The Sawbrook Steel Castings Co.

SAWBROOK STEEL CASTINGS CO. The Sawbrook Steel Castings Company and United Steelworkers of America, AFL-CIO. Case 9-CA-4663 October 28, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 11, 1968, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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 connection with this case to a three- member panel. 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 bnef, and the entire record in this case, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, The Sawbrook Steel Castings Company, Lockland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 381 "clearly and unmistakably established " waiver of its statutory right to such information . Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410 2 We agree with the Trial Examiner 's conclusion that the arbitration provision in this contract is immaterial in resolving the issue in this case The relevant portion of that provision provides that arbitration shall be the ". . sole and exclusive remedy available to an employee and the Union for any alleged breach of this agreement " In the present proceeding before the Board, the Union clearly is asserting its statutory right to relevant data as bargaining representative rather than alleging a breach of the agreement TRIAL EXAMINER'S DECISION FREDERICK U. REEL,Trial Examiner. This case, heard at Cincinnati, Ohio, on May 22, 1968, pursuant to a charge filed the preceding March 26 and a complaint issued April 15, presents the question whether Respondent, herein called the Company, violated Section 8(a)(5) and (1) of the Act by failing to comply with the request of the Charging Party, herein called the Union, that the Company furnish it with job descriptions and related data covering the jobs within the bargaining unit which the Umon represents. Upon the entire record, and after due consideration of the bnef filed by the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The pleadings establish and I find that the Company, an Ohio corporation, engaged at Lockland, a suburb of Cincin- nati, in the manufacture of steel castings, annually ships products valued in excess of $50,000 to points outside the State, and is an employer engaged in commerce and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. The pleadings further establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act, and that on December 19, 1966, the Union was certified as the exclusive collective-bargaining representative of the Company's production and maintenance employees. II THE UNFAIR LABOR PRACTICES A. Background-The Contract 1 The Trial Examiner found, inter alia, that the Union did not unequivocally waive its right to information about job classifications and pay rates of each employee in the bargaining unit. Along with its initial proposal, during contract negotiations , relating to the frequency and scope of the seniority lists which the Union wanted the Respondent to furnish, the Union suggested other items for inclusion on such a list, i e., job classifications and rates of pay It seems clear that, thereafter, the main topics of discussion about the seniority list were its frequency of submission and the comprehensiveness of its coverage , and that the other data originally requested by the Union never crystallized into an issue between the parties. We do not believe that the Union's subsequent submission of a revised seniority proposal which failed to mention the classification and pay rate items can be construed as a After the certification of the Umon, the parties negotiated a 3-year contract which they signed on October 31, 1967. The contract provided for a grievance procedure, culminating in arbitration, which was to be "the sole and exclusive remedy available to an employee and the Union for any alleged branch of this agreement." The contract further provided that each party thereto "unequivocally waives any right to bargain further ... concerning the subject matters in existence at the time of the execution of this Agreement, known to the parties or either of them." The agreement also provided that the Company shall prepare and post a seniority list, mail a current seniority list to the Union every 6 months, and maintain a 173 NLRB No. 66 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD current seniority list, available for inspection at all reasonable times by the Union or interested employees. A schedule attached to the contract listed 54 jobs by classification and rate of pay. During the course of negotiating the agreement, the Union had proposed that the seniority list to be furnished should include the employee's job classification and rate of pay. The Union also proposed a "job evaluation program" to be based on a certain manual compiled jointly by the industry and the Union This manual included job descriptions The Company during the negotiations asked to see the manual in question but it was in the course of being revised. Eventually the Union dropped its demand for a new job evaluation study, stating that such a study would take too long At no time in the negotiations had the Union asked for job descriptions apart from the proposed job evaluation program. The Company has in its possession current job descriptions covering the furnace or melting department and the core room department At an earlier period the Company had job descriptions covering other jobs, and it contemplates the preparation of new job descriptions in connection with a current modernization program. The current job descriptions for each of the jobs in the melting and core room departments are each approximately two pages long. B. The Union's Requests for Job Descriptions, and the Company's Responses On November 20, 1967, William Kelley, an employee in the bargaining unit, filed a grievance alleging that the Company had reduced his wages and classification although he was continuing to perform the same work. On December 18, 1967, during one of the meetings on the grievance, Union Represent- ative Billingsley asked the Company to give him information regarding the job duties of Kelley and of the other employees in the bargaining unit. On December 21 Billingsley wrote the Company confirming this request. The letter states At the meeting between the Company and the Union on Monday, December 18, 1967, the Union requested the Company to supply it with job duties encompassed by each job classification in the Bargaining Unit. This letter con- firms that request In addition, the Union also requests the Company to supply it a list of all employees presently in the Bargaining Unit indicating the job classification of each such employee together with each employee's currently hourly rate of pay. This information is required by the Union in order for it to adequately discharge its responsibilities under the Agree- ment between the parties. One month later, on January 29, 1968, at a meeting of the parties involving another grievance, Billingsley again requested the information with respect to job duties and also asked for a complete list of employees in the bargaining unit. i The ultimate decision was adverse to Kelley 2 The Company argues in its brief that the Union failed to show an actual need for the requested data The courts have long since rejected the contention that the bargaining representative must show that the data is related "to a particular existing controversy " See N 1 R B. v. On February 2, 1968, the Company wrote Billingsley declining to furnish a list of employees in the bargaining unit, and stating that the Company was complying with the contract by maintaining a seniority list available for inspection by the Union or interested employees The Company's letter was silent as to the request for job descriptions, but in a later letter the Company indicated that at the January 29 meeting it had taken the position that the matter "was still under study." On March 5, 1968, the Kelley grievance was the subject of a hearing before an arbitrator,' and at that time the Union and the Company introduced their exchange of correspondence described above. This prompted the Company to write the Union on March 8, requesting that the Union explain the basis for its requests for data. The Union replied on March 12, stating in part The first request, on December 21, 1967, arose in the course of our discussion of the Kelley grievance. The information sought was obviously necessary for us to intelligently evaluate the merit of this particular grievance as well as other grievances involving classifications and rates of pay which might arise at some future date. The second request, on January 29, 1968, was also made in the course of a grievance meeting. During the meeting the Union learned for the first time that the Company considered some unspecified number of unnamed individuals to be included in the bargaining unit. The Union was simply seeking to discover the identity of these shadowy figures for whom it had been certified as the bargaining agent. To this the Company responded in a letter dated March 19, 1968, by quoting the waiver provisions of the contract. The letter continues Although we made reference to the contract in our prior letters, your letter appears to ignore the Agreement. It is no answer merely to say that your request arose in the course of discussing a grievance. In giving further consideration to your request would you please. 1. Refer to, and if necessary explain, the express provision in the Agreement on which you base your request 2 If none, would you explain why the term "unequi- vocally waives" as stated in the above quoted provision of the Agreement, fails to cover the situation. One week later the Union filed the charge giving rise to this proceeding. C. Concluding Findings Few propositions of labor law are better settled than that which recognizes the statutory right of the bargaining represent- ative to obtain data reasonably necessary to the proper discharge of its statutory duty .2 Decisions too numerous to cite hold that a union when acting as bargaining representative is entitled to relevant data, going far beyond the list of employees and job descriptions requested in this case. The Company here, not contesting this general rule, argues that the Whiten Machine Works, 217 F 2d 593 , 594 (C A 4), cert. denied 349 U.S 905 , N.L R.B v. The Item Company, 220 F .2d 956 , 958 (C A. 5), cert denied 350 U.S. 905, Boston-Herald Traveler Corporation v N L.R B, 223 F 2d 58, 60, 62-63 (C.A. 1) SAWBROOK STEEL CASTINGS CO. contract negotiations and its eventual terms establish that the Union here waived its right to such data. Bearing in mind that the waiver of a statutory right to data must be "clear and unequivocal," we turn to a consideration of this defense. The fact that the contract contains arbitration provisions is plainly immaterial. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432; Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746 (C.A. 6). The Company points out, however, that the instant contract contains express provisions covering the listing of employees in the bargaining unit, and that the Union during negotiations abandoned an effort to obtain a more comprehen- sive list which would have included each employee's job classification and rate of pay. With respect to job descriptions, the Company relies on the fact that the Union during negotiations first proposed, but later abandoned, a job evaluation program which would have entailed job descrip- tions. The contract provides a "clear and unequivocal waiver" of the right to bargain during the life of the contract over matters known to exist when the agreement was executed. The Company reads this "waiver" to encompass the matters proposed but abandoned during the negotiations. Turning first to the job descriptions, the Union had proposed a `job evaluation program," a study which the Union said (according to the company witness who described the bargaining) would take about 6 months. This program or study necessarily would have entailed the preparation of job descrip- tions, but such job descriptions would have been incidental to the study. At no time during the bargaining did the Union ask for job descriptions independent of the proposed study, and at no time during the bargaining did it ask for job descriptions of the 54 job classifications contained in the schedule attached to the contract. Under these circumstances the "waiver" language in the contract would seem applicable to the full scale job study program, so that the Company would not be under any duty to bargain further during the life of the contract concerning such a program, but a request for job descriptions of current jobs is quite another matter, and as to that I find no clear and unequivocal waiver in the contract. The Company somewhat missed the point, I believe, when it demanded that the Union "refer to, and if necessary explain, the express provision in the agreement on which you base your request," and in asking "why the term `uniquivocally waives' ... fails to cover the situation" (emphasis by the Company). The Umon's right to the data arises, not out of the contract, but out of the statute, and it is for the Company to establish what, if anything, negates this statutory right. The waiver clause goes to the right to bargain over new matters during the life of the contract (cf. N.L.R.B. v. Jacobs Manufacturing Company, 196 F.2d 680 (C.A. 2)), but the Union's right and duty to bargain is not limited to bargaining over new matters but includes the administration of the current contract. It is in the discharge of this duty and the exercise of this right that the Union is entitled to job descriptions, so the waiver of the right to bargain over matters outside the existing contract is irrelevant. See Acme, supra; J. I. Case Company v. N.L.R.B., 253 F.2d 149, 153, 154 (C.A. 7), and cases there cited. It follows that the Company's refusal to give the union job descriptions covering the various jobs encompassed by the contract violated the Company's obligation to recognize and bargain with the Union, and hence violated Section 8(a)(5) and (1) of the Act. Turning now to the Union's request for the job classification 383 and pay rate of each employee in the bargaining unit, it is true that during the bargaining negotiations the Union pro- posed a clause which would have required the Company to furnish it every 90 days with a list showing each employee's "full name, address, seniority, job classification, and rate of pay." The Company took the position that a seniority list by departments was ample information for the Union. Later the Union dropped its proposal in favor of a seniority list to be furnished it every 6 months, and the keeping of a current list in the personnel department, and these provisions eventually appeared in the "Seniority" article of the executed contract. The Company argues that this bargaining history and the "waiver" clause absolve it of any duty to furnish the classifications and wage rates. Although the issue here may be closer than that concerning the job descriptions, the situation is essentially the same as that presented in Timken Roller Bearing Co v. N.L.R B., 325 F.2d 746, 750-751, where the Sixth Circuit rejected contentions similar to those put forward by the Company here. The "waiver" clause, in my judgment, is not controlling. By its terms it waives any right "to bargain further concerning any subject." As I view this provision, it waives bargaining over substantive terms or conditions, but I do not read it as a waiver of procedural rights inhering in the Union as bargaining representative. In other words, as the duty to bargain collectively extends to the administration of the contract, I do not read the "waiver" as extinguishing the Union's right to data necessary to such administration, but only as extin- guishing its right to bargain for new substantive terms. The bargaining history here parallels that in the Timken case. Here the Union apparently dropped its demand that the contract give it a right to have the requested data furnished every 90 days, and accepted a provision giving it less data every 6 months. But as Timken shows, the fact that the Union was unable to secure a contract right to reinforce its statutory right does not destroy the latter, but merely relegates the Union thereto. Thus the Company is not guilty of a breach of contract in failing to give the data, and the Union cannot successfully maintain a suit under Section 301. But the failure of the Union to obtain a new contract right does not require it to abandon its preexisting statutory right. This is particularly true in this area, where we are dealing with data patently important to the Union in the discharge of its obligation to represent the employees and administer the contract, and also with material which the employer had readily available and can easily furnish. In any event as previously noted, the Company's contentions here with respect to bargaining history are substantially identical to those rejected in Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 750-751 (C.A. 6). It follows that the Company's failure to give the Union at its request the job classification and rate of pay of each employee, like the failure to furnish it job descriptions, violated Section 8(a)(5) and (1) of the act. CONCLUSIONS OF LAW The Company by refusing to furnish the Union with job descriptions covering the jobs in the bargaining unit, and by refusing to give it the job classification and rate of pay of each employee, engaged in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practices and from any like or related interference with the Union's efforts to bargain collectively, that it furnish the data in question upon the Union's request, and that it post an appropriate notice Accordingly, upon the foregoing findings and conclusions and upon the entire record I recommend, pursuant to Section 10(c) of the Act, issuance of the following- ORDER Respondent The Sawbrook Steel Castings Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to furnish United Steelworkers of America, AFL-CIO, when requested to do so by said organization, with job descriptions covering the jobs in the bargaining unit for which that Union is the bargaining representative of the Company's employees, and with the job classification and rate of pay of each employee in that unit. (b) In any like or related manner interfering with that Union's efforts to bargain on behalf of the employees in that unit 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon request furnish the above-named labor organiza- tion with the above-described data. (b) Post at its plant at Lockwood, Ohio, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by its representative, shall be posted by Respondent, immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 4 3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 9, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE wILL,upon the request of United Steelworkers of America, AFL-CIO, furnish that organization with job descriptions covering the jobs in the bargaining unit for which that Union is the bargaining representative, and with the job classification and rate of pay of each employee in that unit THE SAWBROOK STEEL CASTINGS COMPANY (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.