Anaconda American Brass Co.

474 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD speaking to them as a committeeman, 'can- Blanton deny 'responsibility for their presence. In fact he did not make any such denial to Holbrooke when he, attempted to explain to the latter only that he had not violated the rule because he was not himself working at the time . We need not determine whether ,Floyd, the boilerman, was kept from his work and thus interfered with during the 4 to 5 minutes when he attended the conversation, although he had apparently come for a,drink of water only. Holbrooke testified that his investigation disclosed that ,; of the rank-and-file em- ployees, only Blanton and Gearing took an active part in the conversation . Bagwell and Ray told him that they had not entered •into it, and according to Blanton,him- self, Gearing had merely asked what he.thought of -the Union . -(We recall refer- ence to a question by "somebody.") Although they should have.' been- working instead of listening to Blanton for 5 or 25 minutes,- there - is no claim, that- Bagwell, Ray, or Floyd violated any company rule in -listening or being interfered with and kept - from working, or -that failure to take action against them constituted disparate treatment as Blanton suggested when he was discharged and referred to possible action against Gearing . In fact, the General Counsel's position is that the other employees "were not directly involved." - It will add nothing to this Decision to point out, in anticipation of objections, that Blanton was not merely • an employee away from his work and his work -sta- tion who was instrumental in keeping others away from their work for •15 to 25 minutes. However much attention may be given to inconsequentials, the fact is that Blanton's status at the time , after his shift had been .completed and he had left the plant and then returned , was little if at all more than that' of an outsider although he had reentered the plant because he was an employee: Certainly he had no more business in the machine shop of the time than an outsider.. He had no right to be there and he interfered with the work of others . It cannot be properly found that the Company took action against this 1 of 46 (later 51 ) committeemen because of his union activities and not because of his rule violation or interference with other employees' work. - Here again condonation was suggested in the General -, Counsel's reference to another employee who has been permitted to return to the plant after working hours. But it was not shown that he violated the rule against interfering with the work of other employees. - Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following:, CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Company has not engaged in unfair. labor practices within the meaning of Section 8(a) (3) or ( 1) of the Act. - RECOMMENDED ORDER Upon the basis of the foregoing finding of fact and conclusions of law ,' and upon the entire record in the case , I recommend that the complaint be dismissed in its entirety. - Anaconda American Brass , Company,,"and Local : 1078, Inter- national Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, (UAW,, AFL-CIO). Case No. 1-CA-438. August 26, 1964 • DECISION AND ORDER , On December 6, 1963, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that Respondent had not violated the Act as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General -Counsel, filed 148 NLRB No. 55. ANACONDA AMERICAN BRASS COMPANY 475 exceptions .to the Trial Examiner's Decision and a brief in support thereof, which were adopted by the Charging Party. Respondent filed a brief in support of the Trial Examiner's Decision and in opposi- tion to the exceptions of the General Counsel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and agrees with the ' Trial Examiner that the complaint should be dismissed. The Board's reasons for reaching this conclu- sion, however, are somewhat different from those relied upon by the Trial Examiner, and therefore the Board adopts the findings and con- clusions of the Trial Examiner to the extent consistent here-with. The complaint, as amended, alleges that Respondent violated Sec- tion 8(a) (5) and (1) of the Act by refusing the Union's request for job evaluation data relating to Respondent's wage classification sys- tem. The essential facts of the case, which are undisputed, have been set forth in detail in the Trial Examiner's Decision, and we shall re- peat them only to the extent necessary. Respondent and the Union have maintained a collective-bargaining relationship since 1938. During a substantial portion of this period and continuing to the present, Respondent has used a point system for purposes of job evaluation and classification of jobs other than skilled trades. The contract lists nine classes or grades of unskilled jobs rang- ing from class "A," the lowest paid classification, to class "I," the high- est paid classification. Each class has a fixed minimum and maximum rate which is negotiated. Apparently, when a new job is created or an existing job is modified, the job is evaluated for classification purposes by a supervisor. The supervisor analyzes, in writing, the job requirements in terms of such applicable factors as experience required, physical demand, complexity of the operation, etc. These factors are known- as the "job specifica- tions." Each specification is rated by assigning it a point value accord- ing to a manual which Respondent maintains. The total number of points determines the class of the job and, in turn, the rate of pay for the employee holding the job. " Although the Union has shown for many years that Respondent has been using a point system for evaluating jobs.and thus determining the hourly rate for the employee performing the job, it has never, prior to the incident which gave rise to this proceeding, sought any information respecting the point system. On the contrary, when Re- spondent timely offered to negotiate a jointly administered point system, the Union refused to discuss the matter and stated that in its 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,opinion the point system `was not a valid. basis, for rating jobs. • The contract in effect at the time this dispute arose provided in relevant part as follows : Article IV - (8) 'The company agrees to inform the Union concerning any major changes in job content, including changes in the number of employees in an operation crew, as far in advance as possible but at least the day before such changes are placed in effect. At the request of the Union Plant Chairman or the Chief Steward the Job Specifications for any specific job or jobs, which the Company prepares for Job Evaluation purposes, will be made available by the Company in its offices for a reasonable period of study. (9) . • . the Company will make available in its offices, for a representative of the Union . . . Company records of the names of employees in the bargaining unit and their current individual wage rates . '... - - _ • , In the past, under the foregoing contract provisions, Respondent has, upon request, disclosed to the Union the job specification data respect- ing a job evaluation, but not the number of points assigned to the various specifications. The Union has never, heretofore, protested this procedure and has handled all grievances involving job classifications on the basis ofthe,information supplied by Respondent. At all times material herein the parties have maintained a grievance and arbitration provision in their collective-bargaining agreement which provided, for a six-step grievance procedure culminating in arbitration of "all grievancesf questions, and disputes between the parties." The present controversy arose when, on about January 29, 1962, Re- spondent changed its, crane.operation from overhead to floor level.- As a result of the change, -,the job-of Crane Operator George Shaw was re- evaluated and reduced from class "C" to class "B." Shaw was advised of this reductionby his foreman on January 29,1962. Shaw's foreman explained that the reduction in class was -due to the fact that the job of crane operator carried a lower point value under the changed method of operating. the crane. Shaw asked to see the mentioned points, but the foreman refused and referred Shaw to Respondent's personnel manager, Popular. Shaw, who also happened to be chair- man of the plant grievance committee, thereupon presented his com- plaint to Popular, who showed him the job evaluation sheet containing the job specification data, but refused Shaw's request to examine the ANACONDA AMERICAN -BRASS COMPANY 477 points on the ground that the Union did not participate in the point rating system. Shaw, acting in his own behalf and as chairman of the grievance committee, filed a grievance protesting the reduction in grade of the job of crane operator. , , On February 2, 1962, Popular advised Shaw that his job had again been reevaluated and had been returned to its former class, thereby disposing of the grievance. Shaw again asked to see the points and was refused. Shaw suffered no loss of income. On or about September 28,1962, Shaw, as chairman of the grievance committee, filed a second grievance, known as grievance number 944. The gravamen of this grievance was that Respondent had breached the collective-bargaining agreement by refusing to disclose the point information it had relied upon as the grounds for reclassifying the job of crane operator on January 29, 1962. Respondent replied that the collective-bargaining agreement did not require that it reveal point information, and that it had complied with the agreement by furnish- ing the job classification data. While grievance 944 was being processed through the various steps of the grievance machinery, the parties negotiated a new collective- bargaining agreement. The matter of point information was ap- parently not discussed during the course of negotiations. The previous contract was modified, however, by substituting for paragraph 9 of the 1961-62 agreement, the following : (9) The Company will notify the Union of the proposed per- manent wage rate classification of a new or changed job at least 5 working days before placing such classification in effect. During the 5 working days following such notification, the Union will be given an opportunity to bargain concerning the proposed classi- fication with the Employee Relations Department in an effort to reach an agreement concerning it. If agreement is not reached, the 'Company will proceed to put the proposed 'classification into ef- fect, and the Union shall have the right to institute a grievance at the Fourth Step of the grievance procedure ... . Paragraph 8 of the agreement remained unchanged. After execution of the new agreement, the Union, on January 29, 1963, advised Respondent that it wished to arbitrate grievance 944. Respondent agreed to arbitrate and the parties by mutual consent selected an arbitrator. Several days prior to the agreed-upon hearing date, however, the Union asked for a continuance and Respondent agreed. The Union then renewed its demand for the point informa- tion with respect to Shaw's reclassification in January 1962, but Re- spondent refused the demand and pressed the Union to set a new date 478 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD for the arbitration hearing. On July 9, 1963, the Union advised Respondent that it wished -to withdraw grievance 944 and Respondent agreed. On July 22, 1963, the Union filed the charges herein alleging that Respondent had violated Section 8 (a) (5) and (1) of the Act by refus- ing to supply "certain job evaluation information which is necessary for the purpose of collective bargaining in respect to rates of pay. Specifically, in order to make a determination of its position in the processing of a grievance involving a rate of crane operator ...." The Trial Examiner found that all of the Union's demands for point information made prior to the filing of the charge "related directly and solely to the job evaluation points for the job of crane op- erator Shaw," and, as the charge stated, this information was sought in connection with "the processing of a Grievance involving the rate of a crane operator . . . ." Shaw's grievance respecting the January 1962 reclassification of the job of crane operator had been resolved, however, within 3 days without any loss of pay or benefits to Shaw. Thus, the essence of the Union's charge and the complaint was that Re- spondent violated the Act by refusing the Union's request for point information concerning a dispute which had been resolved more-than a year and a half prior to the filing of the charge. The General Counsel's assertion that the demand foi oint information was relevant to the general administration of the collective-bargaining agreement is contrary to the Trial Examiner's finding, amply supported by the evidence on the record, that up to September 26,1963, all union requests for'point information related solely to- the reclassification of the job of crane operator. We agree with the Trial Examiner that the Septem- ber 1963 demand, which occurred after the issuance of the complaint herein, is outside the scope of this proceeding. It is well settled that Section 8 (a) (5) of the Act imposes an obliga- tion upon an employer to furnish upon request all information relevant to the bargaining representative's intelligent preformance of its func- tion.' This obligation extends to information which the union may re- quire to "police and administer existing agreements." However, as noted above, the Union apparently abandoned its demand for point information respecting the job of crane operator on February 2, 1962, when Popular advised Shaw that his job had been restored to its previous classification. The Union made no further requests for point information until 8 months after Shaw's grievance respecting the re- classification of the job of crane operator had been resolved and there was no longer any pending dispute in this respect. And as we have also noted, all subsequent demands by the Union for point information, insofar as relevant to this proceeding, related solely to the January 29, 1The Timken Roller Bearing Company, 138 NLRB 15, enfd. 325 F. 2d 746 (C.A. 6). ANACONDA AMERICAN BRASS COMPANY 479 1962, reclassification of the lob of crane operator. Thus, the Uniou'S demands for point information herein were not related either to a pending gl ievance or to the geneial administration of the contract' There are still other circumstances which bear materially on our resolution of this case The issue of the point rating system was not novel to the par. Lies The Union was well aware that Respondent relied upon a point System for purposes of lob classification, but never re- quested point information prior to this proceeding On the contrary the Union consistently rebuffed Respondent's offers to negotiate a jointly adrmnrsteied point evaluation system, and asserted that the point system was not a valid method for classification of jobs In addition, as a result of collective-bargaining, the parties had agreed to the kind of job classification information to be furnished the Union The agreement in effect at the time this dispute arose and the agree- ment in effect prior to that both contained specific provisions relating to this matter These provisions were not modified in any manner relevant to this proceeding by the contract negotiated while this dis- pute was in piogiess These facts, in our view, indicate that by their contract the parties have regulated the kind of job classification data to be made available to the Union There can be little doubt that the Union as well as Respondent viewed the contract as covering the matter of job classification data Thus, the record shows that the Union itself filed grievance 944 claim- ing that Respondent breached the agreement by refusing Shaw's re- 2 Our dissenting colleague errs in assuming that our decision herein constitutes a de- parture from the oft st ited principle that a union is entitled to information which is relevant to the general ndminlstration of a collective bargaining agreement Indeed, as the Trial Eclminer noted , the outcome of this case might very well have been otherwise had the Union sought the information In a different context Assuming, arguendo, that point information could be generally rely ant to the administration of the agreement, the problem posed b\ this case is that the Union itself limited the request for information to a specific purpose , i e , the processing of Share's grievance At no time did the Union acknowledge that the point sNstem had any bearing on its administration of the contract, and, indeed , rejected Respondent's efforts to incorporate the point system into the ban gaining process With respect to the relevancy of the information for purpose of future bargaining , the Union had cNery opportunity to request such information during nego- ti,itions for the 1962-64 agreement, which were conducted while this very dispute was pending The Lnion, however, made no such request Under these circumstances we do not believe that it would be appropriate for us to hold that Respondent unlawfully re- fused to bargain in good faith with the Union by denying the Union's request for in formation with respect to a grievance which had become defunct more than 6 months prior to the Union' s demand for the information We also note th'tt our dissenting colleague views the facts and circumstances of this case is similar to Hercules Motor Corporation, 136 NLRB 1648, to which he has also voiced objections We have been cautioned , however , against looking to "the fears and doubts of the opposition" as an authoritative guide for the interpretation of cases NLRB v Fruit and Vegetable Packers Warehouse Local 760 , Joint Council No 8, International Brotherhood of Teamsters, etc (Tree Fruits, Inc ), 377 U S 58 It is clear to us that the facts in Hercules were quite different from those in the instant case, the decision herein in no way relies upon Hercules, and we can see no reason why a review or justification of the decision in that case is called for herein Failure to do so should not be construed as acceptance of the dissent's interpretation of the Hercules decision or its subesquent history 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quest for point information It reaffirmed this view when it an- nounced its desiie to have the matter arbitrated and pal ticipated in the selection of an arbitrator Respondent on its part did not challenge the Union's view that the contract regulated their rights and the aibi- trability of the dispute In these cncumstances we do not believe we would be justified in finding that Respondent's refusal to giant the Union's request for point information constituted a violation of its duty to bargain in good faith Accordingly, for all the reasons set forth above, we shall dismiss the complaint in its entirety [The Board dismissed the complaint ] ME IBER FANNING, dissenting As noted in the majority opinion, Respondent and the Union have had a collective-bargaining relationship since 1938 The controversy which gave rise to this complaint relates to the refusal of the Re- spondent to provide the Union with the specific "points" and "point totals" attached unilaterally by the Respondent to job specifications of a particular job Under Respondent's job evaluation system tm- skilled jobs are described under general headings such as physical demands, complexity, employee experience, etc Each factor is then assigned a number of "points," the total determining whether an em- ployee would be paid a higher or lower late It is thus clear that the use of the point system is of vital importance in establishing the actual wages to be paid a particular employee Moreover, it -%tiould also seem apparent that whatever policy or formula Respondent utilized in assigning certain points to one job would be applicable generally to other jobs The collective-bargammg agreement between the parties requires Respondent to provide the Union with "the Job Specifications for any specific job or jobs the names of employees in the bargaining unit and their current individual wage rates " At all times Respond- ent has complied with this provision, but insists that it has no obliga- tion either under its contract or this statute to further provide the Union with the specific points attached to the job specifications. Respondent contends that its refusal is justified because "the Union does not recognize the Company's Job Evaluation plan " The record shows that Respondent in the past had offered to negotiate a system of joint union-employer participation in job rating under the point system The Union, however, rejected Respondents offers to incorporate the point system into any collective-bargaining agreement on the ground that it did not accept the point system as a valid basis for rating jobs ANACONDA AMERICAN' BRASS COMPANY 481 In the spring of 1962 Respondent reevaluated the content of a crane operator's job. The result was a reduction in wages for Crane Opera- tor George Shaw, a union official. He immediately requested that he be shown the points assigned to his job so that he could consider the validity of Respondent's action. His request was refused. He there- upon filed a grievance based upon the reduction in his wages. Dur- ing the second step of this grievance procedure Respondent restored Shaw to his previous salary so that he suffered no loss in pay, Shaw, nevertheless, insisted that he be shown the points assigned to his job and the Respondent continued to refuse this request. A second griev- ance was filed, alleging a breach of contract based upon Respondent's refusal to provide the Union with the above information. Sub- sequently, the parties mutually agreed that this grievance should be withdrawn. While this grievance was being processed, the parties negotiated a new agreement. It does not appear that point informa- tion, the subject of the grievance, was discussed during negotiations and the newly executed contract did not modify the previous agree- ment in this respect. On these facts the majority finds that (1) the "Union's demands for point information herein were not related either to a pending grievance or to the general administration of the contract," and (2) "by their contract the parties have regulated the kind of job classifica- tion data to be made available to the Union." The majority therefore dismisses the complaint in its entirety. The majority's first conclusion appears to be based upon the premise that wage data information as to a particular employee need only be provided during the pendency of a specific grievance relating to that employee and' is entirely un- related to the job status of other employees. The majority's second conclusion suggests that whatever right the Union may have to the wage data it sought is a right governed solely by' its contract with the Respondent to be enforced only by an arbitrator. The majority also seems to rely upon an argument that the Union further "waived" its right to this information because it had not previously, requested such information and had refused to participate in the Respondent's point evaluation system. I cannot agree with these conclusions. The issue of an employer's duty to furnish a union wage data information has long plagued the Board and the courts. In 1954 the innumerable cases coming to the Board under this heading prompted the then Chairman Guy Farmer to remark that "a clear-cut rule relating to this issue is desirable." He held the proper rule to be "that wage and related information per- taining to employees in the bargaining unit should, upon request, be made available' to the bargaining agent without regard to its im- 760-577-65-vol. 148-32 482' DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate relationship to the negotiation or administration of the col- lective bargaining agreement." He also noted that "the exact phras- ing by which,it is requested, or the specific reason for requesting it, if any, are not controlling." Whitin Machine Works, 108 NLRB 1537, affd. per curiam 217 F. 2d 593 (C.A. 4), cert. denied 349 U.S. 905. The above rule was specifically approved by the Court of Appeals for the Fifth Circuit in N.L.R.B. v. The Item Company,,220 F. 2d 956, cert. denied 350 U.S. 905 and by the Court of Appeals for the First Circuit- in Boston-Herald Traveler Corporation v. N.L.R.B.,- 223 F. 2d 58. See also J. I. Case Company v. N.L.R.B., 253 F. 2d 149 (C.A. 7). When the Court of Appeals for the Ninth Circuit held in N.L.R.B. v. F. W. Woolworth Co., 235 F. 2d 319, that "there must under all the circumstances be a showing of reasonable need of the information to meet a condition," its decision was summarily reversed by the Supreme Court in a per curiam decision. N.L.R.B. v. F. W. Wool- worth Co., 352 U.S.'938. Now the Board and the courts are again engaged in a new controversy over the statutory right of a union to be furnished information relevant to the collective-bargaining process. In April 1962 the "clear-cut rule" of the Whitin case was dealt a substantial blow by the Board's de- cision in Hercules Motor Corporation, 136 NLRB 1648 (see my. dis- senting opinion in that case, at 1653): There, a majority of the Board held that the Union was not entitled to wage information pertaining to the establishment of certain new wage rates on the ground that the information pertained to a grievance "over a matter which the Respondent maintained could not be the subject of a grievance under the contract." This view was adopted by the Court of Appeals for the Fifth Circuit in Sinclair Refining Company v. N.L.R.B., 306- F. 2d 569 (Judge Rives dissenting)'. The court viewed the Board's rationale in the Sinclair case (132 NLRB 1660) as contrary to the. Board's own position in Hercules. Although that case represented a departure from previous precedents, in subsequent cases the Board either distinguished or did not follow-'the Hercules rule. In The Timken Roller Bearing Company, 138 NLRB 15, enfd. 325 F. 2d 746 (C.A. 6), the Board held that an employer was required to furnish iii- formation in connection with particular grievances because the inter- pretation and application of the agreement were not concerned "where, as here, the Union is asserting its statutory, not contractual, rights." Hercules was distinguished on the ground that in Timken there was "no argument concerning some underlying dispute on which the relevancy' of the wage data may depend." In The Fafnir Bearing Company, 146 NLRB 1582, the Board held that the Act confers on the Union a right to make w independ^nt time study of particular jobs, contrary to " T ANACONDA AMERICAN BRASS COMPANY " 483 the contention of the Respondent that such a right existed, if at all, by virtue of its collective-bargaining agreement and, should be re- solved through the grievance-arbitration procedure. While I am in complete agreement with the Board's conclusions in Sinclair, Timken Boller Bearing, and Fafnir, cited above, I- am not satisfied that these cases realistically can be distinguished on their facts from those in Hercules. In my view, the Board should take' a clear position that a union's right to. wage data either is a statutory right to enable it to function as the employees' collective-bargaining rep- resentative or a contract right that can be enforced only-through that channel. A middle ground, in my opinion, invites constant and need- less litigation every time a union seeks specific or general information of this nature. The instant case, I believe, is, an example of this trend. Obviously, the Respondent's point system as applied to employees generally, and to Crane Operator Shaw, in particular, is directly related to wages. Whether or not Shaw's job was reevaluated and a grievance filed, it would seem to me that at all times the Union had a statutory right to know precisely what points the Respondent had assigned to his job or any other job or all jobs. That it asked only for Shaw's points, and that after Respondent had hurriedly rescinded a reduction in his wages, should not derogate from its right to be informed of the spe- cific method and procedure whereby his wage was determined by Respondent. The Trial Examiner suggests that only "principle" motivated the Union in seeking this information and that, if it were otherwise, his recommendation might have been different. It seems to me hardly the province of the Board to speculate as to the reason why a collective-bargaining representative seeks pertinent and relevant wage information. Who is to say that in the general administra- tion of the contract or in future negotiations between the parties' the pionts assigned to Shaw's job could not be used by the Union as a cogent argument against the job evaluation system to which it was at all times opposed? Indeed, the "principle" - itself, once estab- lished, would certainly be of assistance to the Union in all future grievances requiring information as to points. It should hardly need saying that it is the function of the Board and the courts to establish clear and reasonable rules or "principles" by which the parties to collective bargaining may be guided. without undue recourse to litigation. Although the Trial Examiner relied upon the Board's Hercules decision, the majority does not cite that case or any other Board or court decision in support of its conclusion that the Union did not have a statutory right to,the information requested. Rather, the majority appears to rest its decision primarily on the ground of relevancy and, 484 DECISIONS OF NATIONAL 'L'ABOR RELATIONS BOARD moreover, on the ground of waiver either through a contractual' undertaking 'or'by- the Union's conduct.. With respect to relevancy,, the rule has been forcefully stated by the Court of Appeals for the Second Circuit as follows : Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so as is not justified by the- Union's failure initially to show the relevance of the requested information. The rule governing disclosure of data of this kind is not unlike that prevailing in discovery procedures under mod- ern codes. Here the information must be disclosed unless it. plainly appears irrelevant. Any less lenient rule in labor dis- putes would greatly hamper the bargaining process, for it is virtually impossible to tell in advance whether the requested data will be relevant except in those infrequent instances in -which the inquiry is patently outside the bargaining issue. N.L.R.B. v. Yawman c(; Erbe Mfg. Co., 187 F. 2d 947, 949. This rule has been followed in Board and court decisions too nu- merous to require citation. In the instant case the majority assumes. that the points assigned by Respondent to Shaw's job had no relevancy whatsoever to any bargaining issue other than the initial grievance filed by Shaw. But a collective-bargaining representative has a con- tinuing duty to watch over the wages of the employees it represents, to consider its present and future course of action with respect to an employer's wage policy and to secure from an employer the necessary information to determine its bargaining posture. The question of relevancy is fully satisfied where, as here, the information requested relates directly to the specific wages paid an employee. With respect to the majority's conclusion as to waiver, the weight of authority is overwhelming that , the waiver of a statutory right must be "clear and unmistakable." See the Board's own decision in the very recent Timken Roller Bearing case, 138 NLRB 15, enfd. 325 F. 2d 746 (C.A. 6), and cases cited therein. Indeed, in the Timken case the Board found without merit similar contentions with respect to waiver and "channeling." "To hold otherwise," the Board said, "would con- travene our well-established rule that the mere existence of a griev- ance machinery does not relieve a company of its obligation to furnish a union with information needed to perform its statutory function." Enforcing the Board's decision, the court specifically approved the Board's contention, pointing out that the existence of a statutory right "was not dependent upon it being included in the bargaining agree- ment. It was not a right obtained by contract, such as would be the case in increased wages, longer vacations, pension rights, and so- called fringe benefits. The failure to have the right recognized by the Company in the bargaining agreement, which would probably ANACONDA AMERICAN BRASS COMPANY 485 eliminate the necessity of possible litigation over it later, does not mean that it does not exist by vil.tue of the statute " The Tznaken Roller Bearing Company v N L R B , supra I belie-,e the maloiity's decision in this case is disiuptive of long- established precedents and will confuse, father than clarify, the stat- utory obligations and eights of the paities to give or ieceive wage data infoimation Accordingly, I dissent fiom the majority s refusal to find a violation of Section 8(a) (5) and (1) in this case CHAIRMAN D'ICCULLOCH took no part in the consideration of the above Decision and Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Local 1078, International Union, United Automobile Aerospace and Agricultural Implement Workers of America, (UAW, AFL-CIO), herein called the Union, filed a charge of unfair labor practice on July 22, 1963 On August 30 and on Septem- ber 17, 1963, the General Counsel issued a complaint and an amendment thereto, respectively The crux of the complaint is that Anaconda American Brass Com- pany, herein called the Respondent, refused, in violation of Section 8(a)(1) and (5) of the Act, to furnish the Union with certain job evaluation data relating to Re- spondent's wage classification system In its answer Respondent denied the com- mission of unfair labor practices and alleged that in the course of negotiations and by reason of the terms of a contract the Union had waived its right to such informa- tion A hearing was held before Trial Examiner Ramey Donovan on October 2, 1963, at Wateibury, Connecticut, with all parties participating Subsequently, briefs were received from counsel for all parties FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is a Connecticut corporation and is a wholly owned subsidiary of the Anaconda Company The principal office and place of business of Respondent is in Waterbury, Connecticut At the latter location Respondent engages in the manu- facture, sale, and distribution of various brass mill products In the course of its business Respondent annually receives at its Waterbury plant, directly from outside the State, materials valued in excess of $50,000 During the same period, products valued in excess of $50,000 are shipped by Respondent directly to locations outside Connecticut It is found that Respondent is engaged in commerce within the mean- ing of the Act It THE LABOR ORGANIZATION The Union is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Background The Local Union has represented Respondent's employees since 1938 and has bargained with and has had contractual relations with Respondent during that period In the past, the Local Union had been affiliated with the Mine, Mill and Smelter Workers Union and thereafter with the Industrial Union of Marine & Shipbuilding Workers of America-CIO Since 1950 or 1951, the local union, Local 1078, has been affiliated with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW, AFL-CIO) I i It is admitted that the Union represents a majority of the employees in an appropriate unit The appropriate unit is all production and maintenance employees at Respond ent's Waterbury plant, exclusive of watchmen , clericals, office workers, and other salaried employees and supervisors as defined In the Act 486 DECISIONS OF NATIONAL LABOR, RELATIONS. BOARD In the past and continuing into the present, Respondent, at its Waterbury plant, has had a job evaluation system. Under this system there is a list of labor grades or job classifications, each class or grade having a minimum and a maximum hourly wage rate. In connection with the job evaluation system, the labor grades or job classifications are based upon job specification sheets prepared by management per- sonnel. The job specification sheet has a caption, at the top left, of "Job Title," under which would be filled out the title of the particular job. Under the job title appears a columnar list of factors, such as knowledge, experience, job complexity, and so forth. Under each factor is a place for numbers or points and space on the right for nar- rative description.2 The grade or class of a job is determined by the points assigned to the job under the aforedescribed job evaluation system. The points and their weighing, as well as the entire job evaluation, are based upon a prescribed system that is apparently set forth in a manual used by the management personnel. Over the years, at various contract negotiations, the Respondent has asked the Union whether it wished to discuss the subject of job evaluation and to participate in the evaluation of the various jobs under the job evaluation system. The Union has consistently said that it did not wish to participate.in the joint evaluation of the jubs. The evidence indicated that over the years the Respondent has unilaterally prepared the job specification sheets, including all the elements thereon as above described. The Union has contented itself, insofar as job, evaluation is concerned, with taking up grievances with Respondent over particular job classifications. For instance, the Union might protest that a particular job should be grade or class C rather than grade or class B. Upon request, the Respondent would make available to the Union the job specification sheet as filled out on the particular job. However, in no instance has the job specification thus made available to the Union contained the points assigned to the various factors on the sepcifications. The points, aforementioned, have not otherwise been made available to the Union. The Union, in the past, has never, either generally or in regard to a particular case, requested to see the points assigned to a job. Although the Union was aware that Respondent did use points on its job evaluations, the subject of points was not raised or discussed in contract negotiations. The instance when the Union did request to see the points on a particular job is the subject of the present case. In addition to the foregoing, the terms of the contracts between the parties deal with the subject of job evaluation. The extent of the contract coverage of the subject is as follows: Article IV (8) The Company agrees to inform the Union concerning any major chi ages in job content, including changes in the number of employees in an opera- tion crew, as far in advance as possible but at least the day before such changes are placed in effect. At the request of the Union Plant Chairman or the Chief Steward the Job Specifications for any specific job or jobs, which the Company prepares for Job Evaluation purposes, will be made available by the Company in its offices for a reasonable period of study. (9) . the Company will make available in its offices, for a representative of the Union . . . , Company records of the names of the employees in the bargaining unit and their current individual wage rates ... . 2 The job specification abeet: Job Title Knovled e I Experience Total Points ANACONDA AMERICAN BRASS COMPANY 487 The foiegoing provisions are to be found in the contract for the period January 16, 1961, to October 15, 1962 The succeeding contract, with a terminal date of Octo- ber 15, 1964, contains the identical article IV(8) as its predecessor The 1962-64 contract, however, contains a different paragraph (9), which reads as follows (9) The Company will notify the Union of the proposed permanent wage rate classification of a new or changed job at least 5 working days before placing such classification in effect During the 5 working days following such notifica- tion, the Union will be given an opportunity to bargain concerning the proposed classification with the Employee Relations Department in an effort to leach an agreement concerning it If agreement is not reached, the Company will pro- ceed to put the proposed classification into effect, and the Union shall have the right to institute a grievance at the Fourth Step of the grievance procedure The 1962-63 Events In 1962 George Shaw was a crane operator in Respondent's plant He was also chairman of the Union's grievance committee and had held that position for about 6 years 3 As a crane operator, Shaw apparently operated an overhead hoist from a cab that was also overhead His wage classification was grade C On or about January 29, 1962, Shaw's foreman, MacMullen, informed him that the Company was taking the cab off the crane and that the crane would be operated from the floor The foreman also said that the floor operation of the crane meant that the job grade was reduced to grade B, which carried a lower wage rate MacMullen explained that the reason for the reduction was that the job evaluation points for the two jobs were different Shaw asked, "How come9" and asked to see the points aforementioned MacMullen told Shaw to see the personnel manager, Popu- lar Shaw then went to Popular and asked to see the job points since he had been told that they had gone down Popular said that since the Union had not partici- pated in the job evaluation plan the points would not be shown Shaw testified that he then filed a grievance and was thereafter informed at the second step thereof that the reduction in pay had been reinstated and that the job would be reevaluated Shaw asked to see the job points but was again refused by Popular On February 2, 1962, the Company reclassified Shaw's floor-operated crane job to grade C, thus, in effect, rescinding the reduction of January 29 4 The next event was that on September 29, 1962, Shaw, both personally and as a union representative, filed a grievance (No 944) under the contract The griev- ance gave the name of the employee involved as George Shaw, crane operator The grievance was stated to be that the Union believes that the Company had violated the contract by refusing to show to the Umon job evaluation data which "makes up the wage classification of the above named job " Thereafter, the griev- ance was processed through the various steps provided in the contract The third step grievance meeting was on October 3, 1962, the fourth and fifth step meeting was on October 12, 1962 The next step was mediation At all these stages no resolution was attained The Union adhered to its position that the Company had violated the contract by not showing the Union the point job evaluation data The Company asserted that it had complied with the contract, specifically, article IV, section 8, supra, and had made available to the Union the data required by the contract The evidence is that the Company did allow the Union to see the job specification descriptions but not the points On January 29, 1963, the Union advised the Company that it would file for arbitration of grievance No 944 as provided in the contract Subsequently, the parties mutually agreed upon an arbitrator, Arthur Stark, and the date of the arbitration hearing was scheduled for April 2, 1963 Before the scheduled arbitration hearing, the Union, on March 29, 1963, re- quested a postponement of the hearing The Company agreed, and the Union, by letter, on March 29, advised the arbitrator of the foregoing and concluded with a Since June 1963, Shaw has been vice president of the local union as well as chair- man of the plant grievance committee 'The Company's original position was that by eliminating the overhead cab operation and by transferring the operation of the crane to the floor, the job became primarily that of the floor helper cl issification, a B grade job Thereafter, according to the Company, it reclassified the floor helper job from grade B to C because of the increased responsibility that now rested in the floor helper job It may be noted that with the elimination of the overhead cab crane, Shaw displaced the man who had theretofore been the floor helper and the latter was assigned to another job 488 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD the statement, "We will be in touch with you as to the future of this case." There- after, the Company made unsuccessful efforts with the Union to have the arbitration proceed .5 On May 23, 1963, representatives of the Union and the Company were meeting at another division of the Respondent, the Waterbury division.6 In the course of the meeting the Union asked if job evaluation points would be available to the Union. The company people did not give an answer at that time or at least no definite answer. The following day, May 24, Respondent's director of `employee relations wrote to the Union referring to the request for job evaluation by the Union on May 23: Would the Union please formalize its request by a letter to, me advising: 1. Specifically what information is desired, other than that to which the Union has been accorded access per Article IV, Section (8) of our Collective Bargaining Agreement, and 2. The purpose for which the Union requires such information. * * * * * * * On June 6, 1963, the Union answered the above letter as follows: In reply to your letter of May 24, 1963, and as per the telephone conversation relating to Grievance #944-please be advised that the following informa- tion is desired by the Union. 1) A copy of the point values involving in arriving at the rate of the job in Grievance #944, 2) The purpose for which the Union requires such information is to make a determination as to whether we, would want to arbitrate this grievance. * * * * * * * Respondent replied to the foregoing by letter of June 12, 1963: . We do not feel that Article IV, Section 8 of the Collective Bargaining Agreement requires us to provide evaluation point data . . Over a period of some years the Union has repeatedly stated to the Company that the Union does not recognize the Company's Job Evaluation plan . it is therefore the Company's position that the duty of an employer to furnish cer- tain information to a Union upon receipt of appropriate request is not applicable in this instance. On July 9, 1963, the Union informed the Respondent that it wished to withdraw -grievance No. 944. On July 10, the Respondent advised the Union that it "agrees to this case being withdrawn." The Union filed its charge of unfair labor practice on July 22, 1963, stating therein, inter alia, that it required the job-evaluation data, "specifically, in order to make a determination of its position in the processing of a Grievance involving a rate of a crane operator ... " The original complaint in this case, August 30, 1963, alleges- that on and since May 23, 1963, Respondent has refused the Union's request for job evaluation data in the wage classification- system "that is the subject of and related to certain grievances . . An amendment to the complaint, dated September 17, 1963, alleges that since about January 23, 1963, and "specifically," since May 23, 1963, Re- spondent has refused to produce job evaluation data that is necessary to enable the Union to intelligently administer the contract. In a bill of particulars, dated Septem- ber 25, 1962, the General Counsel alleges: in September 1962, the Union requested job evaluation data, "specifically" the manner in which the wage classification system had been applied to the wage rate "of crane operator George Shaw"; Respondent 6 On April 24, 1963, the Company had written to the Union: _ The Company has, on several occasions, contacted the Union in an effort to have the hearing rescheduled. These efforts, as you know, have been successful. In the interests of expediting this matter and having in mind the many cases for which hearings must be scheduled, the Company urges the Union to give this matter prompt attention. 6 Shaw was employed in the small tube division and grievance No. 944 was filed in that division. I ANACONDA AMERICAN BRASS COMPANY 489 refused such data and the Union filed grievance No. 944 on September 28, 1962; on May 23, 1963, the Union again requested, such data and was refused. The bill goes on to state that the data is necessary for the intelligent administration of the con- tract and that the right to such information is "in no way depending upon the pend- ency of any grievance. Specifically in reference to grievance No. 944 such job evaluation data is necessary to enable the Union to assess the fairness and appro- priateness of the wage.rate revision relating to George Shaw, and intelligently to determine whether such wage rate revision warrants the invocation of, arbitration procedures as to Shaw and prospectively as to other employees . ..." 7 Following issuance of the foregoing pleadings, the complaint, amendment to the complaint, and the bill of particulars, the Union on September 26, 1963, wrote to Respondent stating that it was reiterating its request "for job evaluation data relating to the Company's wage classification system in the Company's various divisions .. . . This information is needed by the Union' to administer and police its collective- bargaining contract with you properly .. " 8 By letter of October. 1, 1963, the day before the instant hearing, Respondent advised the Union that it was referring the letter to its attorney. - Conclusions - I am of the opinion that this case should be decided on the basis of the complaint as amended and upon the amplification thereto by the bill of particulars.' The'Union's letter of September 26; 1963, is subsequent to the foregoing pleadings and in my view the letter is not properly cognizable in deciding the case although it was received in evidence. ' V Some observations concerning the letter, however, are in order,since they serve to point up what I believe are the issues in the case before me. The letter uses the word "reiterate" but, as far as the evidence in the case shows, the request in the letter is original in that it requests "job evaluation data relating to the Company's wage classification system in the Company's various divisions in Waterbury." This is a broad and unqualified request. All prior requests, as the evidence reveals, related directly and solely to the job evaluation points of the job of Crane Operator Shaw. As late as June 6, 1963, the Union's demand was stated to be, (1) A copy of the point values involved in arriving at the rate of the job in Grievance #944 [Crane Operator Shaw's grievance, limited to,the job points on his job of crane operator]. (2) The purpose for which the Union requires such information is to make a determination as to whether we would want to arbitrate this grievance. I also find no support in the instant record for the statement in the September 26, 1963, letter that ". . . we have repeatedly requested such information from you in con- nection with various grievances and in other instances over the past two years." The only instance in which job evaluation points were sought was that of Crane. Operator Shaw and the complaint is based upon the Shaw incident .a In a motion to dismiss the complaint Respondent invokes Section 10(b) of the Act, asserting that the charge was filed more than 6 months after the commission of the unfair labor practice. As I view the evidence, the Respondent refused to furnish the Union the evidence it sought, the job points of Shaw's crane operator job, in the latter part of January 1962 and in February 1962; the same refusal occurred in September and in October 1962, and the refusal was carried through the fifth step of the grievance procedure, with the Union adhering to its request and the Company 7 In his brief, the General Counsel states, " . . the Union first requested wage data and was met with a refusal A grievance (No. 944) was then filed based specifically upon that refusal and not upon the equity of any wage rate Thus, the data was not sought for the purpose of processing a grievance . . . the grievance was simply a pro- test against the unlawful refusal " The General Counsel was aware that this letter was being sent. In its June 6, 1963, letter, in addition to job points on grievance No. 944 'in the small tube division, the Union asked for the same information on grievance No. 379- fabricated metal goods division. The facts regarding grievance No 379 are not shown in the instant record and the instance is not included in the complaint. The Company's answering letter regarding grievance No 379 makes the uncontroverted assertion that no job points are used in the fabricated metal goods division and notes that the Union has cited that grievance for arbitration and that an arbitrator has been agreed upon. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adhering to its refusal. So evident was the refusal in 1962 and certainly by-the middle of October 1962 , that mediation and arbitration were invoked as provided in the contract.10 On May 23, 1963, as explained and particularized by letter of June 6, 1963, the Union again asked the Company for the job points on grievance No. 944, Shaw's crane operator grievance. The Company, again, on June 12, 1963, refused to give the data requested. With respect to Section 8(a)(5) violations of the Act and the application of Sec- tion 10 (b) thereto, it can be said that the Board's decisions hold that when there has been a refusal to bargain the Section 10(b) limitation period begins to run and if the charge is filed more than 6 months later, it will be ineffective ; however, if at ,any subsequent time a request to bargain is made and is denied , in violation of Sec- tion 8(a)(5), the denial constitutes a new and independent violation - of Section 8(a) (5) regardless of how many times the same demand had been made in the past." Under this interpretation it would appear that if the Union were to make a demand for the crane operator data in 1968 instead of in 1962 and in 1963 , the demand and denial would constitute a viable unfair labor practice, albeit that the first demand and refusal, identical to the later demand , occurred in 1962 . A fortiori, therefore, the demand and refusal in the instant case in May and June 1963 were sufficient basis for the charge filed in July 1963, and were timely within Section 10(b) of the Act. The instant case , may perhaps present a somewhat different situation since the demand for data, in June 1963 , was expressly stated to relate to and was directed to the original demand and grievance in 1962 upon which the parties had joined issue in a specific grievance procedure . It thus bears a resemblance to the Pennwoven case.12 Unlike the instant case , cases in which there were demands for recognition or bargaining or for bargainable material , without regard to any prior instance or any prior particular demand , may be regarded as cases in which the subsequent demands stood upon their own two legs and were complete and actionable in themselves with- out regard to any prior situation , even though a similar demand might have been previously made. However, in view of the present position of the Board with respect to the application of Section 10(b) to Section 8(a) (5) situations and in view of my opinion with respect to the case aside from the Section 10(b) aspect , disposition of the case under Section 10 (b) is not relied upon. There is no doubt in my mind that a union as bargaining agent is entitled to receive all information necessary to properly perform its function of representing the em- ployees and administering the contract.12 As a general proposition , I would also af- firm that where an employer has a job evaluation system that is used to classify jobs as to grade and wages , the Union, as bargaining agent, would be entitled to access to all data used in the said system. In the present case we see a collective-bargaining relationship between the parties that has existed for some 25 years. Both parties, as far as I could observe, are competently represented by individuals and groups that are alert to protect their respective interests . As might be expected, from the experience of many years in dealing with each other, well developed and relatively sophisticated contracts have been negotiated . The parties in their contracts wrote their own charters for industrial self-government and provided machinery for the solution of "all grievances, questions, and disputes between the parties." It is my opinion that the instant case involves a grievance and that it should be handled through the contractual grievance machinery of the contract, with disposition made therein of the Company's defense based on its interpretation of article IV(8) of the contract and of the other contentions of the parties.14 The foregoing is the collective bargaining agreed upon by the parties and if 10 The mediation step of the grievance procedure was followed but proved fruitless Although an arbitrator was agreed upon and a hearing set the parties did not proceed to arbitration. 11 West Penn Power Company, 143 NLRB 1316; White Construction and Engineering Company , Inc., 97 NLRB 1082, enfd. 204 F 2d 950 (C.A. 5) ; cf. Local Lodge No 1424, International Association of Machinists, AFL-CIO; et at. (Bryan Manufacturing Co.) v. N.LRB, 362 US. 411. 11 N L R B. v Pennwoven, Inc, 194 F. 2d 521 (C A. 3). 13 N.L R B. v. Truitt Mfg. Co , 351 U.S. 149; N.L.R.B. v. F, W. Woolworth Co, 352 U.S. 938. "Hercules Motor Corporation, 136 NLRB 1648, 1651-1652; United Steelworkers of America v American Manufacturing Co., 363 U S. 564, 566; United Steelworkers of America v Warrior and Gulf Navigation Company, 363 U. S. 574. BOISE CASCADE CORPORATION 491 collective bargaining is ever to mature it should be allowed to function in this case without the Board's intervention. I, therefore, recommend dismissal of the complaint.15 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of the Act and is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. It will not effectuate the policies of the Act to find that Respondent has violated Section 8(a)(1) and (5) of the Act in the circumstances of this case. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions , and upon the entire record, it is recommended that the Board issue an order dismissing the complaint. 15 Subsequent to the events of January and February 1962, involving Shaw's job as crane operator and subsequent to his original requests for job point data, the Union, on August 23 , 1962 , presented detailed contract proposals to Respondent . Negotiations apparently extended over a period of months since the new contract was entered into on December 12, 1962. Neither in the August 23 contract proposals of the Union nor in subsequent contract negotiations did the Union ask for or raise the issue of the Company furnishing job evaluation points to the Union . This failure to make such contract de- mands cannot be attributed to a desire not to prejudice the grievance of Crane Operator Shaw since Shaw had been restored to his former classification in February 1962. There being no personal loss of Shaw involved thereafter , it must be assumed that all that re- mained was the principle of the Union being entitled to receive job point data. If such a demand had been made in contract negotiations and the Company adamantly refused to accede to the furnishing of such data , the legal outcome might well have been otherwise. Boise Cascade Corporation, Employer and Teamsters, Chauf- feurs, Helpers & Delivery Drivers Local 690, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case No. 19-RC-3350. August 26, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Robert E. Tillman. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 1 At the request of the Petitioner, the Regional Director issued two subpoenas duces tecum requiring the Employer to produce certain of its records . Thereafter , the Em- ployer indicated that it would net comply with certain items in the subpena and It peti- tioned for the revocation of the subpena as to those items . This petition was denied by the Regional Director. The Employer then filed with the Board an emergency appeal from the ruling by the Regional Director and the Board remanded this appeal to the Hearing Officer for decision . The Hearing Officer then denied the Employer 's petition to revoke and the Employer filed a second emergency appeal from the Hearing Officer's rul- ing. The Board reserved ruling on this appeal pending a review of the record, as, in our view, the record , including the briefs of the parties , adequately presents the facts in this proceeding , and as the Petitioner does not now complain that the record is in any way inadequate, we shall reverse the Hearing Officer's ruling and grant the Employer's petition for revocation. 148 NLRB No. 53.