representatives sets of figures showing (a) the average number of hours worked per week in each quarter since the begin- ning of 1956, by all hourly employees at each plant with an IUE bargaining unit; (b) the number of employees in each IUE bargaining unit in June and December of each year beginning with 1953; and (c) monthly data for 1958 concerning the number of employees, and the number of layoffs, returns from layoff, new hires, and terminations in each of the IUE bargaining units concerning which the IUE had asked for information. The IUE's representatives protested the Respondent's failure to give them the exact and full information for which the IUE had asked. At the first two bargain- ing meetings on August 13 and 28, and in a letter from President Carey on August 20, the IUE pointed out the respects in which the information given by the Respond- ent either differed from or fell short of the information requested. The principal complaint made by the IUE was that, as the basis for intelligent bargaining on the guaranteed annual wage and severance pay, it had requested and needed the monthly average straight hourly earnings in each IUE bargaining unit but had received only a quarterly companywide average. Frame replied that the exact detailed information sought by the IUE would serve no useful purpose in the bar- gaining; that it was not available in the form requested by the IUE; and that, in any event, the locals already had much of the information. Frame also objected to supplying the requested data on the grounds that it was confidential, that its disclosure would damage the Respondent competitively, and that it was sought by the IUE in connection with an attempt to abolish area and sex wage differentials-a subject which he said was outside the scope of the reopener.6 Notwithstanding the position thus taken by Respondent, the IUE persisted in its demands for the information it had requested. Its representatives stressed its point that the average straight-time hourly earnings were relevant to its guaranteed annual wage and severance pay demands and were not sought in connection with the area and sex wage differential issue. At the August 13, 28, and 29 bargaining meeting, IUE Research Director Lasser argued that it was important for the IUE to have the average straight-time hourly earnings for each IUE unit on a monthly basis from the beginning of 1956, for the purpose of negotiating both the maximum amount of the guaranteed annual wage trust fund and the number of weeks pay to be paid under the proposed severance pay provision. As to the guaranteed annual wage, Lasser said in substance that the Respondent's experience in each bargaining unit, rather than its companywide experience embracing not only all the IUE units but all other hourly employees as well, was the only basis on which an intelligent estimate of what the future drain on the trust fund was likely to be and therefore what the maximum amount of the trust fund should be. As to the severance pay issue, Lasser also emphasized the importance of the IUE unit figures rather than e The findings made in the test as to Frame's reply to the IUE's representatives, are based upon the substance of the testimony of the Respondent's witnesses, Attorney Ben Sigal , Robert Nellls, and David Lasser. Although Frame testified generally concern- ing the Respondent's reasons for not complying exactly with the TUE's request, his testi- mony as to what he told the IUE's representatives, was merely the following We discussed [the form and substance of the information submitted by the Re- spondent to the IUE]. We reviewed for the union how the figures had been com- puted, what their origin was We explained the deviations from their exact request, and our reasons for not being able to comply with the full request. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the companywide figures because, with the IUE proposal based upon individual weekly pay figures, the relevant figure in each unit was the average in the unit and not the companywide average. But in spite of the IUE's arguments and its repetition of its demands throughout the course of the rest of the bargaining sessions , the Respondent, through Frame, refused to give any such further detailed information as the IUE requested. At the meeting on August 28, the Respondent informed the IUE both orally and in a lengthy memorandum , that it could not "afford increases in employment costs beyond those to which we are already committed ." It asserted its concern with the problem of employment security but, in substance, said that it was doing all that it could to solve this problem by improving its methods of operation, by an aggressive sales program; by creating new jobs and safeguarding old jobs through its research and engineering program ; and by attempting to maintain its competitive position in the electrical industry through an avoidance of high costs including unreasonably high wages . With respect to wages, the Respondent said that in 1958 a number of its competitors (whom it named ) had given wage and benefit adjust- ments averaging 8 cents, whereas for 1958, the Respondent was already committed to an average increase of 181/2 cents per hour (excluding any possible cost-of-living increase ) of which 14 cents represented a wage increase. Generally answering the IUE's eight-point demands, the Respondent concluded , in its memorandum, that it "cannot afford increases in employment costs beyond those to which we are already committed under the 5-year agreement. This would apply to any form of increase in employment costs-whether it be in wages or salaries , so-called fringe benefits, additional pay for time not worked , or added administrative costs." At the September 9 meeting , the IUE replied to the Respondent's memorandum in a memorandum of its own, which was read by Attorney Sigal to the Respondent's representatives . In the course of this memorandum the IUE charged the Respond- ent with "a barrage of propaganda attempting to prove" to its employees that they were not faced with "a serious problem of Employment Security"; that the Re- spondent's wages and benefits were "superior" to those paid by other employers; and that adoption of the IUE's eight-point program would actually reduce jobs and lessen employment security. At one point in the IUE memorandum, it referred to a "widely publicized claim by the corporation . . . that it spends 44 cents per hour on fringe benefits." The IUE then charged that "this 44 cents an hour figure is highly inflated and . . . includes large amounts for the highly paid salary people. In the 1955 negotiations, the corporation made similar widely publicized claims but refused to back them up by presenting evidence." The evidence shows, and I find, that, although the Respondent had made no refer- ence to this 44-cent figure in the negotiations, it had referred to it in recent literature which it had distributed among its employees. There is also no dispute in the testi- mony of the witnesses, and I accordingly further find, that in connection with the IUE's challenge of the accuracy of the 44-cent figure on September 9, Attorney Sigal and IUE Representative Nellis asked Frame to give them a breakdown of the figure. There is disagreement, however, in the testimony of Sigal , Ne'llis, and Frame as to whether Frame refused to explain the 44 cents on September 9, and as to whether the question was ever raised again in the negotiations and still remained unanswered. Sigal and Nellis both testified that Frame at first said on September 9 that he did not have the explanation of the 44-cent figure with him and then, when pressed to get it, that he would not give the information to the IUE. Sigal further testified that he did not recall any discussion of the 44-cent figure in the negotiations after September 9 although, in a meeting as late as the end of October, he did repeat his request for "wage information" and Frame refused to supply it. But Nellis testified that Sigal did ask specifically for a breakdown of the 44-cent figure at the bargaining meeting of October 29 and possibly also at a meeting on the following day when, according to Nellis, "at that set of meetings, . there was a large amount of time spent on the forty-four cents because we had again requested a breakdown of the forty- four cents." On these several points, Frame's testimony squarely contradicted that of Sigal and Nellis. Frame testified that Nellis asked him at the morning bargaining session on September 9 for a breakdown of the 44 -cent figure that afternoon; that in the after- noon session Sigal repeated the request; that Frame said he did not have the infor- mation with him; that Frame nevertheless attempted to explain the 44-cent figure upon the basis of other general figures which he had already supplied to the IUE in another connection; and that this "was the last reference that was made to the forty-four cents in any of the discussions during the entire negotiations which cul- minated [on] December 5th." WESTINGHOUSE ELECTRIC CORPORATION 857 Upon this state of the evidence, I credit Frame' s testimony and specifically find that, when asked for a breakdown of the 44 cents per hour figure on September 9, 1958, Frame gave the rough explanation described by him in his testimony, and that the matter was never again raised in the negotiations. Following the submission and discussion of the Respondent's memorandum at the bargaining meeting of August 28 and of the IUE's critical reply memorandum at the meeting of September 9, the IUE proceeded to submit its proposals of specific contract provisions to put into effect its eight-point program. The next eight meetings between the parties (that is, on September 10, 16, and 17, and October 1, 2, 7, 8, and 9) were apparently devoted to a discussion of the IUE's proposals, with the Respondent maintaining its general position that it was already committed to pay an additional 181/2 cents an hour in 1958 and could not afford to incur any additional labor costs without serious injury to its competitive position. At the next meeting on October 10, however, the Respondent made its first suggestion of what it was willing to do to improve or strengthen employment security. On October 10, the Respondent submitted to the IUE negotiators a memorandum in which it outlined a proposal of what, for convenience, it called "the Westing- house Employe Security Program." This proposal included a graduated provision for separation pay ranging from 1 week's pay for employees with a minimum of 3 years' service, to 10 weeks' pay for employees with more than 35 years' service. It also included a provision for an employee security account (a disability payment fund created by Respondent's contributions); an employee savings program (a voluntary plan for the purchase of Government bonds or Respondent's stock, with incentive contributions by the Respondent for undisturbed savings under the plan); increased noncontributory pension benefits; and a temporary loan plan. In this same memorandum, however, the Respondent asserted that, in order to provide the benefits of its proposed program, it would be "necessary to rearrange the commitments under our present agreements," and asked for reductions in the cost-of-living wage adjustment "adders," a revision of the brackets upon which the 1958 salary and wage increases were to be made, and elimination of changes in the Westinghouse insurance plan for employees which were scheduled for November 1, 1958. After the Respondent's submission of this proposal on October 10, the parties met four more times that month, the last of these meetings taking place on October 31. In submitting its proposal, the Respondent had admitted to the IUE that it realized that "some of [its] proposals . [went] beyond the limited scope of the employment security reopener." 'In the October meetings, the IUE's representatives attacked the Respondent's proposal on this very ground and, as Sigal testified, they "insisted that [the Respondent] had no right to discuss these matters." Neverthe- less, it appears from Sigal's as well as Frame's testimony, that during the October meetings, the parties discussed not only the Respondent's severance pay plan (which the IUE conceded to be within the reopener) but also the other elements of the Respondent's proposal. Although details of these meetings are lacking, it appears clear from the testimony of Sigal and Frame, that each of the parties persisted in its rejection of the other's proposals, although the IUE showed some interest in the Respondent's severance pay proposal. There were no further meetings between the parties until the day after the IUE filed its original charges in this case on November 12, 1958. In these charges, the IUE accused the Respondent of refusing to bargain in violation of the provisions of the Act, by (1) refusing to give information reasonably required for intelligent col- lective bargaining; (2) refusing to negotiate as to matters appropriate for compulsory collective bargaining; (3) refusing to reduce to writing for possible incorporation in the collective bargaining agreement various practices on sub- jects about which collective bargaining is compulsory; (4) insisting on bar- gaining on matters not appropriate for collective bargaining under existing collective bargaining agreement and thereby obstructing negotiations on items subject to compulsory collective bargaining. On November 13, the day after the filing of these charges, negotiations were continued and, at a meeting on November 14, the Respondent submitted revised proposals for severance pay on permanent plant closedowns and for a reduction of the cost-of-living "adder," both of which were offered to the IUE for acceptance or rejection as a "package." In addition, the Respondent submitted a proposed form of letter from Frame to the IUE reciting an "understanding that in the interest of promoting harmonious relations during the period ahead, and in consideration of our recent agreement terminating the negotiations held pursuant to Section XVIII 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6, B, of our National Agreement ," the IUE would withdraw its charge in the present case, and on that basis, asking the IUE to sign its confirmation or "acceptance" on the letter and return it to the Respondent. Sigal testified, but Frame denied, that upon presenting this proposed form of letter and acceptance, Frame told the IUE's representatives that the Respondent would not sign any agreement unless the IUE withdrew its charges. According to Sigal, Frame persisted in this position in an hour-long argument at the November 14 meeting but then, after leaving the room for about half an hour for a "caucus" with the Respondent's other representatives, returned "to discuss something else entirely." Sigal further testified that, "Not a word was [then] mentioned by [Frame] about what had been said earlier and we said nothing. . . . At no time thereafter did Mr. Frame withdraw [his] statement . . . that an agreement would not be signed unless the charges were withdrawn." Frame, on the other hand, testified that, in the November 14 meeting, Sigal said it was "highly improper" for the Respondent to request the IUE to withdraw its charges ; that Sigal repeatedly asked whether the Respondent was conditioning further bargaining upon the IUE's agreeing to withdraw its charges; that Frame repeatedly assured Sigal that "we are willing to continue bargaining"; that Frame and his assistants left the bargaining room for 15 minutes to caucus and consult counsel; and that, upon their return, they continued their discussions with the IUE men concerning the Respondent's proposals for severance pay on permanent plant shutdowns and a reduction of the cost-of-living "adder." In explanation of his submission of the letter proposal to the IUE on November 14, Frame testified that on the preceding day, the parties had discussed the substance of the Respondent's proposals as to severance pay and the "adder," and that, upon Frame's question as to whether these proposals would "provide an area of settlement ," Sigal agreed that they might. According to Frame, the form of letter submitted by him to then IUE's representative on November 14 "was drafted on the assumption that there would be agreement" and was presented by Frame to the IUE people not only on that assumption but also to make it clear that, upon agreement being reached, the charges were to be dropped. Upon consideration of this evidence, I credit Frame's testimony and find spe- cifically that the Respondent did not condition further bargaining, nor the reaching or execution of any agreement with the IUE, upon the IUE's withdrawal of, or its agreeing to withdraw, its charges in the present case. Following the November 14 meeting , the parties met on November 18 and 19 and again discussed the Respondent's proposals as to severance pay and the cost-of- living "adders." At these meetings , the Respondent submitted several further re- visions of these proposals. No agreement was reached. The last two meetings between the parties were held on December 4 and 5. During these meetings, Frame insisted upon reviewing the negotiations from their beginning on August 13 and stressed the fact that each side had consistently rejected the other's proposals . Then , in spite of Sigal's and Nellis' insistence that negotiations continue, Frame said on December 5 that he saw no use in holding any more meetings and that the Respondent had "fully and completely satisfied" its obligations under the 1958 reopener. At the same time, Frame gave the IUE representatives a letter setting forth the Respondent's summary of the reasons why it believed further negotiations were futile, and concluding that: It seems to us that if an agreement cannot be reached now, there is no sound reason to continue further negotiations under the 1958 reopener. . [We] are convinced our obligations under the 1958 reopener have been fully and com- pletely satisfied during the bargaining which began last August 13 Nellis testified that, in announcing this decision by the Respondent to terminate negotiations on December 5, Frame referred to the provision of the National Agree- ment permitting the IUE to strike if agreement were not reached by October 15, and then said that "beyond that time he felt that he did not need to continue negotia- tions." But I believe this to be an inaccurate and unfair oversimplification of what Frame actually said, since I credit Frame's testimony and find that , in substance, be told the IUE representatives merely that "we should have reached an agreement in our mind by the middle of October," that the Respondent had still hoped for an, agreement, but that the positions taken by the TUE representatives in the last meetings had convinced him that "any further efforts to reach agreement" were "impractical." 't '+Frame's credited testimony to this effect is consistent with the statements made by him in the letter he gave to the IUE representatives the same day. It is true that at one- WESTINGHOUSE ELECTRIC CORPORATION 859 Since the termination of negotiations on this note on December 5, 1958, the IUE has made two attempts to persuade the Respondent to resume their meetings but in each case the Respondent has refused. The first attempt was made by President Carey of the IUE in a letter to President Mark Cresap of the Respondent under date of December 10, 1958. In this letter, Carey, among other things, charged the Respond- ent with misconstruing the reopener provision by treating October 15, 1958, as "the terminal date for negotiations" and demanded that negotiations be resumed. In reply, Cresap rejected the demand and informed Carey in a letter dated December 17, 1958: I can see very little purpose to be served in now entering into a debate through correspondence as to whether the National Agreement contemplated October 15, 1958, as being the terminal point for this year's negotiations-the fact is that negotiations actually continued for almost two months after that date, and negotiating meetings were held both before and after such date as often as the IUE Committee wanted to meet... . The IUE's second demand for a resumption of bargaining was made in a telegram sent by Robert Nellis and Ellis Hockenbury of the IUE's bargaining committee to Frame on March 16, 1959, and brought the following telegraphed reply: YOUR RECENT TELEGRAM ASKED THAT WE REOPEN NEGOTIA- TIONS ON EMPLOYMENT SECURITY WHICH ENDED IN DECEMBER, WHEN WE WERE UNABLE TO PROGRESS TO AN AGREEMENT. THE COMPANY'S POSITION CONCERNING FURTHER NEGOTIATIONS WAS FULLY EXPLAINED IN OUR LETTER OF DECEMBER 5, 1958, TO THE IUE NEGOTJATING COMMITTEE. WE STILL FEEL THAT THE POSITION SET FORTH IN THAT LETTER IS SOUND AND THERE- FORE, WE ARE NOT WILLING TO START ALL OVER AGAIN. B The "average straight-time hourly earnings" figures requested by the 1UE As I have already noted, the Respondent defends its failure and refusal to comply with the IUE's requests for the monthly average straight-time hourly earnings of the employees in each of the IUE bargaining units, on two grounds: (1) these figures were not relevant to the bargaining issues; and (2) not only had these requested figures never been computed by the Respondent in the course of its usual bookkeeping and accounting processes, but their preparation by the Respondent from its basic records for submission to the IUE would have been unduly burdensome. With respect to the issues raised by these defenses, the parties submitted evidence as to the substance and nature of the figures requested by the IUE, the Respondent's perti- nent bookkeeping operations, and the opposing opinions of two witnesses experienced in the developments of guaranteed annual wage plans as to the relevance of the figures. Approximately 35,000 of the Respondent's employees, divided among 40 bargain- ing units at 22 plants, are represented by the IUE. The Respondent asked for wage information concerning the employees in only 27 of these units, thereby omitting 13 IUE units totaling 1,400 employees. About half of all the employees represented by the IUE are hourly incentive workers, with guaranteed minimum hourly rates. Of the other half, most are straight hourly dayworkers with fixed hourly rates, and the remainder are salaried employees paid on a weekly or monthly basis. Although the IUE requested the Respondent to supply "average straight-time hourly earnings," it appears clear from the testimony of the witnesses that both parties understood that the IUE actually thereby sought, for each IUE unit, the monthly "average earned rate," a familiar term which the National Agreement defines and makes the basis for the computation of the overtime, holiday, and vacation pay for point in the letter, Frame referred to October 15 as the "date intended as the terminal point for negotiations under the reopener." But the rest of the letter made it clear that the Respondent was not relying upon any argument that its obligation to bargain termi- nated on that date, but was asserting simply that even after a period of negotiations longer than that which 'had been believed to be sufficient, agreement still seemed to be impossible This appears both from the excerpt from the letter which has already been quoted in the text and from the following additional passage taken from the letter Our efforts since mid-November to work out a 2-part settlement certainly have been entirely fruitless, and after reviewing the total of all four months of bargaining, we have reluctantly concluded that we can see no possibility of any mutually accept- able agreement The Company is not willing to continue futile meetings, which already have extended for almost twice the length of time contemplated by the National Agreement reopening provision. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hourly workers in the IUE bargaining units. The evidence thus shows, and I accord- ingly find, that what the IUE asked the Respondent to supply was, in substance, the monthly average earned rate for each IUE bargaining unit, consisting in each case of the average hourly earnings, including incentive pay, but excluding overtime premium.8 The Respondent's payroll records, from which it would have to derive the informa- tion thus requested by the IUE, are kept at, and for, each plant. Those of the sal- aried employees are kept on a weekly or monthly basis; those of the hourly employees, only on a weekly basis. The records for the salaried employees are kept separately from those of the hourly employees, but otherwise there is no sepa- ration or breakdown of the Respondent's payroll records. Thus, as the Respondent's witnesses specifically testified, all wage and time records for hourly employees are kept alphabetically or by the employees' serial numbers at the plant at which they work, with no separation of the records of employees in an IUE unit from those of other hourly employees in the same plant who, in some instances, are in bargaining units represented by other unions. In this connection, the evidence indicates that, limiting consideration to the 27 bargaining units for which the IUE asked for wage information, there has been such a commingling of the payroll records of employees in 15 units with those of other hourly employees in the same plants, although it appears that in only a few cases has the commingling included the records of any substantial number of hourly employees not in the IUE unit.9 A similar commin- gling of the pertinent records of salaried employees in and outside nine of the IUE bargaining units is also apparent from the evidence.lo Although the Respondent's accounting operations are not conducted on a bargain- ing unit basis and therefore have not provided the Respondent with an average earned rate or other general wage or salary statistic for a particular bargaining unit, the Respondent has computed the individual average earned rates of hourly em- ployees as the basis for further computing their overtime premiums and their holiday and vacation pay. In addition, the Respondent has computed the combined average earned rate of all the hourly employees in each plant for the third week of every month by taking the gross earnings of these employees for that week, subtracting their total overtime premium, and dividing the remainder by the total number of hours worked by them. These plantwide "third week" averages and the summary figures upon which they are thus based, are the only figures relating to average earned rates which have been transmitted by the plants to the Respondent's home office at Pitts- burgh. Being readily available, the "third week" figures at the end of each quarter were therefore used as the basis of the average earned rates given by the Respondent to the IUE on August 13, 1958, as quarterly, companywide figures. The Respondent's computation of individual average earned rates for overtime and holiday pay purposes, like its computations of the "third week" plant averages, are made on a weekly basis from the current weekly timecards of the employees. The in- dividual average earned rates for vacation pay purposes, though nominally for each quarter year, are actually computed for exactly 13 full workweeks. The basic data for this so-called quarterly average earned rate is taken from the employee' s earning record card on which the summary figures from the weekly timecards have already been posted. As in the cases of the Respondent's other pay records, neither the BThe basic definition supplied by section X of the National Agreement is that, "For overtime purposes, the average earned rate will consist of straight-time earnings , includ- ing guaranteed rate, night turn bonus, group leader remuneration, and incentive pay- ments." Consistent with this definition, it appeals from the testimony of Attorney Sigal of the IUE and Plant Payroll Accountants Maurice Nelson and Richard Nelson for the Cleveland and Sharon plants, respectively, that the average earned Tate is computed by subtracting overtime premium and such "extraneous payments" as suggestion and patent awards, from the gross earnings and then dividing the remainder by the number of hours worked. 9 The following list, prepared from one of the Respondent's exhibits, sets forth the names of the Respondent's plants at which there are hourly employees both in, and out of, an IUE bargaining unit, with the respective numbers of each shown in parentheses • East Springfield (1,834-15), Metuchen (910-12), Belleville (274-8), Bloomfield (2,166-10), Newark ( 921-9 ), Trenton (586-4), Jersey City (711-10), East Pittsburgh (7,710-165), Sharon (3,744-45), Fairmount (1,468-5), Mansfield (3,423-38), Lima (1,281-88), Colum- bus (3,198-14), Cleveland (249-31), and Buffalo (2,595-47). 10 The evidence shows the following proportions of employees within and outside IUE units at the following plants: Sharon (417-1,351), Mansfield (21-414), Lima (40-728), Baltimore (56-1,472), East Springfield (81-292 ), Metuchen (223-155), Bloomfield (332-341), Newark (237-132), and Jersey City (334-44). WESTINGHOUSE ELECTRIC CORPORATION 861 earning record cards nor the "quarterly average earned rates" are segregated by bar- gaining units. From all of this, it is apparent that the Respondent has not set up its bookkeeping and accounting procedures in such a way as to yield , and therefore to have available for submission to the IUE, the average earned rates or average straight-time hourly earnings of employees either on an IUE unit -by-unit basis or on a monthly basis. While the Respondent does not contend that it would have been impossible to delve back into the basic bookkeeping records and to have computed the figures, it does assert that to do so would have been extremely burdensome , time-consuming, and expensive, and, therefore that its failure to comply exactly with the IUE's request was no indication of any bad faith on its part in bargaining with the IUE nor a refusal to bargain within the meaning of the Act. As we have seen, the computation of a monthly average earned rate for the em- ployees in any given IUE bargaining unit would have involved the deduction of premium overtime from the gross earnings of all the employees in the unit for the particular month, and the division of the remainder by the total number of hours worked by these employees. The difficulties in making such a computation for each of the 27 bargaining units for each month beginning with 1956, as the IUE requested, lay not only in making the numerous preliminary and ultimate computations involved but also in finding the necessary basic figures through an examination of an extremely large number of records and entries . Some of these records for the early portion of the period requested by the IUE were unavailable to the plant accounting staffs who would necessarily have been required to assemble and compute the material. Thus, the timecards of hourly employees for the beginning of 1956 had already been de- posited in the Respondent 's central records retention bureau or morgue at Butler, Pennsylvania , and salary gross pay registers which were more than a year old were no longer retained, making it necessary in the case of salaried employees, to go back to the original time slips to reconstruct the payrolls for each of the months involved by the IUE's request . Even for the more recent and the current periods for which the basic pay records were still available, the Respondent's task in complying with the IUE's request posed a formidable problem. In brief, the steps which the Respondent would have had to take for the period of more than 21/2 years up to August 13, 1958, were: ( 1) The segregation of the weekly timecards of the employees in each of the 27 IUE units from the timecards of the employees at the same plant but not in the unit; (2) the abstraction from these timecards of the gross weekly earnings , the over- time, and the hours worked for each of the employees in the IUE units , for every one of the 130 or more weeks in the 21/2 -year period; (3) the splitting of these figures between successive months in the cases of those weeks which happened to extend from one month into the next; and (4) the final computation of the unit average earned rate for each month on the basis of these figures. To give some idea of the size of the task presented by the IUE's request , the Re- spondent submitted the testimony of Richard Nelson, its plant accountant for the Cleveland plant, as to a sample computation of the average earned rate of the hourly employees in the IUE unit at that plant for the week ending May 24, 1959, just before the hearing in this case began. The IUE unit in question is, and has been , a small unit of hourly employees which had decreased from about 500 in 1956 to 249 in 1958. According to Nelson, it took one of his clerks 45 minutes to make the trial computation of the current average earned rate in this unit for 1 week , but would have taken from 190 hours to 210 hours to compute all the monthly average earned rates in the unit back to the beginning of 1956 in the necessary manner already described in this report.ii In his brief, the General Counsel is critical of Nelson's estimate of the time which would have been required to make the full monthly computation for the unit back to 1956 He argues that , on the basis of Nelson 's testimony of a 45-minute requirement for a computation of each weekly average earned rate, the total time for computing the average earned rates for the 135 weeks from the beginning of 1956 until August 13, 1958, would only be slightly more than 101 hours . According to the General Counsel, "No explanation for this discrepancy [ i e., between 101 hours and from 190 to 210 hours] was offered." But the General Counsel is in error in his assumption that, upon Nelson's testimony , the time necessary to make monthly computations of the bargaining unit's average earned rate back to the beginning of 1956, would be equal to the product of the number of weeks in the overall period and the 45 minutes necessary to make the computa- tion of the current weekly average earned rate for the unit For Nelson testified as to the additional difficulties entailed in making monthly rather than weekly computations, and in making computations for earlier months rather than the current period , because of the unavailability of certain records, the larger size of the bargaining unit in the past, 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the relevance to the bargaining issues of the monthly average earned rates in each IUE bargaining unit, the record presents the opposing opinions of David Lasser, who is the IUE's research director, and Preston C. Bassett, an adviser and consultant on employee-benefit programs, whom the Respondent called as a witness. Both Lasser and Bassett have had substantial experience in the development and negotia- tion of supplementary unemployment benefit or guaranteed annual wage programs and severance pay plans. Lasser, as we have noted, was one of the IUE's negotiators in the early bargaining meetings with the Respondent in August 1958. Bassett, an actuary with 10 years' experience in working on employment-benefit plans, had no connection with the Respondent or the events in the present case until called by the Respondent as a witness. According to Lasser, for the purposes of intelligent bargaining on both its guaran- teed annual wage and severance pay proposals, the IUE needed the average earned rates or average straight hourly earnings for each IUE unit on a monthly basis rather than the quarterly, companywide figures submitted by the Respondent. With respect to the guaranteed annual wage (Lasser testified), the monthly figures for each unit were necessary in order to estimate what demands might possibly be made on the trust fund and, therefore, how large the trust fund should be. With respect to sever- ance pay, Lasser asserted that the IUE unit figures were needed in order to fix a reasonable table of severance payments in these IUE units. Lasser's reasoning in support of these positions is set forth in the following passages from his testimony: The SUB program, as we conceive it, or guaranteed annual wage, would be a program in which the company would put into a trust fund an amount of money which would be its sole liability.... From this trust fund it would pay benefits to laid-off workers to amount to a given percentage of their take-home pay.... Now, inasmuch as this is a limited liability fund, unlike other benefits where the company is committed to pay the total benefits, we had to make sure that what we were asking for in contributions would be sufficient to match the [required] fund. Otherwise the fund would go bankrupt. . Or, on the other hand we might be asking for more money than it required to finance it. Now, in order to determine the amount of money necessary at the very start of the thing we asked the company for unit average straight-time hourly earn- ings, and at the same time we asked them for information on the number em- ployed and the number laid off, so we could-using the past as pan example- we could figure on various assumptions how much money would have to be paid from the fund in order to meet the liabilities and how much money would be needed.... Now, it would not be possible to use the overall Westinghouse average hourly earnings because the wage rates in the different plants of the area vary and the incidents of layoff varies. Some might lay off twenty percent or thirty percent, and some may have increased their employment, and the only way to calculate this would be to take the record of each of the plants with regard to the layoffs and the wages and figure what might be the presumed outgo, and then adding the total outgoes together you could calculate what should be the income in order to have the self-supporting fund... . Another reason why the overall company figures were of no use, these overall company figures included non-IUE units. For example, there were a substan- tial number of IBEW units and there are unorganized units and there are units of the IAM and units of the UE. We were asking this for our units. These other units . . . may have led us entirely astray because their wage rates differ from ours. * * * * * * * Now, in regard to the severance pay, in a sense the same [considerations] operated. We proposed the severance pay be on the basis of so many weeks' pay for each year of service when a person was severed In order to calculate what might be the incidents of the program we would have to know the various units, what their wages were, in order to arrange a calculation as to what might be the probable outgo. If we found our program as astronomical in sum we might have of reduce what we requested. and the difficulty of reconstructing the unit for any given period in the past. In view of these factors , all of which were dwelt upon by -Nelson ri his testimony , I find nothing unreasonable in Nelson's estimate of the time which would hive been required in order to compute the monthly aveage earned rates of the Cleveland plant's IUE bargaining unit back to the beginning of 1956. WESTINGHOUSE ELECTRIC CORPORATION 863 The substance of Bassett's testimony, on the other hand, was that, to the extent that any average pay rate might be helpful, the companywide average earned rates submitted by the Respondent to the IUE on August 13, 1958, supplied an adequate basis for intelligent bargaining on the IUE's guaranteed annual wage and severance pay proposals. Bassett further stated that he did not believe that "there is any value whatsoever of having the hourly rate by [separate IUE] bargaining unit[s]," although there might be some value in having an average earned rate for all the IUE bargaining units which were to be covered by the guaranteed annual wage plan. Bassett supported these conclusions with the general argument that the problem is what will happen in the future with respect to layoffs and terminations, under wage rates, and other relevant conditions existing at such future times, and that so far as any attempted forecast of these factors is concerned, the experience of the past is of no value. To Bassett, the proper procedure requires "guesses" as to the future, in the form of various sets of "assumptions" of possibilities without any actuarial base. The following passage from his testimony indicates his reasoning: The contributions that are going into the [guaranteed annual wage trust] fund are an accumulation of moneys over quite a few years. Wether or not an adequate amount is being put in is going to be dependent on the earnings of the employees, how many employees they have. It is going to depend upon the earnings of the trust fund. It is going to depend upon how fast money is withdrawn from the fund. That, in itself-one figure-of course is not adequate. You need many, many figures. Hundreds, and hundreds of figures, in order to make an adequate estimate of whether the rate of contribution is sufficient. We are looking at something that is going on for many years. This may be bargained for three or five years, or whatever it is, but at the end of that time it is reasonable to assume it is going to be continued. This fund will be in existence ten or maybe twenty years from now, the way we look at it. So in determining the adequacy of a fund it is necessary to make many assumptions about many things. We have to assume what the rate of interest is going to be to the fund. Even two years ago nobody would have guessed the govern- ment bonds would be earning four and a quarter percent interest as they are today, but we have to make an assumption on what the interest is going to be. We have to make assumptions as to how many people are going to quit and withdraw,,and how much benefits they are going to get, and how long they are going to be on layoff. We are interested in what happens to this fund five, ten or fifteen years from now.... [W]e are not interested in what an employee would get if he terminates today, because ... that isn't the way it is going to be five years from now, if there is a substantial layoff; what's going to happen if there is a gradual layoff;,and if we are in bargaining worrying about an SUB plan we would make many studies. We might make one study where we assume prosperity as it is today would continue for five years, and then they would have a gradual layoff for maybe five years, and then they would have a drastic cutback, fifty per cent of their employees, three years from now. We would test it on many different bases. We might make ten, fifteen or twenty different tests under different and varied conditions. So then it comes back do you ask me if this one figure adequately-the one one figure is a part of the over- all picture. It is certainly as good as many and better than many of the other estimates you have to make in regard to rates of turnover, duration of layoff, earnings of the employees, when they are laid off. The point is that a starting point of a rate is of no vital importance in the final result on whether enough money is going into the fund to maintain an SUB plan. It is necessary to estimate what the rate will be, particularly at the time the funds are being disbursed, which will be at a minimum a year from now maybe two, three, four, five, and those figures you are going to have to estimate. C. Conclusions The theory upon which the General Counsel issued, and has been prosecuting, his complaint in the present case, is that the Respondent failed and refused to bargain with the IUE in the good faith required by the Act, by refusing to supply the IUE with essential bargaining information, with the result that negotiations broke down on December 5, 1958, and the Respondent has since refused to meet with the IUE. According to my understanding of the General Counsel's position as stated by him during the hearing and in his brief, his contention that the Respondent's refusals to meet with the IUE after December 5, 1958, constituted a violation of Section 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a) (5) of the Act is based solely upon his argument that "it cannot reasonably be concluded that a bona fide impasse was reached" by the parties by December 5, because the Respondent had consistently refused to supply the IUE with essential bargaining information and had thereby pursued a "course of action [which] frustrates bargaining and is calculated to make negotiating sessions fruitless" (Gen- eral Counsel's brief, pp. 19-20). Thus the General Counsel in substance asserts that the Respondent's termination of negotiations on December 5, 1958, was a refusal to bargain in violation of the Act because the Respondent had caused a breakdown of the negotiations by its refusals to furnish essential bargaining informa- tion as to average straight hourly earnings and the 44 cents per hour cost of fringe benefits which is said it was then paying for its employees. I further understand from the General Counsel's statements that this limited theory was decided upon by the General Counsel as the basis of the complaint following his investigation of the considerably broader charges filed by the IUE on November 13, 1958. The General Counsel not only consistently made various statements adhering to his limited theory for the complaint throughout the hearing, but opposed a broadening amendment which was urged by the IUE and would have incorporated in the complaint some of the omitted allegations of the charge. Upon the General Counsel's opposition, and in recognition of his right to determine the allegations and trial theory of the complaint, I denied the IUE's motion to amend. In the course of my discussion of the evidence, I have found that on September 9, 1958, the IUE's negotiators asked Frame, the Respondent's director of labor rela- tions, for an explanation of the average figure of 44 cents per hour the Respondent said it was paying for its employees' fringe benefits; that, although Frame said he did not have the information with him, he gave the IUE's representatives a rough explanation upon the basis of some general figures which he had already given them in another connection; and that the matter of the 44 cents per hour was never again raised during the negotiations. It thus appears to me from the evidence that the Respondent, through Frame, did give the IUE negotiators an explanation of the 44 cents per hour figure which, though rough in its basis, apparently satisfied them since they made no request for any further explanation. I have therefore concluded that the evidence does not support the allegations of the complaint that the Respondent failed and refused to provide the IUE with "information and data which would clarify, explain and substantiate Respondent's position, allegation and claim that fringe benefits to employees within the bargaining units involve a cost or benefit averaged at 440 per hour per employee." Accordingly, I dismiss the related allega- tions of the complaint that the Respondent, by refusing to supply this information, violated Section 8 (a) (5) and (I) of the Act. There remains the general question of whether the Respondent failed and refused to bargain in good faith as required by the Act, by its admitted refusal to furnish the IUE with monthly average straight-time hourly earnings for each of the IUE bar- gaining units back to the beginning of 1956 and then, having thus caused a break- down in the negotiations, by refusing to meet further with the IUE's negotiators after December 5, 1958. The answer to this question depends not only upon the relevance to the bargaining issues of the information sought by the IUE. but also upon a determination of whether, in view of the apparent magnitude and difficulties of the task, the Respondent's refusal to assemble the basis and compute the figures requested, can fairly be said to indicate such a lack of good faith in bargaining as to amount to a refusal to bargain within the meaning of Section 8(a) (5) of the Act. For, as the Board has recognized and the General Counsel concedes the obligation of an employer to bargain in good faith does not require him to comply with a Union's request for information if compliance is "unduly burdensome." 12 On the question of relevance, the General Counsel asserts that the information requested by the IUE was wage data, to which an employee's bargaining representa- tive is entitled under Board decisions, upon a showing of its general relevance, and not necessarily its precise relevance, to the bargaining issues.13 The Respondent, on the other hand, argues that this doctrine of the "presumptive relevance" of wage data has been limited, and should be limited, by the Board to such matters as wage rates and job classifications which are either existing facts, terms or figures already in use by the employer, e.g, either "recorded facts" or "statistics used in computing pay of any sort." (Respondent's brief, p. 22.) According to the Respondent, when (as in the present situation) the information sought by a bargaining union is not of this type but a completely new statistic, then, "before an employer is required 12 Tree Fruits Labor Relations Committee, Inc, 121 NLRB 516 13 See Whitin Machine Works, 108 NLRB 1537; Glen Raven Knitting Mills, Inc, 115 NLRB, 422 WESTINGHOUSE ELECTRIC CORPORATION 865 to construct statistics on request of a union, the union should be required to demon- strate not only relevance but virtual indispensability." (Ibid., pp. 23-24.) Upon consideration of these opposing positions of the General Counsel and the Respondent, I agree with the General Counsel. A union bargaining -agent is neces- sarily and properly concerned with all salary and wage data affecting the bargaining unit or units it represents, and also with all summaries and conclusions which can be drawn therefrom. Moreover, assuming no undue burden is cast upon the em- ployer, the union is entitled as a matter of fairness to have such data available, upon its request, for its use during the course of its bargaining with the employer. These, as I understand them, are the reasons for the Board's doctrine that salary and wage data are presumptively relevant to the bargaining issues and therefore should ordinarily be made available to the union upon request. That such information in certain forms, summaries or averages (like the monthly average straight hourly earnings on a bargaining unit basis in the present case) may not be readily available and may require computations which the employer ordinarily does not make, cer- tainly does not make the information irrelevant nor (contrary to the Respondent's argument) rule out the normal, logical presumption of its relevancy. For these reasons, I agree with the General Counsel's contention, and hold that the monthly average straight-time hourly earnings figures requested by the IUE for each of its bargaining units were "wage data" presumably relevant to the bargaining issues, and that-assuming for the moment no undue burden were involved-the Re- spondent's statutory obligation to bargain in good faith required it to produce this information on a showing of its general relevance, and not necessarily its precise relevance, to the bargaining issues. As the Courts of Appeals for the Second and First Circuits held in the Yawman & Erbe and the Boston Herald-Traveler cases, respectively, it is enough if it appear that the 'information sought by the bargaining union is not "patently outside the bargaining issue." 14 In order to determine whether the evidence in the present case is consistent with, or rebuts, this presumption that the "wage data" sought by the IUE was relevant to the bargaining issues, we must, of course, consider the opposing opinions given by the witnesses, Lasser and Bassett. David Lasser, the IUE's research director, would have it appear that the monthly average straight-time hourly earnings in each of the bargaining units over a considerable period of time was absolutely essential to the IUE's effective presentation of, and bargaining upon, its guaranteed annual wage and severance pay plans. As I have noted, his arguments are that these figures were necessary for intelligent bargaining upon the required size of the guaranteed annual wage trust fund and a reasonable table of severance payments, and that lack of these figures deprived the IUE of the possibility of modifying its proposals, securing their acceptance by the Respondent, and thus avoiding the apparent impasse relied upon by the Respondent as the reason for terminating negotiations on December 5, 1958. On the other hand, Preston Bassett, the Respondent's witness, although conceding some value in the bargaining to the overall hourly wage and salary averages of the past few years, has stated bluntly that the monthly averages on an TUE unit-by-unit basis would have been of absolutely no value. Upon con- sideration of these divergent opinions, it seems to me that a more accurate judgment as to the value of the information sought by the IUE lies somewhere between them. In agreement with Bassett, I believe that the Respondent's experience with respect to layoffs and the variations of the average hourly earnings in each IUE bargaining unit for the past several years, furnishes no "actuarial" basis for a forecast as to the amount of withdrawals which might be expected in the future from -a guaranteed annual wage fund. Nor, therefore, does it in itself provide any reliable gauge of the maximum amount which should be set for such a fund. It also appears to me, as Bassett stated, that the elements of a guaranteed annual wage plan may not reasonably be determined upon the basis of any one set of figures from the past, but must necessarily be settled by intelligent "guesses" as to the future, based upon assumptions of a great many different sets of possibilities, such as the incidence of future layoffs, their frequency and duration, and the wage and salary rates of the em- ployees at the times of their layoffs. But even so, Bassett conceded that, in making these various assumptions, there is some value in considering what the average wage and salary rates have been for the past few years. And, at this point, although he asserted that the companywide averages submitted by the Respondent to the IUE seemed adequate to him for this purpose, he admitted that "as a starting point," the averages for all the IUE units might be said to be "more accurate." He added, 14 N L R B. v. Yawman A Erbe Manufacturing Co., 187 F. 2d 947, 949 (C.A. 2) ; Boston Herald-Traveler Corporation v. N L.R.B., 223 F. 2d 58, 60 (C.A. 1). 586439-61-vol. 12 9-5 6 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, that it was "questionable" in his mind as to whether this would be "of any value in bargaining," and that, at any rate, he did not believe there was "any value of having the rate by [each separate IUE] bargaining unit." Only these last two conclusions of Bassett seem to me to be unreasonable and at variance with the rest of his testimony. If (as ,Bassett says) the companywide wage averages actually submitted by the Respondent to the IUE were a sufficient basis for intelligent bargaining although they afforded a less accurate "starting point" than similar averages for all the IUE units, then (contrary to Bassett's ultimate conclu- sions) it would seem, and I accordingly find, not only that the overall averages of the IUE units were more valuable and desirable bargaining bases, but that the averages for each IUE unit would have been even more valuable and important since they would have permitted the test of any projected set of figures for a guaranteed annual wage program and a severance pay plan on a unit-by-unit basis as well as upon an overall basis. Upon my foregoing consideration of the evidence generally, the opinions of Lasser and Bassett, and the normal presumption of the relevance of the type of informa- tion requested by the IUE, I am satisfied that the monthly average straight-time hourly earnings in each of the IUE bargaining units back to the beginning of 1956 were relevant and of sufficient importance to the bargaining of the parties on the guaranteed annual wage and severance pay issues so that, had the informations been readily available, the Respondent's refusal to produce it would have amounted to a refusal to bargain in good faith and a violation of Section 8(a)(5) of the Act. There still remains for consideration, however, the question of whether, in view of the apparent difficulties in assembling the data requested by the IUE, the Respond- ent's refusal to comply with the IUE's request can fairly be regarded as indicating a lack of the good faith in bargaining on the Respondent's part, which is required by the Act. Upon their view of the evidence, the General Counsel and the IUE contend, not only that the Respondent could have ascertained and produced the figures requested by the IUE without any great difficulty, but that, in dealing with the IUE, the Re- spondent never did base its refusal to produce the requested information on the ground that production would have been unduly burdensome. But this suggestion by the General Counsel and the IUE that the Respondent's present reliance upon the difficulties of computing and producing the information sought by the IUE was an afterthought and not one of the actual reasons for the Respondent's failure to com- ply with the IUE's request, is not supported by the evidence. As I have already found, Frame, the Respondent's representative, did inform the IUE's representatives that the exact figures requested by them were not available and that he was therefore submitting the closest, available figures which happened to be quarterly company- wide averages rather than monthly, bargaining unit averages. In my opinion, the position thus taken by Frame in answering the IUE's request for information is con- sistent with the position taken by the Respondent in this proceeding. The fact that its basis may not have been as clearly or as completely spelled out to the IUE representatives as it has been in the evidence at the hearing, seems to me to be insignificant. Coming, now, to the substance of the Respondent's defense that the production of the average earnings data demanded by the IUE was unduly burdensome, I am convinced that this defense has merit and requires the dismissal of the complaint. The manner in which the Respondent keeps its payroll records has already been described at some length in section B of this report. In dealing with this general subject, I have also discussed the exact procedures which the Respondent would have had to pursue in order to comply with the IUE's request for the monthly average straight-time hourly earnings for each of the IUE bargaining units back to the beginning of 1956. Although, in their briefs, the General Counsel and the IUE seek to minimize the difficulties of this task, I agree with the Respondent that it would have been extremely burdensome, time-consuming, and expensive. In my opinion, therefore, the Respondent's failure and refusal to produce the monthly unit averages, in compliance with the IUE's request, does not indicate a lack of good faith in its bargaining with the IUE nor therefore a violation of Section 8(a) (5) of the Act Since I have concluded that the Respondent did not refuse to bargain in good faith with the IUE by failing and refusing to supply requested information as to the 44 cents per hour fringe benefits or the monthly average straight-time hourly earnings for each of the IUE bargaining units, I also find no refusal to bargain in the Re- spondent's termination of the bargaining negotiations on December 5, 1958. For, as I have pointed out, the theory upon which the General Counsel issued and has processed his complaint, is that the Respondent's termination of negotiations was a BRICKLAYERS AND MASONS UNION NO. 24, ETC. 867 refusal to bargain violative of the Act only because its allegedly improper refusals of the information requested by the IUE made bargaining impossible and caused a breakdown in the negotiations. Accordingly, I hold that the evidence does not sup- port any of the allegations of unfair labor practices set forth in the General Counsel's complaint and will recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Westinghouse Electric Corporation, is engaged in commerce within the meaning of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Locals Nos. 111, 130, 202, 239, 302, 315, 401, 412, 426, 456, 486, 491, 601, 617, 627, 670, 711, 714, 724, 746, 760, 777, 906, 1502, and 1581, are labor or- ganizations within the meaning of the Act. 3. The International or one of its foregoing locals has been at all material times, and is, the exclusive bargaining representative of the Respondent's employees in each of the 40 appropriate bargaining units described in Appendix A of the complaint. 4. Contrary to the allegations of the complaint, the Respondent has not refused to bargain collectively in good faith with the International or any of its locals as exclusive bargaining representatives of the Respondent's employees in any of the foregoing appropriate bargaining units, and has not committed any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] Bricklayers and Masons Union No. 24, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO and Virgil L. Copeland and Booth and Flinn Company, Party to the Contract Local 75, Operative Plasterers' and Cement Masons Interna- tional Association of the United States and Canada, AFL- CIO and Virgil L. Copeland and Booth and Flinn Company; Associated Building Contractors of Terre Haute, Indiana, Walker Caton, et al., Members and Glenn W. North Construc- tion Co., Inc., Parties to the Contracts Booth and Flinn Company and Virgil L. Copeland and Brick- layers and Masons Union No. 24, Bricklayers, Masons and Plasterers International Union of America , AFL-CIO and Local 75, Operative Plasterers' and Cement Masons Inter- national Association of the United States and Canada, AFL- CIO, Parties to the Contracts . Cases Nos. 25-CB-227, 25-CB- 228, and 25-CA-969. December 1, 1960 DECISION AND ORDER On August 14, 1959, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- 129 NLRB No. 89.