Anaconda Wire And Cable Co.

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anaconda Wire and Cable Company and Local Union Nos. 1543, 983, 2224, and 1000, International Brother- hood of Electrical Workers, AFL-CIO. Cases 38-CA-639, 38-CA-670, 38-CA-671, and 38-CA-672 May 1, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 10, 1969, Trial Examiner Robert Cohn 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 and the Charging Party filed exceptions to the Trial Examiner's Decision and briefs in support thereof, and the Respondent filed a brief in answer to the exceptions and brief of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner 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, briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The facts are not substantially in dispute, and are set forth fully by the Trial Examiner. Each of the Charging Parties' represents one of four distinct bargain- ing units at four of the Respondent's plants,. at Marion, Indiana; Muskegon, Michigan; Sycamore, Illinois; and Watkinsville, Georgia. They were engaged in joint negoti- ation of new contracts during which period an economic strike occurred at each plant, all of which were ultimately resolved by separate strike settlement agreements. The Union had requested a provision concerning the incentive plan at each plant to satisfy the demands of the membership prior to the signing of the strike settlement agreements . In the course of the discussions which ultimately resulted in settlement , the union repre- sentative, Lucas, stated that he thought that inclusion of language in the contract "describing an incentive plan . . . like Marion, except that the Marion one is not complete" would be acceptable. The Company stated it would require many weeks to prepare the information, and it was agreed, on suggestion of the Respondent Vice President Leader, that in order not to delay settle- ment of the strike the Respondent would reduce the existing incentive plans to writing after the strike was over and present them to the Union for approval. Each of the written strike settlement agreements contained the following provision respecting this matter: ' The Local Unions are herein referred to collectively as the Union As soon as practicable after the employees return to work, the Company will prepare a memorandum in which it will reduce to writing the incentive plan in effect at the time of the strike and will meet with the Union Representative to discuss such memo and include this as an addendum to the labor agreement. The agreement at Sycamore included, in addition, a handwritten note that this description of the plan was to provide for arbitration. Pursuant to the agreement, a union representative, industrial engineer Zalusky, met with a company repre- sentative, industrial engineer Maher, on five occasions between November 1968 and March 4, 1969. It is clear from the record, and the Trial Examiner found, that when Zalusky asked questions of Maher at their various meetings, Maher responded mostly in general terms. For example, when Zalusky asked how much bonus opportunity was being built into the machine controlled elements, Maher responded merely that it would vary between the machines and with the type of operation. A similar exchange occurred with relation to the bonus opportunity data. It is clear from the above summary of the facts that the parties agreed to continue the existing incentive plan at each plant, but a dispute arose as to whether they agreed as to the nature of the description to be included in the contracts. It is apparent, however, contra- ry to the Trial Examiner's view, that the parties did agree that the Respondent's descriptions would be sub- ject to negotiations with the Union,but there was no agreement that they were to be limited solely to the precise form or language contained in the Marioncon- tract. Not only did Vice President Leader propose, to present the "writeups" to the Union for approval accord- ing to the Trial Examiner's findings, but the strike settle- ment agreements provided specifically for discussion of such memoranda. A provision for such discussion would have little meaning if the description were to be left to the company's unilateral, final decision. How- ever, there is also no basis for finding that the agreement of the parties was intended to mean that all details of the plans were to be included in the description, as sought by the Union.' As we can only conclude that there was no agreement on the extent of the details to be included, but rather that was a matter for discussion and negotiation between them, we find no obligation on the part of the Respondent to include any specific details in the descriptions. Accord- ingly, the failure to comply with the Union's requests was not violative of the' Act unless the Respondent acted in this fashion in order to avoid reaching agree- ment. There is no indication in the record that the Respondent had such an unlawful motive. Therefore, 2 In view of the agreement of the parties to negotiate concerning the memoranda to be appended, we need not consider the General Counsel's contention that the Respondent, merely by agreeing to continue the existing plans, would be under a statutory duty to include a fully detailed description of such plans in the contracts 182 NLRB No. 35 ANACONDA WIRE AND CABLE CO. we adopt the Trial Examiner's recommendation that this allegation of the complaint be dismissed. With respect to the Union's request for information, a different situation exists. There is no dispute concerning the general principles applicable, but there is disagree- ment as to whether the Respondent had satisfied its obligation . Thus, all parties agree that incentives are a mandatory subject of bargaining and that the Respond- ent has a statutory duty to supply relevant information for the purposes of bargaining or administering a con- tract. Of course, a Union may waive its right to such informaiton , but such a waiver will be found only where established by clear and unequivocal evidence. We have already found above that the Trial Examiner erroneously deemed the discussions concerning the mem- oranda not to be negotiations. Further, unlike the Trial Examiner, we find no basis for concluding that the Union waived its right to such information in the instant case or contractually limited the information to which it would be entitled, for, nothing contained in the strike settlement agreements or in the discussions preceding them is indicative of any such intention.3 Nor do we understand the Respondent to argue that there was such a limitation or waiver. Rather, we construe the Respondent ' s position as being solely that no proper request was made for incentive information and, in any event, the Trial Examiner correctly found that the Respondent provided sufficient data to satisfy its obliga- tion. We find no merit in the Respondent's contentions. It is quite clear the the Union's representatives requested specific information concerning the operation of the plan, during the course of the discussions, for purposes of working out the written description, and the Trial Examiner so found. But, there is no basis in the record for finding that this information was sup- plied at' any time before the discussions of Zalu'sky and Maher , and it is clear that during the meetings with Maher, Zalusky asked questions which were met by uninformative responses . Further, the Union's written request for information concerning the "earnings oppor- tunity" for purposes of the discussions received no direct response and the particular, data were not forth- coming. It is not sufficient, contrary to the Trial Examin- er's conclusion, that "rate sheets" were posted at each work station and the employees were briefed by supervi- sory personnel and/or the plant's industrial engineer, at which time a union representative could be present, with regard to the method of calculating the operator's rate.4 Furthermore, the Trial Examiner's statement that "the written data is available to the Union upon request" is not sustained by the Respondent's conduct as estab- lished by the evidence, since Respondent in fact refused to supply it in any form. Since the parties agreed merely to negotiate concerning the language to be appended to the contract, the Union's 3 See, e g , N L R B v Acme Industrial Co , 385 U S 432, affg 150 NLRB 1463, The Press Company, Inc ,121 NLRB 976, 978 ° See, e g , Weber Veneer & Plywood Company, 161 NLRB 1054, 1056, cf Zenith Radio Corporation, 177 NLRB No 30 (TXD), Northwest- ern Publishing Company, 144 NLRB 1069, 1071, 1083, Ingalls Shipbuild- ing Corporation, 143 NLRB 712, 717 273 right to information rests on the statute rather than on contractual interpretation.5 There is no doubt about the fact that the information requested related to the incentive plan and how it worked and that this, in turn, was at least potentially relevant to the administra- tion and further negotiation of the contract i' The Respondent contends that the information was sought for inclusion in the memorandum, but the Union's right to the information would not vary with whether or not, at the same time, it also made demands which the Employer could lawfully refuse to entertain.7 It is well settled that wage and related data pertaining to the employees in the bargaining unit are presumptively relevant to the administration or negotiation of a contract because such data concerns the core of the employer- employee relationship." These principles are equally applicable here. This is so without regard to the accuracy of the Union's contention herein that such data must be incorporated into the written description of the plan. For it is entitled to determine, by examination of the relevant information, what details it wished to request be included, and it is entirely possible that upon such examination the Union might agree that more detail would not be desirable." For the above reasons, we find that Respondent violat- ed Section 8(a)(5) by failing to supply the Union with requested information which was pertinent to the negotia- tion of the language to be incorporated in the descriptions of the incentive 'wage plans and to the administration of the collective-bargaining agreements. iii THE REMEDY Having found that the Respondent has engaged in unfair, labor practices violative of Section 8(a)(5) of the Act, we'shall order that it cease and desist therefrom and'take certain affirmative action designed to effectuate the policies'of the Act. Having found that the Respondent refused the Union's request for disclosure of incentive wage plan data which Therefore, contrary to the Trial Examiner , the General Counsel did not have the burden of establishing an agreement to supply the information sought In agreeing with the Trial Examiner that there is no merit in the contention that the resolution of the issues should be left to arbitration, we rely on the reasons set forth by him but rely , in addition, upon our conclusion that no question of contract interpretaion is involved See, e g , N LR B v Acme Industrial Co , supra, Timken Roller Bearing Co , 138 NLRB 15, enfd 325 F 2d 746 (C.A 6) In this connection we note that the terms of the strike settlement agreements providing for discussions of a description of the incentive plans to be appended to the collective-bargaining contracts at each plant, in connection with which discussions the information was sought, are not themselves clearly subject to any existing contractual arbitration clauses " See, e g , N L R B v Acme Industrial Co , supra, cf Cowles Communications , Inc , 172 NLRB No 204, Weber Veneer and Plywood Company, supra , 1055-56 Cf , P R Mallory & Co , Inc , 171 NLRB No 68, enfd 411 F 2d 948 (C A 7) " N L R B v Curtiss-Wright Corporation, Wright Aeronautical Divi- sion, 347 F 2d 61, 69 (C A 3), enfg 145 NLRB 152 Cf , N L R B v Acme Industrial Co , supra Cf , BFR Broadcasting Corporation dibla Radio Station WLOL, 181 NLRB No 77 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was sought for the purpose of administering the collec- tive-bargaining agreement, we shall order that the Respondent furnish the Union with information as to the incentive wage plan in effect at the time of the strike at Respondent's plants in 1968, relevant and neces- sary to assist the Union in the appraising of grievances to which the incentive wage information relates. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Anaconda Wire and Cable Company, Sycamore, Illinois; Marion, Indiana; Watkinsville, Georgia; and Muskegon, Michi- gan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local Union Nos. 1543, 983, 2224, and 1000, International Brother- hood of Electrical Workers, AFL-CIO, as exclusive bargaining representatives of all employees in the appropriate collective-bargaining units by failing and refusing to furnish them with relevant incentive wage data regarding unit employees for its use in bargaining for and administering the collective-bargaining contracts. (b) In any like or related manner interfering with the efforts of the Union to bargain collectively with it on behalf of the employees in the appropriate units. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Furnish to Local Union Nos. 1543, 983, 1000, and 2224 as exclusive bargaining representatives of all employees in the following appropriate collective-bar- gaining units, respectively , incentive wage plan data regarding unit employees, heretofore requested by the Union, for its use in bargaining concerning and adminis- tering the collective -bargaining contracts: All hourly-rated employees of Respondent employed at its Sycamore plant, excluding foremen, assistant foremen , guards and supervisors as defined in the Act; all hourly-rated employees of Respondent employed at its Muskegon plant , excluding watchmen , guards, employees who perform office duties, and supervi- sors as defined in the Act; all hourly-rated employees of Respondent employed at its Marion plant , excluding foremen , subforemen, supervisors , matrons, gate guards, maintenance employees in the Machine Shop and Power House employees represented by Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, guards and supervi- sors as defined in the Act; all hourly-rated production and maintenance employees of Respondent employed at its Watkins- ville plant, excluding all salaried employees, office clerical employees, quality control inspectors, tech- nical and professional employees, guards and/or watchmen and supervisors as defined in the Act. (b) Post at its Sycamore, Illinois; Marion, Indiana; Watkinsville, Georgia; and Muskegon, Michigan, plants, copies of the attached notice marked "Appendix." Cop- ies of said Notice, on forms provided by the Regional Director for Subregion 38, after being duly signed by a representative of the Respondent , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to plant employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Subregion 38, in writing, within 10 days from the receipt of the Deci- sion, what steps the Respondent has taken to comply with the foregoing Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not herein found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local Union Nos. 1543, 983, 1000, and 2224, Inter- national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of our employees in the respective appropriate bargaining units described below, by failing and refusing upon request to furnish them with incentive wage plan data regarding unit employees , for use in bargaining concerning and administering the collective-bargain- ing contracts. WE WILL NOT in any like or related manner interfere with the efforts of the Union to bargain collectively on behalf of the employees in the appropriate units. , WE WILL furnish to Local Union Nos. 1543, 983, 1000, and 2224 as exclusive bargaining repre- sentatives of all employees in the following appropriate collective-bargaining units, respec- tively, incentive wage plan data regarding unit employees for use in bargaining concerning and administering the collective-bargaining contracts: all hourly-rated employees of Respondent employed at its Sycamore plant, excluding foremen , assistant foremen , guards and super- visors as defined in the Act; all hourly-rated employees of Respondent employed at its Muskegon plant , excluding watchmen, guards, employees who perform office duties, and supervisors as defined in the Act; all hourly-rated employees of Respondent employed at its Marion plant, excluding fore- men, subforemen , supervisors, matrons, gate ANACONDA WIRE AND CABLE CO. guards, maintenance employees in the Machine Shop and Power House employees represented by Local 135, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, guards and supervisors as defined in the Act; all hourly-rated production and maintenance employees of Respondent employed at its Wat- kinsville plant , excluding all salaried employ- ees, office clerical employees , quality control inspectors , technical and professional employ- ees guards and/or watchmen and supervisors as defined in the Act. ANACONDA WIRE AND CABLE COMPANY Dated By (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: Pursuant to separate charges filed by four local unions affiliated with Interna- tional Brotherhood of Electrical Workers, AFL-CIO (herein collectively called the Union), the General Coun- sel of the National Labor Relations Board (herein the General Counsel and the Board, respectively), through the officer-in-charge of Subregion 38 of the Board, on May 14, 1969,' issued four individual complaints and notices of hearing against Anaconda Wire and Cable Company (herein the Company or Respondent). On May 15 the said officer-in-charge, "deeming it necessary in order to effectuate the purposes of the Act2 and to avoid unnecessary costs or delay," issued an order consolidating the four cases for hearing.3 On May 29, ' All dates hereinafter refer to the calendar year 1969, unless otherwise specified ' The National Labor Relations Act, as amended (29 U S C A Sec 151, et seq ) 3 The dates of filing of the original charges are as follows Case 38-CA-639 filed March 13, Case 38-CA-670 (formerly 7-CA-7300) filed April 18, Case 38-CA-67l (formerly 10-CA-7753) filed April 18, and Case 38-CA-672 (formerly 25-CA-3386) filed April 21 The reason for filing these cases in the different regions of the Board, as aforesaid, was because the Respondent owns and operates various facilities in these regions, as will be more fully discussed hereinafter As indicated, 275 the Respondent duly filed separate answers to the individ- ual complaints in which it generally denied the commis- sion of any unfair labor practices, and alleged certain matter in the nature of affirmative defenses.4 The principal, substantive issues raised by the plead- ings are whether the Respondent violated Section 8(a)(5) of the Act by assertedly failing and refusing to furnish to the Union certain data relating to the incentive wage plans extant at the several plants of Respondent, hereina- bove referred to, and by refusing to reduce to writing the said incentive plans pursuant to memorandums of agreement entered into on July 1, 1968, between the Respondent and the Union as part of a strike settlement. A hearing on these issues was held before me in Peoria, Illinois, on August 19 through 22, in which all parties were present and represented by counsel, and were afforded full opportunity to present evidence, examine and cross-examine witnesses, to argue orally, and there- after to submit briefs. Helpful, posthearing briefs were submitted by all parties, which have been duly consid- ered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is, and has been at all times material, a Delaware corporation with offices and places of busi- ness located in several States of the United States, were it is engaged in the business of manufacturing and selling electrical wire and cables. The four facilities of Respondent involved in the instant proceeding are located in Sycamore, Illinois; Marion, Indiana; Muskeg- on, Michigan; and Watkinsville, Georgia. Respondent, during the past 12 months, which period is representative of all times material, sold and shipped from each of the aforementioned locations goods and materials valued in excess of $50,000 to points outside the respective States. During the same period, the Respondent purchased and caused to be transferred and delivered to the aforesaid locations, goods and materials valued in excess of $50,000 which were trans- ported to said facilities directly from States other than the State where such facility is located. Respondent is an employer engaged in commerce within the meaning of the Act. At the hearing, Respondent moved that the Board's jurisdiction not be asserted in these cases, leaving the resolution of the issues to the parties pursuant to the grievance and arbitration provisions of the contracts existing between Respondent and the local unions at the respective plants. Counsel for the General Counsel the cases filed in regions other than Subregion 38 were subsequently transferred to that subregion for disposition, inasmuch as they involved related issues ' The Respondent, on May 29, also moved to sever the cases previously consolidated, which motion was denied by a Trial Examiner by order dated June 13 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Charging Parties opposed the motion on the grounds, inter aha that the issues involve statutory interpretations inappropriate for resolution by an arbitra- tion, and, in any event, in at least one of the contracts the grievance procedure did not terminate in arbitration Whatever may be the merits of having this dispute resolved by an arbitrator chosen by the parties rather than through intervention of a governmental agency (and this Trial Examiner believes that, in the circum stances posed by this case, there are strong reasons in favor of such a course), I am unaware of any case where the Board has deferred to the parties where the contractual grievance procedure did not provide for final determination through arbitration 5 Since the Muskegon contract did not so provide, and counsel for Respondent could not assure that the Company would agree to arbitrate outside the contractual provi- sions '' and since there is a common issue in all these cases, the Trial Examiner could see no justification for deferring some of the cases to an arbitrator and leaving one to be decided by the Board I accordingly denied the motion iI THE I ABOR ORGANIZATIONS INVOLVED Local Union Nos 1543, 983, 2224, and 1000, and each of them, all of whom are affiliated with the Interna- tional Brotherhood of Electrical Workers, AFL-CIO are labor organizations within the meaning of the Act Iii THE Al I EGED UNFAIR LABOR PRACTICES A Background The parties stipulated that the aforesaid local unions have been the exclusive bargaining representatives of the employees at their respective plants in an appropriate unit as alleged in the complaints ' for the period of time as indicated Local 1000-Marion , Indiana-since 1939 Local 983-Muskegon , Michigan-since 1941 Local 1543-Sycamore , Illinois-since 1946 Local 2224-Watkinsville, Georgia-since 1958 It appears that prior to the events giving rise to the issues in the case , the Respondent had been in contractual relations with the aforesaid local unions at their respective locations since approximately the time such locals had been recognized as the exclusive bargaining representatives of employees at such locations The last contract expiring prior to July 1, 1968 was as follows Cf Jos Schutz Breit'inj Company 175 NLRB No 23 Certainly the parties could possibly agree to arbitration I am not certain that they would But certainly that could be agreed upon which would be outside the contractual provisions The units generally encompass the production and maintenance employees it their respective loc itions At Sycamore-November 15, 1968, at Muskegon- August 16, 1967, at Marion-March 28, 1967, at Watkinsville-May 31, 1968 Following the expiration of the aforesaid collective bargaining agreements," the parties were unable, initially, to resolve their differences, and eventually the Union went on strike in an effort to enforce its demands Such strike continued at each location until the end of June 1968, when representatives of the parties met in Washington D C , in an effort to settle the matter B The Washington Meetings The first meeting of the representatives occurred on Friday afternoon, June 28, 1968 Present for the Union was Michael Lucas, a representative of the International Union (as distinguished from one of the local unions), present for the Company were Al Leader, a vice presi dent, and Jerry White, personnel administrator The discussion that afternoon and later that evening was centered primarily on procedural problems and the for- mat of the negotiations It was agreed that negotiations would be conducted individually with each local union, but that a representative of the International would be a spokesman for each of the four locations involved accompanied by the president of the respective local union There was some discussion of the economic issues and the term of the proposed contracts, but there was no discussion of incentives or of incentive plans It was, however, agreed that the subject of incen- tives would be discussed as a local issue ' Negotiations commenced on Saturday, June 29, in Washington about 9 or 10 a in The format of the negotia- tions was, as noted, that the Company would negotiate with each local union , such meeting being chaired by International Representative Lucas The negotiations were continuous that day, however, nothing significant respecting the issues in this case, i e , incentives, tran- spired until approximately midnight At that time, when it appeared that the parties were fairly close to settlement on other issues, the question was raised as to what if anything, was going to be done about incentives iI ' The contract at Sycamore was apparently opened pursuant to its provisions N It should be noted at this juncture that at each location involved many if not most of the workers in the bargaining unit were paid pursuant to an incentive plan as distinguished from a straight hourly rate There is no disagreement that such incentive programs had been in existence at each plant for some period of time prior to the strike settlement negotiations and that each such plan at one location differed in some respects from that at the other locations The plans were administered solely by the Company subject only to the grievance and arbitration provisions of the collective bargaining agreements (how ever at that time incentives were not encompassed under the arbitration provisions of the Sycamore agreement of which more anon) It should also be noted that during the negotiations between the parties prior to the strike settlement negotiations in Washington the unions had placed on the bargaining table various proposals looking toward improvements in the incentive programs at their respective plants or in the case of Marion sought to do away with the incentive program altogether However the Company had consistenly rejected all such union proposals "' Testimony varies as to which party actually raised the issue each party attributing the initial statement to the other However I am ANACONDA WIRE AND CABLE CO. After the company representatives had pointed out that they had rejected all proposals by the Union to alter or eliminate the incentive programs, Lucas replied that many members felt that the plans were not being adminis- tered properly and indiscriminately, and accused the Company of changing the plans arbitrarily in some instances It was pointed out that this kind of conduct could be easily accomplished since the plans were, for the most part, not reduced to writing." Leader then asked Lucas if the latter meant that the Union wanted a description of an incentive plan, to which Lucas replied, "Well, I would expect that incentive plan to be the normal language that would appear in a contract describing an incentive plan . . . such as the Hastings agreement . . or like Marion, except that the Marion one is not complete. 1112 Lucas further testified that Leader stated, "You mean we would write down the incentive plan that was in effect prior to the strike, that this would settle this whole matter"" Lucas said he thought it would-that he would have to "check with the boys" but he thought it would. On Sunday, June 30 the parties resumed discussion at the headquarters of the International Union in Wash- ington at about 11 a.m. There is some variance in the testimony as to what actually transpired at this particular time as respects the agreement concerning the incentive plan. Lucas testified that Leader met with him privately (without White) to discuss the remaining issues that had not been settled the day before and that when they reached the incentive question, Leader inquired how important that was. Lucas responded that it was "an item that would have to be settled before we could reach agreement." Lucas explained that if the Company would write up the plans as they existed at each plant prior to the strike, that possibly the Union could accept it but that he would have to check with the boys. Leader pointed out that if the writeups had to be presented prior to the signing of the strike settle- ments, that such strike settlements would be delayed for weeks in order to give the Company time to confer with the plant engineers and have the plans reduced to writing, and suggested to Lucas that the Company would incorporate language in the settlement agreements to the effect that the Company would reduce the incentive plans to writing after the strike was over and present them to the Union. Lucas then conferred with his associ- ates after which he came back and told Leader that inclined to credit the Company's witnesses on this point, i e , that Lucas raised the issue, since I am inclined to doubt that the company representatives would inject any such element in the negotiations at that point " At that time the only description of an incentive plan extant in either of the four locations which had been reduced to writing and incorporated in a collective-bargaining agreement, was at the Marion plant " Testimony of Lucas Hastings refers to another plant of the Compa- ny where the workers are represented by another labor organization The record reflects that the Company had recently consummated a labor agreement there, which agreement apparently incorporated some language respecting an incentive plan However, such language was not offered into evidence in this record .277 he had encountered some difficulty in selling the idea to the delegates; however, Leader suggested that the Company draft some language and present it to the union representatives and see if they would approve. Lucas agreed with this procedure. 13 Early Monday morning, Leader and White commenced drafting the memorandums of agreement which purport- edly reflected the understandings reached in the negotia- tions. Incorporated in each such memorandum of agree- ment for the four locations (except Marion) was the following language. As soon as practicable after the employees return to work, the Company will prepare a memorandum in which it will reduce to writing the incentive plan in effect at the time of the strike and will meet with the Union Representative to discuss such memo and include this as an addendum to the labor agreement. White testified that the foregoing language was not incorporated in the Marion memorandum because there had been no agreement to provide any writing to Marion. However, when International Representatives Clarence Young and Michael Lucas came to the Anaconda offices later in the morning to proofread the documents, they objected to the absence of such language in the Marion memorandum. When White pointed out that there was already incentive language in the contract at that there was already incentive language in the contract at that location, Lucas reminded him that the agreement was that the language would be submitted to the Union's industrial engineer for discussion, and that he (Lucas) was not an industrial engineer . Whereupon, after some discussion, White had the language included in the Mar- ion memorandum (G.C. Exh.'9). The only other change in the language of the memoran- dums of agreement, as respects incentives, involves the Sycamore plant, where, after some discussion with the union representatives respecting arbitrability, Leader penned in the following sentence immediately after the above-quoted paragraph: "Such language will include arbitration. 1114 Accordingly, all memorandums of agreement for all four plants were signed in Washington on July 1, 1968 C. The Discussions to Implement the Memorandums of Agreement On July 25, 1968, Personnel Administrator White draft- ed a memorandum to the Company's then director of industrial engineering which doubtless reflected his " The foregoing findings are based upon the testimony of Lucas which I credit in its essence, although this should not be construed as suggesting that I credit all the embellishments which are contained therein In other words, I am well aware of the fact that the three parties who testified that they were present and involved in consummating the strike settlement agreements were highly interested in the outcome of the proceeding As such, I believe that all parties were prone to present their testimony in a light most favorable to their principal's case, and, while I believe them to be essentially honest, I do not credit either party in toto but tend to believe that, as in many cases, the truth lies somewhere in the middle 11 G C Exh 3 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (White's) understanding of the memorandums of agree- ment recently negotiated with the Union, as respects incentives: As you know, in concluding contract negotiations for the IBEW units at Marion, Muskegon, Syca- more, Watkinsville, the Company agreed to prepare a memorandum for each location. This memoran- dum will reduce to writing the incentive plan or plans in effect at the time of the strike. There is to be no negotiating with the union at any of these locations. We are merely to draft our incentive practices at the time of the strike. It is suggested that our memorandum be somewhat along the lines of the incentive language that we had in our last Marion IBEW contract. As soon as we have readied these memorandums, we will then sit down at each location and discuss only the contents of the memorandum with John Zaluski, the IBEW Industrial Engineer , from the IBEW Washington headquarters. At Sycamore only, the memorandum should also include language provided for the arbitrationability [sic] of incentives, again , along the lines of our recent Marion IBEW language. We should have each of the four memorandums ready for discussion by the end of September. The IBEW plans to incorporate each of the incentive memorandums into their new labor contracts.'' After several telephone conversations between Lucas and White in August looking toward commencement of discussions to implement the memorandums of agree- ment , White suggested that Lucas and Zalusky come t9 New York to inspect the language which the Company had drawn up before they went out to meet the four locations. Lucas had no objection to this procedure, but it apparently became a problem to arrange a time suitable for all four participants (Lucas, Zalusky, White, and Maher, the Company's industrial engineer). Finally, it was agreed that Maher and Zalusky would get together at their convenience without Lucas and White; accord- ingly, the first meeting between the two men was arranged to be held in New York on November 22, 1968. 1. The New York meeting The meeting between the two chief industrial engineers for the parties in New York in November, being the first meeting between the two following the signing of the memorandums of agreement, may be said to have been one in which each man expressed essentially his client's understanding of its obligations under the agreement, and what his client desired and expected of the other party pursuant to the agreements. Thus, Zalusky testified that he "stated specifically . . the information we needed to administer the wage incentive plan at the various Anaconda plants and what we expect- ed to have included in these statements, the description " Resp Exh 8 of the plans." He requested that the statements include, for example, the kind of stopwatch timestudies which were being used, which predetermined time systems were being utilized, the types of allowances (fatigue, unavoidable delay, personal, etc.), the percentages of such allowances which were incorporated into the basic rate, and a "specific' statement as to the expectancy of the wage incentive plans at the various locations." Then, according to Zalusky's testimony, "Mr. Maher commented that he was not going to give the union a guarantee minimum statement, and I said that presented no problem with the union ; with the exception of the variations in the amount of expectancy the language associated with the Marion agreement would be satisfac- tory." Maher testified that he informed Zalusky at the outset of the discussion that the 1964 Marion contract would be the outline to be used for all of the plants and that Zalusky responded that he did not think that "we're going to have any problems." He testified that Zalusky was primarily interested in the bonus opportunity and the allowances to which Maher responded that "they would be along the lines of Marion." According to Maher's testimony, the remaining discussion concerned the general topics of the Marion outline and how they were to be incorporated into the local plans."! 2. The meeting at Sycamore The first meeting between the parties at either of the four locations, pursuant to the memorandums of agreement, took place at Sycamore on December 18, 1968. Present for the Company were Mr. Maher and Mr. Oppedal (plant industrial 'engineer); for the Union were Mr. Zalusky, International Representative Schae- fer, and several representatives of the local union. At the commencement of the meeting, Maher delivered a single copy of a two-page document entitled "Sycamore Plan-Incentives" to the Union, immediately following which the union representatives asked for a caucus to study the document. In the meeting following the caucus, Zalusky, who was primary spokesman for the Union, expressed' his great disappointment to the compa- ny representative as respects the failure'of the document to come up to the quantity and quality of information expected by the Union. This related primarily to the failure of the document to reflect specific amounts or percentages of'the bonus opportunity, the various allow- ances which were incorporated into the rate structure; and the like. Thus Zalusky went over the document paragraph by paragraph pointing out its deficiencies, according to the viewpoint of the Union. He asked questions of Maher to which the latter responded mostly in general terms." ", Because the "Marion plan" was repeatedly referred to throughout the testimony as being a standard or guide by which other incentives plans were measured, I have caused it to be attached as "Appendix A" to this Decision " For example, Zalusky asked "exactly how much bonus opportunity they were building into the machine controlled elements Mr Maher said it would vary between the machines [Zalusky] then asked ANACONDA WIRE AND CABLE CO. Maher's version of the meeting is not substantially at variance with that of Zalusky He stated that Zalusky asked extensive questions concerning the meaning of certain statements in the document particularly with respect to the lack of definite numbers or percentages of bonus, allowances, etc. Maher stated the range of allowances such as: "bonus opportunity-you could figure it as 15 to 30 percent, Fatigue allowances would go up to, I guess, 30 percent. Personal time is around 5 percent." Maher stated that the specific figures were not included in the document because they weren't included in the Marion plan except for the bonus opportu- nity which was a negotiated number. Zalusky testified that the meeting was closed by his telling Maher that the document submitted by the Compa- ny was wholly unsatisfactory and constituted a violation of the agreement between the parties. However, a tenta- tive date to meet in Marion, Indiana, was arranged prior to the breaking off of the meeting." The parties met again at Marion on January 10 and the same format was pursued. That is to say, Maher presented Zalusky with a three-page document entitled "General Outline For the Administration Procedure,Of The Bonus Payment Plan" (G.C. Exh. 20), following which the union representatives caucused for the purpose of studying the document. It appeared that the plan was substantially similar to that which existed under the prior agreement between the parties at Marion, with a few changes." Again, as at Sycamore, Zalusky went through the document pointing out items which he considered deficient and inadequate. -For example, under the first section entitled "Production Standards and Earnings Opportunity" there is a sentence which reads: "Where machine limitations exist, the bonus opportunity will not be as great as where such limitations do not exist." Zalusky inquired how much less bonus opportunity would it be if these limitations existed and how much bonus opportunity was built into the machine controlled portions of the operation. In both cases, Maher explained that it would vary with the type of operations. Zalusky requested that specific rules be included as to how these machine limitations would vary with regard to bonus opportunity. Zalusky further requested that specific statements be made with respect to establishing timestudies-whether they be continuous or snapback-as well as specific statements for the various allowances (personal, time, fatigue, delay, and machine interferences). Maher replied that he would take this under consideration and that the Union could expect to hear from him within 2 just exactly how much do they vary, and he again said they would vary with the operation " '" With respect to one aspect of the plan submitted at the.Sycamore meeting, it seems significant to the Trial Examiner that, according to Zalusky's testimony, he made the statement that "this whole paragraph is worse than anything we had at Marion " '" Zalusky testified that the changes were represented "mostly by the red marks" on the document 279 weeks. On January 27, Maher dispatched a memorandum to Zalusky incorporating some changes made in the Marion memorandum with two additional headings.21 4. The Watkinsville meeting' The parties met again in Watkinsville, Georgia, on February 5, where the same format was repeated. Maher submitted a two-page document entitled "Methods For Establishing Labor Standards" (G.C. Exh. 22), following which the Union representatives caucused for the pur- pose of studying the same. According to Zalusky's testi- mony, he explained to Maher that the information sub- mitted was nothing more than essentially the same thing which had been submitted in Sycamore and was deficient in the same respects. Maher more or less conceded that, as was the case previously, the percentages for earnings opportunity and allowances were not listed in the document (which were Zalusky's criticisms) but that the Company answered the Union to the extent of telling them what such allowances were.21 5. The meeting at Muskegon The parties met again on March 4 at Muskegon, Michigan, where, again, the same format was utilized. Maher handed Zalusky a one-page document entitled "Muskegon Plant Methods For Establishing Labor Standards" (G.C. Exh. 23) after which the Union cau- cused. Zalusky then proceeded to ask the same type of questions that he had asked of Maher in the previous meetings, that is with respect to the method of timestud- ies, the amounts of allowances, etc. Zalusky conceded that Maher gave him certain specifics such as "the fatigue allowances . . . range from 2 percent to 30` percent." However, Maher refused to put the "spec- ifics" into the written plan because they were not in the Marion outline which he was using as a guide and which was consistent with the instructions which he had.22 21 G C Exh 21 The matter added consisted of three sentences, as follows Stop Watch Techniques Standards may be arrived at by using continuous watch readings, snap back watch readings or standard data The particular technique employed is dependent upon the type of operation Allowances Where applicable standard times include allowances for personal, fatigue , unavoidable delay and interference This presumably means, as was submitted at Sycamore, the percent- age range of such allowances and bonus opportunity 22 Maher also testified that if, for example, a fatigue factor were placed in the written document, a rather complicated explanation and qualification would have to accompany it as to when and under what circumstances it would be applied, and that this is, in essence, a "judgment factor of the industrial engineer " However, Maher conceded that there was "nothing really wrong with putting it [a figure representing an allowance percentage] in I have seen contracts with them in, I have seen a lot of them without them in " 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Events following the meetings On February 5, Union Representative Lucas dis- patched a letter to Personnel Administrator White charg- ing that the Company had failed to live up to the agreement respecting incentives reached on July 1, 1968, with regard to the Sycamore- location. Lucas pointed out particularly that the documents submitted, by the Company at Sycamore did not contain "any statement of 'earnings opportunity' expressed as a percentage of the hourly wage rate." Lucas charged that there was no question but that during the period prior to the strike the earnings opportunity under the incentive plan in' effect at that time was standardized in a narrow percentage range, as reflected by incentive earnings dur- ing that period. He requested immediate information so that further discussion meetings could be scheduled. On February 28, White responded to the letter stating that, in' his opinion, the Company had satisfied its obliga- tion in that "the Company did reduce to writing the incentive plan in effect at the time of the strike and did meet with the appropriate Union Representative to discuss the written memorandum." On April 25, Lucas responded to White by letter charging that the Company had not lived up to its obligations under the July 1, 1968, agreements at any of the plants since the type of 'information provided by the Company did not represent "a complete and meaningful incentive plan." Lucas charged that the Com- pany had failed to furnish some of the specifics which had been requested by the union representatives; such las allowances for personal time, fatigue, and delays, specific incentive expectancies, the method by which the Company handles'rejects or poor work, etc. Lucas claimed that the "brief statements submitted for each location do not contain the specific details which would necessarily comprise the actual incentive plan existing at each plant. "23 On May 21,, White responded to Lucas' April 25 letter, noting that such letter was 'written on behalf of a "Joint Anaconda Wire & Cable Negotiating Commit- tee." White asserted that since such a committee is not a bargaining agent with whom the Company was obligated to deal, "the Company disbelieves that it has any obligation to answer your letter of April 25, 1969, or any other letter written on behalf of the `Joint Anaconda Wire & Cable Negotiating Committee."' On May 26, Lucas, responding to White's May 21 letter , indicated that he (Lucas) spoke on behalf of the four local unions, and that White was well aware of that fact just as Lucas was aware of on whose behalf White spoke . This was the last communication exchanged between the parties. 2' Lucas signed that letter, as he had the previous one dated February 5, as "Chairman, Joint Anaconda Wire & Cable Negotiating Committee " Analysis and Concluding Findings In their brief, counsel for the General Counsel posed the following as issues to be resolved in this consolidated proceeding: A. Whether Respondent had a'statutory obligation to incorporate the incentive plans in the written contracts. B. Whether Respondent has refused to incorporate the incentive plans in the contracts. C. Whether the Unions requested that Respondent furnish the incentive information. D. Whether Respondent refused to furnish the requested incentive information. E. Whether the Trial Examiner should defer to arbitration .14 As respects the first two issues posed by counsel, it would seem elementary that incentives, being a form of wage payment, are necessarily mandatory subjects for bargaining" and I do not understand that counsel for the General Counsel claim that the Respondent has refused to negotiate concerning such items nor generally to refuse to incorporate incentive'plans into their written contracts. Indeed, they had done 'so at the Marion location, and by the memorandums of agreement execut- ed' July 1, 1968, have clearly agreed to "include this [the incentive plan] as an addendum to the labor agree- ment." I As respects the third issue posed by counsel, there can be no question that the Union requested that Respondent furnish incentive' information. Thus it is undisputed that, prior to the strike settlement negotia- tions in Washington at the end of June 1968, the unions had placed on the bargaining table proposals for improve- ment in the incentive plans extant at the respective plants, and the Respondent had uniformly and consistent- ly rejected such proposals. However, as part of the strike settlement, and since the union negotiators "had to have something on incentives" in order to placate some of 'the complaints of the Union's membership, the parties agreed to put in writing the incentive plans which existed at the plants prior to the strike. According- ly, the following language (which bears repeating) was drafted by the Company, agreed to b'y the Union, and incorporated in the memorandums of agreement: As soon as practicable after the employees return to work, the Company will prepare a memorandum in which it will reduce to writing the incentive plan in effect at the time of the strike and will meet with the Union Representative to discuss such memo include this as an addendum to the labor agreement.21, By entering into the foregoing paragraph, which result- ed through collective bargaining, the parties agreed to the kind of incentive wage information to be furnished 24 The Trial Examiner resolved this issue in the negative, ante 2i See Whiten Machine Works, 108 NLRB 1537, affd per curiam 217 F 2d 593 (C A 4) 4" As previously noted, the following was added at Sycamore "Such language will include arbitration " ANACONDA WIRE AND CABLE CO. I the Union and have, by their contract, regulated the kind of data to be made available to the Union.21 It becomes critical then to determine what the parties meant by the language to which they agreed In this connection, I find, contrary to the contentions of the Respondent in its brief, that the language of the aforesaid paragraph is not so clear and unambiguous that we need not look beyond the "plain meaning" of the words themselves in order to determine the intentions of the parties. Thus, for example, it is apparent from a cursory reading of the record herein that what constitutes an "incentive plan" means different things to experts in industrial engineering, not to mention the laymen in labor-management relations who 'are called upon to administer such plans. Accordingly, I have considered all of the evidence in the record as a whole in reaching a determination as to the intent of the parties in entering into the aforesaid agreement. Having so considered such evidence, I have reached the conclusion, and therefore find, that the General Counsel has failed to sustain his burden of proving that the Respondent, by entering into such agreement,' obligated itself to supply to the Union specific figures or percentages relating to such matters as bonus opportunities, various types of allow- ances, and the like, and therefore Respondent did not violate its obligations under Section 8(a)(5) by its refusal to so supply such specific data. My reasons for reaching this conclusion are as follows: 1. The posture of negotiations It is to be recalled that prior to the Washington negotiations in which these memorandums of agreement were executed, the parties had been in negotiations looking toward the execution of new contracts for, in several instances, many months. At those negotiations the unions had, in most instances, set forth as part of their demands comprehensive propos- als for improvements in the incentive plans which were in existence at their, respective plants. (See, e,.g , -Resp. Exhs. 2 and 5.) These proposals, which included, inter alia, definite standards relating to timestudy procedures and percentages of allowances, had been rejected by the Company both before and during the Washington meeting. It was at this juncture during the Washington ,meetings, when apparent agreement had been arrived at between the parties relating to economic issues and contract term, that Union Representative Lucas raised the issue that something had to be done about incentives. Lucas indicated to the company representatives that, aside from the unions' dissatisfaction with some of the substantive elements of the incentive plans, the membership was dissatisfied because the plans were not "written out, and because our people didn't feel like they were being administered properly, and our people felt the company would change those plans arbi- trarily, or could, and what we wanted was the incentive plan reduced to writing and included as part of the agreement." After some discussion relating to the format of the writing and the time and circumstances under R7 See Anaconda American Brass Cotnpans, 148 NLRB 474, 479, Aico Manufacturing Corporation (Lscotning Dnriston), III NLRB 729 Under these circumstances. I find the General Counsel's "waiver'' theory inapplicable 281 which it was to be produced (discussed more fully infra), the agreement was reached. This dropping or abandonment of their previous pro- posals by the Union in consideration for a mere "memo- randum [containing] the incentive plan in effect at the time of the 'strike ' ." clearly is quite significant in reaching a determination as to whether the agreement contemplated the inclusion of specifics which had been previously requested by the Union and then abandoned. 2. The parties who made the ,agreement '-" In determin- ing the true meaning of the language of the agreement it is, of course, particularly important to assess the qualifications, experience, and background of the persons making it. In this case, it is undisputed that all persons involved were not industrial engineers; rather, they were essentially administrators in labor-management relation's. Thus in exploring what Lucas meant when he suggested a writing that could be incorporated as a part of the labor contract, Leader said (according to Lucas' testimo- ny), "What do you mean when you say you want the description of an incentive plan"" to which Lucas 'responded, "Well, I would expect that,incentive plan to be the normal language that would appear in a contract describing an incentive plan Such as the Hastings agreement . . . or like Marion, except that the Marion one is not complete It was thus Lucas himself who first planted the idea of what was contemplated to be incorporated in the contract respecting an incentive plan, i.e., a description of a plan such as the one at Marion. This is natural in the circumstances since, as the evidence shows, the contract at the Marion mill was the only one of the four whichlincluded a description of.an incentive plan. Thus I am convinced, contrary to the contentions of the General Counsel and the Charging Parties at the hearing and in their, briefs,, that the parties contemplated the use of the Marion description as a basis for the writing requested by the Union, the evidence showing that such was first originated by the union representative and, indeed, was referred to from time to time thereafter by representatives of both parties in their subsequent discussions. Thus it is readily apparent from the testimo- ny of White and Maher, including White's memo of July 25 to the director of the Company's industrial engineering department, that the company representa- tives interpreted the writing to be patterned after. the Marion language. Moreover, Zalusky himself indicated at the November 1968 melting with Maher that use of the Marion agreement, as a guide was satisfactory in most respects,29, f 2N I am aware in the discussion of this point that the General Counsel and Charging Parties contend that the agreement was entered into by Lucas and Leader alone, on the other hand, the Respondent claims that White was present with Leader at the time of agreement I, do not deem it necessary to resolve this particular controversy in reaching a conclusion on the ultimate issue 2H Zulusky's testimony is as follows Then Mr Maher commented that he was not going to give the union a guarantee minimum statement, and I said that presented no problems with the union, with the exception of the variations in the amount, of expectancy the language associated with the Marion agreement would be satisfactory , 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the Sycamore meeting in December 1968, Zalusky complained that one paragraph presented by Maher relat- ing to the Sycamore plant was "worst than anything we had at Marion " In short, I find that although there was no specific language in the quoted paragraph agreeing to the use of the language in the Marion contract as a guide, such was the contemplation of the parties.311 3. Voluminous nature of incentive data: The record herein reflects the pervasive and complicated nature of the data relating to the incentive systems extant at the respective plants (See e.g., Resp. Exhs. I and 4.) This data, consisting of written explanations, charts, mathematical calculations, etc., would literally fill vol- umes of books if compiled for all of the machines at the plants of Respondent under consideration here Even if such information could be appropriately con- densed, it would obviously fill too many pages to be attached as "an addendum to the labor agreement " Under these circumstances I find tl}at it was clearly not within the contemplation of the parties that the Company would supply such specifics in that particular form and manner. 4. Respondent had previously supplied incentive data: Aside from the fact, as found above, that the parties did not by their agreement contemplate the furnishing of specific information but rather a description of the plan existing at the respective plants along the line of the description contained in the Marion agreement, there is credible record evidence that the Respondent had supplied a wide range of such information in the past (as hereinabove noted, see Resp. Exhs I and 4). Thus there is uncontradicted evidence that at each work station in the plants the Respondent posts "rate sheets" which contain extensive incentive data which purportedly explains to the operator how his incentive earnings are calculated. Moreover, the method of calcu- lating the operator's rate is gone over with him by supervisory personnel and/or the plant's industrial engi- neer. A union representative may be present at such explanation, and the written data is available to the Union upon request. Thus it appears that much of the information requested by the Union has either already been supplied to it, or is available upon request, 'albeit perhaps in different form. Furthermore, as hereinabove found, Maher supplied the answers to many of Zalusky's requests for specific information orally at the several meetings between them at the various plant locations. Under these circumstances I cannot agree that Respond- ent's refusal to incorporate the "specifics" requested by the Union into the memorandums can be fairly regard- "' This conclusion is buttressed by the conduct of White who, upon drafting the language for the memorandums of agreement, omitted the quoted paragraph from the Marion memorandum because he thought there would be no need for same in view of the fact that the existing Marion language contained a description of the incentive plan It was only after the union representatives insisted that the agreement contem- plated a discussion with the union engineer that the paragraph was included in the Marion memorandum as in the other three ed as indicating a lack of good-faith bargaining on the Respondent ' s part, as is required by the Act.31 In their brief , counsel for the General Counsel rely heavily upon the Board ' s decision in Henry I. Siegel, Co., 147 NLRB 594, in support of their argument. However , that case is clearly distinguishable upon its facts since it was there found that the Company had made an oral agreement to include a 12'h percent incen- tive factor in the contract , and the violation was predicat- ed upon the refusal to put such agreement into writing There can certainly be no quarrel with the general propo- sition that a Respondent is obligated under Section 8(a) (5) to put into writing an oral agreement made in negotia- tions with a union . However, the question here is what the agreement consisted of, and I have previously found that it did not contemplate the supplying of the specific information which the Union now requests But counsel for the General Counsel apparently do not rely solely upon the "breach of oral agreement" theory expressed in Siegel. Indeed, later in their brief, they adopt the seemingly inconsistent theory that "the gravamen of the principle [sic] violation alleged herein is not that Respondent breached its agreement , incorpo- rated in the memoranda of agreement , to reduce the incentive plans to writing and add them to the contracts. Rather, the gravamen of the violation is that Respondent refused to incorporate in the contracts the incentive plans agreed upon during bargaining The memoran- dum agreements are mere recitations of Respondent's statutory obligation which had'already arisen as a result of the parties' oral agreement that the incentive plans would remain in effect ."32 In other words , as I under- stand the position of the General Counsel , it is that the statutory obligation to furnish information is some- what broader than that described in the memorandums of agreement and the Union 's right should not be- as phrased by the General Counsel-"jeopardized by having joined in a written agreement which recites their statutory rights." However , I have heretofore rejected this theory based upon Board law which I consider to be more consonant with the policies of the Act. That is, the Act encourages parties to engage in collective bargaining looking toward the resolution of their differ- ences and incorporating their agreements in a written document This they have done in this case by the execution of the memorandums of agreement which' consume, in my view, any statutory obligation . Neverthe- less, this brings us finally to a consideration of the question of whether, by submitting the various docu- ments (G.C Exhs. 19, 21, 22, and 23 ) the Respondent fulfilled its obligation under the memorandums of agree- ment. The memorandums of agreement , in my view, require the Respondent to do essentially two things: (1) to reduce to writing (along the lines of Marion) a description of the incentive plan in effect at each of the respective " See N L R B v Tex-Tan , Inc , 318 F 2d 472, 476-478 (C A 5, 1963), denying enforcement of 134 NLRB 253, Westinghouse Electric Corporation . 129 NLRB 850 12 G C br , p 34-35 ANACONDA WIRE AND CABLE CO. 283 plants; and (2) to thereafter meet with the union repre- sentative to discuss such writing. 33 It is undisputed that the company representatives thereafter did prepare mem- orandums which purported to reflect a description of the incentive plan in effect at the time of the strike at the respective plants, and that they did meet with the Union's industrial engineer to discuss such memoran- dums. However, the General Counsel and the Charging Parties argue that the documents, while containing lan- guage relevant to an incentive system, do not constitute a description of an "incentive plan." In support of such contention, the Charging Parties called an expert witness to testify at some length respecting the incom- pleteness and inadequacies of the documents submitted by Respondent. Of such documents the witness consid- ered that the Marion memorandum represented, in gener- al, a "rather complete description of the wage incentive system " The other writings were considerably less ade- quate in the opinion of this witness, using the standard of what he considered a good description of an incentive plan, to wit- "The plan should be understandable to the operator to the degree that he can calculate his earnings " Although the expert witness found the documents submitted by the Company to be generally incomplete and inadequate as compared with his standard of what he considered to be a satisfactory plan. he did not testify that such documents did not constitute a descrip- tion of an incentive plan. He simply testified as to his evaluation of the documents without knowledge as to other information which the Company had made available to the Union and the operators respecting the workings of the plan. The memorandums of agree- ment did not obligate the Company to submit to the Union an ideal incentive plan or, indeed, even one which would be fully satisfactory to an outsider such as the Charging Parties' expert witness. The sense of the agreements as written was to produce a writing descriptive of an incentive plan and thereafter to discuss it with the union representative for the purpose of explaining and filling, in any missing data. This was done, and there is certainly nothing in the language of the agreements themselves, or substantial evidence dehors the agreements, upon which a reasonable infer- ence may be drawn that the parties contemplated that the descriptions would be subject to the approval of the Union's representative. While a comparison of the other documents submitted by the Company respecting the plans at the other plants, indicate that they could have been made somewhat more descriptive-"along the lines of Marion"-it is to be recalled that there is uncontradicted testimony in the record to the effect that the plans in each plant differed. Accordingly , it is possible, as Respondent con- tends, that some of the provisions set forth in the Marion plan were not applicable at the other plants, '" Although there was a considerable lapse of time after the employees returned to work before the Company prepared the memorandum, I do not understand the General Counsel to contend that such delay was caused by the Company so as to raise an inference of bad faith or that the technology did not relluire as elaborate a presentation. In sum, I cannot conclude, based on the evidence in the record considered as a whole (and particularly in view of the lack of evidence indicative of Respondent's bad faith, or conduct seeking to dissipate or undermine the Union), that the Respondent's actions in preparing the write-ups of the incentive plans and thereafter dis- cussing such write-ups with the Union, constituted such a variance with its agreement as to compel a finding of lack of good-faith bargaining in violation of Section 8(a)(5) of the Act.34 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 , Anaconda Wire and Cable Com- pany, is an employer engaged in commerce within the meaning of the Act. 2. Local Union Nos. 1543, 1000, 2224, and 983, Inter- national Brotherhood of Electrical Workers, AFL-CIO, are labor organizations within the meaning of the Act. 3. Each of the aforesaid local unions is, and has been at all times material , the exclusive bargaining repre- sentative in an appropriate unit, described in the com- plaints herein , at the following plants of the Respondent, respectively : Sycamore , Illinois; Marion , Indiana, Wat- kinsville, Georgia; and Muskegon , Michigan, ' 4. The Respondent has not committed any unfair labor practices alleged in the complaints herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is ordered that the complaints in this consolidated matter be and they are hereby dismissed in their entirety 94 Counsel for the General Counsel argue that whatever may have been the contemplation of the written agreement of July I, Zalusky, by his requests for information in the several meetings beginning Novem- ber 1968 with Maher, made independent requests for information which was never supplied by the Company I have found that the evidence showed that some such information was in fact thereafter supplied However, in the context of the situation, I do not believe that a violation can be predicated upon a refusal to supply information to those requests in any event That is to say, the meetings were held pursuant to an agreement reached in collective bargaining, and were not meetings to negotiate an agreement Any refusal by Maher to supply any specific information was in accordance with the Respondent's interpretation of the agreement, which I have found to be a reasonable one Aico Manufacturing Corporation (Lsconung Dniston) I I I NLRB 729,732-733 APPENDIX A GENERAL OUTLINE FOR THE ADMINISTRATION PROCEDURE OF THE BONUS PAYMENT PLAN A. Production Standards and Earnings Opportunity. The Company will as soon as practicable alter date of agreement develop production standards, utilizing 284 DECISIONS OF NOTIONAL LABOR REL4TIONS BOARD stop-watch time stddy techniques and procedures and will establish a program of payment of bonus wages based on such standards. The standards will be so designed that they can be 'met without difficulty by the application of average skill and effort to the job. The standards will be so established that the average experienced'and qualified operator working under usual standard working conditions at incentive pace with good skill and effort can earn 6% above the base rate Due to the individual characteristics of jobs and the difference in skill and effort of the individual worker there can be no guarantee of the amount of bonus earned Where machine limitations exist, the bonus opportunity will not be as great as where such limitations do not exist It is understood that the average qualified operator will not earn bonus payment unless production exceeds base production. Where standards are exceeded, bonuses will be paid on a one-for-one basis; that is, one percent increase in pay for each one percent increase in produc- tion. In cases where it is impractical to use a one-for-one basis, a different basis giving the same result will be used. The Company will continue to make changes in rates, speed and labor assignments in accordance with the provisions of the labor agreement currently in effect, whether such change affects a bonus payment or non-bonus payment operation. B. Individual and Group Standards Employees will be placed on individual bonus payment basis insofar as possible. Employees working on a common production will be combined into natural groups for bonus payment. Determination of the size of each group and the particular bonus payment opportunity for the average qualified workman as established for the job or production group involved, is the responsibility of management. Employ- ees combined in a group for bonus payment purposes will earn the same percentage of bonus over their individ- ual base rates for a given period of time Production will be measured against the total number of man hours in the group for calculation of performance and bonus C. Daily Guarantee of Base Rates Where production can be measured for an 8-hour shift, the hourly base rate of the job will be guaranteed for each 8-hour shift; and bonus earned in one day will not be used to make up failure to achieve standard on another day. All bonus payments shall be computed on the basis of the base hourly rate as listed in Schedules A and B as of 9/8/63. Qualified operators will receive the hourly rate of the job classification to which they are assigned as a guaranteed rate for all hours worked on that job. When unmeasured work scheduled by the Company is performed in the classification, the operator will receive the hourly rate of the job classification plus the adder shown in Schedule A. When unmeasured work not scheduled by the Company is performed in the classification, or when delays beyond the control of the employee are encountered, the operator will re- ceive the hourly rate of the job classification D. Treatment of Delays. Bonus payments will be pro- tected to the extent that when unmeasured work is performed or when delays beyond the control of the employee are encountered, the rate for the job classifica- tion will be paid for such time in accordance with C above, provided the employee notifies his supervisor of such delay When production is resumed, the bonus- earning opportunity will be restored. E. Application of Standards. The standard for a par- ticular operation or revision will be installed for a 35 working day_ test application, during which time no griev- ance may be filed. At the,end of the test period, either the Company or the Union during the thirty calendar days succeeding the test period, may ask for reconsidera- tion of the plan as to that particular job standard or bonus payment rate applicable thereto. The grievance procedure will be used for handling such questions, and the grievance machinery would be available to either party. Notwithstanding the provisions of the last sent- ence of Step 5 in Article XII of the Labor Agreement, in event agreement is not reached through steps 1-4 grievance procedure, such a dispute may then be arbitrated under the terms of Article XII of the labor agreement between parties dated 3/29/64. It is mutually agreed that the scope of the arbitrator shall be limited to the question of whether or not the standard task for bonus payment jobs has been set by time study in such a manner as to permit an average experienced operator working under usual standard working condi- tions at incentive pace with good skill and effort to earn 6% above the base rate An arbitrator's award, or a grievance settlement, on such question in which the standard has been found to be erroneous through the fault of the Company may be made retroactive to the date of the installation of such standard The bonus payment plan, or any matters in dispute relating thereto, except as to the question of inequity in earnings, shall not be the subject of arbitration. The Company will not challenge a rate solely because of the earnings of the operator on a particular operation. F. Administration of the System. The Company will review standards periodically; standards will be revised when changes in methods, processes, tools, materials, crews or production conditions occur Only those ele- ments affected by the change will be revised and only to the extent of such change. Copies of Standards will be available at the respective work centers. Bonus pay- ment formulas will be as simple as the basic concept and actual operating conditions will permit. The Company agrees to familiarize the employees who are to work under a particular bonus payment standard with the Company's method of computing bonus pay- ments The Company agrees to instruct an employee who has been selected by the Union and who is accepta- ble to the Company in time study techniques and the bonus payment plan. Such employee will function ac- cording to the following procedure in cases where, after the 35 working day test period, there is a substantial question as to whether or not the standard task for the bonus payment job has been set by time study in such a manner as to permit an average experienced operator working under usual standard working condi- tions at incentive pace with good skill and effort to earn 6% above the base rate: The employee working under a standard shall pre- ANACONDA WIRE AND CABLE CO 285 sent his question to the department foreman, who may consult with the Plant Industrial engineer If the question is not resolved, the trained employee may consult with the Plant Industrial Engineer, who shall make available for such employee's re- view, the time study sheet or sheets and other data pertinent to the standard in dispute If the trained employee and the Plant Industrial Engineer cannot resolve the question , it may be referred to the grievance procedure The trained employee shall report his findings to the department steward The trained employee may be called in for consulta tion in Steps 3 and 4 of such procedure Such employee shall have the right to make a time study in conjunction with the Industrial Engineering De partment on the job involved in the question after Step 2 of the grievance procedure The applicable overtime rates as contained in Article III of the Labor Agreement shall be paid on all bonus payment earnings